10 Nev., 323; People v. Fulda, 52 Hun (N. Y.), 65-67; Brown v. People, 11 Colo., 109.

Opinion of United States Supreme Court.-This subject has been carefully considered by the United States Supreme Court in a recent case, and the broad extent of the legislative powers of the States to regulate such matters clearly and fully declared. Dent v. West Va. (129 U. S., 114). The Court say— pp. 121 et seq.-Mr. Justice Field delivering the opinion, in which all the other Justices concur: "The unconstitutionality asserted consists in its [the statute's] 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 practise 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 every one 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. 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 gener

ally ascertained upon an examination of the 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. Every one 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 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 practise 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 attain

ments 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 practise 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 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."

EARLY COMMON-LAW RULE CONCERNING SUITS BY

PHYSICIANS.

The common-law rule was that the physician could not sue and recover for his services, though he might for the medicines he furnished. The theory of the law followed the etiquette of his profession and forbade him from making a specific contract for pay for his services, and obliged him to receive what his patient chose to give him, which was called his "honorarium.”

For

The Early Common-Law Rule No Longer in Force.As time went on this theory vanished from the law. many years it has lost its place among the rules of professional etiquette. In its stead statutory provisions have been adopted which forbid a recovery for services performed by persons not legally authorized to practise. The right of the physician and surgeon to contract with the patient or with those who employ him, and his remedies to enforce such contracts, will be considered hereafter.

History of Statutory Regulation in New York State.— Most of the States of the United States have enacted statutory regulations prescribing in one form or another the necessary qualifications which entitle a physician or surgeon to practise, and prescribing penalties for practising without having complied with such statutory requirements. These statutes are digested and collated below, pp. et seq. A review of the course of development of statutory regulation in New York State is instructive as well as interesting. In that State such matters were regulated for the first time by statute in 1787. This was followed by a general enactment on the subject of the organization of county medical societies, and of State medical societies having boards of censors, to whom was committed the power to examine applicants for license to practise, and of issuing licenses (Laws of 1813, p. 94). This law remained in force, with certain modifications, until 1844, when all acts regulating the practice of medicine and surgery were repealed. A history of the statutory regulations in New York State up to the act of 1844 on this subject will be found in the case of Bailey v. Mogg, 4 Denio, 60.'

In that case (Bailey v. Mogg), the Court says of that statute (Laws

of 1844, p. 406): "The triumph was now complete, for the legislature

At the time of the passage of the act of 1813, and for many years afterward, nearly all of the physicians in New York State practised in accordance with the theories and precepts of what is now called the regular or allopathic school of medicine. That act provided that the physicians in the respective counties of the State of New York should meet in the respective counties and organize county medical societies. As a consequence of the fact that the physicians of that day were chiefly of the allopathic school, they necessarily obtained the control of the county medical societies and State medical societies. Hence it became difficult, if not impossible, for physicians who wished to practise upon other theories and tenets than those obtaining in that school, to obtain licenses to do so. With the growth of the homoeopathic school of medicine and the eclectic school of medicine, came applications to the legislature asking for those practising the methods of those schools the same rights and privileges of organizing county and State societies as had been extended to physicians generally by the act of 1813; so that in 1857, by Chapter 384, the legislature of New York State enacted that the homœopathic physicians might meet in their respective counties and organize county medical societies, with boards of censors having the same powers and privileges which were granted by the act of 1813; and by other laws similar privileges were granted to the so-called eclectic school. After the passage of the act of 1844, down to about 1874, as herein before stated, there was no limitation upon the right to practise medicine or surgery in this State.

The inharmonious and injurious effect of such policy in the State becoming manifest, the legislature, by Chapter 436 of Laws of 1874, required all persons desiring to practise medicine or surgery to obtain a certificate as to their qualifications from the censors of some one of these medical societies. By the Laws of 1880, Chapter 513, additional and more extensive and particular provisions were made in reference to this matter, and all the physicians then practising were required, on or before the time limited in the act, to file with the county clerks of their respective counties their licenses to practise granted by the censors of their county medical societies, or a diploma of some had made every man a doctor, and nostrums of every description and admixture could now be safely pre

scribed, and payments therefor exacted by authority of law."