adopting Justice Chase’s description of laws that violate ex post facto prohibitions
How later courts described this case
- adopting Justice Chase’s description of laws that violate ex post facto prohibitions
Written by the judges who cited it.
The opinion
ON PETITION TO REHEAR.
Mr. Justice Prewitt
delivered the opinion of the Court.
A petition to rehear has been filed herein, but a number of the matters complained of were fully considered by this Court in our former opinion.
We held the legislation in question to be within the police power of the Legislature, and this being true, it becomes immaterial what portion of the regulated profession requires safeguards, as it is not a function of this Court to disturb the motives of a legislative body in enacting legislation within its power.
The law applicable to the power of the Legislature in regulating branches of the healing arts is well expressed in the case of
Butcher
v.
Maybury D. C.,
8 F. (2d) 155, 158, 159, as follows:
“The right of a physician to practice his profession is a property right, of which he cannot be arbitrarily deprived.
Dent
v.
West Virginia,
129 U. S. 114, 123, 124 , 9 S. Ct. 231 , 32 L. Ed. 623 ;
Douglas
v.
Noble,
261 U. S. 165 , 43 S. Ct. 303 , 67 L. Ed. 590 ;
Bogni
v.
Perotti,
224 Mass. 152 , 112 N. E. 853 , 855, L. R. A. 1916F, 831;
Lawrence
v.
Board of Registration,
239 Mass. 424 , 132 N. E.
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174, 176;
State
v.
Medical
Board, 32 Minn. 324 , 20 N. W. 238 , 50 Am. Rep. 575 , 576.
“The right is a qualified one, and is held in subordination to the duty of the state under the police power to protect the public health.
Hawker
v.
New York,
170 U. S. 189 , 18 S. Ct. 573 , 42 L. Ed. 1002 ,
Lawrence
v.
Board of Registration,
239 Mass. 424 , 132 N. E. 174 , 176. The police power cannot be stipulated or bartered away.
Gray
v. Connecticut, 159 U. S. 74 , 15 St. Ct. 985, 40 L. Ed. 80 . In
State
v.
Hovorka,
100 Minn. 249, 252 , 110 N. W. 870, 871 , 8 L. R. A. (N. S.), [1272], 1273, 1275, 10 Ann. Cas. 398, it is said:
“ ‘No person can acquire a vested right to continue, when once, licensed, in a business, trade, or occupation which is subject to legislative control and regulation under the police power.- The rights and liberty of the citizen are all held in subordination to that governmental prerogative, and to such reasonable regulations and restrictions as the Legislature may from time to time prescribe. . . . Regulations so prescribed and conformed to by the citizdn may be subsequently changed or modified by the Legislature, whenever public interest require it, without subjecting its action to the charge of interfering with contract or vested rights. This is elementary. ’
“In a note found on page 1273 of 8 L. R. A. (N. S.), the author says:
“ ‘The granting of a license in such cases is merely the means taken by the state, in the exercise of its police power, to regulate and restrict the engaging in certain professions and occupations for the public good, and confers no rights whatever, in the way of a contract with the state, upon the licensee. He takes the same subject to the right of the state, at any time that the public good
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demands, to make further restrictions and regulations thereto; and, if such restrictions and regulations are reasonable, they -will be upheld, even though they may actually prohibit some people from further engaging in such occupations or professions under a license previously granted.’
“The authorities hold without dissent that it is competent for the Legislature to prescribe qualifications for those who are to practice medicine and thus to assure that they shall possess the requisite character and learning.
Dent
v.
West Virginia,
129 U. S. 114, 122 , 9 S. Ct. 231 , 32 L. Ed. 623 ;
Hawker
v.
New York,
170 U. S. 189 , 18 S. Ct. 573 , 42 L. Ed. 1002 ;
State
v.
State Medical Board,
32 Minn. 324 , 20 N. W. 238 , 50 Am. Rep. 575 , 577. The regulation of drugless healers is a proper exercise of the police power.
Crane
v.
Johnson,
242 U. S. 339 , 37 S. Ct. 176 , 61 L. Ed. 348 , Ann. Cas. 1917B, 796, The regulatory power of the state may be properly committed to an administrative board or officer.
Douglas
v.
Noble,
261 U. S. 165, 170 , 43 S. Ct. 303 , 67 L. Ed. 590 ;
State
v.
State Medical Board,
32 Minn. 324 , 20 N. W. 238 , 50 Am. Rep. 575 , 577.
“These regulatory statutes may be made operative on those engaged in practice prior to the enactment of the statutes.
