The People of the State of New York, Appellant, v. Benjamin Hawker, Respondent

The People of the State of New York, Appellant, v. Benjamin Hawker, Respondent. 1. Unlawful Practice of Medicine — Prior Conviction of Felony—Public Health Law. A person convicted of a felony, whether before or after the passage of the Public Health Law (L. 1893, ch. 661, as amended by L. 1895, ch. 398), is within the provisions of section 140, prohibiting the practice of medicine by any person “ who has ever been convicted of a felony,” and section 153, making such practice by any person " after conviction of a felony ” a misdemeanor. 2. Bill of Attainder. A statute making it unlawful for persons previously convicted of felony to practice medicine does not constitute a bill of attainder. 3. Ex Post Facto Law. A statute making it a misdemeanor for a person who has been convicted of a felony to practice medicine is not an ex post facto law as applied to one who had been convicted before its passage of a felony not based upon the charge that he was a physician or practitioner of medicine, and who is not shown to have ever had any right to practice the profession of medicine. People v. Hawker, 14 App. Div. 188, reversed. (Argued March 8, 1897; decided March 16, 1897.) Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 5, 1897, which reversed a judgment of the Court of General Sessions of the Peace for the city and county of Hew York convicting the defendant of a misdemeanor. The facts, so far as material, are stated in the opinion. John D. Lindsay for appellant. The intention of the legislature, that the statute should prohibit all persons from practicing medicine who had been theretofore, or who should thereafter be convicted of a felony, is apparent from a reading of the statute itself. (L. 1893, ch. 661, §§ 140, 153.) The police power extends to the protection of persons and property within the state. In order to secure that protection either may be subjected to restraints and burdens by legislative acts. The natural right to life, liberty and the pursuit of happiness must yield whenever the concession is demanded by the welfare, health or prosperity of the state. (People ex rel. v. Warden, etc., 144 N. Y. 529; People v. Gillson, 109 N. Y. 389; People v. King, 110 N. Y. 418; People v. Ewer, 141 N. Y. 129; People v. Havnor, 149 N. Y. 195, 200; Met. Bd. of Health v. Heister, 37 N. Y. 661; In re D. C. Assn., 66 N. Y. 569; In re Ryers, 72 N. Y. 1; People ex rel. v. D'Oench, 111 N. Y. 359; Health Dept. v. Rector, etc., 145 N. Y. 32.) There is no vested right in the physician to follow his profession. So long as he possesses such qualifications as the legislature may legitimately impose, and abides by its regulations, he is privileged to enter upon and continue its practice, but beyond this his rights do not extend. Practically a practitioner of medicine is merely a licensee. (Cooley’s Const. Lim. [6th ed.] 745; Richardson v. State, 47 Ark. 562; Orr v. Meek, 111 Ind. 40; State v. State Board, 32 Minn. 324; Logan v. State, 5 Tex. App. 306; Ex parte Spinney, 10 Nev. 323; Hewitt v. Chavier, 16 Pick. 353; Fox v. Wash. Ter., 5 West Coast Rep. 339.) In the exercise of the police power the state has the absolute right to make such laws as it may deem proper, regulating the practice of medicine or surgery, and prescribing the conditions upon which any person will be allowed to practice such professions within its territorial limits. (Dent v. West Virginia, 129 U. S. 114; People ex rel. v. Warden, etc., 144 N. Y. 529; Eastman v. State, 109 Ind. 278; Orr v. Meek, 111 Ind. 40; Richardson v. State, 47 Ark. 562; State v. State Board, 32 Minn. 324; People v. Cipperly, 37 Hun, 324; 101 N. Y. 634; People v. Girard, 145 N. Y. 105.) The only question to be considered is whether the exclusion of convicted felons from the practice of medicine will secure or tend to secure the general welfare, health or prosperity of the people against dangers, real or anticipated. We most confidently submit that it will. (L. 1880, ch. 513, § 4; L. 1890, ch. 507, § 8; State v. State Board, 32 Minn. 324; Penal Code, § 714.) The courts should always assume that the object of the legislature was solely to promote the public comfort, welfare and safety; and if the act admits of two constructions that should be given to it which sustains it and makes it