PEMBERTON, C. J. (after stating the facts). At the trial of the case the defendants offered evidence to prove what construction should be given to the words, "one-sixth of the net proceeds of all shipments of ore," as used in the contract between plaintiff and themselves, as quoted above. The defendants contended that under said contract they were entitled to deduct all the expenses of mining, as well as the expense of shipping, the ore, before plaintiff was entitled to receive his one-sixth of the net proceeds thereof, and sought to prove by witnesses that, according to the custom of miners, said contract should be so construed. This evidence was rejected; the court holding that the defendants could only deduct the expenses of shipping the ore, and not the expenses of mining it, and so instructed the jury. This action of the court is assigned as error. We think there was no error in this action of the court. The contract is not ambiguous. It specifies what expenses the defendants could deduct from the value of the ore, and confines these expenses to the shipping of the ore. There is a vast difference between the expenses of mining and shipping ore and the expense of merely shipping the same. The words used are perfectly plain, and we think it would have been improper to have allowed evidence to prove that they meant something else. Parol evidence was not admissible either to change the contract, or add something to it. This is elementary law. It also appears from the record that the original parties to the contract put the same construction upon it that the court did, for, until the original obligees assigned their interest in the contract, they only deducted the expenses of shipping the ore, in their settlements with the plaintiff. We think the contract is perfectly plain in its terms. There is no ambiguity about it. The expenses of shipping the ore are the only expenses mentioned therein that defendants were authorized to deduct from the value thereof before paying to plaintiff his one-sixth of the net proceeds. To charge plaintiff with any part of the mining expenses would be adding something to the contract that is not in it, and which, seemingly, was not intended to be in it by the original parties. There are several specifications of error, attacking the action of the court in excluding testimony and giving instructions involving the construction of this agreement, but we have deemed it sufficient to treat them all as one assignment. The defendants complain of the judgment of the court, in that it is for the possession of the whole George mining claim. The plaintiff, under his agreement with the defendants, leased or let to them his undivided one-third interest in said mining claim, and no more. This undivided one-third interest in said mining claim is the only part or interest therein that defendants bound themselves, under said agreement, to redeliver the possession of to plain tiff, in the event of their default in complying with the terms of said agreement. The possession of this undivided one-third inter est was the only part or interest in said mining claim that plaintiff had the right to demand in case of the default of the defendants. If the co-owners of plaintiff, or their assigns, were in possession of their undivided two-thirds interest in said mining claim, it would be impossible for defendants to comply with the judgment. The judgment should have been in favor of plaintiff, and against the defendants, for possession of that interest in the George mining claim which they, or either of them, acquired under said contract or lease, and that he be put into possession of said interest, and the judgment should be modified in this respect. Freem. Coten. § 293; Newman v. Bank, 80 Cal. 368, 22 Pac. 261; Hopkins v. Noyes, 4 Mont. 550, 2 Pac. 280. There are other errors assigned, but we think it unnecessary to treat them. The case is remanded, with directions to the court to modify the judgment in accordance with this opinion; and the judgment, as so modified, is affirmed. 1. The sufficiency in form of a criminal complaint will not be considered when raised for the first time on appeal by a defendant, who admitted the commission by him of the alleged offense, and agreed on the trial to waive any formal objections, and that the case should be tried upon the question of the validity of the statute upon which the prosecution was based. 2. The prohibitions of the United States constitution against state legislation abridging the privileges of citizens are not violated by Act March 10, 1892, applicable alike to citizens of Utah and of other states and territories, which authorizes the licensing, without examination, of medical graduates who were, but not those who were not, in actual practice at its passage, and also of persons who had praeticed for 10 years in the territory before the taking effect of the act, upon passing an examination, although without a diploma, while requir ing others to have a diploma besides passing an examination. 3. Such act is not unconstitutional upon the ground that it makes no specific disposition of the fees collected from applicants, since, by providing a treasury of the board of examiners, and an income, the power is conferred by necessary implication to devote the fees to the payment of the necessary expenses. 4. Nor is such act, in authorizing the board to ascertain and determine the qualifications of applicants to practice medicine, unconstitutional, as conferring judicial power on the board. 5. Appointments of members of the board are not invalid on the ground that none of them were by and with the advice and consent of the legislature, as provided by section 1 of the act, it having been passed on the last day of the session of the legislature, whose sessions are biennial, so that it would have been impossible to have procured such consent at that session, or until the next session, held two years later. 