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PEMBERTON, C. J. (after stating the tiff, in the event of their default in complyfacts). · At the trial of the case the defend- ing with the terms of said agreement. The ants offered evidence to prove what construc- possession of this undivided one-third inter. tion should be given to the words, “one-sixth est was the only part or interest in said minof the net proceeds of all shipments of ore," ing claim that plaintiff had the right to de as used in the contract between plaintiff and mand in case of the default of the defendthemselves, as quoted above. The defend- ants. If the co-owners of plaintiff, or their ants contended that under said contract they assigns, were in possession of their undivid. were entitled to deduct all the expenses of ed two-thirds interest in said mining claim, mining, as well as the expense of shipping, it would be impossible for defendants to comthe ore, before plaintiff was entitled to re- ply with the judgment. The judgment should ceive his one-sixth of the net proceeds there- have been in favor of plaintiff, and against of, and sought to prove by witnesses that, the defendants, for possession of that interaccording to the custom of miners, said con- est in the George mining claim which they, tract should be so construed. This evidence or either of them, acquired under said conwas rejected; the court holding that the de- tract or lease, and that he be put into posfendants could only deduct the expenses of session of said interest, and the judgment shipping the ore, and not the expenses of should be modified in this respect. Freem, mining it, and so instructed the jury. This Coten. § 293; Newman v. Bank, 80 Cal. 368. action of the court is assigned as error. We 22 Pac. 261; Hopkins v. Noyes, 4 Mont. 550, think there was no error in this action of the 2 Pac. 280. court. The contract is not ambiguous. It There are other errors assigned, but we specifies what expenses the defendants could think it unnecessary to treat them. The case deduct from the value of the ore, and con- is remanded, with directions to the court to fines these expenses to the shipping of the modify the judgment in accordance with this ore.

There is a vast difference between the opinion; and the judgment, as so modified, expenses of mining and shipping ore and the is affirmed. expense of merely shipping the same. The words used are perfectly plain, and we think

DE WITT and HUNT, JJ., concur. it would have been improper to have allowed evidence to prove that they meant something else. Parol evidence was not admissible ei

(11 Utah, 291) ther to change the contract, or add some

PEOPLE v. HASBROUCK. thing to it. This is elementary law.

(Supreme Court of Utah. March 16, 1895.) It also appears from the record that the

CRIMINAL LAW-REVIEW ON APPEAL – CoxsTITCoriginal parties to the contract put the same TIONAL LAW-PRIVILEGES OF Citizens-Ex. construction upon it that the court did, for,

AMINATION OF PHYSICIANS. until the original obligees assigned their in

1. The sufficiency in form of a criminal terest in the contract, they only deducted the

complaint will not be considered when raised

for the first time on appeal by a defendant, expenses of shipping the ore, in their settle

who admitted the commission by him of the alments with the plaintiff. We think the con- leged offense, and agreed on the trial to waive tract is perfectly plain in its terms. There is

any formal objections, and that the case should

be tried upon the question of the validity of the no ambiguity about it. The expenses of

statute upon which the prosecution was based. shipping the ore are the only expenses men- 2. The prohibitions of the United States tioned therein that defendants were author

constitution against state legislation abridging ized to deduct from the value thereof before

the privileges of citizens are not violated by

Act 'March 10, 1892, applicable alike to citi. paying to plaintiff his one-sixth of the net pro- zens of Utah and of other states and territories, ceeds. To charge plaintiff with any part of which authorizes the licensing, without examthe mining expenses would be adding some

ination, of medical graduates who were, but

not those who were not, in actual practice at thing to the contract that is not in it, and

its passage, and also of persons who had prae which, seemingly, was not intended to be in ticed for 10 years in the territory before the takit by the original parties.

ing effect of the act, upon passing an examinaThere are several specifications of error, at

tion, although without a diploma, while requir.

ing others to have a diploma besides passing tacking the action of the court in excluding an examination. testimony and giving instructions involving

3. Such act is not unconstitutional upon the construction of this agreement, but we

the ground that it makes no specific disposition

of the fees collected froin applicants, since, by have deemed it sufficient to treat them all

providing a treasury of the board of examin. as one assignment. The defendants com- ers, and an income, the power is conferred by plain of the judgment of the court, in that it

necessary implication to devote the fees to the is for the possession of the whole George

payment of the necessary expenses.