applicable in furtherance of the public interests. (People ex rel. v. Warden, etc., 144 N. Y. 529.) The right of the state to withhold, for-any legitimate cause, any privilege subject to legislative control, is not to be disputed, and any law withholding such privilege and punishing its subsequent use because of past misconduct resfilting in a present unfitness to enjoy it is within its power. (Murphy v. Ramsey, 114 U. S. 15; Washington v. State, 75 Ala. 582; Foster v. Police Comrs., 102 Cal. 483; U. S. v. Chew Cheong, 61 Fed. Rep. 200.) The statute only affects such persons as are in fact unworthy of public confidence. It affects all such alike. (People v. Wiman, 148 N. Y. 29; 17 Am. & Eng. Ency. of Law, 325; Osborn v. U. S., 91 U. S. 474; Knote v. U. S., 95 U. S. 149; In re Deming, 10 Johns. 232.) Robert C. Taylor for appellant. Defendant’s claim that the statute is only prospective in its operation is untenable. (L. 1895, ch. 398; L. 1893, ch. 661, §§ 140, 153.) The police power extends to the protection of the public health and comprises the regulation of the practice of medicine. (Orr v. Meek, 111 Ind. 40; Dent v. West Virginia, 129 U. S. 114; Eastman v. State, 109 Ind. 278; Richardson v. State, 47 Ark. 562.) Medical practitioners in this state are required to be persons of good moral character. (L. 1880, ch. 513, § 4; L. 1890, chs. 500, 507; L. 1893, ch. 661, § 153; L. 1895, ch. 398.) The state has a right to deny to Hawker a future privilege upon the ground that his unfitness has been proved by his past conduct. (Murphy v. Ramsey, 114 U. S. 15; Washington v. State, 75 Ala. 582; Foster v. Police Comrs., 102 Cal. 483; U. S. v. Chew Cheong, 61 Fed. Rep. 200.) A physician’s right to practice is a mere license. (Cooley’s Const. Lim. [6th ed.] 745; Richardson v. State, 47 Ark. 562; Orr v. Meek, 111 Ind. 40; State v. State Board, 32 Minn. 324; Logan v. State, 5 Tex. App. 306; Ex parte Spinney, 10 Nev. 323; Hewitt v. Chavier, 16 Pick. 353; Fox v. Wash. Ter., 5 West Coast Rep. 339; Met. Bd. of Excise v. Barrie, 34 N. Y. 657.) Within the meaning of the law the defendant Hawker is deprived of nothing. (Mugler v. Kansas, 123 U. S. 643; Health Dept. v. Rector, etc., 145 N. Y. 32; Brick Presb. Church v. Mayor, etc., of N. Y., 5 Cow. 538.) The legitimate exercise of the police power is not restrained by the Constitution. (People v. Cipperly, 37 Hun, 319; 101 N. Y. 634; L. N. R. Co. v. Kentucky, 161 U. S. 677; Barbier v. Connolly, 113 U. S. 27; In re Rahrer, 140 U. S. 545; Giozza v. Tiernan, 148 U. S. 657; R. R. Co. v. Bristol, 151 U. S. 556; Davidson v. New Orleans, 96 U. S. 97; M. P. R. Co. v. Humes, 115 U. S. 512.) The act is to be presumed constitutional. (People ex rel. v. Terry, 108 N. Y. 1; People ex rel. v. Albertson, 55 N. Y. 54; Bertholf v. O'Reilly, 74 N. Y. 509; People v. Havnor, 149 N. Y. 195; M. P. R. Co. v. Humes, 115 U. S. 512.) The question is one of sovereignty. (4 Wheat. 433; 34 N. Y. 657; Health Dept. v. Rector, 145 N. Y. 32; Mugler v. Kansas, 123 U. S. 643; Met. Bd. of Excise v. Barrie, 34 N. Y. 657; Dent v. West Virginia, 129 U. S. 114.) Hugh O. Pentecost for respondent. In practicing medicine, after having been convicted of a felony, defendant committed no crime. The statute should be construed prospectively. (L. 1895, ch. 398; Amsbry v. Hinds, 48 N. Y. 57; Johnson v. Burrell, 2 Hill, 238; Fairbanks v. Wood, 17 Wend. 329; Wood v. Oakley, 11 Paige, 400; Quinn v. Mayor, etc., of N. Y., 63 Barb. 595; Wilson v. B. E. Soc. of N. Y., 10 Barb. 308; Quackenbush v. Danks, 1 Den. 126; 1 N. Y. 129; L. 1893, ch. 661, § 140; Cook v. Hamilton County, 6 McLean [U. S.], 112; People ex rel. v. Board of Education of B., 13 Barb. 400; Lau, Ow Bew v. U. S., 144 U. S. 47.) If the law is construed retrospectively, then it is null and void, because it is in conflict with the Constitution of the United States. (U. S. Const, art. 1, § 10; Ex parte Garland, 5 Wall. 333; Calder v. Bull, 3 Dall. 386; Cummings v. State, 4 Wall. 321; Bertholf v. O'Reilly, 74 N. Y. 509; In re Jacobs, 98 N. Y. 98; Livestock Assn. v. C. C., etc., Co., 1 Abb. [U. S.] 388; Slaughter House Cases, 16 Wall. 36; People v. Marx, 99 N. Y. 377; People v. Gillson, 109 N. Y. 399; Dartmouth College Case, 4 Wheat. 