The statute of West Virginia (§§ 9 and 15, chapter 93,
1882) which requires every practitioner of medicine in the State 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
continuously for ten years prior to March 8, 1881, or that he has
been found upon examination to be qualified to practice medicine in
all its departments, and which subjects a person practicing without
such certificate to prosecution and punishment for a misdemeanor,
does not, when enforced against a person who had been a practicing
physician in the State for a period of five years before 1881,
without a diploma of a reputable medical college in the school of
medicine to which he belonged, deprive him of his estate or
interest in the profession without due process of law.
The State, in the exercise of its power to provide for the
general welfare of its people, may exact from parties before they
can practice medicine a degree of skill and learning in that
profession upon which the community employing their services may
confidently rely, and, to ascertain whether they have such
qualifications, require them to obtain a certificate or license
from a board or other authority competent to judge in that respect.
If the qualifications required are appropriate to the profession
and attainable by reasonable study or application, their validity
is not subject to objection because of their stringency or
difficulty.
Legislation is not open to the charge of depriving one of his
rights without due process of law if it be general in its operation
upon the subjects to which it relates, and is enforceable in the
usual modes established in the administration of government with
respect to kindred matters; that is, by process or proceedings
adapted to the nature of the case, and such is the legislation of
West Virginia in question.
Cummings v.
Missouri, 4 Wall. 277, and
Ex parte
Garland, 4 Wall. 333, examined and shown to differ
materially from this case.
Page 129 U. S. 115
The Court stated the case as follows:
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
continuously 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 §§ 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 reputable 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
Page 129 U. S. 116
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
Page 129 U. S. 117
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 § 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 penitentiary 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, West Virginia, 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, West Virginia, 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,
Page 129 U. S. 118
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 § 9, chapter 93, acts of the
Legislature of West Virginia, 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.
Page 129 U. S. 121
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the court.
Whether the indictment upon which the plaintiff in error was
tried and found guilty is open to objection for want of sufficient
certainty in its averments is a question which does not appear to
have been raised either on the trial or before the Supreme Court of
the State. The Presiding Justice of the latter Court, in its
opinion, states that the counsel for the defendant expressly waived
all objections to defects in form or substance of the indictment,
and based his claim for a review of the judgment on the ground that
the statute of West Virginia is unconstitutional and void. The
unconstitutionality asserted consists in its alleged conflict with
the clause of the Fourteenth Amendment which declares that no State
shall deprive any person of life, liberty, or property without due
process of law; the denial to the defendant of the right to
practice his profession without the certificate required
constituting the deprivation of his vested right and estate in his
profession, which he had previously acquired.
It is undoubtedly the right of every citizen of the United
States to follow any lawful calling, business, or profession he may
choose, subject only to such restrictions as are imposed upon all
persons of like age, sex, and condition. This right may in many
respects be considered as a distinguishing feature of our
republican institutions. Here, all vocations are open to everyone
on like conditions. All may be pursued as sources of livelihood,
some requiring years of study and great learning for their
successful prosecution. The interest, or, as it is sometimes
termed, the "estate," acquired in them -- that is, the right to
continue their prosecution -- is often of great value to the
possessors, and cannot be arbitrarily taken from them, any more
Page 129 U. S. 122
than their real or personal property can be thus taken. But
there is no arbitrary deprivation of such right where its exercise
is not permitted because of a failure to comply with conditions
imposed by the State for the protection of society. The power of
the State to provide for the general welfare of its people
authorizes it to prescribe all such regulations as in its judgment
will secure or tend to secure them against the consequences of
ignorance and incapacity, as well as of deception and fraud. As one
means to this end, it has been the practice of different States,
from time immemorial, to exact in many pursuits a certain degree of
skill and learning upon which the community may confidently rely;
their possession being generally ascertained upon an examination of
parties by competent persons, or inferred from a certificate to
them in the form of a diploma or license from an institution
established for instruction on the subjects, scientific and
otherwise, with which such pursuits have to deal. The nature and
extent of the qualifications required must depend primarily upon
the judgment of the State as to their necessity. If they are
appropriate to the calling or profession, and attainable by
reasonable study or application, no objection to their validity can
be raised because of their stringency or difficulty. It is only
when they have no relation to such calling or profession, or are
unattainable by such reasonable study and application, that they
can operate to deprive one of his right to pursue a lawful
vocation.
Few professions require more careful preparation by one who
seeks to enter it than that of medicine. It has to deal with all
those subtle and mysterious influences upon which health and life
depend, and requires not only a knowledge of the properties of
vegetable and mineral substances, but of the human body, in all its
complicated parts, and their relation to each other, as well as
their influence upon the mind. The physician must be able to detect
readily the presence of disease, and prescribe appropriate remedies
for its removal. Everyone may have occasion to consult him, but
comparatively few can judge of the qualifications of learning and
skill which he possesses. Reliance must be placed upon the
assurance
Page 129 U. S. 123
given by his license, issued by an authority competent to judge
in that respect, that he possesses the requisite qualifications.
