Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 87.: Police regulation of skilled trades and learned professions.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 87.: Police regulation of skilled trades and learned professions.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 87.

Police regulation of skilled trades and learned professions.—

Where the successful prosecution of a calling requires a certain amount of technical knowledge and professional skill, and the lack of them in the practitioner will result in material damage to the one who employs him, it is a legitimate exercise of police power to prohibit any one from engaging in the calling who has not previously been examined by the lawfully constituted authority and received a certificate in testimony of his qualification to practice the profession. The right of the State to exercise this control over skilled trades and the learned professions, with a single exception in respect to teachers and expounders of religion, has never been seriously questioned. Thus we find in every State statutes which provide for the examination of those who wish to engage in the practice of the law, of medicine and surgery, of pharmacy, and of those who desire to ply the trade of plumbing.1 And sometimes we find statutes which require all engineers to be examined before they are permitted to take charge of an engine. So, also, in England, it was once made necessary for one to serve an apprenticeship before he was permitted to pursue any one of the skilled trades. That is not now the law in the United States, but there would be no constitutional objection to such a statute, if it were enacted. Judge Cooley says: “No one has any right to practice law or medicine except under the regulations the State may prescribe. * * * The privilege may be given to one sex and denied to the other, and other discriminations equally arbitrary may doubtless be established.”2 A distinguished judge of Missouri says there can be no doubt “that the legislature of Missouri can declare the practice of law or medicine an unlawful calling, if they thought fit to do so.”3 If the rules heretofore laid down for the determination of the limitation of the police control of employments be sustainable, the position of these distinguished judges is untenable. The professions of law and medicine are profitable employments, to the public as well as to the practitioners; and the only elements of danger arising from the practice of them lies in the admission of incompetent persons into them. Any prohibition which extends further than to prevent the admission of incompetent men will be unconstitutional.

It has been held that women can be denied the right to engage in the practice of law.1 In the State court the principal ground for a denial of the plaintiff’s right to engage in the practice of law was maintained to be that, “as a married woman (she) would be bound neither by her express contracts, nor by those implied contracts, which it is the policy of the law to create between attorney and client.” In the Supreme Court of the United States, although the opinion of the court, delivered by Justice Miller, was rested upon the fact that the practice of law in Illinois was not one of the privileges and immunities of citizens of the United States, as such and therefore did not come within the jurisdiction of the court, in a separate opinion by Judge Bradley, in which Judges Field and Swayne concur, it is claimed that the statutes of a State may prohibit a woman from practicing law, because, on account of the supposed difference in her mental capacity, she cannot acquire that degree of skill which the successful practice of the law requires.2 Of course, a married woman, under her strict common-law disabilities, cannot make binding contracts, and it would be impossible for her to be sued on any express or implied obligation which she may have incurred in the practice. This no doubt would furnish a justification for a statute which prohibited married women from engaging in the practice of law, provided the disabilities thus imposed by the law are themselves constitutional.1 But in respect to the inability of women to attain the standard of professional skill required by the law to insure clients against the ignorant blunderings of attorneys, one is forced to the conclusion that this, like very many other venerable distinctions between the sexes, is the result of sexual prejudice. Later adjudications have conceded to women the right to practice law, and it is probable that in the course of time, when the influence of the common law conceptions of the legal status of woman is dissipated altogether, any law which denied to woman the right to enter the legal profession on terms of equality with men, would be pronounced by the courts generally to be unconstitutional.2

Judge Cooley’s position, in respect to the unlimited power of the State to regulate the practice of law and medicine is that the practice of these professions is a privilege, and cannot be demanded as a matter of right. I can see no ground upon which this claim may be supported, so far as it refers to medicine. The physician and surgeon derives no peculiar benefit from the State, and there can be no substantial difference between his right to pursue his calling and that of a teacher to ply his vocation, or of the merchant to engage in business. They are not enjoying any peculiar privilege. Nor can I see any reason for looking upon the practice of law, outside of the courts, as a privilege. I cannot see why it is a peculiar privilege, derivable from the State, for an attorney to draw up a deed, or to make a will for a client. But inasmuch as courts are creatures of the law, and independently of the State, there can be no courts and no advocates, the right to appear for another in a court of justice may be considered a privilege which may be denied or granted at the pleasure of the State authorities. In England, at an early day, one accused of crime was not allowed to have counsel, and the right to appear by counsel in any case, rests upon rule of law. Yet even with this concession, it may still be claimed that such a privilege should be granted equally and to all, to avoid the constitutional objection to the granting of unequal or special privileges and immunities.1