6. The failure of the governor to appoint the members of the board within a month after the offices came into existence, as provided by the act, did not invalidate the appointments, the provision as to the time of making such appointments being merely directory. Appeal from district court, Third district; before Justice H. W. Smith. Richard A. Hasbrouck, upon conviction before a commissioner of practicing medicine without a license, appealed, and from a judgment of conviction in the district court appeals. Affirmed. J. E. Cochran and Le Grand Young, for appellant. Andrew Howatt and Walter Murphy, for the People. MERRITT, C. J. The defendant in this case was convicted before Harmel Pratt, commissioner, of practicing medicine without a license, in violation of the provisions of the act of the territorial legislature entitled "An act to regulate the practice of medicine," approved March 10, 1892; and was fined $50. On the 29th of May, 1893, an appeal was taken to the Third district court of Utah territory by the defendant. Thereafter, and on the 25th of January, 1894, the case was heard in the district court before the Honorable H. W. Smith, presiding. A jury was waived, and the defendant was tried on the following agreed statement of facts: "That the defendant Richard A. Hasbrouck, upon the 30th day of April, 1893, and from and after said date, continually, to the 6th day of May, 1893, practiced medicine and surgery at Salt Lake City, in Salt Lake county, Utah territory, and has so practiced medicine and surgery in said city and county since prior to the 10th day of March, 1892. That said defendant had received from the Bennett College of Eclectic Medicine and Surgery, in the year 1882, a diploma as a physician and surgeon, and has practiced medicine and surgery ever since receiving the same. That after the passage and approval of the act of the governor and legislative assembly of the territory of Utah entitled 'An act to regulate the practice of medicine,' approved March 10, 1892, the governor of the territory of Utah appointed seven persons as a board of medical examiners of Utah territory, to execute the duties in said act prescribed, and issued commissions to each of said persons as a member of said board. That none of said appointments were made by or with the advice or consent of the council of said legislative assembly, and none of said commissions were issued until after the adjournment of said assembly in 1892, and the last on December 20, 1892. That the day of the approval of said act, March 10, 1892, was the last day of the session of said legislative assembly in the year 1892. That the said sev en persons so commissioned as aforesaid met on the 24th day of December, 1892, and organized as the board of medical examiners of Utah territory, and elected one of their members, Allen Fowler, M. D., as president of said board, and Charles C. Schinnick as secretary and treasurer thereof. That said board held regular meetings at Salt Lake City, aforesaid, on the first Monday in January, 1893, and on the first Monday in March, 1893, and numerous other meetings at the same place between the first Monday in January, 1893, and the 30th day of April, 1893, for the purpose of receiving and considering applications for license or certificates entitling the holders therof to practice medicine and surgery in Utah territory, as provided and contemplated in said act, of which meeting the said defendant had notice. That said defendant has not at any time made application to said board for any license or certificate to entitle him to practice medicine or surgery, as provided and contemplated in said act, and so practiced medicine and surgery as aforesaid without any such license or certificate having been issued to him by said board." The defendant was adjudged guilty as charged, and sentenced to pay a fine in the sum of $50. From this judgment the defendant appealed to the supreme court. Upon the question whether the complaint is sufficient in form the authorities are somewhat in conflict; but it is not necessary to pass upon that question, for it is stated by appellant's counsel that any objection to the form of the complaint was waived in the court below, and it was agreed between the prosecution and the defendant that the case should be tried upon the question of the validity of the statute upon which the complaint is founded, and of the validity of the appointment of the board of medical examiners by the governor. The agreed statement of facts, signed by the defendant, admits in so many words that upon the 30th day of April, 1893, and from and after said date, continuously to the 6th day of May, 1893, the time charged in the complaint, at Salt Lake City, in Salt Lake county, Utah territory, the place charged in the complaint, he practiced medicine and surgery without any license or certificate from the board of medical examiners. This was an admission of the ultimate fact to be proved by the prosecution, and dispensed with the necessity upon the part of the prosecution of producing evidence of the probative facts, from which the ultimate facts would be adduced, and dispensed also with any further consideration of the formal requisites of the complaint. "That the defendant, at the time and place named, practiced medicine without a license," if it could be held a conclusion, is the defendant's own conclusion, couched in the language of the statute, and set forth in the agreed statement of facts. Under these circumstances, an objection to the sufficiency of the complaint in form, raised for the first time on appeal, will not be considered. The statute upon which