# Hawker v. New York/Opinion of the Court

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United States Supreme Court
170 U.S. 189
Hawker v. New York
The single question presented is as to the constitutionality of this statute when applied to one who had been convicted of a felony prior to its enactment. Its unconstitutionality is alleged on the ground of an alleged conflict with article 1, § 10, of the constitution of the United States, which forbids a state to pass 'any bill of attainder, ex post facto law, or law impairing the obligation of contracts.' The arguments for and against this contention may be thus briefly stated.
On the one hand, it is said that defendant was tried, convicted, and sentenced for a criminal offense. He suffered the punishment pronounced. The legislature has no power to thereafter add to that punishment. The right to practice medicine is a valuable property right. To deprive a man of it is in the nature of punishment, and, after the defendant has once fully atoned for his offense, a statute imposing this additional penalty is one simply increasing the punishment for the offense, and is ex post facto.
On the other, it is insisted that, within the acknowledged reach of the police power, a state may prescribe the qualifications of one engaged in any business so directly affecting the lives and health of the people as the practice of medicine. It may require boh qualifications of learning and of good character, and, if it deems that one who has violated the criminal laws of the state is not possessed of sufficient good character, it can deny to such a one the right to practice medicine; and, further, it may make the record of a conviction conclusive evidence of the fact of the violation of the criminal law, and of the absence of the requisite good character. In support of this latter argument, counsel for the state, besides referring to the legislation of many states prescribing in a general way good character as one of the qualifications of a physician, has made a collection of special provisions as to the effect of a conviction of felony. In the footnote will be found his collection.
We are of opinion that this argument is the more applicable, and must control the answer to this question. No precise limits have been placed upon the police power of a state, and yet it is clear that legislation which simply defines the qualifications of one who attempts to practice medicine is a proper exercise of that power. Care for the public health is something confessedly belonging to the domain of that power. The physician is one whose relations to life and health are of the most intimate character. It is fitting, not merely that he should possess a knowledge of diseases and their remedies, but also that he should be one who may safely be trusted to apply those remedies. Character is as important a qualification as knowledge, and if the legislature may properly require a definite course of instruction, or a certain examination as to learning, it may with equal propriety prescribe what evidence of good character shall be furnished. These propositions have been often affirmed. In Dent v. West Virginia, 129 U.S. 114, 122, 9 Sup. Ct. 231, 233, it was said in respect to the qualifications of a physician: '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.'
We note also these further declarations from state courts: In State v. State Medical Examining Board, 32 Minn. 324, 327, 20 N.W . 238, 240, it was said: 'But the legislature has surely the same power to require. as a condition of the right to practice this profession, that the practitioner shall be possessed of the qualification of honor and good moral character as it has to require that he shall be learned in the profession. It cannot be doubted that the legislature has authority, in the exercise of its general police power, to make such reasonable requirements as may be calculated to bar from admission to this profession dishonorable men, whose principles or practices are such as to render them unfit to be intrusted with the discharge of its duties.' In Thompson v. Hazen, 25 Me. 104, 108: 'Its authors were careful that human health and life should not be exposed without some restraint, by being committed to the charge of the unprincipled and vicious. It could not have been intended that persons decstitute of the moral qualifications required should have full opportunity to enter professionally the families of the worthy but unsuspecting, and be admitted to the secrets which the sick chamber must often intrust to them.' In State v. Hathaway, 115 Mo. 36, 47, 21 S. W. 1083: 'The legislature, then, in the interest of society, and to prevent the imposition of quacks, adventurers, and charlatans upon the ignorant and credulous, has the power to prescribe the qualifications of those whom the state permits to practice medicine. * * * And the objection now made that because this law vests in this board the power to examine, not only into the literary and technical acquirements of the applicant, but also into his moral character, it is a grant of judicial power, is without force.' In Eastman v. State, 109 Ind. 278, 279, 10 N. E. 98: 'It is, no one can doubt, of high importance to the community that health, limb, and life should not be left to the treatment of ignorant pretenders and charlatans. It is within the power of the legislature to enact such laws as will protect the people from ignorant pretenders, and secure them the services of reputable, skilled, and learned men.' In State v. Call (N. C.) 28 S. E. 517: 'To require this is an exercise of the police power for the protection of the public against incompetents and imposters, and is in no sense the creation of a monopoly of special privileges. The door stands open to all who possess the requisite age and good character, and can stand the examination which is exacted of all applicants alike.'
