The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-10-27
THE NEW MEDICAL LAW.
The Constitutionality of the Regulations
Ought To Be Settled in the Courts

DR.. Metcalf, secretary of the State Board of
Health submits to Attorney general Hord the
question: ''Can physician who practlced med
icine, surgery and obstetrics for three year con-
tinuously, Immediately preceding the taking
effect of the act regulating the practice of medi
cine. app owed April IL, 1885, attend course of
lectures after the taking effect of the law, and
be entitled to receive a license to practice medi-
cine, surgery and obstetricsp
Attorney -general Hord cites several clauses of
the Constitution, and, in answer, says: Under
these constitutional safeguards there is no prop
ositon more firmly settled than that it is one of
the fundamental rights and privileges of every
American citizen to adopt and follow such lawful
profession or employment, not injurious to the
community. as he may see fit, subject only to
constitutional regulation and restrictions There
is no more sacred right of citizenship than the
right to pursue unmolested lawful employ
ment In a lawful manner. It is nothing more
or less than the sacred right of labor Liberty
in its broad sense. as understood in this
country, means the right not only of freedom
from servitude, Imprisonment or restraint, but
the right of one to his faculties in ali lawful
ways; to live and work where he will, to earn his
livelihood in any lawful calling. and to pursue
any lawful trade or vocation The right to rea-
on the police power of the State which extends
to the protection of the health and lives of all
persons within the State. 1t is much easier to
perceive and realize the existence and source of
the police power of State than to mark it's
boundaries prescribe limits to its exercise. 1t
is the prerogative of the Legislature to prescribe
regulations founded on nature, reason and ex
perience, for the admission of qualified
persons to professions and callings de-
manding special skill and confidence. The fun
damental right of labor is not inconsistent
with that large class of cases in which the law
requires a license or certificate of requisite quail
ifications for admission to a particular employ
ment or profession. While generally it is for
the Legislature to determine what laws are re-
quired to protect and secure the public health,
comfort and safety police regulations, it may
not arbitrarily infringe upon personal or prop
erty rights, and its determination as to what is
proper exercise of the power is not final and con-
elusive, but is subject to the scrutiny of the
courts. When, therefore, the Legislature passes
an act ostensibly for the public health but which
does not relate to. and is inappropriate for the
purpose, and which destroys the property or in
terferes with the rights of the citizen and is not
a reasonable regulation, it is within the province
of the court to determine this fact, and to declare
the act violative of the constitutional guarantees
of those rights. The confidence of commu-
nity good will, the right to pursue his vocation,
by qualified physician, who has practiced his
profession for three nine years, although
he may have diploma, and may not
have attended one full course of lectures
at reputable M edical college, is his property.
The Legislature may make qualification test
or condition for license to practice medicine
Whether or not a law operating retrospectively,
affecting physicians who have regularly prac-
tced their profession for three more years
within the State before its passage. depriving
them of their occupation and the emoluments Of
their established business, without reference to,
or test Of their learning knowledge, quali6-
cations and fitness for their profession, can be
regarded as a reasonable regulation of the prac-
tice of medicine, and proper exercise of the
police power. and constitutional, is very close
question, and ought to be settled by the courts.
AS the law officer of the State, l DO not feel at
liberty to pass on the question, but / must ad-
here to the plain terms of the statute which
answer your question in the negative"
He further holds that if a physician has so ad-
vanced in his profession by study and experience
that his knowledge, so derived, would enable
him to obtain diploma from reputable medi
cal college after one full course of lectures such
diploma would entitle him to license and the
right to practice his profession