Butcher v. Maybury, 8 F.2d 155 (W.D. Wash. 1925)

*156 *157 Spencer Gray, E. E. Shields, and D. V. Halverstadt, all of Seattle, Wash., for plaintiffs.

John H. Dunbar, Atty. Gen., and E. W. Anderson, Asst. Atty. Gen., for defendant.

Before McCAMANT, Circuit Judge, and CUSHMAN and NETERER, District Judges.

McCAMANT, Circuit Judge (after stating the facts as above).

The statute sought to be restrained has been before the Supreme Court of Washington for construction. State ex rel. Fryberg v. Maybury (Wash.) 236 P. 566. It is there held that on the revocation of a full license, granted under substantially the conditions set forth in the bill in this case, it is the duty of the director of licenses to return the limited license surrendered when the full license was granted. The court holds that "the right to practice is a valuable property right," *158 and that "this right was one that could only be taken away * * * by appropriate proceedings calling for its revocation, or by voluntary relinquishment." It is also held that a license granted under the act of 1919 is not a contract with the state.

There is no diversity of citizenship, and the jurisdiction of this court is based wholly on the federal question raised by the bill. It is charged that chapter 10 of the Session Laws of 1925 is in violation of the first section of the Fourteenth Amendment to the Constitution of the United States, in that it deprives plaintiffs of their property without due process of law and denies them the equal protection of the laws. It is also charged that the statute is in violation of section 10 of article 1 of the Constitution, forasmuch as it "is a bill of attainder and ex post facto law." These are the only federal questions presented.

The effect of the act of 1925, if it is free from constitutional objection, is to amend by implication the act of 1919 in its application to the second class of licentiates, of whom the plaintiff Goodrich is one. The new statute lays upon this class the requirement of a high school education or its equivalent and attendance for three entire sessions, of 36 weeks each, in a drugless school. The statute provides a new procedure for the revocation of licenses granted wholly or in part because of diplomas. It does not change the qualifications demanded by the act of 1919 of the first and third classes of applicants. The plaintiff Wehe received her original limited license on the strength of her continuous practice of her profession for 12 years and of the examination she passed. The new statute affects her only because of the full license granted her in part because of her postgraduate diploma from the American University of Sanipractic. The plaintiff Butcher is affected by the act of 1925 only because it changes the procedure for the revocation of licenses.

The right of a physician to practice his profession is a property right, of which he cannot be arbitrarily deprived. Dent v. West Virginia, 129 U.S. 114, 123, 124, 9 S. Ct. 231, 32 L. Ed. 623; Douglas v. Noble, 261 U.S. 165, 43 S. Ct. 303, 67 L. Ed. 590; Bogni v. Perotti, 224 Mass. 152, 112 N.E. 853, 855, L. R. A. 1916F, 831; Lawrence v. Board of Registration, 239 Mass. 424, 132 N.E. 174, 176; State v. Medical Board, 32 Minn. 324, 20 N.W. 238, 50 Am. Rep. 575, 576.

The right is a qualified one, and is held in subordination to the duty of the state under the police power to protect the public health. Hawker v. New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002, Lawrence v. Board of Registration, 239 Mass. 424, 132 N.E. 174, 176. The police power cannot be stipulated or bartered away. Gray v. Connecticut, 159 U.S. 74, 15 S. Ct. 985, 40 L. Ed. 80. In State v. Hovorka, 100 Minn. 249, 252, 110 N.W. 870, 871, 8 L. R. A. (N. S.) 1273, 1275 (10 Ann. Cas. 398) it is said:

"No person can acquire a vested right to continue, when once licensed, in a business, trade, or occupation which is subject to legislative control and regulation under the police power. The rights and liberty of the citizen are all held in subordination to that governmental prerogative, and to such reasonable regulations and restrictions as the Legislature may from time to time prescribe. * * * Regulations so prescribed and conformed to by the citizen may be subsequently changed or modified by the Legislature, whenever public interest require it, without subjecting its action to the charge of interfering with contract or vested rights. This is elementary."

In a note found on page 1273 of 8 L. R. A. (N. S.) the author says:

"The granting of a license in such cases is merely the means taken by the state, in the exercise of its police power, to regulate and restrict the engaging in certain professions and occupations for the public good, and confers no rights whatever, in the way of a contract with the state, upon the licensee. He takes the same subject to the right of the state, at any time that the public good demands, to make further restrictions and regulations thereto; and, if such restrictions and regulations are reasonable, they will be upheld, even though they may actually prohibit some people from further engaging in such occupations or professions under a license previously granted."

