Ex parte McNulty , 77 Cal. 164 ( 1888 )

Thornton, J., concurring.

I concur in the conclusion reached by Justice McFarland, and am inclined to concur in the reasons given by him for such conclusion. But I cannot hold that the legislature has the constitutional power to enact a law punishing a physician who has been decided to be competent to practice, as was the case with the petitioner here, when a certificate was issued to him, for what is styled “unprofessional conduct,” and as advertising himself in a newspaper and in a printed pamphlet as a specialist in certain enumerated diseases. This goes beyond the police power, under which power the statute to be considered was enacted. That a rule of professional conduct by a board of medical men prohibiting such advertisements, and declaring them unprofessional, can bp declared a misdemeanor and punished, would extend the police power beyond whatever has been allowed. As . v ell might the board declare that wearing any other hat than one of a white color, by a physician, should be unprofessional conduct, and cause it to be punished as a misdemeanor. The advertisement of the character mentioned does no harm to any one. It may be of benefit to the public, by giving to the subjects of the diseases mentioned information of the existence and residence of a person who has peculiar skill in curing them. Such laws are passed to prevent injury to the community, not to prevent or exclude a benefit to it. We are told that at one time the able and celebrated Hahnemann, a competent and properly licensed physician, was prosecuted and persecuted in a German state for compounding his own medicines, under a law enacted in the interest of apothecaries. I cannot conclude that such a statute here could be regarded as a valid exercise of power under our constitution. Professional etiquette prescribed by a class of men so eminent in standing as the medical practitioners of our state is a matter to be regarded and respected, but it has its limits, and I cannot conceive that a violation of it by a competent physician can ever be by the state made a penal offense. The rules in regard to such etiquette between the .members of the medical as between those of the legal profession must find their enforcement from a source other than the state. It is highly proper and just that it should be so. As the state cannot make the conduct of petitioner penal directly, it cannot be so indirectly. To hold, as contended here by' counsel, adverse to the claims of petitioner would be to' affirm the validity of a statute in which an attempt is seemingly made to accomplish that indirectly which cannot be directly done: For the reasons given above, the petitioner, in my judgment, should be discharged from custody.