charge the delegation of arbitrary powers, | "what is forbidden varies from time to time and legislative and judicial powers to the as medical science progresses and also varies board. Inasmuch as the defendant is ex- with the personnel of the court." If this cluded from practice by the terms of the were to be conceded to be true in a limlaw itself, that is, by direct act of the Legis-ited sense, we do not see that the delature, and not by the exercise of the board fendant in the present case has actually of any power given to it, he is not affected been so affected by any change in interpreby any of the powers conferred upon the tation that he can raise the constitutional board, and, therefore, as already appears, he question suggested. It does not appear that cannot raise questions as to the constitution- the changes in the personnel of this court ality of the portions of section 3 of chapter have effected any change in the interpreta193 which confer these powers. Specifica- tion of the law, and to say that since the tion 6 charges that chapter 193 conflicts passage of the act the words "the practice of with section 10 of article 1 of the state and medicine" have acquired a meaning essentialsection 1 of article 14 of the Amendments ly unlike their original meaning seems no to the federal Constitution in that it fails more than the making of a guess. We think to define the "practice of medicine." he should show that he has been actually affected in the respects alleged, and not simply a possibility that he may be so affected at some time or other, in order to raise such question. But in this connection it will not be amiss to call attention to the recent case of Ross v. Oregon, 227 U. S. 150, 33 Sup. Ct. 220, 57 L. Ed. 458, Ann. Cas. 1914C, 224, in which the court, referring to the ex post facto clause in said section 10 of article 1 of the federal Constitution, said:

"But that provision of the Constitution, according to the natural import of its terms, is a the making of laws, not their construction by restraint upon legislative power and concerns the courts. It has been so regarded from the beginning."

As has heretofore appeared, this court in State v. Mylod, supra, held that the words "practice of medicine" must be construed to relate to the practice of medicine as ordinarily and popularly understood. On page 637 of 20 R. I., on page 756 of 40 Atl. (41 L. R. A. 428), the court discusses the rule of construction to be followed, and reaches the result already stated, summed up in this sentence, "Popularly it [the practice of medicine] consists in the discovery of the cause and nature of disease, and the administration of remedies or the prescribing of treatment therefor." This interpretation was reaffirmed in Swarts v. Siveny, 35 R. I. 1, 7, 85 Atl. 33. While the defendant has [9] Specifications 8, 9, and 10 may be said called our attention to several cases in dis- in general terms to allege the unconstitutioncussing this specification, we think none of ality of chapter 115 of the General Laws, them sustains his claim. We do not find and as resulting therefrom the unconstituthat chapter 193 is in conflict with either the tionality of chapter 193. While perhaps it state or federal Constitution as alleged in may be argued that inasmuch as by the exthe specification. From some of the cases press terms of section 3 of chapter 193 cited it seems as if defendant's counsel had the defendant is excluded from the right to in mind and was considering the question of practice medicine because he is not a gradthe sufficiency of a criminal complaint charg- uate from a medical school, and is not ex ing one with the unlawful "practice of medi- cluded by any act of the state board of cine" without other description of the of health, he is in no way affected by the fact fense, and was urging that such complaint of whether or not the board is legally condoes not satisfy the requirements of section stituted in conformity with the two Consti10 of article 1 of our Constitution as to in- tutions, and therefore is not entitled to raise forming the accused "of the nature and cause the questions contained in these three specof the accusation." The specification, how-ifications. Without deciding this suggested ever, does not raise the constitutional suffi- question, inasmuch as the criminal comciency of the complaint which was the ques-plaint in the present case was instituted by tion in State v. Murphy, 15 R. I. 543, 10 Atl. the secretary of the board elected under and 585, where the form of complaint was pre- by authority of chapter 115, and as the broad scribed by the statute. That also was the question raised is important and far reachquestion in State v. Carey, 4 Wash. 424, 430, ing in its effect, the constitutional question 30 Pac. 729. The statute of that state speci- or questions will now be considered. fies certain things, as constituting the prac-refer to the matter with greater particularity, tice of medicine, as does section 8 of our specification 8 is that chapter 115, and espechapter 193. The Washington court clearly implies that if the complaint had defined the offense as described in the statute (as the complaint in the present case does), it would have been held good.