The authorities hold without dissent that it is competent for the Legislature to prescribe qualifications for those who are to practice medicine and thus to assure that they shall possess the requisite character and learning. Dent v. West Virginia, 129 U.S. 114, 122, 9 S. Ct. 231, 32 L. Ed. 623; Hawker v. New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002; State v. State Medical Board, 32 Minn. 324, 20 N.W. 238, 50 Am. Rep. 575, 577. The regulation of drugless healers is a proper exercise of the police power. Crane v. Johnson, 242 U.S. 339, 37 S. Ct. 176, 61 L. Ed. 348, Ann. Cas. 1917B, 796. The regulatory power of *159 the state may be properly committed to an administrative board or officer. Douglas v. Noble, 261 U.S. 165, 170, 43 S. Ct. 303, 67 L. Ed. 590; State v. State Medical Board, 32 Minn. 324, 20 N.W. 238, 50 Am. Rep. 575, 577.

These regulatory statutes may be made operative on those engaged in practice prior to the enactment of the statutes. Dent v. West Virginia, 129 U.S. 114, 122, 9 S. Ct. 231, 32 L. Ed. 623; Collins v. Texas, 223 U.S. 288, 295, 32 S. Ct. 286, 56 L. Ed. 439; Lawrence v. Board of Registration, 239 Mass. 424, 132 N.E. 174, 176. The state may change the qualifications from time to time, making them more rigid. Dent v. West Virginia, 129 U.S. 114, 122, 9 S. Ct. 231, 32 L. Ed. 623; Gray v. Connecticut, 159 U.S. 74, 15 S. Ct. 985, 40 L. Ed. 80; State v. Hovorka, 100 Minn. 249, 110 N.W. 870, 8 L. R. A. (N. S.) 1273, 1275, 10 Ann. Cas. 398.

The Legislature may prescribe qualifications, both as to character and learning, which will require those in practice to give up their occupation. Dent v. West Virginia, 129 U.S. 114, 122, 9 S. Ct. 231, 32 L. Ed. 623; Hawker v. New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002. Legislation prescribing qualifications which a practitioner cannot meet because of conditions antedating the enactment of the legislation is valid. Such legislation does not constitute punishment; it is legitimate regulation. Hawker v. New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002; Meffert v. State Board of Medical Registration, 66 Kan. 710, 72 P. 247, 1 L. R. A. (N. S.) 811. The limitation on the above doctrines is the principle that the regulations must be reasonable and must bear some relation to the service to be rendered by the practitioner.

The changes in the qualifications of drugless healers, made by the act of 1925, were within the legislative discretion. It is not unreasonable to exact a high school education or its equivalent as a proper standard of general education. Neither is it an arbitrary exercise of legislative power to require a residence course of three sessions, consisting of 36 weeks each, in a school of approved standing.

The power of the state to require a license implies the power to revoke a license which has been improperly issued. Provision for the revocation of such licenses is made by the act of 1919, whose constitutionality is not under attack. The statute in question merely changes the procedure required for such purpose.

The act of 1925 provides for notice and hearing to a licentiate whose license is proposed to be revoked. He is entitled to the compulsory attendance of witnesses and to be represented by counsel. If the issue is determined against him, he has a right to review the action of the director of licenses in the superior court for Thurston county. This procedure abundantly meets the "due process" requirements of the Fourteenth Amendment. Reetz v. Michigan, 188 U.S. 505, 507, 23 S. Ct. 390, 47 L. Ed. 563.

The equal protection of the laws, guaranteed by the above amendment, is secured "if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government." Duncan v. Missouri, 152 U.S. 377, 382, 14 S. Ct. 570, 572 (38 L. Ed. 485). The statute in question operates alike on all who come within its purview. The presumption is that in its enforcement the director of licenses will act fairly and from a good motive. Douglas v. Noble, 261 U.S. 165, 170, 43 S. Ct. 303, 67 L. Ed. 590; Lehmann v. Board of Accountancy, 263 U.S. 394, 44 S. Ct. 128, 68 L. Ed. 354. The statute does not deny to plaintiffs the equal protection of the laws.

