text:
    No. 12,912.
    State of Louisiana vs. Joe Hardaway.
    1. Where the book containing the entry o£ the minutes oí the court is signed by the presiding judge at the end of the term, it suffices. Not necessary that the same should be paraphed “ ne ■varietur."

    2. The-indictment charged the murder to have been committed in 1890. Before arraignment the District Attorney moved to amend by substituting 1893 for 1890. This being allowed, it is assigned as error in this court. Meld, the amendment was not necessary, as time is not of the essence of the offence.as here charged; and if it were necessary it was permissible.
    3. After trial and conviction, what is called á motion to quash the verdict and al proceedings had in th*e ease was filed, heard and overruled. It is assigned as error here that the minutes must show presence of accused at the hearing of this motion. Meld, presence of accused only required to be shown during arraignment, trial, charge, verdict and sentence.
    APPEAL from the Fourteenth Judicial District Court, Parish of Iberville. Talbot, J. '

      M. J. Cunningham, Attorney General, and Alex. Hébert, District Attorney, for Plaintiff and Appellee.

      Clarence S. Hébert for Defendant, Appellant.
    Submitted on briefs November 12, 1898.
    Opinion handed down December 5, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The defendant was indicted in the year 1898 for the murder of Jules Holland. He was tried in July, 1898, and from a verdict of guilty and a .sentenee of death he prosecutes this appeal.

One bill of exceptions appears in the record. It was taken to the action of the court overruling what is called a motion to quash the verdict.

On the second day after the verdict was returned this motion to quash was filed. The ground for asking that the verdict be quashed, and all the proceedings had in the case be set aside, was that the book which purports to be the minute book of the court and in which the proceedings of the court for the year 1898 were recorded, was never paraphed “ Ne Varietur ” by the Judge. That book contained the entry of the return of the indictment for murder by the grand jury against the accused.

It is averred that the law requires District Judges to so paraph the book of minutes of their courts, and because this was not done in the instant case, it is insisted that the verdict is vitiated.

When the motion came up for trial the accused, it seems, proposed to prove that the minute book was not paraphed.

Whereupon the judge stated to his counsel that it was a fact the minutes of the court were not identified in that manner, and no evidence was necessary to show it, but that counsel could exercise his pleasure as to the introduction 'of evidence. He added he knew of no law requiring such paraph.

It does not appear that any evidence was, after this, offered.

The judge further stated in the bill of exceptions that the minutes of the court are duly signed at the end of each term by the judge.

There is no merit in the motion.

We have been referred to no law that requires the book in which the minutes of court are recorded to be paraphed “ Ne Varietur,” and we know of no such law. Nor is it customary. When the book containing the entry of the minutes is signed by the judge at the end of the term of his court, it is all, it would seem, that is necessary.

An assignment of errors alleged to be patent on the face of the record was filed in this court. Two grounds are averred therein for setting aside the verdict and sentence.

The first is, that on July 21, 1898, which was six days before the trial, on motion of the prosecuting attorney the indictment was amended by changing the year of the commission of the crime from 1890 to 1893. That is to say, the word “ three ”■ was added to the words “eighteen hundred and ninety” as the same appeared in the indictment.

In this way, it is averred, the indictment, found in 1893, was, without warrant of law, changed, in 1898, to the great prejudice of the accused.

At the tbreshhold of the inquiry ‘ was this error,’ we are met by the question whether or not this amendment of the indictment was essential or necessary?

It was not necessary if, under the indictment as returned by the grand jury, proof could have been administered that Joe Hardaway murdered Jules Holland, not, however, in 1890, but in 1893. And if such proof would, under the indictment, support the verdict of guilty as herein rendered, then the accused was not prejudiced by the District Attorney’s motion to amend and the ruling of the court thereon.

Joe Hardaway was called on to answer to the murder of Jules Holland. It is immaterial, in the view of the law, whether he murdered him in the earlier year or the later year. In either case he is equally guilty. The substantive, important, material fact to be shown by the prosecution is that he murdered him at a time prior to the finding of the indictment. That being shown, but it appearing that the killing took place in 1893, whereas the indictment averred it to have been in 1890, must the jury return a verdict of not guilty? Surely not.

Or the evidence of the prosecution establishing the time of the homocide to have been 1893, when it was charged to have been in 1890, would an objection seasonably made on behalf of the accused to the reception of this evidence operate its exclusion, resulting in the acquittal then and there of the accused? Equally must this question be answered in the negative. Why? Because time is not of the essence of the ofience as here charged.

Under the common law, whence came our forms and methods of criminal procedure, an objection such as that urged here would perhaps be held good, but modern statutory law has greatly modified the strictness of common law methods. Thus, R. S. 1048, in reference to the form and sufficiency of an indictment for murder, says: “ In any indictment for murder * * * , it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused; it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully, and of bis malice aforethought, kill and murder the deceased.” And R. S. 1063 declares: “No indictment for any offence shall be held insufficient for want of the averment of any matter unnecessary to be proved * * * , nor for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened,” etc.

The next Section (1064), authorizes courts before which objection to an indictment for any formal defect apparent on the face thereof shall be taken, to cause the indictment to be forthwith amended in such particular.

This court, in State vs. Hamilton, 48 La. Ann. 1566, citing the sections of the Revised Statutes just alluded to, ruled that where an indictment furnishes a legál basis for conviction, and time is not of the essence of the crime charged, the correction of a manifestly erroneous date will be permitted.

A similar ruling was made in State vs. Pierre, 39 La. Ann. 915, and in State vs. Fontenette, 38 La. Ann. 61; see also State vs. Wallman, 31 La. Ann. 147, and 35 La. Ann. 842.

We hold, therefore, that, strictly speaking, the amendment complained of was not necessary on part of the State, and if it were, it was pérmissibíe.

It might be pertinent to add that on the day the amendment to the indictment was moved and allowed, and following the same, the accused was arraigned under the indictment as amended, without any objection thereto being raised on his behalf. And at no time during the trial did he raise any objection to the same.

The second ground set forth in the assignment of errors is that at the time the motion to quash the verdict and set aside the proceedings had in the case, heretofore referred to, was taken up for trial and tried, the accused was not present in court.

It is averred that this is'shown by the minutes of that day’s proceedings.

It is, perhaps, more proper to say that the minutes of the trial of the motion do not show his presence.

Was his presence in court when this motion was tried necessary?

We think not.

The personal presence of one charged with crime is not necessary or required at each and every step of his case, or when each and every proceeding is taken therein.

It is only needful that his actual presence be shown during the arraignment, trial, charge, verdict and sentence. State vs. Clark, 32 La. Ann. 560; State vs. Harris, 34 Ib. 121; State vs. Gonsoulin, 38 Ib. 460; State vs. Pierre, 39 Ib. 917; State vs. Green, 33 Ib. 1408; State vs. Dominique, 39 Ib. 323; State vs. White, 37 Ib. 173; Bishop Crim. Proc., Vol. 1, Sec. 276.

And to this might be added the requirement of his presence at trials of motions to change the venue, etc., when evidence is submitted.

No witnesses were sworn and' gave testimony on the trial of the motion to quash in this case. So that the question of being “ confronted with the witnesses against him,” does not arise.

Judgment affirmed.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 12,909.
    J. B. West (Chaffe, Powell & West Substituted) vs. Mrs. O. M. DeMoss and Husband. In re O. M. De Moss Applying for Certiorari to the Court of Appeals, Second Circuit of the State of Louisiana.
    1. Grouuds restated upon-which this court will grant its writ to review decisions of the Courts of Appeal. Art. 101 of the Constitution does not invest this court with appellate jurisdiction over the Courts of Appeal, or grant to litigants a further and additional right of appeal. The writ of review will issue only in exceptional cases, mainly to secure uniformity of jurisprudence.
    2. The material or substantial variatiou, to the disadvantage of the wife, from the terms of the authorization of the judge pursuant to C. C. 128, does not annul the mortgage which followed, but does destroy the efficacy of the certificate of authorization, and the creditor must prove aliunde that the debt enured to her separate benefit.
    3. Cotton purchased by husband, though the wife’s name was used and she was induced to sign drafts given for the purchase price, and though the cotton was shipped in her name, held to be no part of her separate planting business, and the loss resulting can not be fastened upon her.