In respect to the regulation of the practice of medicine, the constitutionality of laws has likewise been questioned and contested in numerous cases, but the regulations have been sustained whenever they were reasonable in serving to promote the public safety and welfare.1 Similar regulations have held to be constitutional when they have been applied to the practice of dentistry1 and of pharmacy.2 The “Boilers Inspection Act” of Minnesota, requiring inspection of boilers and the licensing of engineers, has been sustained as a constitutional exercise of police powers.3 Recently plumbers have been required to be examined and licensed. These regulations of the business of plumbing have been sustained as a constitutional exercise of police power. If it is lawful to require sanitary plumbing in buildings4 it is certainly reasonable to examine into the qualifications of plumbers and their ability to construct sanitary plumbing.5

In respect to the clerical profession, the constitutional guaranties against encroachments on religious liberty and freedom of worship would be violated, if an attempt were made by the State to determine who shall minister to the spiritual wants of the people. Every individual, and every body of people, have a constitutional right to select their own clergymen and expounders of religion, and it can never, under our present constitutions, which ordain a complete separation of church and State, become a matter of State regulation, as it is in some of the states of Europe.

[1]State v. Gardner, 58 Ohio St. 599.

[2]Cooley on Torts, pp. 289, 290.

[3]Napton, J., in Austin v. State, 10 Mo. 591.

[1]Bradwell v. State, 55 Ill. 535; s. c. 16 Wall. 130. In Ex parte Lockwood, 154 U. S. 116, it was held to be within the province of the courts of a State to determine whether they shall admit to practice at the local bar women who had been admitted to the bar of some other State, although the statute of the first State provided for the admission on motion of the lawyers of other States.

[2]“In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded upon nature, reason and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and in my opinion, in view of the peculiar characteristics, destiny and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex. For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.” Opinion of Justice Bradley, concurred in by JJ. Swayne and Field, in Bradwell v. Illinois, 16 Wall. 142.

[1]As to which see post, § 193.

[2]In In re Leach, 134 Ind. 665, the court held that women had a right to be admitted to the bar, although the constitution of the State declares that every person of good character, being a voter, shall be entitled to admission to the bar on prescribed conditions. In Ricker’s Petition, 66 N. H. 207, the court held that membership of the bar and the right to practice the law is not a public office, so as to exclude women, under the common law rule, which denies to women the right of suffrage and public office. In Pennsylvania, the right of women to practice law is conceded. In re Kast’s Case, 3 Pa. Dist. 302; 14 Pa. Co. Ct. 432; Richardson’s Case, 3 Pa. Dist. 299. The position of the New Hampshire Court was taken in In re Thomas, 16 Colo. 441.

[1]The constitutionality of the regulations of the right to practice law has often been questioned. Thus a statute has been held to be unconstitutional which required attorneys to take an oath that they have not engaged in dueling, as a condition precedent to practicing law. Matter of Dorsey, 7 Port. (Ala.) 293. It had also been held to be unconstitutional for a statute to prohibit one from engaging in the practice of law who had served in the Confederate Army in the war of the rebellion, or to require them to take an oath that they have never taken up arms against the United States. Ex parte Tenney, 2 Duv. (Ky.) 351; Ex parte Law, 35 Ga. 285; Ex parte Garland, 4 Wall. 333; Cummings v. Missouri, 4 Wall. 277. But it is constitutional to require attorneys to take the oath of allegiance to the United States government. Cohen v. Wright, 22 Cal. 293; Ex parte Yale, 24 Cal. 241. And in order that he may be disbarred, precise and specific charges of malpractice or unprofessional behavior must be brought against him, and he must have an opportunity to be heard in his own defense. State v. Watkins, 3 Mo. 480; Matter of Mills, 1 Mich. 392; State v. Start, 7 Iowa, 499; Fisher’s Case, 6 Leigh, 619; Withers v. State, 36 Ala. 252; Ex parte Percy, 36 N. Y. 651.