Due consideration, therefore, for the protection of society may
well induce the State to exclude from practice those who have not
such a license, or who are found upon examination not to be fully
qualified. The same reasons which control in imposing conditions,
upon compliance with which the physician is allowed to practice in
the first instance, may call for further conditions as new modes of
treating disease are discovered, or a more thorough acquaintance is
obtained of the remedial properties of vegetable and mineral
substances, or a more accurate knowledge is acquired of the human
system and of the agencies by which it is affected. It would not be
deemed a matter for serious discussion that a knowledge of the new
acquisitions of the profession, as it from time to time advances in
its attainments for the relief of the sick and suffering, should be
required for continuance in its practice, but for the earnestness
with which the plaintiff in error insists that, by being compelled
to obtain the certificate required, and prevented from continuing
in his practice without it, he is deprived of his right and estate
in his profession without due process of law. We perceive nothing
in the statute which indicates an intention of the legislature to
deprive one of any of his rights. No one has a right to practice
medicine without having the necessary qualifications of learning
and skill, and the statute only requires that whoever assumes, by
offering to the community his services as a physician, that he
possesses such learning and skill shall present evidence of it by a
certificate or license from a body designated by the State as
competent to judge of his qualifications.
As we have said on more than one occasion, it may be difficult,
if not impossible, to give to the terms "due process of law" a
definition which will embrace every permissible exertion of power
affecting private rights, and exclude such as are forbidden. They
come to us from the law of England, from which country our
jurisprudence is to a great extent derived, and their requirement
was there designed to secure the subject against the arbitrary
action of the Crown, and place him under the protection of the law.
They were deemed to be
Page 129 U. S. 124
equivalent to "the law of the land." In this country, the
requirement is intended to have a similar effect against
legislative power -- that is, to secure the citizen against any
arbitrary deprivation of his rights, whether relating to his life,
his liberty, or his property. Legislation must necessarily vary
with the different objects upon which it is designed to operate. It
is sufficient, for the purposes of this case, to say that
legislation is not open to the charge of depriving one of his
rights without due process of law if it be general in its operation
upon the subjects to which it relates and is enforceable in the
usual modes established in the administration of government with
respect to kindred matters -- that is, by process or proceedings
adapted to the nature of the case. The great purpose of the
requirement is to exclude everything that is arbitrary and
capricious in legislation affecting the rights of the citizen. As
said by this court in
Yick Wo v. Hopkins, speaking by Mr.
Justice Matthews:
"When we consider the nature and the theory of our institutions
of government, the principles upon which they are supposed to rest,
and review the history of their development, we are constrained to
conclude that they do not mean to leave room for the play and
action of purely personal and arbitrary power."
118 U. S. 118 U.S.
356,
118 U. S. 369.
See also Pennoyer v. Neff, 95 U. S.
714,
95 U. S. 733;
Davidson v. New Orleans, 96 U. S. 97,
96 U. S. 104,
107;
Hurtado v. California, 110 U.
S. 516;
Railroad Co. v. Humes, 115 U.
S. 512,
115 U. S.
519.
There is nothing of an arbitrary character in the provisions of
the statute in question. It applies to all physicians, except those
who may be called for a special case from another State. It imposes
no conditions which cannot be readily met; and it is made
enforceable in the mode usual in kindred matters -- that is, by
regular proceedings adapted to the case. It authorizes an
examination of the applicant by the Board of Health as to his
qualifications when he has no evidence of them in the diploma of a
reputable medical college in the school of medicine to which he
belongs, or has not practiced in the State a designated period
before March, 1881. If, in the proceedings under the statute, there
should be any unfair
Page 129 U. S. 125
or unjust action on the part of the Board in refusing him a
certificate, we doubt not that a remedy would be found in the
courts of the State. But no such imputation can be made, for the
plaintiff in error did not submit himself to the examination of the
Board after it had decided that the diploma he presented was
insufficient.
The cases of
Cummings v. State of
Missouri, 4 Wall. 277, and of
Ex parte
Garland, 4 Wall. 333, upon which much reliance is
placed, do not, in our judgment, support the contention of the
plaintiff in error. In the first of these cases, it appeared that
the Constitution of Missouri, adopted in 1865, prescribed an oath
to be taken by persons holding certain offices and trusts, and
following certain pursuits within its limits. They were required to
deny that they had done certain things, or had manifested by act or
word certain desires or sympathies. The oath which they were to
take embraced 30 distinct affirmations respecting their past
conduct, extending even to their words, desires, and sympathies.
Every person unable to take this oath was declared incapable of
holding in the State
"any office of honor, trust, or profit under its authority, or
of being an officer, councilman, director, or trustee, or other
manager of any corporation, public or private,"
then existing or thereafter established by its authority, or
"of acting as a professor or teacher in any educational
institution, or in any common or other school, or of holding any
real estate or other property in trust for the use of any church,
religious society, or congregation."