      A. L. Slack and Stone & Holmes for Petitioners.

      W. M. Murphy for Respondents.
    Submitted on briefs September 22, 1898.
    Opinion handed down November 21, 1898.
    Rehearing refused December 19, 1898.
   The opinion of the court was delivered by

Blanchard, J.

This action originated in the District Court, Parish of Madison.

A decision there adverse to plaintiff was followed by appeal to the Court of Appeals, Second Circuit, where the judgment was reversed and a decree handed down in favor of the plaintiff for the amount claimed, with recognition of mortgage, etc.

Thereupon defendants applied to this court for its writ under the provisions of Art. 101 of the State Constitution, to bring the case here for review and determination.

As this practice is yet new under the present judicial system, the court takes occasion to restate its construction of the latter part of Art. 101, as laid down in its ruling denying the writ In re A. J. Ingersoll applying for writ of error to the Court of Appeals, First Circuit, in case of J. O. Toole vs. C. H. Minge & Co. It was there said:

“It is clearly the intention of this part of the article of the Constitution referred to that it should be entirely discretionary with this court, on the case as presented, to grant or withhold the writ. This is demonstrated by the fact that no particular kind or class of eases is specified as to which the application may be made. It was not intended by a resort to the power*here granted to make of the Supreme Court a sort of superior court of appeals over the Circuit Courts, to take jurisdiction of, and hear and determine any and all cases that may have been decided by the latter courts in the exercise of their legitimate, constitutional jurisdiction. In other words, it was not intended that the Circuit Courts of Appeal should be made merely a stopping place for causes between one hundred dollars and two thousand dollars, on their way from the District Courts to ■ the Supreme Court. It was, rather, intended that the power thus lodged . in the Supreme Court should be exercised only in special or extreme cases, whose peculiar circumstances as to the facts or the law governing the same, justify, in the opinion of this court, a resort to it. For example, where the Court of Appeals refuses to be guided, in a clear case, by the well-established jurisprudence as defined and laid down by this court, a case would be presented warranting this court in sending down its writ to bring up such case for review and determination. This might be necessary to enforce uniformity of jurisprudence throughout the State in the courts thereof. Other eases for other reasons may arise justifying a resort to the writ — care being always taken against its abuse, to the impairment of the dignity and power and usefulness of the courts of appeal, and protracting litigation and deferring the final enforcement of just rights.”

This was followed by similar views expressed In re L. D. McLain applying for certiorari to the Court of Appeals in the case of McLain vs. Burgess, and In re A. J. Murff applying for the writ in Bell vs. Murff — in each of which eases the application was denied on the ground that the writ of certiorari or review was not given to clothe this court with appellate jurisdiction, or to effectuate a further and additional right of appeal, but to issue only in exceptional cases, mainly to secure uniformity of jurisprudence.

These views are reasserted and adhered to as the proper construction of the Article of the Constitution.

The case at bar was considered as “exceptional,” at least that a prima facie case for the writ had been made out, and, accordingly, it was granted, the court assigning, among other reasons, the following:

“If we correctly appreciate the opinion (of the Court of Appeals) it holds the wife liable on the basis, in part at least, of certain legal propositions which do not command ready acceptance. One is that the husband, acting as the wife’s agent in the cultivation of her plantation, can bind her for money procured by him for the purchase of cotton in speculations resulting in loss, with which * * * she is charged. Another is, that under Article 2435 of the Code and the decisions, of which 6th Annual, 199, is the type, the husband being insolvent, the wife separate in property, she is bound for debts made by the husband of the character of plaintiff’s advances. These propositions, if we correctly appreciate them, seem to be inconsistentwith the absolute incapacity of the wife, separate in property or not, to bind herself or to be made liable for the husband’s debts— i. e., those our law makes debts of the community.”

Proceeding to the consideration of the merits of the controversy presented, we find the salient facts to be, that defendant,-judicially separate in property from her husband, cultivated a plantation (her separate property) on her own account and in her own name. This plantation was the domicile of herself and husband and the latter acted as agent of the wife in conducting the plantation business. The husband was without means or property of his own.

The wife appeared before the District Judge stating her wish to borrow money and contract indebtedness for the use and benefit of her separate estate, and being examined by him pursuant to O. 0. L27, 128, and her replies satisfying him that it was an indebtedness the law permitted her to contract,- issued to her a certificate of authorization to borrow not exceeding sixteen hundred dollars and secure same by a mortgage on her separate property.

Meanwhile she had effected arrangements with the commercial firm of Chaffe, Powell & West to become her commission merchants and make advances of money and. supplies to enable her to cultivate her plantation. The money she had been authorized by the judge to borrow was to be had from them, and the mortgage to secure it was to be executed in their favor.

Armed with this authorization she and her husband appeared before a notary and, declaring an indebtedness to Ohaffe, Powell & West, executed two notes in their favor, one for four hundred and ninety-five dollars, the other for eleven hundred and five dollars, aggregating sixteen hundred dollars, and secured same by a special mortgage on her plantation.

The husband signed these notes and mortgage with the wife.

The mortgage recited that the indebtedness represented moneys and supplies advanced and to be advanced her during the current year to enable her to cultivate a crop on her plantation.

In point of fact it represented only moneys and supplies to be advanced, for the evidence shows she owed them nothing at the time. The act of mortgage, further, recognized, in favor of Chaffe, Poweil & West, the privilege accorded by law to the furnishers of supplies.

It was stipulated therein that “they do each (meaning husband and wife) agree and obligate themselves to ship to Chaffe, Powell & West for sale at their discretion * * * all the cotton either of them raise, or control, of the crop of 1891, and if they fail to so ship to said parties by the first day of February 1892 as much as one hundred and fifty bales of cotton, and an additional bale for each ten dollars advanced to her in excess of the aforesaid fixed accommodation * * * they jointly and severally agree to pay them ©ne dollar and twenty-five cents per bale commission for such deficiency of shipment.”

The open account was to bear eight per cent, interest and the commission merchants were stipulated to have “ the exclusive con- , tool of and right to apply proceeds of all cotton shipped, and all payments of money or other things made to them, to the payment of any secured or nnsecared indebtedness on open account or otherwise now due or that may hereafter become due them, as they may prefer, and they may, at their discretion, change such application of credits at anytime before payment of all joint and several indebtedness to them.”

The judge had not authorized the wife beyond borrowing the money and executing the mortgage.

This, of course, impliedly included the usual and necessary adjuncts ©f negotiable or other instruments to represent the indebtedness, with stipulation as to interest, and attorney’s fees and costs in case of suit, etc.; and it was not obnoxious to the certificate of authorization that the recital as to recognition of the privilege of furnishers of supplies was made.

Some of the other stipulations may be passed over as immaterial, tout the one quoted above, relating to imputation of payments and change af credits, must be held such a material and substantial variance from the authority given by the judge as to take this case out of the protection of 0. O. 128 — that is to say, when a wife is properly authorized and there has been observance of the authorization; she is treated quoad that transaction as femme sole — and threw upon the creditor the burden of proving that the indebtedness asserted enured to'the wife’s separate benefit.

The Conrad case, 29 La. An. 123.

The Berwick-Frere case, 49 La. An. 202.

The material or substantial variation, to the disadvantage of the wife, from what the judge authorized, does not annul the mortgage or other contract, as counsel for defendant insists, but does destroy the efficacy of the certificate of authorization, and the creditor must prove aliunde that the debt secured by the mortgage enured to her separate benefit.

The Berwick-Prere ease supra is not to be construed as going further than this.

