Watson v. State

Pearce, J., delivered the opinion of the Court. The appellant was indicted in the Circuit Court for Allegany County under section 99 of Article 43 of the Code of 1904 for practising medicine and surgery in this State without being registered as a practitioner of medicine as required by sections 83 and 89 of that Article. There are three counts in the indictment. The first count charges that the defendant, on November 6th, 1906, “unlawfully practised medicine and surgery in- Allegany County, without being then and there duly registered asa physician or surgeon in the Registry of Physicians and Surgeons.” ⁶⁵² The second count charges the commission of the offense on November 6th, 1906 “by then and there administering medical treatment to a person whose name is to the jurors unknown, without being then and there registered as a physician.” The third count charges the commission of the offense on November 6th, 1906, “by then and there administering medical treatment to one Michael McDonald, without being then and there registered as a physician. ” The defendant demurred to the indictment and the demurrer was overruled.

It was contended that the indictment was insufficient for the following reason. Section 80 of Article 43 provides that the Board of Medical Examiners at its meeting on June 1st in each year shall appoint a Secretary-Treasurer whose duty it shall be within sixty days thereafter, upon receiving from the clerk of the Circuit Court of Baltimore City, and the clerk of the Circuit Court for each county in the State a list of all who have been legally registered in such Court, to send to all physicians then practising in the State without having been legally registered, a printed notice of the provisions of that Article relating to the duty of the Police Commissioners in Baltimore City and the Sheriffs of the several counties, which requires them to see that all practising physicians in the State shall be legally registered, and to report to the State’s Attorney of the city or county all cases of violation of that subtitle of Article 43. The appellant’s contention is that to make this indictment good under this law it should state that this notice had been sent to the accused. If this requirement as to the sending of notice were incorporated in the clause which enacts the offense this might be a matter for consideration, but no offense is created by section 80.

It is only by section 99 that practising medicine or surgery without being registered, is made a misdemeanor and punishable as such. Even if this requirement could be treated as an exception is treated, it would not be necessary to aver the sending of the notice because it is not so incorporated in the enacting clause of the statute that the one cannot be read ⁶⁵³ without the other, and it is only in such cases that the indictment must negative an exception. Stearns v. State, 81 Md. 344 ; Kiefer v. State, 87 Md. 568 ; State v. Knowles, 90 Md. 658 . Where the exception is contained in a subsequent or separate clause of section, it is matter of defence to be pleaded by the accused.

And even if pleaded in this case, it could not avail, because it is clear from all the provisions of Article 43 that the receipt of such notice is not necessary to constitute the offense of practising medicine without being registered. The offense is created solely by section 99 in broad and general language without exception, qualification, or condition of any sort. It was also contended that the provisions of section 83 of Article 43 are unconstitutional in that they make an unreasonable and arbitrary class distinction or discrimination. That section requires that “all persons, (except physicians who were practising medicine in this State prior to the first day of January 1898, who are now practising medicine or surgery, and can prove by affidavit that within one year of said date said physician had treated in his professional capacity, at least twelve persons) who shall commence the practice of medicine or surgery in any of their branches after the eleventh day of April, 1902, shall make a written application for license to the President of either Board of Medical Examiners which said applicant may elect, accompanied by satisfactory proof that the applicant is more than twenty-one years of age, is of good moral character, has obtained a competent common school education, and has either received a diploma conferring the degree of doctor of medicine from some legally incorporated medical college in the United States, or a diploma, or license, conferring the full right to practice all the branches of medicine and surgery in some foreign country; said diploma, if from a college in the United States, must have been conferred by a legally incorporated college requiring a four years standard of education as defined by the American Medical College Association, or the Inter-collegiate Committee of the American Institute of Homeopathy respectively.” That section .of the Code was section 43 of chapter 612 of ⁶⁵⁴ 1902, which chapter repealed and re-enacted with amendments certain sections of Article 43 of the Code including sec. 43 as enacted by chapter 296 of 1892, which latter Act in turn repealed and re-enacted with amendments almost all the sections of Article 43 of the Code of 1888, including section 43 under the subtitle “Practitioners of Medicine,” as enacted by Chapter 429 of 1888, codified in the Code of 1888.

Under the Act of 1888, physicians who had been continuously practising medicine within this State for ten years previous to the passage of that Act were not required to obtain a certifiicate of qualification from the State Board of Health, as all other practitoners of medicine were- thereby required to do. The Act of 1892, as was observed in Manger v. Board of Examiners 90 Md. 667 , swept away the whole scheme devised by the Act of 1888, and was specifically made applicable to persons not then practising medicine, but who should thereafter begin to practice. Under that Act, and down to the passage of the Act of 1902, all persons practising medicine and surgery at the date of the passage of the Act of 1892 were free to continue to* practice without license or other evidence of qualification. Here was a discrimination both broad and emphatic, the evident design of which was to afford protection to the public without interference with established and recognized practitioners.