Το

cially section 1 thereof, is in conflict with section 2 of article 1 of the state Constitution, "and is made for the benefit of a class of persons and not for the whole people” in that at least four of seven members of the [8] Specification 7 charges that chapter state board of health must be members of 193 is in effect an ex post facto law, and thus some medical society incorporated in this in conflict with section 12 of article 1 of the state, which societies, it is alleged, are "orstate Constitution, and with section 10 of ganized among other purposes to suppress article 1 of the federal Constitution, because new and rival systems of medicine, and to

The board was established by Public Laws, c. 680, passed at the January session, 1878. It was then composed of six persons, three of whom were required to be "well-educated physicians and members of some med

promote the general welfare of their mem- | chapter 121, §§ 20 to 23, chapter 276, § 7, and bers against competition from schools of med- chapter 356, §§ 30 to 32. icine other than the two schools to which the members of said society must belong." The ninth specification alleges a conflict of section 1 of chapter 115 with section 10 of article 1 of the state Constitution and section 1 of article 14 of the Amendments to the fed-ical society incorporated by the state." From eral Constitution, in that the right of the defendant to practice medicine is to be determined by a board selected from a private society and not from the whole people, thus abridging his privilege and depriving him of liberty and property without due process of law, and denying him the equal protection of the laws. Specification 10 charges that chapter 193 is in conflict with sections 2 and 10 of article 1 of the state Constitution and section 1 of article 14 of the Amendments to the federal Constitution in this, that the right to practice medicine is to be determined by a state board of health cre ated by a void and unconstitutional act, in consequence of which chapter 193 is unconstitutional because all the rights and obligations thereunder are wholly dependent upon the existence of a board created in an unconstitutional manner. It is evident that the basic fact underlying all these allegations of unconstitutionality is the provision that a majority of the board must be selected from the "members of some medical society incorporated by the state."

The provisions of section 1 of chapter 115

objected to are:

"There shall be a state board of health which shall consist of seven persons, two from the county of Providence, one from each of the other counties, and one from the state at large. At least four members of said board shall be well-educated physicians, and members of some medical society incorporated by the state."

The members of the board are appointed by the Governor, with the advice and consent of the Senate for a term of six years each. Their duties in general are set forth in section 2 of chapter 115, as follows:

"The board shall take cognizance of the interests of life and health among the citizens of the state; they shall make investigations into the causes of disease, and especially of epidemics and endemics among the people, the sources of mortality, and the effects of localities, employments, conditions and circumstances on the public health, and shall do all in their power to ascertain the causes and the best means for the prevention of diseases of every kind in the state. They shall publish and circulate, from time to time, such information as they may deem to be important and useful for diffusion among the people of the state, and shall investigate and give advice in relation to such subjects relating to the public health, as may be referred to them by the General Assembly, or by the Governor when the General Assembly is not in session."

the beginning their duties included those set out in sections 2 and 3 of chapter 115, supra. Prior to the passage of chapter 680 the several town counsels and boards of aldermen were ex officio boards of health in their respective towns and cities. The creation of the state board of health did not divest the local boards of their powers, and it may reasonably be inferred that the former was expected to co-operate with and to supplement the activities of the latter. By chapter 794, passed January, 1880, the board was authorized "to elect a well-qualified physician as their secretary" who became ex officio a member of the board, although since January, 1915, he has not been such member. He was not by statute required to be a member of any medical society. By chapter 1519, passed March, 1908, section 1 of chapter 96 of the General Laws (1896), was amended to read as section 1 of chapter 115 of the General Laws of 1909 now reads. The situation from time to time has been this: From 1878 to 1880 of the board of six, three were required to be physicians who were members of a medical society of the state; from 1880

to 1908 the board consisted of seven mem

bers, four of whom were required to be physicians, three of them members of a state medical society; from 1908 to 1915 the board consisted of eight members, five of them physicians, four of whom were required to be members of a state medical society; and

since 1915 seven members have composed the board, four of whom are to be physicians who are members of a medical society. An examination of the defendant's brief in discussing chapter 115 discloses no objection to the act creating the state board of health, because for the most of the 38 years since its passage the provision has been that the majority of the members must be physicians. An inspection of the act itself and the various amendments thereto setting forth the powers and duties of the board relative to the measures to be taken for the prevention and spreading of disease and for the guarding of the public health would seem to put it beyond discussion that a majority of the board ought to be men trained to deal with such matters. The provision that such majority should be physicians is, therefore, in our opinion, a reasonable exercise of legislative power. The real objection is to the requirement that the physicians must be "members of some medical society incorpo

Section 3 requires them to investigate the subject of diseases among cattle or other animals, and their duties also have been enlarged by subsequent enactments. See chap-rated by the state," in that it is legislation ters 386, 728, 1070, and 1226 of the Public Laws. See, also, General Laws (1909) c. 113, § 4, chapter 114, §§ 13, 14, 15, chapter 116,

for a class, and not for the public welfare, and is thus obnoxious to the state and federal Constitutions. It is to be borne in mind

"Whereas certain persons have associated themselves together for the purpose of mutual improvement and protection in the practice of medicine and surgery, and have petitioned," etc.