But if a state may require good character as a condition of the practice of medicine, it may rightfully determine what shall be the evidences of that character. We do not mean to say that it has an arbitrary power in the matter, or that it can make a conclusive test of that which has no relation to character, but it may take whateve, according to the experience of mankind, reasonably tends to prove the fact and make it a test. County Seat of Linn Co., 15 Kan. 500-528. Whatever is ordinarily connected with bad character, or indicative of it, may be prescribed by the legislature as conclusive evidence thereof. It is not the province of the courts to say that other tests would be more satisfactory, or that the naming of other qualifications would be more conducive to the desired result. These are question for the legislature to determine. 'The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity.' Dent v. West Virginia, 129 U.S. 122, 9 Sup. Ct. 233.
It is not open to doubt that the commission of crime-the violation of the penal laws of a state-has some relation to the question of character. It is not, as a rule, the good people who commit crime. When the legislature declares that whoever has violated the criminal laws of the state shall be deemed lacking in good moral character, it is not laying down an arbitrary or fanciful rule, one having no relation to the subject-matter, but is only appealing to a well-recognized fact of human experience; and, if it may make a vo lation of criminal law a test of bad character, what more conclusive evidence of the fact of such violation can there be than a conviction duly had in one of the courts of the state? The conviction is, as between the state and the defendant, an adjudication of the fact. So, if the legislature enacts that one who has been convicted of crime shall no longer engage in the practice of medicine, it is simply applying the doctrine of res judicata, and invoking the conclusive adjudication of the fact that the man has violated the criminal law, and is presumptively, therefore, a man of such bad character as to render it unsafe to trust the lives and health of citizens to his care.
That the form in which this legislation is cast suggests the idea of the imposition of an additional punishment for past offenses is not conclusive. We must look at the substance, and not the form; and the statute should be regarded as though it in terms declared that one who had violated the criminal laws of the state should be deemed of such bad character as to be unfit to practice medicine, and that the record of a trial and conviction should be conclusive evidence of such violation. All that is embraced in these propositions is condensed into the single clause of the statute, and it means that, and nothing more. The state is not seeking to further punish a criminal, but only to protect its citizens from physicians of bad character. The vital matter is not the conviction, but the violation of law. The former is merely the prescribed evidence of the latter. Suppose the statute had contained only a clause declaring that no one should be permitted to act as a physician who had violated the criminal laws of the state, leaving the question of violation to be determined according to the ordinary rules of evidence; would it not seem strange to hold that that which conclusively established the fact effectually relieved from the consequences of such violation?
It is no answer to say that this test of character is not in all cases absolutely certain, and that sometimes it works harshly. Doubtless, one who has violated the criminal law may thereafter reform, and become in fact possessed of a good moral character. But the legislature has power in cases of this kind to make a rule of universal application, and no inquiry is permissible back of the rule to ascertain whether the fact of which the rule is made the absolute test does or does not exist. Illustrations of this are abundant. At common law, one convicted of crime was incompetent as a witness; and this rule was in no manner affected by the lapse of time since the commission of the offense, and could not be set aside by proof of a complete reformation. So, in many states a convict is debarred the privileges of an elector, and an act so debarring was held applicable to one convicted before its passage. Washington v. State, 75 Ala. 582. In Foster v. Commissioners, 102 Cal. 483, 482, 37 Pac. 763, the question was as to the validity of an ordinance revoking a license to sell liquor on the ground of misconduct prior to the issue of the license, and the ordinance was sustained. In commenting upon the terms of the ordinance the court said: 'Though not an ex post facto law, it is retrospective in so far as it determines from the past conduct of the party his fitness for the proposed business. Felons are also excluded from obtaining such a license, not as an additional punishment, but because the conviction of a felony is evidence of the unfitness of such persons as a class; nor can we perceive why such evidence should be more conclusive of unfitness were the act done after the passage of the ordinance than if done before.' In a certain sense such a rule is arbitrary, but it is within the power of a legislature to prescribe a rule of general application based upon a state of things which is ordinarily evidence of the ultimate fact sought to be established. 'It was obviously the province of the state legislature to provide the nature and extent of the legal presm ption sumption to be deduced from a given state of facts, and the creation by law of such presumptions is, after all, but an illustration of the power to classify.' Jones v. Brim, 165 U.S. 180, 183, 17 Sup. Ct. 282.