It may be reasonably inferred that after ten years experience under that Act, the Legislature deemed that system too liberal since the Act of 1902, as incorporated in the Code of 1904, provides that “all persons now practising medicine and surgery, or who shall hereafter begin to practice medicine or surgery in any of their departments, except dentistry, in the State of Maryland, shall possess the qualifications required by this subtitle.” We have already transcribed herein, the provision of sec. 83, under which physicians who were practising in this State prior to January 1st, .1898, and who were practising at the passage of that Act, and could prove by affidavit that within one year from that date that they had treated in a professional capacity at least twelve persons should be exempt from the requirement ⁶⁵⁵ to obtain a license, and it is this exemption which is assailed as an unreasonable and arbitrary discrimination or classification forbidden by the fourteenth amendment to the Constitution of the United States. In State v. Broadbelt, 89 Md. 579 , this Court said, quoting Judge Cooley, ‘‘The guaranty of equal protection is not to be understood, however, as requiring that every person in the land shall possess the same rights and privileges as every other person. The amendment contemplates classes of persons, and the protection given by the law is to be deemed equal, if all persons in the same class are treated alike under like circumstances and conditions, both as to privileges conferred and liabilities imposed. The classification must be based on reasonable grounds.

It cannot be a mere arbitrary selection.” It must be conceded upon all the authorities, and it is conceded by the appellant, that if the classification is reasonable and bears any proper relation to the object sought to be accomplished, that object being in itself a lawful and proper purpose, it is not forbidden by the Fourteenth Amendment. It is conceded that the States may in the exerciseof the police» powers, pass laws for the protection of the health and safety of the public, and this law was passed under that power. Now the object sought to be accomplished by this law is to protect the public against incompetent and ignorant practitioners of medicine, while at the same time protecting actual practitioners of medicine against arbitrary and unreasonable exclusion from the practice of their profession. The law deals with that class of the people who have adopted and are engaged in the practice of the profession of medicine, and who are dependent upon it for the support of themselves and their families, and with that other and larger class to whom competent medical practitioners are essential for the preservation of their health.

These two classes are recognized classes, and each is entitled to consideration in framing the law. In Dent v. West Virginia, 129 U. S. 121 , the Supreme Court of the United States, speaking of the right of every citizen to follow any lawful business or profession he may choose, subject only to such ⁶⁵⁶ lawful restrictions as may be imposed upon such right, said, “The interest, or, as it is sometimes termed, the estate acquired in their vocations, that is the right to continue their prosecution, .is often of great value to the possessor, and can not be arbitrarily taken from them any more than their real and personal property can be thus taken.” ' It was the recognition of this principle which led to the provision here assailed. Continuous acceptable practice in the community in which one lives is one of the legitimate tests or evidences of qualification; not of uniform qualifications of the highest attainable standard, such as can only be ascertained by a thorough examination by competent examiners but of such reasonable qualification as may justify the continuance, without examination of practice approved by the limited community in which the practitioner had his field. Without such an exemption from the rigid examination which conforms to the high standard of the principal medical colleges of this day, many worthy men established in character and reputation, might be prohibited from practice, and this would be especially true among the poorer classes of people who cannot afford to employ physicians of the highest grade, but whose self respect and independence will not permit them to seek the charity so generously bestowed upon the poor by the medical profession.

In Magoun v. Illinois Trust Co., 170 U. S. 294 , the Supreme Court speaking of the Fourteeneh Amendment which prohibits the denial to any citizen of the equal protection of the laws, said, “This rule prescribes no rigid equality, and permits to the wisdom and discretion of the Legislature a wide latitude so far as the interference of this Court is concerned, * * * equality of operation does not mean indiscriminate operation on persons merely as such, but on persons according to their relations. * * * Hardships, impolicy or injustice of State laws is not necessarily an objection to their constitutional validity.” In Dent v. West Virginia , the law which was upheld, exempted from examination and license all physicians who had practiced medicine in that State continuously for ten years. ⁶⁵⁷ The period of practice required under section 83 of Art. 43, at the time of its passage was a little more than four years, and that law has now been in force five years. If it was within the discretion of the Legislature to fix a ten-year period, it was equally within their discretion to fix a four year period, since the Supreme Court has said the Legislature has a wide latitude in dealing with such classifications. To justify the striking down of such a classification it must, as was said in Luman v. Hitchens Bros. Co., 90 Md. 27, be “obviously arbitrary,” and must be shown “not to rest upon some difference which bears a reasonable and just relation to the act — the