519; Mugler v. Kansas, 123 U. S. 661.) [MAJORITY — Haight, J.] Haight, J. The defendant was indicted in the Court of General Sessions of the Peace for a misdemeanor, charging that on the 6tli day of March in the year 1878 the defendant was convicted in the Court of Sessions of Kings county of the crime of abortion, upon which he was sentenced to be imprisoned in the penitentiary for Kings county for the term of ten years. That afterwards and on the 22d day of February, 1896, at the city of New York, he did unlawfully practice medicine by examining, treating and prescribing for one Dora Hoenig against the form of the statute in such case made and provided. To this indictment he interposed a demurrer to the effect that the facts stated in the indictment did not constitute a crime, in that the statute alleged to have been violated is prospective in its application, or if it is not prospective in its application, it is null and void as being in violation of article 1, section 10, of the Constitution of the United States and of the fifth amendment to said Constitution, and also of article 1, sections 1 and 6, of the Constitution of the state of New York. The demurrer was overruled by the court and the defendant demanded a tidal. A jury was then impanelled, and thereupon his counsel conceded all of the facts as stated in the indictment to be true. He then moved the court to advise the jury to acquit upon tlie grounds set forth in his demurrer, which was refused, and an exception taken. The case was then submitted to the jury upon the charge of the court, and a verdict of guilty was subsequently rendered, upon which the defendant was sentenced to pay a fine. The statute under which the defendant was indicted was chapter 661 of the Laws of 1893, as amended by chapter 398 of the Laws of 1895, and is known as the Public Health Law. Section 140 provides that “No person shall practice medicine after September 1, 1891, unless previously registered and legally authorized, or unless licensed bjr the regents and registered as required by this article; nor shall any person practice medicine who has ever been convicted of a felony by any court, or whose authority to practice is suspended or revoked by the regents on recommendation of a state board.” Section 153, among other things, provides “ That any person * * * who, after conviction of a felony, shall attempt to practice medicine, or shall so practice * * * shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than $250 or imprisonment for six months for the first offense, and on conviction of any subsequent offense, by a fine of not more than $500 or imprisonment for not less than one year, or by both fine and imprisonment.” It is contended that this statute should be construed prospectively. Undoubtedly it has reference only to misdemeanors committed after the passage of the act, but as to the felony charged as the former offense, we think it has reference to those committed before as well as after the passage of the act. As we have shown, the provisions referred to are part of the Public Health Law of the state, which provides a system for the preservation of the public health and the practice of medicine, and its provisions, so far as possible, should be construed as in harmony with each other. Section 140 of the act relates to the qualifications of persons who shall be permitted to practice medicine, and prohibits all persons not so qualified from engaging in such practice, including those who have ever been convicted of a felony. Section 153 provides for the punishment that shall be inflicted upon those who violate the provisions of the law. If the provisions of section 153 stood alone unexplained there might be some basis for the contention that it was intended to relate only to felonies thereafter committed, but when it is read in connection with the provisions of section 140 it seems clear that such a construction was not intended, for that section expressly prohibits any person from practicing medicine “ who has ever been convicted of a felony.” The word “ ever ” to our minds clearly Indicates the legislative intention to prohibit the practice of medicine on the part of any person who has been convicted of a felony either before or after the passage of the law. Is the law in question violative of the provisions of the Constitution of the United States, which provides that no state shall pass any bill of attainder or ex post facto law ? (Art. 1, § 10.) We can hardly