The first two charters provide for the election of "suitable persons" as members by a majority of those present at any legal meeting. The expression "suitable" implies that membership in the two older societies called for qualifications of some kind. We think this is also implied in the amended preamble of the third society in the words "associated for mutual improvement and pro

that in 1878, when the state board of health was created and long after, that is, until 1895, there was in Rhode Island no statute regulating the practice of medicine or defining the qualifications of a practitioner. The term "physicians" was used in the statutes, and certain duties were imposed on them, but any man irrespective of whether or not he had prepared himself therefor might practice medicine, if he could find people willing to trust their health and lives to his head and hands. Under such conditions it might be expected to be and undoubtedly was the fact that some poorly educated and ill-tection in the practice of medicine and surtrained, but well-meaning men, and some unscrupulous pretenders and quacks were practicing medicine and were popularly classed as physicians.

Prior to 1878 charters had been granted to three medical societies, and no question is made as to their previous incorporation and

to their existence in 1878. The first was the Rhode Island Medical Society. The act was passed in February, 1812, and names 46 incorporators, and their names would indicate that they represented the different portions of the state. The preamble to the act is as

follows:

gery." The provision of section 7 giving authority "to examine all candidates for the practice of physic and surgery (who shall offer themselves for examination) respecting their skill in their profession," and to issue letters testimonial to those "found skilled in their profession," is a recognition by the General Assembly of qualifications on the part of the society officials to examine candidates and to determine their skill in the profession. This section seems to point to an effort to improve and in a mild way to standardize the practice. The examinations were wholly voluntary, and the testimonial was an indorsement of fitness in practice, which "As the medical art is important to the health and happiness of society, every institution cal- would be of such value to the holder as the culated to further its improvement is entitled to public might give to it. In the light of all public attention; and as medical societies, form- the surrounding circumstances it does not ed on liberal principles, and encouraged by the seem unreasonable to presume that at least patronage of the laws, have been found conducive to this end: Be it therefore enacted," etc. a great majority of the more eminent, skillful, and experienced practitioners of mediSection 7 of the act is as follows: cine would be members of these societies, "The president and members of said society or and that most of the poorly trained, unskillsuch officers or members as they shall appoint for that purpose shall have full power and au- ful, and ignorant practitioners would not be thority to examine all candidates for the prac- included in such membership. In other tice of physic and surgery (who shall offer them- words, membership in such societies would selves for examination) respecting their skill in their profession; and if upon examination said afford to a certain extent a test of profescandidates shall be found skilled in their pro- sional standing and ability in that at least fession and fitted for the practice of it they the quacks and those least qualified for pracshall receive the approbation of the society in tice would not be found in them. Having reletters testimonial under the seal of said society, signed by the president, or such other person or gard to the prevailing conditions and the obpersons as shall be appointed for that purpose." jects to be accomplished, was the requirement At the October session in 1827 the Rhode of the original act that the physicians on the Island Central Medical Society was incor- board should be "members of a medical soporated, 19 persons being named as corpo-ciety" in the state reasonable or arbitrary rators. Its section 7 is in effect the same as and capricious? We have hereinbefore resection 7 just quoted from the earlier charter. The Rhode Island Medical Reform Society was incorporated at the October session of 1854 (page 36). Its preamble runs thus: "Whereas certain persons have associated themselves together, for the purpose of aiding and encouraging the medical reform practice, which excludes, in a great measure, the use of the lancet, and also the use of mercury and antimony, and have petitioned this assembly to grant them a charter of incorporation, with the privileges and powers following."