Dent
v.
West Virginia,
129 U. S. 114, 122 , 9 S. Ct. 231 , 32 L. Ed. 623 ;
Collins
v.
Texas,
223 U. S. 288, 295 , 32 S. Ct. 286 , 56 L. Ed. 439 ;
Lawrence
v.
Board of Registration,
239 Mass. 424 , 132 N. E. 174 , 176. The state may change the qualifications from time to time, making them more rigid.
Dent
v.
West Virginia,
129 U. S. 114, 122 , 9 S. Ct. 231 , 32 L. Ed. 623 ;
Gray
v.
Connecticut,
159 U. S. 74 , 15 S. Ct. 985 , 40 L. Ed. 80 ; State v.
Hovorka,
100 Minn. 249 , 110 N. W. 870 , 8 L. R. A. (N. S.), [1272], 1273, 1275, 10 Ann. Cas. 398.
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“The Legislature may prescribe qualifications, both as to character and learning-, which will require those in practice to give up their occupation.
Dent
v.
West Virginia,
129 U. S. 114, 122 , 9 S. Ct. 231 , 32 L. Ed. 623 ;
Hawker
v.
New York,
170 U. S. 189 , 18 S. Ct. 573 , 42 L. Ed. 1002 . Legislation prescribing qualifications which a practitioner cannot meet because of conditions antedating the enactment of the legislation is valid. Such legislation does not constitute punishment; it is legitimate regulation.
Hawker
v.
New York,
170 U. S. 189 , 18 S. Ct. 573 , 42 L. Ed. 1002 ;
Meffert
v.
State Board of Medical Registration,
66 Kan. 710 , 72 P. 247 , 1 L. R. A. (N. S.), 811.”
The authorities mentioned in the case quoted above disclose that it lies within the police power to require educational qualifications of those already engaged in the practice of any profession.
The insistence that the Acts is in the nature of a bill of attainder is answered by
Butcher
v.
Maybury, supra,
where the same insistence was made. The reply to this insistence in that case is as follows at pages 159, 160 of 8 F. (2d):
“ ‘A
bill of attainder is a legislative act which inflicts punishment without a judicial tral.’
Cummngs
v.
Missouri,
4 Wall. 277, 323 , 18 L. Ed. 356 . The statute in question inflicts no punishment.
Meffert
v.
State Board of Medical Registration,
66 Kan. 710 , 72 P. 247, 251 , 1 L. R. A. (N S.), 811;
Hawker
v.
New York,
170 U. S. 189 , 18 S. Ct. 573 , 42 L. Ed. 1002 . If plaintiffs lose the right to continue the practice of their profession, it will not be as a punishment for some offense committed by them, hut because their qualifications do not measure up to the legislative requirements.
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“In
Colder
v.
Bull
(Pa.), 3 Dall. 386, 390 , 1 L. Ed. 648 , the court classifies
ex post facto
laws as follows:
“ £ (1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes sneh action.
“
‘(2)
Every law that aggravates a crime, or makes it greater than it was when committed.
“ ‘ (3) Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed.
‘ ‘ ‘ (4) Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.’
“This definition has been repeatedly approved in form or substance.
Hopt
v.
Utah,
110 U. S. 574, 589 , 4 S. Ct. 202 , 28 L. Ed. 262 ;
Mallett
v.
North Carolina,
181 U. S. 589, 593 , 21 S. Ct. 730 , 45 L. Ed. 1015 ;
Kentucky Union Co.
v.
Kentucky,
219 U. S. 140 , 31 S. Ct. 171 , 55 L. Ed. 137 . It is manifest that the statute in question does not fall within the above classification. It has been expressly held that a statute which makes provision for the cancellation of licenses of those engaged in the practice of medicine is not obnoxious to the
ex post facto
provision of the federal Constitution.
Reetz
v.
Michigan,
188 U. S. 505, 510 , 23 S. Ct. 390 , 47 L. Ed. 563 .”
After careful consideration of the petition to rehear, we are convinced that the Legislature was well within its powers in enacting the statute prohibiting the practice of naturopathy in this State. The methods employed by naturopaths may still be used by those formerly prac
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ticing xiaturopatliy if they obtain the qualifications now possessed by medical doctors and osteopaths.
It results that the petition to rehear is denied.
Neil, C. J., Gailor
&
Tomlinson, JJ., concur.
Burnett, J., not participating.