believe the claim to be serious that the provisions of the law constitute a bill of attainder. If such is the case, then every statute which provides for an additional punishment for the commission of a crime after a former conviction must fall within the condemnation of the Constitution. Bills of attainder having been abolished in this country upon the adoption of the Constitution of the United States, but little is known with reference to their peculiar characteristics. In England a bill of attainder was understood to be “ the stain or corruption of the blood of the criminal capitally condemned,” the effect of which was that the party attainted lost all inheritable quality, and could neither receive nor transmit any property or other rights of inheritance. The bills were acts of Parliament relating to a certain specified person or persons usually named in the acts, in which they were convicted, sentenced and punished without a judicial trial, and generally without the presence of the accused or his counsel, or an opportunity to be heard, or to establish his innocence. (Ex parte Garland, 4 Wall. 333, 387.) It will thus readily be seen that the provisions of the Public Health Law have none of the characteristics of a bill of attainder. A more serious question is presented with reference to the contention that the law is ex post facto. An ex post facto law as defined by Chase, Justice, in the case of Calder v. Bull (3 Dallas, 386), is one that punishes as a crime an act done before its passage, and which, when committed, was not punishable; and an act that aggravates a crime or inflicts a greater punishment than the law annexed to it when committed ; or a law that alters the rules of evidence in order to convict an offender. It is not contended that the law in question makes any change with reference to the felony of which the defendant was convicted, or that there has been any aggraration or change, with reference to the punishment provided therefor. What has heen done is the creation of a new offense, a misdemeanor after a felony dependent upon acts thereafter committed in violation of the statute and providing a punishment for such misdemeanor. It is in the nature of providing punishment for a second or an . additional offense, and it is claimed, with reference thereto, that it operates to deprive the defendant of his rights of property, of his right to earn a living by the practice of medicine, and that, by being deprived of this right, the effect is to aggravate his punishment for the felony. The difficulty, however, with this contention is, that, it does not appear from the record in this case that he ever had any right to practice the profession of medicine, and that no presumption can be indulged in to that effect. The felony of which he was convicted was not based upon the charge that he was a physician or a practitioner of medicine. He was charged with having committed an abortion, and upon this charge he was convicted. Whether he was a physician or not was entirely immaterial, so far as determining whether that crime had been committed. It does not now appear that he ever studied medicine a day in his life ; that he ever received a diploma from any medical college or university; that he was, ever registered or licensed to practice medicine, or that he ever did practice before the 22d day of February, 1890, the day of the charge upon which the indictment in this case was founded. So that there is an entire absence of any evidence showing, or tending to show, that he was deprived of any rights of property, or of means of earning a livelihood, that he theretofore enjoyed and possessed. One of the highest functions of government is the preservation of the public health. It was for this purpose that the law in question was enacted. Under it delicate and important duties are intrusted to physicians, involving skill, ability, learning and integrity. The Constitution provides that no person shall he deprived of life, liberty or property without due process of law, yet this provision of the organic law is-made subordinate to that of paramount necessity, and the rights secured thereby to the citizen must yield to that of the preservation of the public health. The property of a citizen may be seized and burned if, in the judgment of physicians, it is infected and liable to cause the spread of