This charter contains no provision similar to section 7 of the last two charters. By an act of amendment passed at the January session 1872 (p. 207), the name of this corporation was changed to Rhode Island Liberal Medical Association, and the preamble of the original act was made to read:

ferred to the rule governing classification with citation of cases from the Supreme Court of the United States illustrative of the application of the rule. It is sufficient to say that the reasonable inference is that the General Assembly was providing for the selection of physicians likely to be competent for the duties assigned them as members of the board, and named membership in a medical society as a qualification, because it tended to insure competency. Our attention is called in the brief for the state to the fact that since 1878 eight medical societies have been incorporated in this state, five by special act, and three under the general corporation law passed in 1896. Inasmuch as that law now requires but five persons to form such a society, it is plain that any school of medicine

ed for murder and imprisoned under the indictafter the time at which he shall plead to the ment shall be tried or bailed within six months indictment, and so was discharged from custody on habeas corpus, his discharge did not bar prosecution on another indictment, chapter 305. § 28, providing that no person who has been discharged upon a writ of habeas corpus shall be again imprisoned or restrained for the same cause, "unless he shall be indicted therefor or convicted thereof"; while in section 16, providing that if on hearing on writ of habeas corpus no legal cause be shown for the imprisonment or restraint, the court shall discharge the party "therefrom," "therefrom" refers to "imprisonment or restraint."

in the state having as many as five members | viding that every person who shall be indictmay form such a medical society, and its members thus become eligible for appointment to the board of health, if they also be "well-educated physicians." As under chapter 115 the duties of the state board of health do not include any relating to the regulating of the practice of medicine, and as by legislative enactment since 1878 the list of eligibles for appointment to the board as physicians may now include practitioners in the state of every school of medicine, if they number as many as five, we think there is no sufficient ground for the claim that section 1 of chapter 115 was passed not in the interest of the public welfare, but for the benefit of a particular class. The history of

the origin and development of this legislation indicates a legislative intent the reverse of that claimed by the defendant.

[10] We find no ground for holding chapter 115 and especially section 1 in conflict in any respect with either the state or federal Constitutions. The defendant's allegation of the unconstitutionality of the state board of health really rests on the grant of the power to it to examine candidates for the practice of medicine and to issue or withhold certificates, as such power is conferred by chapter 193, and particularly section 3 thereof. But even if section 3 of chapter 193 or the whole chapter were open to this objection of unconstitutionality as to this grant of power, it would not affect the validity of chapter 115 in any respect. And as to whether the powers conferred upon the state board of health by said section 3 are valid or not, as already pointed out, the defendant is not in a position to question as he has been in no particular affected by any act of the board. In his failure to apply to the board for an examination and for the issuance of a certificate, the defendant recognizes that his exclusion from practice is due entirely to the provision of the law requiring as a necessary qualification for practice "satisfactory evidence of graduation from a medical school in good standing." The validity of that provision we have already considered.

We are of the opinion that none of the objections properly raised by the defendant to the constitutionality of chapter 193 and especially section 3 thereof are well founded

and valid.

The papers in the case will be sent back to the district court of the Sixth judicial district, with our decision certified thereon for further proceedings.

(40 R. I. 89)

STATE v. DESLOVERS. (No. 4725.) (Supreme Court of Rhode Island. March 2, 1917.)

1. CRIMINAL LAW 186-JEOPARDY - DISCHARGE ON HABEAS CORPUS-STATUTES. Where defendant, charged with murder, was detained in prison more than six months, in violation of Gen. Laws 1909, c. 354, § 17, pro

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 312, 320, 345-361.] 2. CRIMINAL LAW 680(1)—TRIAL-ORDER OF PROOF.

where it had sufficiently appeared in evidence In a prosecution for murder of a woman, that a woman had come to her death through the criminal agency of some person, but it had not been established either by direct or circumstantial evidence that the decapitated body was that of the particular woman whose death was charged to defendant, and no evidence had been introduced tending to connect him with the crime, it was within the trial court's discrecution to give evidence concerning the particution to permit certain witnesses for the proselar woman and her relations with defendant, the testimony relating to her customs and habits, her addiction to drink, her hostility toward defendant, etc.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1609, 1613.]

3. CRIMINAL LAW 488(2) EVIDENCE

OPINION.

In a prosecution for homicide, where a physician testifying utilized his record of the autopsy he made, the court properly denied defendant the right to inquire whether the autopsy made

on the body of the deceased was the last entry in the doctor's book.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 958, 959.]

6. WITNESSES 256 REFRESHING RECOL- INSPECTION OF RECORD USED BY

LECTION WITNESS. In a prosecution for murder, where a physician testified as to an autopsy performed on decedent's body, and admitted that he had a record thereof, the court's refusal to permit counsel for defendant to examine such record was erroneous, the witness, upon having read to him certain portions of his testimony given in the district court, and being inquired of as to whether or not he had made such statements, having consulted the record in making his answers, while the mere fact that the witness did not have the record immediately before him when

In prosecution for murder, court's error in not obtaining full translation of answers of foreign witness from interpreter before ruling on them was harmless to defendant where at ant, Henri Deslovers, was indicted by the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
100 A.-5