The law as it stood in regard to the contracts of married women previous to the act of 1855 (now O. C. 126, 127, 128) remains unimpaired, with the difference that a married woman taking the benefit of that act is placed on the same footing with a femme sole, her contract furnishing full proof against her, while under the general jurisprudence those who deal with a married woman are bound to see that the contract made with her enures to her benefit. Rice vs. Alexander, 15 La. An. 54.

It has never been disputed that a married woman, authorized alone by her husband, can validly contract in reference to her separate estate. Hence, it follows that when she seeks and obtains the further authorization of the judge, pursuant to the articles of the Oode referred to, and in a mortgage following this authorization the terms of the latter are departed from, and stipulations are embodied in the mortgage constituting material and substantial variations from the authorization, the only result will be to do away with the effect of the authorization, leaving the creditor in the position of having dealt with a married woman authorized alone by her husband, and to stand or fall according as he may prove, or not prove, aliunde that the indebtedness he seeks to hold her for enured to her separate benefit.

And in an action on such a contract, where the wife stands unauthorized by the judge, but authorized by her husband, the plaintiff must show affirmatively before he can recover that the debt did enure to the separate advantage of the wife, and this is true whether she he separate in property or not.

Urquhart vs. Thomas, 24 La. Ann. 95;

Erwin vs. McCalop, 5th La. Ann. 173;

Hardin vs. Wolf, 29 La. Ann. 333;

Pascal vs. Folse, 48 La. Ann. 1230.

Holding that this creditor stands on a contract where the wife must be considered as authorized by the husband alone, the next inquiry is did the consideration of the mortgage notes enure to her advantage, or that of her separate estate.

We find that on receiving the notes Chaffe, Powell & West placed the proceeds thereof, less discount at eight per cent, and commissions at two and a half per cent., to the credit of defendant. The notes were dated February 6, 1891, and the smaller one matured December 15, 1891, the larger one January 15, 1892. They drew, each of them, eight per cent, interest from December 15, 1891.

The amount so placed to the credit of the defendant was one thousand four hundred and forty-seven dollars and eighty-seven cents.

Thereafter the notes became the property of Chaffe, Powell & West, who had discounted the same. The defendant in her planting operations absorbed the proceeds of the notes and undoubtedly the indebtedness represented by the same enured to her benefit. So the notes became an enforceable asset in the holders’ hands against her and against the property she had mortgaged to secure them.

But defendant did not stop drawing on plaintiffs for money and supplies, in her planting business for that year, when the proceeds of the notes became exhausted. She continued her drafts and orders and in due time shipped the crop of cotton (eighty-six bales) raised on her plantation to Chaffe, Powell & West.

The same rule must apply to the indebtedness contracted by-defendant, authorized by her husband, with her merchants after exhausting the proceeds of the notes, as was applied to the notes themselves. They can hold her only for such advances and supplies as were made to her for her separate plantation business and used legitimately therefor, thus enuring to her benefit, and for such other items of indebtedness which, not being ordered for her separate planting business, enured otherwise to her benefit, or that of her separate estate, or were such expenses as the law declares a wife must support.

We have already seen the husband was without means or property and, as a consequence, it devolved upon the wife to support the family-expense.

• Without going into a discussion of the voluminous evidence found! in the record, suffice it to say that we are satisfied plaintiffs have* made out their case, except in the particular hereinafter set forth.

The money, supplies, etc., obtained from her merchants were used by defendant in her separate business, for cultivating her crops, for maintaining her plantation, for paying her debts, for supporting her household expenses, etc., except as we shall show later, and thus, to this extent, she must be held liable therefor as for indebtedness that enured to her separate benefit. Chaffe & Sons, vs. Watts, 37 La. Ann. 326; McElvin vs. Taylor, 30 La. Ann. 552.

The eighty-six bales of cotton shipped from defendant’s plantation were sold and the proceeds thereof applied to her credit. In the course of these transactions the smaller note held by plaintiffs was .charged into the account, paid and satisfied and the same delivered rto the maker, and the account showed a balance in favor of defend.ant which must be applied as a credit on the larger note.

What this true balance is, is the real point at issue, in our view of \the case.

On April 2, 1894, the last statement of account was rendered by plaintiffs. It showed credits to defendant which reduced the amount due on the larger of the two mortgage notes to eight hundred and fifty-seven dollars and seventy-seven cents.

This is the amount plaintiffs claim, with eight per cent, interest {from said date, and the amount for which they were awarded judgment by the eourtjof appeals.

We do not think defendant can be held for that sum.

Certain cotton, aggregating sixty-six bales, was purchased by D. D. DeMoss, husband of defendant, and shipped plaintiffs. The basis of tbis purchase of cotton by DeMoss, as a venture of his own, was, we think, laid in the act of mortgage itself, as shown by an'extract from same hereinbefore made.

The cotton was purchased from neighboring farms. That the wife’s name was used, that the husband induced her to sign drafts given for the purchase price, that it was shipped in her name, do not, we think, make the purchases any the less those of the husband.

It was outside of the wife’s separate planting business. It was a «peculation by the husband, and beyond doubt plaintiffs had knowledge that small lots of cotton were from time to time being bought by DeMoss, husband, and shipped to them in the wife’s name and paid for by drafts which the wife had been called on to sign. Having no ■credit of his own, the husband was using hers, and the evidence shows she protested to him against it.

It will not do to say the wife was making these purchases of cotton in order to fill the complement of one hundred and fifty bales she had engaged to ship plaintiffs.

An examination of the stipulation'of the mortgage in this respect shows that the husband, for himself, on his own account, assumed an obligation to plaintiffs that as much as one hundred and fifty bales would be shipped them. The wife did likewise, it is true, but-so it was done by one, or the other, or by both, the obligation would be fulfilled.

The wife supplied the larger portion of the requisite number of bales from her plantation; the husband purchased the remainder from near-by places.

The money supplied by plaintiffs, by payment of drafts and otherwise, to purchase this cotton can not be held an advance to defendant’s plantation or separate business. It was money supplied to enable the husband to embark in a mere venture; it was a damage and not a benefit to the wife; it resulted in a loss of some hundreds of dollars; and, thus, there is lacking entirely the element to make it an indebtedness binding on her — it did not enure to her benefit.

This cotton when sold by plaintiffs was entered up to the credit of defendant, just as the money used in its purchase had been entered up to her debit.

But the cotton sold for less than the sum it cost and, hence, a loss. This loss, it is sought to make the wife bear.

It falls on the husband, not on her. It must be held as resulting from his separate and independent transactions with plaintiffs. This cotton should be charged off on her account at the same sum that it had been entered on the account as an indebtedness against her. This can be equally effectuated, however, by ascertaining the loss on it, and crediting the amount thereof on the note declared on.

Defendant’s counsel figures the loss at about six hundred dollars; plaintiffs’ counsel at two hundred and twenty-three dollars and six cents.

The.Court of Appeals fixed it at four hundred and thirteen dollars and ninety-four cents. We will adopt its calculation and estimate as showing the true loss, and give defendant credit therefor on the note sued on as of date April 2, 1894, the time when the last credit was given her for cotton sold, and the last statement was rendered her.

For the reasons assigned it is ordered, adjudged and decreed that the judgment rendered by the District Court, and that rendered by the Court of Appeals, Second Circuit, in this cause, be set aside and annulled, and proceeding to render such judgment as should have been rendered in the first instance, it is now ordered and decreed that Mrs. Eliza Cha fie, Executrix of the Succession of Charles Ohaffe, deceased, A. C. Leigh', administrator and executor of John Powell, deceased, and J. B. West, plaintiffs herein, do have and recover of Mrs. O. M. DeMoss, defendant herein, the sum of four hundred and forty-three and 83-100 dollars, with 8 per cent, interest per annum thereon from April 2, 1894, until paid, together with 5 per cent thereon as attorney’s fees.

