The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-08-28
PROBABLY NOT CONSTITUTIONAL.

DR.. John Mcclure was put on trial the
other day in this city, charged with hav-
ing violated the law passed by the last
legislature which requires medical men to
register with the state board of health and
regularly procure, by payment of fee. Liz
cense to practice. If DIR. Mcguire had
cared 10 take an appeal to the supreme
court he would probably find out the law
is unconstitutional, since its provisions do
not apply to those resident physicians who
were praeticing medicine or surgery within
the state Of Washington at the time of the
passage of the original act, whose place
has been taken by the present statute. In
this respect the law of Washington is as
constitutionally weak as was the statute of
New Hampshire, which in 1889 was ad-
judged by the supreme court to be uncon-
stitutional. In the New Hampshire case,
which was set forth at the time in the
American Law Reriep, dentist was in
dicted for practicing dentistry without
dental degree or license. He demurred to
the indictment upon the ground that the
statute which required him to possess such
degree or license as a prerequisite to
practice was unconstitutional and void.
because the New Hampshire statute in
cluded the clause, "The provisions of this
act, however, do not apply to persons who
have resided and practised their profess
sions in the town or city of their present
residence during all of the time since Jam
uary l, 1875" The defendant insisted that
this discrimination was repugnant to the
first section of the fourteenth amendment
to the constitution OF the United States.
which provides that no state shall deny to
any person within its jurisdiction the
equal protection of the laws.
The Supreme Court of New Hampshire.
speaking through the late Chief Justice
Clarke, very learned and able jurist, held
the statute to be unconstitutional. not be-
cause the Legislature may not properly re.
quire physicians and dentists TO take ont
licenses. but because this particular law
does not operate equally upon all ersons
engaged in the same occupation, The
right OF the Legislature TO exclude unfit
persons from the practice of medicine, sur
gerry and dentistry must be exercised"
said Mr.. Justice Clarke, Sin conformity
with the constitutional requirement that
such restrictions must operate equally
upon all persons pursuing the same busi-
ness or profession under the same circum-
stances" From this New Hampshire de-
cision We make the following extract:
The statute in question is framed in disregard
OF the principle of constitutional equality, be.
ifs xfsSnr
ical men and dentists who have resided aud
practced in the town or city of their residence
since January /, 1875. BY an arbitrary test hav-
ing no reference TO skin, learning or fitness for
the practice of that profession, certain persons
are exempted trom the payment of Il license fee
TO which Others OF equal and perhaps superior
requirements and experience are subjected.
Practically under this arbitrary act all
quacks, "irregulars" and advertising ply
sicians who were resident in Washington
when the original act was passed. for
which the present statute was substituted.
are not subject TO any of the pains and
penalties of the present act, and may con-
time IN business without hindrance. The
state medical board cannot deal with anv
OF the resident quacks, 'irregulars," etc.,
who were resident when the original act
was passed. because they are specially ex-
empted from its provisions, and this very
exemption the New Hampshire supreme
court declared to be fatal TO the law. In
our Judgment DR.. Mcclure or any other
doctor may practice his profession in
Washington without license, and, If in.
dicted under this law, has only to take an
appeal TO the Supreme Court against its
eonstitutionality 70 win his cause the mo-
ment he gets judicial hearing, and his
legal victory would not be bad advertise
ment of his business.
Nj. Justice Field. of the United States