4. Nor is such act, in authorizing the board mining claim. The plaintiff, under his agree- to ascertain and determine the qualifications of ment with the defendants, leased or let to applicants to practice medicine, unconstitutionthem his undivided one-third interest in

al, as conferring judicial power on the board.

5. Appointments of members of the board said mining claim, and no more. This undi

are not invalid on the ground that none of vided one-third interest in said mining claim them were by and with the advice and conis the only part or interest therein that de

sent of the legislature, as provided by section fendants bound themselves, under said agree

1 of the act, it having been passed on the last

day of the session of the legislature, whose sesment, to redeliver the possession of to plain- sions are biennial, so that it would have been

impossible to have procured such consent at en persons so commissioned as aforesaid met that session, or until the next session, held two

on the 24th day of December, 1892, and oryears later, 6. The failure of the governor to appoint

ganized as the board of medical examiners the members of the board within a month aft- of Utah territory, and elected one of their er the offices came into existence, as provided members, Allen Fowler, M, D., as president by the act, did not invalidate the appointments,

of said board, and Charles C. Schinnick as the provision as to the time of making such appointments being merely directory.

secretary and treasurer thereof. That said

board held regular meetings at Salt Lake Appeal from district court, Third district; City, aforesaid, on the first Monday in Janbefore Justice H. W. Smith.

uary, 1893, and on the first Monday in March, Richard A. Hasbrouck, upon conviction be- 1893, and numerous other meetings at the fore a commissioner of practicing medicine same place between the first Monday in Janwithout a license, appealed, and from a uary, 1893, and the 30th day of April, 1893, judgment of conviction in the district court for the purpose of receiving and considering appeals. Affirmed.

applications for license or certificates enJ. D. Cochran and Le Grand Young, for

titling the holders therof to practice med

icine and surgery in Utah territory, as proappellant. Andrew Howatt and Walter

vided and contemplated in said act, of which Murphy, for the People.