this prosecution is founded is of the same general character as the statutes of a large number of states upon the same subject,—the regulation of the practice of medicine. The predominant characteristic and purpose of such statutes is to prevent the practice of medicine by incompetent and improper persons, to provide for the ascertainment and certification by a public officer or board of qualifications to practice, and for the public registry of legally licensed physicians, and to prohibit and punish the practice of medicine by those who have failed or refused to obtain the prescribed license or certificate of qualifications. This statute provides for the appointment of a "board of seven medical examiners from various recognized schools of medicine," who shall qualify by taking an oath that they are "graduates of legally chartered colleges in good standing, and that they will faithfully perform the duties of their office." Section 1. Section 2 provides that said board shall have the power to issue certificates to all who furnish satisfactory proof of having received degrees or licenses from chartered medical colleges in good and legal standing, and pass a satisfactory examination before said board; that said board "shall prepare two forms of certificates, one for persons examined and favorably passed upon by the board, the other for persons as provided for in section 11 of this act." Section 3 provides that the fee for the examination and certificate, as provided for in section 2, shall be $25, which shall be paid to the treasurer of the board of examiners. Section 4 provides that "graduates of respectable medical colleges who are at this time engaged in actual practice in this territory shall be licensed to practice medicine under this act upon presentation of their degree to said board and upon producing satisfactory evidence of the identity of said applicant. The fee for such license shall be five dollars, to be paid to the treasurer of the board of examiners." Section 8 provides that "the board of medical examiners may refuse to issue the certificates provided for in this act to individuals guilty of unprofessional or dishonorable conduct, the nature of which shall be stated in writing, and it may revoke such certificates for like causes, to be stated in writing." Section 10 provides that "any person practicing medicine or surgery within the territory without first having obtained a certificate as herein provided for, or contrary to the provisions of this act, shall be deemed guilty of a misdemeanor." Section 11 provides that "all persons not graudates of medical colleges who have practiced medicine ten years continually in this territory, prior to the taking effect of this act, shall upon proper application and payment of the fee for examination as provided in section 3 of this act accompanied by a petition signed by twenty-five legal voters living in the city or precinct where such applicant practices, be admitted to examination before the board of medical examiners, and if satisfactory shall receive such certificate, unless it shall be ascertained and determined by the board of medical examiners that the person so applying for a certificate is of immoral character or guilty of unprofessional or dishonorable conduct, in which case said board may reject such application, and provided that such application for a certificate shall be made within six months after the taking effect of this act; and all persons holding a certificate on account of ten years' practice shall be subject to all the requirements and discipline of this act in regard to their future conduct in the practice of medicine, the same as all other persons holding cer tificates. And all persons not having applied for or received such certificates within six months after the taking effect of this act, and all persons whose applications have for cause herein named been rejected or certificates revoked, shall, if they practice medicine, be deemed guilty of practicing in violation of law, and shall suffer the penalties herein provided." And in section 15 it is provided that "the term respectable medical colleges in this act shall include colleges in legal standing of any recognized school of medicine." The other sections of the act relate to the public registry of physicians' licenses, meetings of the board, and other matters not necessary to be recited. That legislation of the general character enacted in this statute-namely, legislation to protect the community against the effects of ignorance and incapacity, as well as deception and fraud, in the practice of medicine, by requiring a certain degree of learning and skill upon the part of the practitioner, "ascertained upon an examination by competent persons, or inferred from a certificate in the form of a diploma or license from an institution established for instruction on the subject" is a legitimate exercise of the police power of the state, and that depriving persons not so qualified of the right to prac tice is not obnoxious to the inhibition of the federal constitution against the deprivation of property without due process of law, are propositions which are thoroughly settled. Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231; Tied. Lim. §§ 87, 88; Cooley, Torts, p. 289. This general proposition is admitted by the appellant, but he attacks the statute as violative of the constitutional provisions that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states, in that graduates of respectable medical colleges who were at the time of the passage of the act engaged in actual practice of medicine in the territory may be licensed, under section 4 of this act, without examination, and upon the payment of a fee of only $5; while citizens of a state or other territory who were likewise graduates of respectable medical colleges, but who were not engaged in actual practice in this territory at the time of the passage of the act, are not entitled to such privilege, but, in addition to presenting their diplomas and making proof of their identity, must also submit to an examination as to their qualifications to practice, and must pay a fee of $25. This statute does not contravene this provision of the constitution; nor does it contravene that part of the fourteenth amendment which declares that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"; nor is the statute obnoxious to either of these constitutional provisions by reason of the fact that persons who have practiced medicine for 10 years continually in this territory prior to the taking effect of the act may be licensed to practice upon passing a satisfactory examination, although without a diploma, while others are required both to pass an examination and to possess a diploma. The plain answer to the appellant's objection is that these provisions of the statute are not directed against the citizens of other states. They do not abridge any of their privileges | or immunities. They do not withhold from them any privileges or immunities which are not withheld also from citizens of Utah similarly situated. "Citizens of other states are entitled to practice medicine and surgery here on precisely the same terms and subject only to the same restrictions as our own citizens." Even if it were true that one of the sorts of qualifications is such that none but the citizens of Utah could possess it, this would not render the act obnoxious to this provision of the constitution. Ex parte Spinney, 10 Nev. 333; Harding v. People, 10 Colo. 387, 15 Pac. 727. It is contended by the appellant that the statute is unconstitutional, because, as he claims, no disposition is directed of the fees authorized by sections 3, 4, and 11 of the act. The act creates a treasury and a treasurer of the board. It provides fees shall be paid to the treasurer; that is, into the treasury of the board. The board is a board of public officers, created for a public purpose, charged with the performance of Important public duties, in the exercise of which various expenditures must necessarily be made. That the board shall have power to incur and pay expenses is not only implied from its very necessity, but distinctly appears from the provision of section 12 that the fees received from applicants to practice obstetrics shall be applied towards defraying the expenses of said board. It is argued by the appellant that the latter provision defines the limit to which expenses may be paid out of the fees received; that the act appropriates only the fees received from applicants for license to practice obstetrics to the payment of the board's expenses; and that all other fees are exacted for no definite purpose, and are therefore illegal. But there is nothing in the act to show that the legislature contemplated that the fees mentioned in section 12 would be sufficient to defray all the expenses of the board, nor does the mere absence from the other sections of a provision similar to that contained in section 12 afford any ground for arguing that the other classes of fees were not intended to be devoted to the same purpose. The language of section 12, on the contrary, seems to clearly imply that the legislature contemplated the fees mentioned in that section as only one of the sources from which the expenses of the board should be paid. The phrase "to be applied toward" defraying, etc., is the language appropriate to a case in which it is contemplated that a particular source of revenue will be sufficient to pay only a part of the required outlay. It is unnecessary to determine whether the compensation of the members of the board for their official services may not be one of the expenses which the board is authorized to pay out of its treasury. It is sufficient to say that the act, by necessitating expense in its execution, in creating a board treasury, and providing an income, clearly implies a power to devote that income to the payment of necessary expenses. The fees provided for are all manifestly intended to meet the cost of executing the law, and are therefore legitimate and proper license fees, whether the actual cost of executing the law has been overestimated or underestimated or correctly estimated in fixing the amount of fees. The objection that the statute attempts to confer judicial power on the board is not well founded. Many executive officers, even those who are spoken of as purely ministerial officers, act judicially in the determination of facts in the performance of their official duties; and in so doing they do not exercise "judicial power," as that phrase is commonly used, and as it is used in the organic act, in conferring judicial power upon specified courts. The powers conferred on the board of medical examiners are no wise different in character in this respect from those exercised by the examiners of candidates to teach in our public schools, or by tax assessors or boards of equalization in determining, for purposes of taxation, the value of property. The ascertainment and determination of qualifications to practice medicine by a board of competent experts, appointed for that purpose, is not the exercise of a power which appropriately belongs to the judicial department of the government. It does not trench upon the judicial power. Wilkins v. State, 113 Ind. 514, 16 N. E. 192; State v. State Board of Medical Examiners, 34 Minn. 387, 26 N. W. 123. This act entitles every person whose qualifications to practice medicine, in point of learning and skill, or in point of moral character, is in any manner drawn in question, to a hearing before the