It is further ordered and decreed that the special mortgage consented to by defendant on the 6th of February, 1891, before Scott Bettis, clerk of the Eighth District Court, in and for the Parish of Madison, Louisiana, and resting on the property described in plaintiffs’ original petition, be recognized and enforced, and that said property be seized and sold to pay and satisfy this judgment.

It is further ordered and decreed that defendant’s demand in re-convention be rejected; and that costs of the District Court and of the Court of Appeals be borne by defendant, and those of this court by the plaintiffs.


author: Nicholes, O. J.

text:
    No. 12,776.
    Allopathic State Board of Medical Examiners vs. Augustus C. Fowler.
    1. Parties contesting the constitutionality of a law should tender that issue in the trial court, and can not raise it as a matter of right for the first time on appeal. When so raised below new special grounds can not be urged for the first time on appeal, particularly when an examination of evidence would be needed for their decision.
    2. A bill having the same title as Act No. 49 of 1894 was introduced in the Senate as Senate Bill No. 28; it was read by its title and placed upon the calendar for second reading. It was subsequently, under a suspension of the rules, taken up on second reading, read by title and referred to a committee. The committee reported its action on Senate Bill No. 23, giving the exact title of the same. The committee reported the bill favorably by substitute. The bill was read by title. On motion the substitute was adopted in lieu of the original bill, and became Senate Bill No. 90. The title of the bill reported by the committee as a substitute was identical with that of the oi’iginal bill. The bill as reported was read by title. Subsequently Senate Bill No. 90, reported by the committee, was put upon its third reading. The bill was read in full. It was then taken up for final passage; the roll was called and the bill finally passed. A motion to reconsider was made, and the motion to reconsider was laid upon the table. Held, that a contention that Senate Bill No. 90 should be taken and considered as an original bill, and it should have been read in the Senate three times, and on three different days, once in full, was not well founded.
    8. Act No. 49 of 1894 does not violate Act 29 of the Constitution, which requires that any law enacted by the General Assembly should embrace but one object} and that shall be expressed in the title, nor does it violate the Constitution as being a special law prohibited by Art. 46 of the Constitution.
    The law is a general one, though bearing upon a special subject.
    4. Whenever the pursuit of any particular occupation or profession requires for the protection of the lives or health of the general public, skill, knowledge and other personal attributes or characteristics in the person pursuing it, the General Assembly has the power and authority to have recourse to proper measures to ensure that none but persons possessing these qualifications should pursue it. A statute to that effect is not open to attack as depriving citizens of their right to earn a living. The right to practice medicine is not an absolute natural right, but a right or privilege to be exercised under conditions and limitations regulated by legislative authority.

      5. The General Assembly, having the authority to require as a condition precedent to the right or privilege of anyone to practise medicine in Louisiana, that ho should be subjected before doing so to a prior examination as to his qualifications, and found and declared worthy and qualified, it has the right to select the particular agency to whom should be delegated that duty. Courts cannot control that selection. A statute creating a Board of Medicai Examiners, to be composed of physicians recommended for appointment from lists to be furnished by the Louisiana Medical Society and the Hahneman State Medical Society, to be appointed* by the Governor on such recommendation, is not open to attack as discriminating in favor of tlio allopathic and homeopathic schools against the eclectic school of medicine. No constitutional right is given to particular individuals entertaining peculiar tlieuries of medicine to group themselves together, and, calling themselves a special school of medicine, under a selected name, to insist that they be recognized and dealt with as such.
    6. The action of the Medical Board of Examiners is not conclusive, but is subject to correction in case of abuse.
    7. The recognition by the constituted authorities of another State that a person was properly qualified to practise medicine, and that the medical college whose diploma he presented as evidence of that fact was a medical college in good standing, does not carry with it a vested right in the party to practise medicine in Louisiana. Each State acts independently of the other in this matter.
    8. A person who has been practising medicine as a physician for a number of years without objection is not exempt from complying with legislation of a later date, making it a condition precedent to anyone’s practising medicine that he should have been examined by a medical examining board and found to have the qualifications required by iaw for so doing.
    ON APPEAL from the Twenty-first Judicial District Court 'for the Parish of Jefferson. Rost. J.

      E. T. Floranee and Bobt. J. Perkins for Plaintiff, Appellee.

      A. E. Billings, Ambrose Smith and H. N. Gautier for Defendant,, Appellant.
    Argued and submitted April 22, 1898.
    Opinion handed down May 16, 1898.
    Rehearing refused June 23, 1898.
   The opinion of the court was delivered by

Nicholes, O. J.

Plaintiffs applied to and obtained from the District Court for the parish of Jefferson an injunction forbidding and enjoining defendant from further practising medicine in any of its departments in this State until he shall have first obtained the certificate provided for under the provisions of Act No. 49 of the General Assembly of the State of Louisiana of 1894. They also prayed that Fowler be cited, and that after due proceenings there be judgment condemning him to pay plaintiffs the sum of one hundred dollars as a penalty, and in addition thereto the sum of fifty dollars as attorney’s fees and costs of court and making said injunction perpetual and absolute.

• These prayers were predicated upon allegations that Fowler, who resided in the parish of Jefferson, had been for over three months prior thereto practising medicine in the State without having first obtained the certificate required by Sec. 2 of Act No. 49 of 1894. That he had repeatedly prescribed and directed for the use of other persons drugs and medicines for the treatment, cure and relief of bodily injuries, infirmities and diseases.

That said acts were in violation of the laws of this State, particularly of said Act No. 49, and Sec. 14 of said act, as amended by Act No. 13 of 1896.

That under said law, said Fowler was liable to a penalty not to exceed one hundred dollars, and to the payment of attorney’s fees not to exceed fifty dollars, for said violations.

Defendant moved to dissolve the injunction for causes declared to be apparent upon the face of the papers and record and want of authority and capacity in plaintiffs, and also upon the ground that the bond and surety furnished was not good and sufficient and such as the law required.

He also excepted to plaintiff’s demand on the grounds:

1. That they were without authority or capacity to institute the suit.

2. (Under reservation.) That the allegations of the petition were too vague and indefinite for him to safely answer.

3. That the allegations of the petition disclosed no cause of action.

4. That Act No. 49 of 1894 is in violation of Arts. 1, 5, 7, XI, 29 et seq. of the Constitution, and is therefore null and void.

5. That Act No. IS of 1896 is in violation of Arts. 1, 5, 7, XI, 29, 46 and 47 of the Constitution, and is therefore null and void.

The motion to dissolve and the exceptions filed were overruled.

Defendant answered, pleading first the general issue. Further answering, he denied that he had at any time violated the provisions of Act No. 49 of 1894 or the acts amendatory thereto. He specially denied that any of the provisions and prohibitions of the said laws and acts alleged were in any wise applicable to him. In the event that said acts be construed and held as a prohibition to the practice of medicine and surgery in any branch or school of medicine other than that of the allopathic or homeopathic, without a diploma from an allopathic or homeopathic institution, or without previous examination by the plaintiff’s medical board of examiners, or in the event it should be held that the plaintiff’s medical board of examiners are qualified and authorized to determine and pass upon the ability, competency and qualification of practitioners of such other branch or school, of medicine, and especially of respondent, he averred that such construction and holding as regards practitioners of such other school of medicine, particularly as regards this respondent (holder of a diploma from a reputable institution of the Eclectic school of medicine), and as regards practitioners anterior to the said legislative enactments or laws, would, in fact, be holding and giving to said laws the unconstitutional effect of discriminating between persons engaged in the profession of medicine and surgery and would be depriving this respondent of his constitutional rights and privileges. Defendant further averred that such construction and holding as regards said laws would and does make the provisions and prohibitions thereof effectively applicable to him and thereby violates all rights, privileges and immunities guaranteed him and vested in him by the Constitution of this State and of the United States, specially as regards his privileges and immunities of citizenship and operates as and is an unjust and illegal discrimination between citizens of different States and of the same State — is class legislation, and specially violative of the Bill of Rights of the State Constitution and of Sec. 2 and of Art. 4 of the Constitution of the United States as well as of the Fourteenth Amendment of the Constitution, and among other things in this, that it deprives respondent of bis property and liberty without due process of law, and he alleged that said acts were ultra vires.