meeting the said defendant had notice. That

said defendant has not at any time made MERRITT, C. J. The defendant in this

application to said board for any license or was convicted before Harmel Pratt, certificate to entitle him to practice medicine commissioner, of practicing medicine with- or surgery, as provided and contemplated in out a license, in violation of the provisions said act, and so practiced medicine and surof the act of the territorial legislature en- gery as aforesaid without any such license titled "An act to regulate the practice of or certificate having been issued to him by medicine,” approved March 10, 1892; and said board." The defendant was adjudged was fined $50. On the 29th of May, 1893, an guilty as charged, and sentenced to pay a appeal was taken to the Third district court fine in the sum of $50. From this judgment of Utah territory by the defendant. There- the defendant appealed to the supreme court. after, and on the 25th of January, 1894, the Upon the question whether the complaint case was heard in the district court before is sufficient in form the authorities are somethe Honorable H. W. Smith, presiding. A what in conflict; but it is not necessary to jury, was waived, and the defendant was pass upon that question, for it is stated by tried on the following agreed statement of appellant's counsel that any objection to facts: “That the defendant Richard A. Has- the form of the complaint was waived in the brouck, upon the 30th day of April, 1893, court below, and it was agreed between the and from and after said date, continually, prosecution and the defendant that the case to the 6th day of May, 1893, practiced medi- should be tried upon the question of the cine and surgery at Salt Lake City, in Salt validity of the statute upon which the comLake county, Utah territory, and has plaint is founded, and of the validity of the practiced medicine and surgery in said city appointment of the board of medical exand county since prior to the 10th day of aminers by the governor. The agreed stateMarch, 1892. That said defendant had re- ment of facts, signed by the defendant, adceived from the Bennett College of Eclectic mits in so many words that upon the 30th Medicine and Surgery, in the year 1882, a day of April, 1893, and from and after said diploma as a physician and surgeon, and date, continuously to the 6th day of May, has practiced medicine and surgery ever 1893, the time charged in the complaint, at since receiving the same. That after the Salt Lake City, in Salt Lake county, Utah passage and approval of the act of the gov- territory,-the place charged in the comernor and legislative assembly of the ter- plaint, -he practiced medicine and surgery ritory of Utah entitled 'An act to regulate without any license or certificate from the the practice of medicine,' approved March board of medical examiners. This was an 10, 1892, the governor of the territory of admission of the ultimate fact to be proved Utah appointed seven persons as a board of by the prosecution, and dispensed with the medical examiners of Utah territory, to ex- necessity upon the part of the prosecution ecute the duties in said act prescribed, and of producing evidence of the probative facts, issued commissions to each of said persons from which the ultimate facts would be adas a member of said board. That none of duced, and dispensed also with any further said appointments were made by or with consideration of the formal requisites of the the advice or consent of the council of said complaint. “That the defendant, at the time legislative assembly, and none of said com- and place named, practiced medicine withmissions were issued until after the adjourn- out a license,” if it could be held a conclument of said assembly in 1892, and the last sion, is the defendant's own conclusion, on December 20, 1992. That the day of couched in the language of the statute, and the approval of said act, March 10, 1892, was set forth in the agreed statement of facts. the last day of the sessirn of said legislative Under these circumstances, an objection to assembly in the year 1892. That the said sev- the sufficiency of the complaint in form, caised for the first time on appeal, will not act accompanied by a petition signed by be considered.

case

so

twenty-five legal voters living in the city or The statute upon which this prosecution is precinct where such applicant practices, be founded is of the same general character as admitted to examination before the board of the statutes of a large number of states upon medical examiners, and if satisfactory shall the same subject,—the regulation of the prac- receive such certificate, unless it shall be tice of medicine.