board. It would be ab surd to contend that the courts must be converted into boards of medical examiners to ascertain and decide whether an individual possesses such technical knowledge or such moral character that he may be permitted to practice medicine with safety to the public, or whether the institution from which he holds a diploma is a "respectable medical college," or, on the other hand, a fraud or an institution whose instruction is unfit to properly and decently prepare its graduates for practice. The determination of these and kindred questions relating to the fitness of an individual to carry on an occupation requir ing for its safe and proper conduct a person of decent moral character, or to engage in an occupation requiring special knowledge, care, and prudence, such as that of a pilot or many others which may be mentioned, including, of course, the practice of the professions of law and medicine, may constitutionally be and is very properly devolved everywhere upon boards of inspection composed of experts in the particular occupation in question. The right of every person whose qualifications, mental or moral, are to be determined by this board, to a hearing before it, is clearly implied by the provisions for the administration or oaths and the taking of testimony "in all matters relating to its duties," and from other provisions of the act. If the board should, through malice or prejudice or dishonesty, arbitrarily refuse or revoke a license, the injured party would have his remedy by appropriate proceedings in the courts, and the board would be restrained from doing or compelled to undo the wrong. But, if the action of the board is in good faith, its final determination of qualification is not obnoxious to any constitutional provision. Due process of law is not necessarily Judicial process. Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569; State v. State Board of Medical Examiners, 34 Minn. 389, 26 N. W. 125; Railroad Co. v. Backus (Ind. Sup.) 33 N. E. 421. A uniform rule and a uniform process for ascertaining and determining qualifications as prescribed by this act, operating equally, on all persons, affording to all persons the right to establish their qualification before the board, this is due process of law. It may The validity of the appointment of the board acting at the time specified in the complaint is challenged upon the ground that none of the members were appointed by, and with the advice and consent of, the council, as provided in section 1 of the act. be noted, in the first place, that not only was the act approved on the last day of the session of the legislature which enacted it, but, there being no specified time mentioned in the act upon which it should go into effect, it would take effect, under the provisions of section 2973 of the Compiled Laws, upon June 1, 1892. It was therefore legally impossible for the governor to appoint a board of medical examiners by and with the advice and consent of the upper house of the legislature which passed the act. The provision that the governor shall appoint the board upon the passage of this act is to be construed as equivalent to a provision that he should appoint upon the taking effect of the act. Harding v. People, 10 Colo. 387, 15 Pac. 727. To assume that the legislature intended to create offices which could not be filled until the next biennial session, to make a law which could not be executed for two years, although legally in effect on the 1st day of June next following its enactment, would be an absurdity. But the power of the appointing executive, under such a provision as that contained in this act and in section 7 of the organic act, to fill a vacancy, when such vacancy occurs during the recess of the confirming legislature or legislative body, has been frequently recognized as a necessary incident of the executive power. Such an ap pointment by the governor of this territory, without the advice or consent of the council to an office validly created by the legislature, but which had never been legally filled, was recognized by the supreme court of the United States in the case of Clayton v. Utah Territory, 132 U. S. 632, 10 Sup. Ct. 190. The validity of the appointment made by the governor alone during the recess of the legislature has received the further sanction of long-continued practical recognition in all the departments of the territorial government. The offices created by this act came into existence June 1, 1892, and were vacant; and, although they had not become vacant by the death or resignation of any incumbent, it was clearly the duty of the executive to fill them, and put the law into execution. The provision in the statute for the filling of vacancies by the governor was in itself a sufficient warrant for his action, although his power to do so might well be rested on other grounds. His failure to make the appointments within a month after the offices came into existence did not invalidate them, that provision being clearly directory. The board was validly appointed. For the reasons stated in this opinion, the judgment of the court below is affirmed. BARTCH and KING, JJ., concur. (106 Cal. 514) SAVINGS & LOAN SOC. ▾. BURNETT et al. (No. 14,553.)1 (Supreme Court of California. March 20, 1895.) DEED OF TRUST - PAYMENT OF NOTe SecuredEVIDENCE-SALE UNDER Deed-Validity-EXCESSIVE AMOUNT-CHARGES AND TAXES. 1. M., being indebted to plaintiff, executed a deed to trustees as security for such indebtedness, and for future sums to be advanced by plaintiff for the benefit of the property described in the deed. The instrument provided for reconveyance to M., upon payment of his debt, and for a sale at public auction in case of default in such payment; the proceeds to be applied on 1 Rehearing denied. |