He averred that said Act No. 49 of 1894, and those amendatory thereof, should not and could not apply to him and could not be invoked by plaintiffs to prohibit and enjoin him from practising medicine and surgery in the State of Louisiana. That the depriving him of the rights, privileges and immunities inherent to his citizenship and the maintaining and perpetuation of the injunction which had issued, or the rendition of a judgment in favor of plaintiffs, would cause him great and irreparable injury to an amount hard to estimate, but surely in a sum far in excess of ten thousand dollars, and would be depriving him of his property and liberty without due process of law. He prayed that there be judgment in his favor and against plaintiffs, decreeing respondent entitled to pracfcsie medicine and surgery in this State, and dissolving the injunction, and dismissing plaintiffs.

Defendant filed a supplemental answer in which he averred that he was expressly exempted from the provisions and penalties of Act No. 49. ' He further alleged that notwithstanding the provisions of that act he was entitled, under the Constitution and laws of the United States, to á trial by jury, and for such trial he prayed on conforming to the requirements of law relative to such trials.

The prayer for a trial by jury was refused under the provisions of Acts No. 49 of 1894 and No. 13 of 1896.

To this ruling defendant reserved a bill of exceptions.

The District Court rendered judgment in favor of the plaintiffs, making the injunction perpetual and decreeing that defendant be enjoined from practising medicine in any of its departments until he should have received the certificate required by Sec. 2 of Act No. 49 of the acts of 1894. It further condemned defendant to pay a fine of one hundred dollars, and, in addition, fifty dollars for attorney’s fees and costs. On February 5, 1898, defendants applied for and obtained a suspensive .appeal from the judgments of the court overruling his exceptions, and from the final judgment in the case.

In the Supreme Court defendant assigned as error of law and cause of nullity of the judgment appealed from that Act No. 49 of 1894, known and designated throughout its parliamentary progress as Senate Bill No. 90, did not receive the readings on three different days in each house of the General Assembly, as required by the mandatory provisions of Art. 37 of the Constitution, but was passed by the Senate in disregard and violation thereof; all of which was shown by reference to the constitutional and official record and journals of the Senate. That Act No. 13 of 1898 was unconstitutional, ^or the reason that it only purports to amend and re-enact Secs. 14 and 19 of said Act No. 49 of 1894; that same is not self-operative or enforceable, but is entirely dependent upon the provisions of said Act No. 49 in its entirety for legal validity and effectiveness; that being based upon an outgrowth of and inseparable from said Act No. 49, which is null and void, said Act No. 13 is of and by itself without legal force or vigor.

Opinion.

Appellant attacked in this court the constitutionality of Act No. 49 of 1894 on the ground that in its passage Art. 37 of the Constitution was not complied with. He had attacked its constitutionality in the District Court, but upon other grounds. In State of Louisiana vs. Widow De St. Romes, 26 An. 754, we held that the constitutionality of a law would not be considered Where an issue to that effect has not been raised in the case below. The same rule applies to cases where special grounds of unconstitutionality are set up for the first time in this court, and particularly those where an examination of evidence would be needed for a decision of the question submitted. We have, however, examined the Journal of the Senate proceedings for the year 1884, and find that an act was introduced in the Senate on the sixth day of the session by Mr. Avery, having the same title as that which Act No. 49 of 1894 now bears. It was introduced as Senate Bill No. 23, read by its title, and placed upon the calendar for second reading. On the seventh day it was taken up under a suspension of the rules on its second reading, read by title, and referred to the Committee on Health, Quarantine,' Drainage .and Charitable Institutions. On the eighteenth day that committee, through its chairman, reported Senate Bill No. 23, by-Mr.-Avery favorably by substitute. On the nineteenth day, we find in the Journal, under the heading of Senate Bills on second reading reported on by committees, the following: “ Senate Bill No. 23, by Mr. Avery: ‘ An Act to regulate the practice of medicine, surgery and midwifery, to create,’ ” etc. (giving the exact title of Bill No. 23).

“ Reported favorably by substitute by the Committee on Health, Quarantine, Drainage and Charitable Institutions.”

“ The bill was read by title.”

“On motion of Mr. Currie, the substitute was adopted in lieu of the original bill, and becomes Senate Bill No. 90.”

“ By committe:”

“An act to regulate the practice of medicine, surgery and midwifery; to create,” etc.

“ The bill was read by title.”

A comparison of the title of the bill reported as the substitute for Senate Bill No. 23 with (lie title of the latter, shows that they were identical. On the twentieth day, Senate Bill No. 90 reported by the committee was put upon its third reading. The bill was read in full. Mr. Avery moved the final passage of the bill; the roll was called and the bill was finally passed. Mr. McCarthy moved to reconsider the vote by which the bill was finally passed, and on his own motion, the motion to reconsider was laid on the table. Appellant’s contention is that Senate Bill No. 90 must be taken and considered as an original bill, and that it should have been read in the Senate three times and on three different days, once in full.

Article 29 of the Constitution requires that every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in its title. As Senate Bill No. 23 was reported back favorably by the committee under the same title which it had when sent to it, it is very evident that the body of the act as presented to it, must have been found by it conformable to the requirements of Art. 29. That is to say its provisions must have been considered as embracing but one object, and that object was expressed by its title. When the committee reported back the bill under the identical title, it is clear that if any changes in the bill had been made in committee, they must have been of a character such as in the opinion of the committee were germane to and consistent with the provisions in the body of Senate Bill No. 23 under the original title. Had this not been the ease the substitute reported would necessarily have been made to bear a different title in order to make it conform to the changes.

We are bound to assume (as there is nothing to show to the contrary) that the provisions in the body of Senate Bill No. 23 fulfilled the requirements of Art. 29 of the Constitution, and fell properly under the title, and if the provisions of Senate Bill No. 90 (Act No. 49 of 1894) would also properly fall under the same title, then the provisions of both must be substantially alike, and germane to each other. What was reported as a substitute must have been not a new and different bill as claimed by appellant, but the old bill with immaterial alterations, or amendments. We do not think that the mere fact that the bill as sent to the committee may have been to some extent amended or modified by it (but not to an extent sufficient to place it legally outside of its original title) and that the committee should have thought proper to designate the bill so reported back, a ‘ substitute ” for the original bill, that that fact should make it other than the original bill amended or revised, or made over to make it conform as a whole to amendments already adopted. We find no ground for saying that Act No. 49 of 1894 was not passed in conformity with Act 37 of the Constitution.

Appellant’s next contention is that Act No. 49 of 1894 is violative of Art. 29 of the Constitution in that it embraces more than one object, and that not expressed in its title.