The predominant charac- ascertained and determined by the board of teristic and purpose of such statutes is to medical examiners that the person so apply. prevent the practice of medicine by incom- ing for a certificate is of immoral character petent and improper persons, to provide for or guilty of unprofessional or dishonorable the ascertainment and certification by a pub- conduct, in which case said board may relic officer or board of qualifications to prac- ject such application, and provided that tice, and for the public registry of legally such application for a certificate shall be licensed physicians, and to prohibit and pun- made within six months after the taking ish the practice of medicine by those who effect of this act; and all persons holding a have failed or refused to obtain the pre- certificate on account of ten years' practice scribed license or certificate of qualifica- shall be subject to all the requirements and tions. This statute provides for the appoint- discipline of this act in regard to their fument of a "board of seven medical examin- ture conduct in the practice of medicine, ers from various recognized schools of med- the same as all other persons holding cericine,” who shall qualify by taking an oath tificates. And all persons not having apthat they are "graduates of legally char- plied for or received such certificates within tered colleges in good standing, and that six months after the taking effect of this they will faithfully perform the duties of act, and all persons whose applications have their office." Section 1. Section 2 provides for cause herein named been rejected or that said board shall have the power to is- certificates revoked, shall, if they practice sue certificates to all who furnish satisfac- medicine, be deemed guilty of practicing in tory proof of having received degrees or li- violation of law, and shall suffer the pen. censes from chartered medical colleges in alties herein provided.” And in section 15 good and legal standing, and pass a satis- it is provided that “the term respectable factory examination before said board; that medical colleges in this act shall include col. said board “shall prepare two forms of cer- leges in legal standing of any recognized tificates, one for persons examined and fa- school of medicine." The other sections of vorably passed upon by the board, the other the act relate to the public registry of phyfor persons as provided for in section 11 of sicians' licenses, meetings of the board, and this act." Sectiou 3 provides that the fee other matters not necessary to be recited. for the examination and certificate, as pro- That legislation of the general character vided for in section 2, shall be $25, which enacted in this statute-namely, legislation shall be paid to the treasurer of the board to protect the community against the effects of examiners. Section 4 provides that “grad- of ignorance and incapacity, as well as de. uates of respectable medical colleges who ception and fraud, in the practice of mediare at this time engaged in actual practice cine, by requiring a certain degree of learnin this territory shall be licensed to practice ing and skill upon the part of the practitionmedicine under this act upon presentation er, “ascertained upon an examination by com. of their degree to said board and upon pro- petent persons, or inferred from a certificate ducing satisfactory evidence of the identity in the form of a diploma or license from an of said applicant. The fee for such license institution established for instruction on the shall be five dollars, to be paid to the treas- subject”-is a legitimate exercise of the pourer of the board of examiners." Section 8 lice power of the state, and that depriving provides that "the board of medical examin- persons not so qualified of the right to prac. ers may refuse to issue the certificates pro- tice is not obnoxious to the inhibition of the vided for in this act to individuals guilty of federal constitution against the deprivation unprofessional or dishonorable conduct, the of property without due process of law, are pature of which shall be stated in writing, propositions which are thoroughly settled. and it may revoke such certificates for like Dent v. West Virginia, 129 U. S. 114, 9 Sup. causes, to be stated in writing.” Section 10 Ct. 231; Tied. Lim. 88 87, 88; Cooley, Toits, provides that "any person practicing med

This general proposition is admitted icine or surgery within the territory without by the appellant, but he attacks the statute first having obtained a certificate as herein as violative of the constitutional provisions provided for, or contrary to the provisions that the citizens of each state shall be entiof this act, shall be deemed guilty of a tled to all the privileges and immunities of misilemeanor." Section 11 provides that "all citizens in the several states, in that gradu. persons not graudates of medical colleges ates of respectable medical colleges who were who have practiced medicine ten years con- at the time of the passage of the act entinually in this territory, prior to the tak- gaged in actual practice of medicine in the ing effect of this act, shall upon proper ap- territory may be licensed, under section 4 of plication and payment of the fee for ex- this act, without examination, and upon the amination as provided in section 3 of this payment of a fee of only $3; while citizens of a state or other territory who were like- that all other fees are exacted for no definite wise graduates of respectable medical col- purpose, and are therefore illegal. But there leges, but who were not engaged in actual is nothing in the act to show that the legispractice in this territory at the time of the lature contemplated that the fees mentioned passage of the act, are not entitled to such in section 12 would be sufficient to defray privilege, but, in addition to presenting their all the expenses of the board, nor does the diplomas and making proof of their identity, mere absence from the other sections of a must also submit to an examination as to provision similar to that contained in sectheir qualifications to practice, and must pay tion 12 afford any ground for arguing that a fee of $25. This statute does not contra- the other classes of fees were not intended vene this provision of the constitution; nor to be devoted to the same purpose. The does it contravene that part of the fourteenth language of section 12, on the contrary, seems amendment which declares that "no state to clearly imply that the legislature conshall make or enforce any law which shall templated the fees mentioned in that section abridge the privileges or immunities of citi- as only one of the sources from which the zens of the United States”; nor is the stat- expenses of the board should be paid. The ute obnoxious to either of these constitution- phrase "to be applied toward" defraying, al provisions by reason of the fact that per- etc., is the language appropriate to a case in sons who have practiced medicine for 10 which it is contemplated that a particular years continually in this territory prior to the source of revenue will be sufficient to pay taking effect of the act may be licensed to only a part of the required outlay. It is unpractice upon passing a satisfactory exam- necessary to determine whether the compenination, although without a diploma, while sation of the members of the board for their others are required both to pass an exam- official services may not be one of the exination and to possess a diploma. The plain penses which the board is authorized to pay answer to the appellant's objection is that out of its treasury. It is sufficient to say these provisions of the statute are not di- that the act, by necessitating expense in its rected against the citizens of other states. execution, in creating a board treasury, and They do not abridge any of their privileges providing an income, clearly implies a powor immunities. They do not withhold from er to devote that income to the payment of them any privileges or immunities which are necessary expenses. The fees provided for not withheld also from citizens of Utah sim- are all manifestly intended to meet the cost ilarly situated. “Citizens of other states are of executing the law, and are therefore legitientitled to practice medicine and surgery imate and proper license fees, whether the here on precisely the same terms and subject actual cost of executing the law has been only to the same restrictions as our own citi- overestimated or underestimated or correctly zens.” Even if it were true that one of the estimated in fixing the amount of fees. sorts of qualifications is such that none but The objection that the statute attempts to the citizens of Utah could possess it, this confer judicial power on the board is not well would not render the act obnoxious to this founded. Many executive officers, even those provision of the constitution. Ex parte Spin- who are spoken of as purely ministerial offiney, 10 Nev. 333; Harding v. People, 10 Colo. cers, act judicially in the determination of 387, 15 Pac. 727.

