Dent v. West Virginia

This case comes from the supreme court of appeals of West Virginia. It involves the validity of the statute of that state which requires every practitioner of medicine in it to obtain a certificate from the state board of health that he is a graduate of a reputable medical college in the school of medicine to which he belongs; or that he has practiced medicine in the state continously for the period of 10 years prior to the 8th day of March, 1881; or that he has been found, upon examination by the board, to be qualified to practice medicine in all its departments; and makes the practice of, or the attempt by any person to practice, medicine, surgery, or obstetrics in the state without such certificate, unless called from another state to treat a particular case, a misdemeanor punishable by fine or imprisonment, or both, in the discretion of the court. The statute in question is found in sections 9 and 15 of an act of the state, c. 93, passed March 15, 1882, amending a chapter of its Code concerning the public health. St. 1882, pp. 245, 246, 248. These sections are as follows:

'Sec. 9. The following persons, and no others, shall hereafter be permitted to practice medicine in this state, viz.: First. All persons who are graduates of a repntable medical college in the school of medicine to which the person desiring to practice belongs. Every such person shall, if he has not already done so and obtained the certificate hereinafter mentioned, present his diploma to the state board of health, or to the two members thereof in his congressional district, and if the same is found to be genuine, and was issued by such medical college, as is hereinafter mentioned, and the person presenting the same be the graduate named therein, the said board, or said two members thereof, (as the case may be,) shall issue and deliver to him a certificate to that effect, and such diploma and certificate shall entitle the person named in such diploma to practice medicine in all its departments in this state. Second. All persons who have practiced medicine in this state continuously for the period of ten years prior to the 8th day of March, one thousand eight hundred and eighty-one. Every such person shall make and file with the two members of the state board of health in the congressional district in which he resides, or if he resides out of the state in the district nearest his residence, an affidavit of the number of years he has continuously practiced in this state; and, if the number of years therein stated be ten or more, the said board, or said two members thereof, shall, unless they ascertain such affidavit to be false, give him a certificate to that fact, and authorizing him to practice medicine in all its departments in this state. Third. A person who is not such graduate, and who has not so practiced in this state for a period of ten years, desiring to practice medicine in this state, shall, if he has not already done so, present himself for examination before the state board of health, or before the said two members thereof in the congressional district in which he resides, or, if he resides out of the state, to the said two members of the state board of health in the congressional district nearest his place of residence, who, together with a member of the local board of health, who is a physician (if there be such member of the local board) of the county in which the examination is held, shall examine him as herein provided, and if, upon full examination, they find him qualified to practice medicine in all its departments, they, or a majority of them, shall grant him a certificate to that effect, and thereafter he shall have the right to practice medicine in this state to the same extent as if he had the diploma and certificate hereinbefore mentioned. The members of the state board of health in each congressional district shall, by publication in some newspaper printed in the county in which their meeting is to be held, or, if no such paper is printed therein, in some newspaper of general circulation in such district, give at least twenty-one days' notice of the time and place at which they will meet for the examination of applicants for permission to practice medicine, which notice shall be published at least once in each week for three successive weeks before the day of such meeting; but this section shall not apply to a physician or surgeon who is called from another state to treat a particular case, or to perform a particular surgical operation, in this state, and who does not otherwise practice in this state.'

'Sec. 15. If any person shall practice, or attempt to practice, medicine, surgery, or obstetrics in this state, without having complied with the provisions of section 9 of this chapter, except as therein provided, he shall be guilty of a misdemeanor, and fined for every such offense not less than fifty nor more than five hundred dollars, or imprisoned in the county jail not less than one month nor more than twelve months, or be punished by both such fine and imprisonment, at the discretion of the court. And if any person shall file, or attempt to file, as his own, the diploma or certificate of another, or shall file, or attempt to file, a false or forged affidavit of his identity, or shall willfully swear falsely to any question which may be propounded to him on his examination, as herein provided for, or to any affidavit herein required to be made or filed by him, he shall, upon conviction thereof, be confined in the pemtentiary not less than one nor more than three years, or imprisoned in the county jail not less than six nor more than twelve months, and fined not less than one hundred nor more than five hundred dollars, at the discretion of the court.'

Under this statute, the plaintiff in error was indicted in the state circuit court of Preston county, W. Va., for unlawfully engaging in the practice of medicine in that state in June, 1882, without a diploma, certificate, or license therefor, as there required; not being a physician or surgeon called from another state to treat a particular case, or to perform a particular surgical operation. To this indictment the defendant pleaded not guilty, and, a jury having been called, the state by its prosecuting attorney, and the defendant by his attorney, agreed upon the following statement of facts, namely: 'That the defendant was engaged in the practice of medicine in the town of Newburg, Preston county, W Va., at the time charged in the indictment, and had been so engaged since the year 1876 continuously to the present time, and has during all said time enjoyed a lucrative practice, publicly professing to be a physician, prescribing for the sick, and appending to his name the letters, 'M. D.;' that he was not then and there a physician and surgeon called from another state to treat a particular case, or to perform a particular surgical operation, nor was he then and there a commissioned officer of the United States army and navy and hospital service; that he has no certificate, as required by section 9, c. 93, Acts Leg. W. Va., passed March 15, 1882, but has a diploma from the 'American Medical Eclectic College of Cincinnati, Ohio;' that he presented said diploma to the members of the board of health who reside in his congressional district, and asked for the certificate as required by law, but they, after retaining said diploma for some time, returned it to defendant with their refusal to grant him a certificate asked, because, as they claimed, said college did not come under the word 'reputable,' as defined by said board of health; that if the defendant had been or should be prevented from practicing medicine it would be a great injury to him, as it would deprive him of his only means of supporting himself and family; that at the time of the passage of the act of 1882 he had not been practicing medicine ten years, but had only been practicing six, as aforesaid, from the year 1876.' These were all the facts in the case. Upon them the jury found the defendant guilty, and thereupon he moved an arrest of judgment on the ground that the act of the legislature was unconstitutional and void so far as it interfered with his vested right in relation to the practice of medicine, which motion was overruled, and to the ruling an exception was taken. The court thereupon sentenced the defendant to pay a fine of $50 and the costs of the proceedings. The case being taken on writ of error to the supreme court of appeals of the state, the judgment was affirmed, and to review this judgment the case is brought here.

M. H. Dent, for plaintiff in error.

[Argument of Counsel from pages 118-120 intentionally omitted]

Alfred Caldwell, for defendant in error.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.