Defendant relies largely on Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333. In the first of these cases, a test oath, containing some 30 distinct affirmations respecting past conduct, extending even to words, desires, and sympathies, was prescribed by the state of Missouri upon all pursuing certain professions or avocations; and, in the second, a similar oath, though not so far-reaching in its terms, was required by act of congress of those who sought to appear as attorneys and counselors in the courts of the United States. It was held that, as many of the matters provided for in these oaths had no relation to the fitness or qualification of the two parties, the one to follow the profession of a minister of the gospel, and the other to act as an attorney and counselor, the oaths should be considered, not legitimate tests of qualification, but in the nature of penalties for past offenses. These cases were called to our attention in Dent v. West Virginia, supra, in which the validity of a statute of West Virginia imposing new qualifications upon one already engaged in the practice of medicine was presented for consideration. After pointing out the distinguishing features of those cases, this court summed up the matter in these words (page 188, 129 U.S., and page 235, 9 Sup. Ct.):
'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.'
Ex parte Wall, 107 U.S. 265, 2 Sup. Ct. 569, is also worthy of notice. In that case the circuit court had stricken the petitioner's name from the roll of practicing attorneys, on the ground that he had committed a crime, although not in the presence of the court, nor interfering with it in the discharge of its duties. The petitioner here insisted that the act which was charged against him was one for which he was, if guilty, liable to trial and conviction under the law of the state, and that the federal court had no power on account of such act (one having no connection with his obligations to that court) to disbar him. In reply to this contention, it was said (page 273, 107 U.S., and page 575, 2 Sup. Ct.):
'It is laid down in all the books in which the subject is treated that a court has power to exercise a summary jurisdiction over its attorneys to compel them to act honestly towards their clients, and to punish them by fine and imprisonment for misconduct and contempts, and, in gross cases of misconduct, to strike their names from the roll. If regularly convicted of a felony, an attorney will be struck off the roll as of course, whatever the felony may be, because he is rendered infamous. If convicted of a misdemeanor which imports frand or dishonesty, the same course will be taken. He will also be struck off the roll for gross malpractice or dishonesty in his profession. * * * Where an attorney was convicted of theft, and the crime was condoned by burning in the hand, he was, nevertheless, struck from the roll. 'The question is,' said Lord Mansfield, 'whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion. * * * It is not by way of punishment; but the court in such cases exercise their discretion whether a man whom they have formerly admitted is a proper person to be continued on the roll or not."
The thought which runs through these cases and others of similar import which might be cited is that such legislation is not to be regarded as a mere imposition of additional penalty, but as prescribing the qualifications for the duties to be discharged and the position to be filled, and naming what is deemed to be, and what is in fact, appropriate evidence of such qualifications.
In Gray v. Connecticut, 159 U.S. 74, 77, 15 Sup. Ct. 986, this court considered the effect of a statute prescribing additional qualifications for one acting as a pharmacist who already had a license from the state therefor, and said: 'Whatever provisions were prescribed by the law previous to 1890, in the use of spirituous liquors in the medicinal preparations of pharmacists, they did not prevent the subsequent exaction of further conditions which the lawful authority might deem necessary or useful.' See, also, Foster v. Commissioners, supra, and State v. State Board of Medical Examiners, 34 Minn. 387, 26 N. W. 123.
We find no error in the record, and therefore the judgment of the state court is affirmed.

## Notes

* ↑ Colorado: The board may refuse certificates to persons convicted of conduct of a criminal nature; and may revoke certificates for like cause. Mills' Ann. St. 1891, § 3556.
Iowa: May revoke a certificate to a person who has been convicted of felony committed in the practice of his profession, or in connection there-
with; or may revoke for like cause; * * * and such refusal or revocation prohibits such person from practicing medicine, surgery or obstetrics. Laws 1889, c. 104, § 7.
Louisiana: The board is required to strike from the said list (of registered names) the names of persons convicted of any infamous crimes by and court * * * whether prior or posterior to registration. Act 1882, No. 31, § 5.