"A bill of attainder is a legislative act which inflicts punishment without a judicial trial." Cummings v. Missouri, 4 Wall. 277, 323, 18 L. Ed. 356. The statute in question inflicts no punishment. Meffert v. State Board of Medical Registration, 66 Kan. 710, 72 P. 247, 251, 1 L. R. A. (N. S.) 811; Hawker v. New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002. If plaintiffs lose the right to continue the practice of their profession, it will not be as a punishment for some offense committed by them, but because their qualifications do not measure up to the legislative requirements.

In Calder v. Bull, 3 Dall. (Pa.) 386, 390, 1 L. Ed. 648, the court classifies ex post facto laws as follows:

"(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

"(2) Every law that aggravates a crime, or makes it greater than it was when committed.

"(3) Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed.

"(4) Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time *160 of the commission of the offense, in order to convict the offender."

This definition has been repeatedly approved in form or substance. Hopt v. Utah, 110 U.S. 574, 589, 4 S. Ct. 202, 28 L. Ed. 262; Mallett v. North Carolina, 181 U.S. 589, 593, 21 S. Ct. 730, 45 L. Ed. 1015; Kentucky Union Co. v. Kentucky, 219 U.S. 140, 31 S. Ct. 171, 55 L. Ed. 137. It is manifest that the statute in question does not fall within the above classification. It has been expressly held that a statute which makes provision for the cancellation of licenses of those engaged in the practice of medicine is not obnoxious to the ex post facto provision of the federal Constitution. Reetz v. Michigan, 188 U.S. 505, 510, 23 S. Ct. 390, 47 L. Ed. 563.

If plaintiffs are prosecuted criminally because of conditions brought about by the statute in question, it will be because they practice their profession after their licenses are revoked. Such prosecution would be based on acts subsequent to the passage of the statute. On this branch of their contention plaintiffs rely on Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356, and Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366. The Supreme Court has held that the doctrine of these cases is inapplicable to a proceeding brought for the revocation of a physician's license for lack of qualifications, because of conditions antedating the statute prescribing the qualifications. Hawker v. New York, 170 U.S. 189, 198, 18 S. Ct. 573, 42 L. Ed. 1002. We therefore conclude that chapter 10 of the Session Laws of Washington for 1925 is not invalid because of any of the provisions of the federal Constitution invoked in the bill.

A constitutional statute may be enforced so arbitrarily as to violate the right of a party to pursue his occupation, but the presumption is that boards and officers will be actuated by good motives and will act fairly. New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 563, 26 S. Ct. 144, 50 L. Ed. 305. The bill contains no allegations to rebut this presumption. It is alleged that the director of licenses will revoke the limited license of the plaintiff Wehe; if he does so, she will have a plain remedy under section 5 of the statute. The act complained of, as construed by the Supreme Court of Washington, entitles her to retain her limited license. State ex rel. v. Maybury, 236 P. 566.

Chapter 10 of the Session Laws of 1925 is also attacked as violative of various provisions of the Constitution of Washington. The federal courts are reluctant to declare a statute void because of conflict with a state Constitution, when the state court of last resort has not passed upon the question. Michigan Co. v. Powers, 201 U.S. 245, 291, 26 S. Ct. 459, 50 L. Ed. 744; Joseph R. Foard Co. v. Maryland, 219 F. 827, 835, 135 C. C. A. 497; Cook v. Burnquist (D. C.) 242 F. 321, 328. In this case the statute in question has come before the Supreme Court of Washington for construction. State ex rel. Fryberg v. Maybury, 236 P. 566. We may say in this case, as was said by the Supreme Court in Michigan Co. v. Powers, 201 U.S. 245, 292, 26 S. Ct. 459, 462 (50 L. Ed. 744):

"While this case did not directly determine the constitutionality of the statute, a fair implication is that it was not regarded as obviously in conflict with the state Constitution, for in that event the court would scarcely have taken time to consider the validity of proceedings under its authority."

In that case, and in Pullman Co. v. Knott, 235 U.S. 23, 35 S. Ct. 2, 59 L. Ed. 105, the Supreme Court declined to pass on the conformity of the statute in question to the state Constitution. On the authority of these cases we decline to pass on this branch of plaintiffs' contention. The decision of the Supreme Court of Washington on that subject would be binding on this court, and in view of the delicacy of the question under the circumstances of this case it is better that this question be determined by the state courts.

The application for an injunction is denied. The motion to dismiss is allowed.