An article corresponding with our Art. 29 is to be found in the constitutions of a number of our sister States and has been the subject of repeated judicial decisions. The decisions are substantially alike. The Supreme Court of South Dakota, in State vs. Morgan (48 N. W. 316), has reviewed very fully the jurisprudence on the subject, quoting very freely from the opinions of different courts. From among those quotations we make use of the following:

The Supreme Court of Michigan, in People vs. Mahoney (13 Mich. 494), said: “The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together in one bill subjects diverse in their nature and having no necessary connection with a view to combine in their favor the advocates of all and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the State. Tt was scarcely more so, however, than another practice also intended to be remedied by this provision, by which through dextrous management clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect. This course was not designed to embarrass legislation by multiplying the number of bills, but it was intended to put an end to vicious legislation which was little better than a fraud on the public and to require that in every case the proposed measure should stand upon its own merits. Judge Gardiner, of New York, says “ that the purpose was that neither the members of the Legislature nor the public should be .misled by the title. Insurance Co. vs. Mayer, 8 N. Y. 214. Judge Cole, of Wisconsin, says “ that the design and purpose of the provision was obviously to prevent the mischief of uniting together in the same bill various objects which had no necessary connection with each other, and in order to guard the Legislature and the community affected by the law against surprise and imposition.” Durkee vs. City of Janesville, 26 Wisconsin, 697. The Supreme Court of Iowa says: “The intention of the provision of the Constitution was to prevent the union in the same act of incongruous matter and of objects having no connection, no relation, and with this it was designed to prevent surprise in legislation by having matter of one nature embraced in a bill whose title expressed another. State vs. Judge, 2 Iowa, 280; State vs. Silver, 9 Nevada, 227. And similar expressions may be found in many reported cases. St Louis vs. Tiefel, 42 Mo. 578; Mayer vs. State, 4 Ga. 38; Davis vs. State, 7 Md. 151. Judge Cooley in his work on Constitutional Limitations says: “ lb may therefore be assumed as settled that the purpose of these provisions was first» to prevent “hodgepodge,” or “logrolling” legislation, second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation and which might, therefore, be overlooked and carelessly and unintentionally adopted; and third, to fairly apprise the people through such publication of legislative proceedings as is usually made of the subjects of legislation that are being considered in order that they may have opportunity of being heard thereon by petition or otherwise if they so desire. The Dakota Court, taking up itself a discussion of this question, said: “ lb will thus be seen that thecourts-with great unanimity enforce the constitutional provisions in all cases falling within the mischiefs intended to be remedied. Upon a critical examination of these cases, however, it will be seen that while it is necessary to construe this provision so as to prevent the evils intended to be met, yet it is desirable to avoid the opposite extreme so as not to embarrass the Legislature in the legitimate exercise of its powsrs and compel a needless multiplication of bills designed to meet the same object. The court says in the case of State vs. Miller, 45 Mo. 497: “ The courts in all the States where a like or similar provision exists have given it a liberal interpretation and have endeavored to construe it so as not to limit or cripple legislative enactments any further than what was necessary by the absolute requirements of the law.” The objections to an act upon the ground that it embraced more than one subject and that it was not sufficiently expressed in its title should be grave, and the conflict between the statute and Constitution plain and manifest, before courts would be justified in declaring it unconstitutional and void. The constitutional clause under consideration is that no law shall embrace more than one subject, which shall be expressed in its title. In some of the State Constitutions the word “ object ” has been used instead of “ subject.” In the construction of this clause, the courts have used the words as synonymous, which strictly speaking is not so. The “subject ” of a statute is a matter of public or private concern for which the law is enacted; the “ object ” is the aim or purpose of the enactment.

The constitutional requirement in our Constitution is addressed to the subject. This subject must be single. The provisions of the act must all relate directly to the same subject, have a natural connection, and not be foreign to the subject as stated in the title. The title must state the subject of the act, for the information, not only of the Legislature, but of the public generally. When the title of a legislative act expresses a single subject or purpose which is single, all matters which are naturally and reasonably connected with it, and all measures which will or may facilitate the accomplishment of the purpose so stated, are germane to its title. There is no constitutional restriction as to the scope or magnitude of the single subject of a legislative act. It has been held„that an act to establish the government of the State embraces but a single subject or object, yet it includes all its institutions, all its-statutes. In Bowman vs. Cockrill, 6 Kas. 311. the court says: “The unity of such an act covering the multiform concerns of a commonwealth is the congruity of all the details of one stupendous whole’ of one government. That is the grand subject of such a statute or system of laws; it is equally the object of all its varied titles of chapters and sections; Such is an act creating municipal corporations. Such a statute creates the corporate entity, invests it with and regulates the exercise of the necessary legislative, taxing, judicial and police powers. It embraces but one subject. The separate provisions granting, defining and regulating these powers are but parts of a whole and essential to make a whole — a municipality. Harris vs. People, 59 N. Y. 599; Mentclair vs. Ramsdell, 107 U. S. 147; Sup. Ct. Rep. 39; Grover vs. Trustees, 45 N. J. Law, 399. One act may define all the crimes and provide the procedure in prosecutions. Each crime is distinct; the practice is distinct; bub all the provisions of such act are congruous parts of a larger subject, which is an entirety. State vs. Brassfield, 81 Mo. 151, 161. Whatever may be the scope of an act lb can embrace but one subject, and all its provisions must relate to that subject. They must be parts of it, incident to it, or in some reasonable sense auxiliary to the object in view. This constitutional requirement is addressed to the subject, not to the details of the act. That subject must be expressed in the title. The subject must be single. The provisions to accomplish the object involved in that subject may be multifarious. It is not enough that the act embraces but one subject and that all its parts are germane, but the title must express the subject, and comprehensively enough to include all the provisions in the body of the act. The title need not index all the details of the act. It is sufficient if the language used in the title on a fair construction indicates the purpose of the Legislature, so that making every reasonable intendment in favor of the act it may be said that the subjoct of the law is expressed in the title. As said by the Supreme Oourt of Illinois in the case of Johnson vs. People, 83 Ill. 436, the Constitution does not require that the subject of the bill shall be specifically and exactly expressed in the title; hence we conclude that any expression in the title which calls attention to the subject of the bill, although in general terms, is all that is required. The Constitution authorizes one subject and any number of matters, provided they have any natural or logical connection with each other in legislation.”

The title of Act No. 49 of 1894 is:

“ An Act
to regulate the practice of medicine, surgery and midwifery, to-create State Boards of Medical Examiners and to regulate the fees and emoluments thereof; to prevent the practice of medicine, surgery and midwifery by unauthorized persons, and to provide for the trial and punishment of violators of the provisions of this act by fine or imprisonment, or both, and to repeal all laws or parts of laws in conflict or inconsistent with this act.”

Defendant’s contention on the subject of the unconstitutionality of the act as violative of Art. 29 of the Oonstitution is thus stated by his counsel in their brief:

“ Title Act No. 49 embraces more than one object. The creating of a ‘ Board of Medical Examiners’ is not the regulating of board’s authority and power; to create is not to authorize and empower.” To prevent the practice by unauthorized persons and to create the Medical Board and to define and provide for the punishment of a crime have nothing in common with the regulation of the practice of medicine.

To prevent and to create and to punish are entirely different objects from that to regulate'. To regulate implies that the business or profession may be carried on subject to established methods. To create is to establish; to give birth; to put into existence. To prevent is to prohibit the business or profession to be engaged in or carried on entirely or partially. The purposes are incongruous.

Section 2 of the act recognizes two distinct schools of medicine with Board of Examiners for each, ignoring the Eclectic School or system, which is opposed to the homeopathic and allopathic systems.

Section 5, Act. 49. Provides fer fees of Board of Health and returns by Olerk of Oourt.

Section 9. For recording certificates by clerks of District Courts and fixes fees and duties of Board of Health.

Section 10. Provides for duty of Board of Health in regard to publishing physicians’ names.

Section 12. For penalty by imprisonment and fine in re to itinerant vendors.

Section 13. Changes rules of evidence in violation of Constitution,. Art. 46.

Section 17. Provides for exceptions in re physicians.

Section 18. Provides certain duties of the board.

Section 19. Apply to liability of the State.

None of these provisions are susceptible of being reasonably construed as a regulation of the practice of medicine in that they pro - vide for matters distinct from the practice of medicine. Some where - •of are not germane to the subject matter. Act No. 49, as amendedi «.nd its title prescribes for two classes of people; for those authorized to practise medicine and those unauthorized — two distinct and dissimilar classes, as distinct and unlike as two objects can be.