p. 289.

facts in the performance of their official duIt is contended by the appellant that the ties; and in so doing they do not exercise statute is unconstitutional, because, as he "judicial power,” as that phrase is commonly claims, no disposition is directed of the fees used, and as it is used in the organic act, in authorized by sections 3, 4, and 11 of the act. conferring judicial power upon specified The act creates a treasury and a treasurer courts. The powers conferred on the board of the board. It provides fees shall be paid of medical examiners are no wise different in to the treasurer; that is, into the treasury of character in this respect from those exercised the board. The board is a board of public by the examiners of candidates to teach in officers, created for a public purpose, char- our public schools, or by tax assessors or ged with the performance of important pub- boards of equalization in determining, for lic duties, in the exercise of which various purposes of taxation, the value of property. expenditures must necessarily be made. The ascertainment and determination of qualThat the board shall have power to incur ifications to practice medicine by a board of and pay expenses is not only implied from competent experts, appointed for that purits very necessity, but distinctly appears pose, is not the exercise of a power which apfrom the provision of section 12 that the propriately belongs to the judicial department fees received from applicants to practice ob- of the government. It does not trench upon stetrics shall be applied towards defraying the judicial power. Wilkins v. State, 113 Ind. the expenses of said board. It is argued 514, 16 N. E. 192; State v. State Board of by the appellant that the latter provision de. Medical Examiners, 34 Minn. 387, 26 N. W. fines the limit to which expenses may be 123. This act entitles every person whose paid out of the fees received; that the act qualifications to practice medicine, in point of appropriates only the fees received from ap- learning and skill, or in point of moral charplicants for license to practice obstetrics to acter, is in any manner drawn in question, to the payment of the board's expenses; and a hearing before the board. It would be abthat