And every person holding, at the time the constitution took
effect, any of the offices, trusts, or positions mentioned was
required, within 60 days thereafter, to take the oath, and, if he
failed to comply with this requirement, it was declared that his
office, trust, or position should,
ipso facto, become
vacant. No person, after the expiration of the 60 days, was
allowed, without taking the oath, "to practice as an attorney or
counselor at law," nor after that period could
"any person be competent as a bishop, priest, deacon, minister,
elder, or other clergyman of any religious persuasion, sect, or
denomination to teach or preach, or solemnize marriages."
Fine and imprisonment
Page 129 U. S. 126
were prescribed as a punishment for holding or exercising any of
the "offices, positions, trusts, professions, or functions"
specified without taking the oath, and false swearing or
affirmation in taking it was declared to be perjury, punishable by
imprisonment in the penitentiary. A priest of the Roman Catholic
Church was indicted in a circuit court of Missouri and convicted of
the crime of teaching and preaching as a priest and minister of
that religious denomination without having first taken the oath,
and was sentenced to pay a fine of $500, and to be committed to
jail until the same was paid. On appeal to the Supreme Court of the
State, the judgment was affirmed, and the case was brought on error
to this Court. As many of the acts from which the parties were
obliged to purge themselves by the oath had no relation to their
fitness for the pursuits and professions designated, the Court held
that the oath was not required as a means of ascertaining whether
the parties were qualified for those pursuits and professions, but
was exacted because it was thought that the acts deserved
punishment, and that, for many of them, there was no way of
inflicting punishment except by depriving the parties of their
offices and trusts. A large portion of the people of Missouri were
unable to take the oath, and, as to them, the court held that the
requirement of its constitution amounted to a legislative
deprivation of their rights. Many of the acts which parties were
bound to deny that they had ever done were innocent at the time
they were committed, and the deprivation of a right to continue in
their offices if the oath were not taken was held to be a penalty
for a past act, which was violative of the Constitution. The
doctrine of this case was affirmed in
Pierce v.
Carskadon, 16 Wall. 234.
In the second case mentioned -- that of
Ex parte
Garland -- it appeared that, on the 2d of July, 1862, Congress
had passed an act prescribing an oath to be taken by every person
elected or appointed to any office of honor or profit under the
United States, either in the civil, military, or naval departments
of the Government, except the President, before entering upon the
duties of his office, and before being entitled to his
Page 129 U. S. 127
salary or other emoluments. On the 24th of January, 1865,
Congress, by a supplemental act, extended its provisions so as to
embrace attorneys and counselors of the courts of the United
States. This latter act, among other things, provided that, after
its passage, no person should be admitted as an attorney and
counselor to the bar of the Supreme Court, and, after the 4th of
March, 1865, to the bar of any Circuit or District Court of the
United States, or of the Court of Claims, or be allowed to appear
and be heard by virtue of any previous admission, until he had
taken and subscribed the oath prescribed by the act of July 2,
1862. The oath related to past acts, and its object was to exclude
from practice in the courts parties who were unable to affirm that
they had not done the acts specified; and, as it could not be taken
by large classes of persons, it was held to operate against them as
a legislative decree of perpetual exclusion.
Mr. Garland had been admitted to the bar of the Supreme Court of
the United States previous to the passage of the act. He was a
citizen of Arkansas, and when that State passed an ordinance of
secession which purported to withdraw her from the Union, and by
another ordinance attached herself to the so-called "Confederate
States," he followed the State, and was one of her representatives,
first in the lower house, and afterwards in the senate of the
congress of the Confederacy, and was a member of that senate at the
time of the surrender of the Confederate forces to the armies of
the United States. Subsequently, in 1865, he received from the
President of the United States a full pardon for all offenses
committed by his participation, direct or implied, in the
rebellion. He produced this pardon, and asked permission to
continue as an attorney and counselor of this Court without taking
the oath required by the act of January 24, 1865, and the rule of
the Court which had adopted the clause requiring its administration
in conformity with the act of Congress. The Court held that the
law, in exacting the oath as to his past conduct as a condition of
his continuing in the practice of his profession, imposed a penalty
for a past act, and in that respect was subject to the same
objection as that made to the clauses of the Constitution of
Missouri, and was therefore invalid.
Page 129 U. S. 128
There is nothing in these decisions which supports the positions
for which the plaintiff in error contends. They only determine that
one who is in the enjoyment of a right to preach and teach the
Christian religion as a priest of a regular church, and one who has
been admitted to practice the profession of the law, cannot be
deprived of the right to continue in the exercise of their
respective professions by the exaction from them of an oath as to
their past conduct respecting matters which have no connection with
such professions. Between this doctrine and that for which the
plaintiff in error contends there is no analogy or resemblance. The
Constitution of Missouri and the act of Congress in question in
those cases were designed to deprive parties of their right to
continue in their professions for past acts, or past expressions of
desires and sympathies, many of which had no bearing upon their
fitness to continue in their professions. The law of West Virginia
was intended to secure such skill and learning in the profession of
medicine that the community might trust with confidence those
receiving a license under authority of the State.
Judgment affirmed.