The generality of the title of an act is no objection, provided, only, that it be fully sufficient to give absolute notice of the subjects of the legislation, and its provisions unmistakably germane; but though the title and the law may both refer to the same general subjects, yet if the title uses a term which describes a totally different branch of the subject from that dealt with in the body of the act, the act is void for that reason. For example, to entitle an act “to regulate the traffic in intoxicating liquors,” and then in the body of the act to prohibit such traffic, is not complying with the constitutional requirements. (In re Hauck, 38 N. W. 269.) ”

Testing the title of Act No. 49 and the provisions contained in the body of the act by the views expressed in the opinions of the different courts from which we have quoted (which are in accorwith those entertained by this court, and which have been heretofore announced in our decisions) we are of the opinion that the attack made by defendant upon the constitutionality of that act is not well founded. The object of an act is single, though the instrumentalities which the General Assembly may deem necessary to carry it into successful operation may be many and of different kinds. Subsidiary details which are enacted as means for carrying into effect the purpose of the act do not create a plurality of objects in it. It has been constantly held that the constitutional provision permits an announcement of the object of an act in general terms, and in order to facilitate legislation, that a very liberal construction •should be given to all matters which are pertinent or germane to the subject of the enactment.

“The object of an act expressed in the title includes not only all matters which are constituent parts of it, but all matters directly incidental to it. Plankroad vs. Hannaman, 22 Ind. 484; City of St. Louis vs. Green, 7 Mo. App. 468; Canal Co. vs. Bright, 8 Colorado, 144; 6 Pac. Rep. 142; English vs. State, 7 Texas App. 171.

“An act to regulate specific business may prescribe penalties for violation of the act. Insurance Co. vs. Commissioners, 70 Mich. 485 (38 N. W. 474) ; Weil vs. State, 46 Ohio, St. 450 (21 N. E. 643) ; Sykes vs. People. 127 Ill. 177 (19 N. E. 705) ; State vs. Stunkle, 41 Kas. 457 (21 Pac. 675).

“A statute embracing only one general subject indibated by its title is constitutional, no matter how fully it may enter into the details of that subject. Turnpike Co. vs. Fletcher, 104 Ind. 97 (2 N. E. 243); Canal Co. vs. Bright, 8 Colorado, 104; People vs. Goddard, 8 Colorado, 432 (7 Pac. 301).”

The act in question has but one single object, the protection of the public from the consequences of the practising of medicine in its different branches by unskilled and incompetent persons. The singleness of that object is not broken by the designation in the title' of the act of certain branches of medicine as being intended to-fall under, and as falling under the provisions of the act. These branches are, in fact, but fractional parts going to make up the whole subject matter at which the act is openly and publicly aimed, or so much of it as the General Assembly considered dangerous. Lucky vs. Police Jury, 46 An. 686. The various sections of the act have all direct relation to the enforcement of the purpose announced by the act. The moment that they have been found to bear legal relation to the same our inquiries cease and our duty ends, for it is the province of the Legislature and not the courts to determine which are the best and wisest methods which should be adopted for accomplishing the desired end. State ex rel. Mouton vs. Judge, 49 An. 1537; State vs. Slaughterhouse and Refrigerating Company, 46 An. 1034.

The claim that Act No. 49 is unconstitutional because it is a special law which is prohibited from being enacted by the General Assembly, under Art. 46 of the Constitution, is not well founded. A law upon a special subject is not necessarily a special law. The law in question is a general law, though bearing upon a special subject.

The attack upon the constitutionality of Act No. 13 of 1896 rests principally upon the belief that defendants would succeed in this suit in having Act No. .49 of 1894 declared null and of no effect. In that event it was argued that the latter act would fail with it, inasmuch as it was merely an act amendatory of the former and dependent for its own existence upon that which it sought to amend. The opinion we have expressed as to the constitutionality of Act No. 49 of 1894 disposes of the question from that standpoint. We find nothing in the title or body of Act No. 13 of 1896 which would justify us in declaring it unconstitutional as violative of Act No. 29 of the Constitution. State vs. Slaughterhouse and Refrigerating Company, 46 An. 1032; State ex rel. Mouton vs. Judge, 49 An. 1537.

The appellant, in arguing upon his contention of the unconstitu- ■ tionality of Act No. 49 of 1894 as being violative of Arts. 1, 5, 7, 11, 30 etseq. of the Constitution, does not come' down to specific objections to the law as being antagonistic to any one of the articles, but claims that certain general constitutional principles are deducible from them to which the provisions of Act No. 49 are directly opposed. “ He maintains that every citizen has the constitutional right to obtain a livelihood; that the Legislature is without power to cut any one off from doing so by statute; that the prescribing for and alleviation of the sufferings of the sick is a praiseworthy and lawful occupation which the General Assembly can not prohibit a person from pursuing, especially under the guise of mere regulation; that the Eclectic School of Medicine is as much' entitled to legal recognition as are the Allopathic and Homeopathic Schools; that the Legislature has no legal right to ignore it or discriminate against it in favor of the other schools; that it has no right to force a person who is proficient and skilful as a practitioner in the Electic School to have his qualifications examined into and passed upon by examining boards composed entirely of Allopathic and Homeopathic physicians; that when a person’s qualifications as a physician ■ have been tested by the laws of another State, and he has been pronounced .qualified and admitted by the constituted authorities thereof to practise medicine in that State, as holding a diploma from a reputable medical institution, he has acquired a vested right to practise, which follows and protects him in the exercise of his profession in the other States of the Union. That, if a person with such a diploma and so recognized as qualified, removes to another State, and there practises medicine for some time as a physician, his right to further do so can not be taken away from him by a statute subsequently passed, as it would deprive him of his property or right to make a lawful living without due process of law; that the Legislature was without power to stop him in his practice, and make further continuance dependent upon his obtaining and exhibiting a certificate of qualification from a medical board of examiners; that the Legislature was without power to constitute the pursuing of a worthy and praiseworthy calling a misdemeanor.” There can be no question of the right of every citizen to earn a living. Any statute attempting in general terms to prohibit a person from doing so would be utterly null and void.

There is a very great difference, however, between so radical and sweeping a prohibition and a prohibition extending either absolutely or conditionally-to certain specified pursuits which the legislative branch of the government, as guardians of the public good and general welfare, should declare dangerous to the community, and necessary for that reason to be either entirely suppressed or exercised only under certain circumstauces, conditions and limitations.

Article 2626 of the Oivil Oode declares that “ the first law of society being that the general interest shall be preferred .to that of individuals, every individual who possesses under the protection of the law any particular property is tacitly subjected to the obligation of yielding it to the community whenever it becomes necessary for the general use.” The same principle finds expression in Art. 491 of the Oivil Oode, which declares, relatively to the ownership of property, that perfect ownership gives the right to use, to enjoy and to dispose of one’s property in the most unlimited manner, provided it is not used in any way prohibited by law or ordinances. The necessity of subordinating individual rights of one person to the extent necessary for the protection of the rights of others is announced also in Arts. 666 and 667 of the Gode. Whenever the pursuit of any particular occupation or profession requires for the protectition of the lives or health of the general public, skill, integrity, knowledge or other personal attributes or characteristics in the person pursuing it, the General Assembly has the power and the authority to have recourse to proper measures to ensure that none but persons possessing these qualifications should pursue the calling. We fiud this right constantly put in force by the general as well as the State governments. Masters of boats, engineers, mates, pilots, attorneys at law, and others are required as conditions precedent to pursuing their respective business or profession to have their qualifications tested. The medical profession, upon whose skill is so much dependent the lives and health of others, is and should be as much subject, if not more, to legislative control in this matter as are the occupations above mentioned. There is no more natural, absolute right in a person to practise medicine or surgery than there is to practise law. What is claimed to be a natural or absolute right is nothing more than a privilege or a right upon conditions. The Legislature of this State has not attempted to suppress or prohibit the practise of medicine or surgery, nor to prohibit any particular person from practising as physician or surgeon. The field is open to every one possessing the necessary qualifications for that purpose; these qualifications to ha passed upon by public agencies provided by the Legislature. The General Assembly having the undoubted right to attach as a condition precedent to the privilege or right of any one to practise medicine in this State that he should be subjected before doing so to a prior examination as to his qualifications and found and declared worthy and qualified, it has as a consequence the right to select the particular agencies to which should be delegated the right and duty of testing those qualifications. It can not resolve itself into am examining [board, and must, of necessity, act through delegated authority. Courts can not control the selection of these agencies by the General Assembly. The Legislature has not dealt with the Eclectic School of Medicine and discriminated against it; it hag simply selected as examiners, as it had the constitutional right to do? boards of examiners composed of physicians recommended for appointment by two certain named medical societies and appointed by the Governor on such recommendation. It has required that a person before practising medicine in the State should present to the boards mentioned a diploma from a medical college in good standing, but it has not attempted to declare and fix what constituted a medical college, nor what particular colleges, nor classes of colleges were to be considered as “medical colleges in good standing. There must, of necessity, be some tribunal to which should be left the decision of those questions primarily, at least. The fact that in some particular instance a board should have improperly rejected an application made it for the issuing of a certificate to practise might possibly give rise in case of abuse to a right of action for correction, but the possibility of such misconduct would certainly not go to the extent of rendering unconstitutional the law under which the board was created.