legislature provi

verted into boards of medical examiners tosion that the governor shall appoint

the board

ascertain and decide whether an individual upon the passage of this act is to be conpossesses such technical knowledge or such strued as equivalent to a provision that he moral character that he may be permitted to should appoint upon the taking effect of the practice medicine with safety to the public, act. Harding v. People, 10 Colo. 387, 15 Pac. or whether the institution from which he 727. holds a diploma is a “respectable medical col- To assume that the legislature intended to lege," or, on the other hand, a fraud or an in- create offices which could not be filled until stitution whose instruction is unfit to proper- the next biennial session, to make a law ly and decently prepare its graduates for which could not be executed for two years, practice. The determination of these and although legally in effect on the 1st day of kindred questions relating to the fitness of an June next following its enactment, would be individual to carry on an occupation requir- an absurdity. But the power of the appointing for its safe and proper conduct a person ing executive, under such a provision as that of decent moral character, or to engage in an contained in this act and in section 7 of the occupation requiring special knowledge, care, organic act, to fill a vacancy, when such Faand prudence, such as that of a pilot or many cancy occurs during the recess of the conothers which may be mentioned, including, of firming legislature or legislative body, has course, the practice of the professions of law been frequently recognized as a necessary inand medicine, may constitutionally be and is cident of the executive power. Such an apvery properly devolved everywhere upon pointment by the governor of this territory, boards of inspection composed of experts in without the advice or consent of the council the particular occupation in question. The to an office validly created by the legislature, right of every person whose qualifications, but which bad never been legally filled, was mental or moral, are to be determined by this recognized by the supreme court of the Unitboard, to a hearing before it, is clearly im- ed States in the case of Clayton v. Utah Terplied by the provisions for the administration ritory, 132 U. S. 632, 10 Sup. Ct. 190. The or oaths and the taking of testimony "in all validity of the appointment made by the gov. matters relating to its duties," and from oth- ernor alone during the recess of the legislaer provisions of the act. If the board should, ture has received the further sanction of through malice or prejudice or dishonesty, ar- long-continued practical recognition in all bitrarily refuse or revoke a license, the in- the departments of the territorial governjured party would have his remedy by appro- ment. The offices created by this act came priate proceedings in the courts, and the into existence June 1, 1892, and were vacant; board would be restrained from doing or and, although they had not become vacant by compelled to undo the wrong. But, if the the death or resignation of any incumbent, it action of the board is in good faith, its final was clearly the duty of the executive to fill determination of qualification is not obnox- them, and put the law into execution. The ious to any constitutional provision. Due provision in the statute for the filling of vaprocess of law is not necessarily Judicial pro cancies by the governor was in itself a suffi.

Ex parte Wall, 107 U. S. 265, 2 Sup. cient warrant for his action, although his Ct. 569; State v. State Board of Medical Ex- power to do so might well be rested on other aminers, 34 Minn. 389, 26 N. W. 125; Rail- grounds. His failure to make the appoint. road Co. v. Backus (Ind. Sup.) 33 N. E. 421. ments within a month after the offices came A uniform rule and a uniform process for into existence did not invalidate them, that ascertaining and determining qualifications as provision being clearly directory. The board prescribed by this act, operating equally, on was validly appointed. all persons, affording to all persons the right For the reasons stated in this opinion, the to establish their qualification before the judgment of the court below is affirmed. board, this is due process of law.

The validity of the appointment of the BARTCH and KING, JJ., concur. board acting at the time specified in the complaint is challenged upon the ground that none of the members were appointed by, and

(106 Cal. 514) with the advice and consent of, the council, SAVINGS & LOAN SOC. v. BURNETT et al. as provided in section 1 of the act.

(No. 14,553.)? be noted, in the first place, that not only was

(Supreme Court of California. March 20, the act approved on the last day of the ses

1895.) sion of the legislature which enacted it, but, DEED OF TRUST PAYMENT OF NOTE SECURED there being no specified time mentioned in EVIDENCE-SALB UNDER DEED-VALIDITY-Exthe act upon which it should go into effect,

CESSIVE AMOUNT-CHARGES AND TAXES. it would take effect, under the provisions of

1. M., being indebted to plaintiff, executed

a deed to trustees as security for such indebtedsection 2973 of the Compiled Laws, upon ness, and for future sums to be advanced by June 1, 1892. It was therefore legally im- plaintiff for the benefit of the property described possible for the governor to appoint a board

in the deed. The instrument provided for reconof medical examiners by and with the ad

veyance to M., upon payment of his debt, and

for a sale at public auction in case of default vice and consent of the upper house of the in such payment; the proceeds to be applied on

1 Rehearing denied.

cess.

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