contagious disease. He may be certified into an insane asylum or carted au'ay to a pest house, and there restrained and imprisoned if, in the judgment of the physician, such a restraint and detention is advisable, and under certain circumstances the physician, in his practice, may destroy life if, in his judgment, it be necessary to save another life. Aside from these important duties and privileges, the physician is admitted into the family circle. He is intrusted with the family secrets of physical ailments and defects. He is permitted to administer powerful drugs and pioisons, and is intrusted with the care of the lives, health and welfare of its members. The p>atients, as well as the pmblic, are deeply interested in having the p>erson in whom such trust and confidence is repnosed p>ossess all the skill, ability, learning and integrity that is required for the prop>er and faithful discharge of the duties and trust reptosed in him. The legislature, therefore, in the exercise of its discretion under the police powers of the state, may, by act, impose reasonable conditions and requirements under which individuals may practice the profession of medicine, and to restrain and prohibit all persons not complying therewith from engaging in such practice. This power of the legislature was fully recognized in the Dent case by the Supreme Court of the United States (129 U. S. 114). In that case the statute required every practitioner of medicine to obtain a certificate from the state board of health that he was a graduate of a reputable medical college, in a school of medicine to which he belonged, or that he had practiced medicine in the state continuously for ten years prior to the passage of the act. Persons who continued to practice without such certificate were declared to be guilty of a misdemeanor. Dent was a physician and had practiced his profession for five years. He continued to practice after the tune prescribed by the act. He was indicted, tried and convicted, and that judgment on review was affirmed by our highest Federal court. One of the conditions imposed upon persons who seek to practice medicine is that they shall possess a good moral character. (§ 145.) The presumption of bad character attaches to a person convicted of a felony. Formerly it was not thought safe to allow him to be sworn as a witness. He may now be sworn and give his testimony, but the fact that he is a felon may be shown to impeach his credibility, and the jurors in the exercise of their judgment may disregard his testimony. The defendant knew at the time he committed the felony that the presumption of bad character would follow his conviction and that he would have to bear the resulting consequences. If, therefore, the legislature may impose conditions upon which persons of good moral character shall engage in the practice of medicine, and may impose a punishment for all persons violating the conditions, it appears to ns that the legislature may also prohibit from practicing a person who has been convicted of a felony, whose character is presumed to be bad, who has never before studied or practiced medicine, and who has not conformed to a single condition or requirement of the statute under which other persons are licensed to practice. The defendant has been deprived of no rights secured to him either by the United States or State Constitutions. The judgment of the Appellate Division should be reversed, and that entered upon the conviction affirmed, and the proceedings should be remitted to the Court of General Sessions of the Peace in and for the city and county of Hew York, there to be proceeded upon according to law. All concur (Bartlett, J., in result solely on the ground that the record contains no evidence that the defendant at the time of his conviction, or at any other time, was a physician), except Martin, J., dissenting, and O’Brien, J., who dissents as per following memorandum: “ I cannot concur in this judgment. I think it was correctly decided in the court below for these reasons: 1. The statute is wholly prospective. 2. The statute in question punishes the defendant for an offense committed twenty-five years ago, and of which he was then convicted and for which he was punished. This statute plainly inflicts an additional punishment, and is in conflict with the Constitution.” Judgment reversed, etc.