We know of no constitutional right given to particular persons who, entertaining peculiar theories of medicine, group themselves together and call themselves a special school of medicine, under a selected name, to be ■ recognized as and dealt with as such. An indefinite number of schools of medicine might claim recognition, with no fixed ascertained standard to pass upon their pretensions. Plaintiff’s claim that recognition of his qualifications by the constituted authorities of another State, under a decision by them tha** the medical college whose diploma he presented was a medical college in good standing, carries with it a vested right in him to practise in this State, has no legal basis on which to rest. The laws of other States in respect to this matter and the action of local officers-under those laws have no force in themselves in this State. Each State acts independently of the others in matters of this character. Attorneys practising law in other States under diplomas from institutions recognized there as having authority to grant them are not entitled simply by reason of that fact to practise law in Louisiana. There is no reason why the rule should be different as to physicians.

The claim made that defendant was protected from legislation, making it obligatory upon him, before continuing to further practise his profession in Louisiana, to procure a certificate from the medical boards organized under the act of 1894, because he had been for several years in active practice, without objection, before the passage of the law, is not tenable. The fact that the Legislature had not, before' the year 18J4, considered the practice of medicine by persons not possessing qfra-lifieations fixed by a legal standard, a matter productive of sufficient mischief or injury as to call for the enactment of a statute, did not prevent it from passing one when, in its opinion, such a law had become necessary. We are not called upon to say what defendant’s rights would have been had he, before the present law was passed, been expressly authorized to practise, through compliance by him with the provisions of a prior existing law granting such right. That question does not arise in this case, for it is not claimed that defendant occupied such a position or status under our prior law.

Defendant’s contention that the General Assembly was without authority to constitute as a misdemeanor the pursuit of any legitimate and proper calling is answered by the fact that it is not the pursuit of the calling which is prohibited and made criminal, but the pursuit of the same by unauthorized persons. The General Assembly having the authority to attach prior conditions to the practice of medicine, was vested with the right to enforce enactments on that subject by prescribiag penalties for violations of the same, either by fine, by imprisonment or by civil remedies.

The right to practise medicine being conditioned by law upon the prior obtaining of a certificate from a medical board, under Act No. 49 of 1894, plaintiffs were clearly authorized, when they had reason to believe that defendant was violating the law in this respect, to test the facts of the case through injunction. Whether or not the injunction taken out would be justified would depend upon the facts as disclosed by the evidence. The right to practise being dependent upop a condition precedent, it was defendant’s duty, when his right was called in question, to show that he was acting under legal authority.

Coming to the merits of the case, we find the issue before us a very limited one. We are not called on to say whether the college whose diploma defendant holds is “a medical college in good standing” or not, nor to say whether defendant has, in point of fact, the qualifications necessary to entitle him to obtain a diploma from “a medical college in good standing.” Those questions are not closed by the judgment below, and they will remain open for examination and decision hereafter by the medical boards organized under Act No. 49 of 1894. The question befor us is simply whether defendant prior to the issuing of the injunction which issued herein was practicing medicine in the parish of Jefferson before obtaining the certificate required by Sec. 2 -of Act No. 49 of 1894, and if so, whether he was justified in so doing as falling under any of the exceptions provided for in the act.

We think it is conceded that defendant was so practising medicine without a certificate. Independently of this, however, the evidence and the line of defence set up both establish this fact. The evidence fails to show defendant to be-protected by any of the exceptions of the act. Under these conditions, the law attacked being constitutional, its provisions control the case and the judgment must be affirmed. We note in the minutes of the Medical State Board, offered in evidence herein, an entry to the effect that Dr. Fowler, from Gretna, had diploma from fraudulent college, and wa3 denied the right to go before the board.” In respect to this matter we think it not amiss for us to say that there exists no authority in any one to prevent the defendant from going before the board by a prejudgment that the diploma under which he claims to be entitled to practise is not from a medical college in good standing,” but a fraudulent college.

It is the duty of the Medical Board to receive and pass upon all applications made to it on evidence submitted to them in each case.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.


author: Watkins, J.

text:
    No. 13,003.
    Salvador Maffaletta vs. Jacques Wildenstein. In re Jacques Wildenstein, Applying for Certiorari or Writ of Review to the Court of Appeals, Third Circuit, State of Louisiana.
    Property was sold ata tax sale.
    A vendor had sold the property with full warranty for a stipulated sum.
    Subsequently the property was sold for taxes assessed against the vender.
    The vendees brought an action in warranty against his vendor on the ground that he had been evicted from the property, demanding the restitution of the purchase price.
    The Court of Appeal rendered judgment awarding him the amount claimed.
    The defence of the vendor was that no eviction had taken place. In his application for writ of certiorari the vendor alleged “that while alleging eviction he (the vendee) fails to prove that he had ever been evicted by any alleged purohaser of the property.”

      Held — Not a case for granting the writ.

      Foster and Broussard for Petitioner.
    Submitted December 5, 1898.
    Opinion handed down December 19, 1898.
   The opinion of the court was delivered by.

Watkins, J.

On the 6th of March," 1896, Wildenstein sold to Maffaletta a lot in the town of Jeanerette, with full warranty, for the price of §360, of which §200 was paid in cash on the day of sale, and for the residue two $80 notes were executed.

On the 11th of July, 1896, said property was sold for the unpaid taxes of 1895, assessed against Wildenstein, and adjudicated to A. J. Maumhs for the price of $13.61, and the tax collector made him a title in due form; and Maumús made a title to the original vendee, Maffaletta.

On this stats of facts Maffaletta instituted an action of warranty against his vendor, Wildenstein, on the averment that he had been evicted and dispossessed of the property by means of the tax sale; and demanded the restitution of the entire price, $360.

In his answer the defendant resisted the suit mainly upon the ground that no eviction had taken pláce, and the district judge so held; but, on appeal to the Circuit Court, his judgment was reversed and plaintiff awarded the entire sum demanded.

In the petition of relator this averment is made, viz.: “ That while alleging his eviction, he fails to prove he has ever been evicted by any alleged purchaser of the property.”

This is not a case for the granting of the preliminary writ of error, . or review. Constitution 1898, Art. 101.

Writ refused.


text:
    No. 12,876.
    Pugh & McKoin vs. St. Louis, Iron Mountain & Southern Railway Company. In Re Pughh & McKoin Applying for Certiorari or Writ of Review to the Court of Appeals, Second Circuit.

      Newton & Vaughan tor Petitioners.

      Hudson, Potts & Bernstein for Defendant Railway Company.
    Submitted June 18, 1898.
    Opinion handed down December 2, 1898.
   The opinion of the court was delivered by

Watkins, J.

In onr opinion this application presents an alleged erroneous ruling of the Court of Appeals upon a question of fact not examinable under Art. 101 of the Constitution. The writ applied for is therefore refused.