[1]By a Massachusetts law it was provided that no one can be permitted to recover by legal process the fees he has earned in the practice of medicine and surgery, unless he has been licensed by the Massachusetts Medical Society or was graduated as a doctor of medicine in Harvard University: the statute was held to be constitutional. Hewitt v. Charier, 16 Pick. 353. So, also, an act of Nevada, providing that graduation from a medical college was necessary to receive a license to practice medicine except in the case of those who have practiced for ten years in that State, was held to be not unconstitutional, because it does not make a similar exception in favor of those who had practiced for the same length of time elsewhere. Ex parte Spinney, 10 Nev. 323. See, also, to the same effect, People v. Hasbrouck (Utah), 39 P. 918; Gee Wo v. State, 36 Neb. 513; Driscoll v. Commonwealth, 93 Ky. 393; Williams v. People, 121 Ill. 84; Richardson v. State, 47 Ark. 562; State v. Randolph, 23 Oreg. 74. It seems as if the denial to those who were already engaged in the practice of medicine of the right to continue their practice, unless they procure a license, which is based upon an examination into their moral and professional fitness, would be unconstitutional, and an unlawful deprivation of one’s personal liberty. Such, at least, seems to be the inference from Kohenstrat v. State, 4 Ohio N. P. 257; 6 Ohio Dec. 451; France v. State, 57 Ohio St. 1. But see State v. Call, 121 N. C. 643; State v. Corey, 4 Wash. St. 424; Iowa Eclectic Med. Col. v. Schrader, 87 Iowa. 659. It has been held to be constitutional to require examination into the moral character, as well as into the educational acquirements of an applicant for a certificate to practice medicine. State v. Hathaway, 115 Mo. 36; France v. State, 57 Ohio St. 1. On the power of the State in general to require an examination and a certificate or license, in order to practice medicine, see State v. Dent, 25 W. Va. 1; Wert v. Clutter, 37 Ohio St. 347; State v. State Board Medical Examiners, 32 Minn. 324; Great Western Ry. v. Bacon, 30 Ill. 353; Harbaugh v. City of Monmouth, 74 Ill. 367; Eastman v. State, 109 Ind. 278; Orr v. Meek, 111 Ind. 40; State v. Webster, 150 Ind. 607; In re Roe Chung (N. M.), 49 P. 952. In Kentucky, it is intimated that any discrimination against a particular school of medicine, in the recognition of their diplomas as a license to practice medicine, would be unconstitutioaal. Driscoll v. Commonwealth, 93 Ky. 393; Commonwealth v. Rice, 93 Ky. 393; Rice v. Commonwealth (Ky.), 20 S. W. 703. But in Iowa, it was held to be constitutional to require a State examination of all physicians whether they have been in practice, or what school of medicine they may represent. Iowa Eclectic Med. Col. v. Schrader, 87 Iowa, 659; Allopathic State Board of Medical Examiners v. Fowler, 50 La. Ann. 1358; State v. Calls, 121 N. C. 643; State v. Corey, 4 Wash. St. 424; State v. Webster, 150 Ind. 607. Osteopathy is so far recognized as a branch of medicine, as to require its practitioners to be licensed, before they can lawfully practice. Eastman v. People, 71 Ill. App. 236.

[1]Commonwealth v. Gibson, 7 Pa. Dist. Rep. 386; Knowles v. State, 87 Md. 204; Ferner v. State, 151 Ind. 247.

[2]State v. Forcier, 65 N. H. 42; Suffolk County v. Shaw, 47 N. Y. S. 349; 21 App. Div. 145; Com. v. Zacharias, 5 Pa. Dist. Rep. 475; State v. Heinemann, 80 Wis. 253; Luck v. Sears, 29 Oreg. 421; People v. Mohrman, 86 Mich. 434. In Luck v. Sears, the possesion of opium and other poisonous drugs by any one not a licensed pharmacist or physician is prohibited, unless such drug has been prescribed by a licensed physician or pharmacist. And, in People v. Mohrman, the regulations prohibit physicians from keeping “open shops for the retailing, disbursing or compounding of medicines and poisons,” unless they comply with the requirements of the act for the licensing of druggists.

[3]State Ex rel. Graham v. McMahon, 65 Minn. 453. In this statute locomotive engineers and engines were expressly excepted from the operation of the statute. In Louisville & N. Ry. Co. v. Baldwin, 85 Ala. 619, a statute requiring all locomotive engineers and others in the employ of the railroads, who, in any capacity, are required to distinguish color signals, to submit to examination for color blindness, was held to be constitutional, except so far as the statute requires the railroads to pay the fees for the examinations.

[4]As to which, see post, Chapter X.

[5]People v. Warden City Prison, 144 N. Y. 529; affg. 81 Hun, 434; State v. Gardner, 58 Ohio St. 599. In the New York act, master and employing plumbers were alone required to be examined, and did not require journeymen plumbers to be examined. In State v. Gardner, supra, it is held that the Ohio law is not constitutionally objectionable because it requires only one member of a firm of plumbers to obtain a plumbers’ license and to be registered. As to this last proposition see contra, State ex rel. Winkler v. Benzenberg, 101 Wis. 172.