New Jersey: May refuse or revoke a license for chronic and permanent inebriety, the practice of criminal abortion, conviction of a crime involving moral turpitude, or for publicly advertising special ability to treat of cure disease which, in the opinion of the board, it is impossible to cure (after hearing). Act 1890, c. 190, § 5.
North Dakota: Substantially the same. Act 1890, c. 93, § 3.
Vermont: May revoke or annual a certificate if in their judgment the holder has obtained it fraudulently or has forfeited his right to public confidence by the conviction of a crime. R. L. 1880, § 3915.
Washington: The board will refuse or revoke a license for unprofessional or dishonorable conduct subject to the right of appeal. * * * 'Unprofessional or dishonorable conduct' means procuring or aiding or abetting in a criminal abortion or employing what are popularly known as cappers or steerers; or obtaining any fee on the assurance that any manifestly incurable disease can be permanently cured; or willfully betraying a professional secret; or using advertisements of medical business in which untruthful or improbable statements are made; or advertising any medicine or means whereby the monthly periods of women can be regulated, or the meanses re-established if suppressed; or the conviction of any offense involving moral turpitude; or habitual intemperance. Act March 28, 1890, §§ 3, 4.
Great Britain and Ireland: If any registered medical practitioner shall be convicted in England or Ireland of any felony or misdemeanor, or in Scotland of any crime or offense, or shall be, after due inquiry, judged by the the general council to have been guilty of infamous conduct in any professional respect, the general council may, if they see fit, direct the register to erase the name of such medical practitioner from the register. Acts 21 & 22 Vict. c. 90, § 29.
New Brunswick: Substantially same. Act 1881, c. 19, § 22.
Northwest Territory: Substantially same. Ord. 5, 1888, § 37, as substituted by Ord. 24, 1892, § 1.
Nova Scotia: Substantially same. Rev. St. (5th Ser.) c. 24, § 19.
Manitoba: Any registered medical practitioner convicted of felony or misdemeanor, before or after the passage of this act or his registration, forfeits his right to registration, and by direction of the council his name
shall be erased. If a person known to have been convicted of felony or misdemeanor presents himself for registration, the register may refuse registration. If any person registered be judged after due inquiry * * * to have been guilty of infamous or unprofessional conduct in any respect, the council may direct the register to erase his name. Rev. St. Man. 1891, c. 98, § 40.
British Columbia: Any registered practioner convicted of any felony thereby forfeits his right to registration, and * * * his name is required to be erased from the register; or, in case a person known to be convicted of felony presents himself for registration, the register has the power to refuse such registration. Cons. Act 1888, c. 81, § 32; substantially same as to Quebec; Rev. St. 1888, § 3996.
Ontario: A practitioner is liable to have his name erased from the register where he has been convicted, before or after registration, of an offense which, if committed in Canada, would be a felony or misdemeanor, or where he has been guilty of any infamous or disgraceful conduct in a professional respect. Rev. St. 1887, c. 148, § 34.
Newfoundland: The * * * board may try and expel any member of the profession for acts of malpractice, misconduct or immoral habits. * * * Act 1893, c. 12, § 32.
Prince Edward's Island: A medical practitioner guilty of infamous or disgraceful conduct in a professional respect is liable to have his name erased, and, if he apply for registration, the council may refuse it. Act 1892, c. 42, § 22.
New Zealand: If any registered person shall be or shall have been convicted of any felony or misdemeanor in Great Britain or Ireland, or in any of the British dominions, the register-general and register, respectively, shall erase the name of any such person from the register, and such erasure shall be notified by the register-general in the New Zealand Gazette. Medical Practitioner's Act 1869, No. 51.
Hawaii: It shall not be lawful for any person to practice in this kingdom as a physician or surgeon for compensation or reward unless he shall have first presented to the board of health satisfactory evidence of his professional qualifications and good moral character. Act 1876, c. 11, § 3.
St. Lucia: If any registered medical practitioner is convicted of any felony, the register shall erase the name of such practitioner from the Medical Register. If any registered medical practitioner is convicted of any misdemeanor, a report shall be submitted * * * to the governor in council, who * * * shall determine whether (he) has been guilty of infamous conduct in any professional or other respect, and may thereupon, if he sees fit, direct the register to erase the name. * * * Medical Practitioner Ordinance No. 77 of 1885, § 11.
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