
    Bryant v. The State.
    The tenure of all offices in this state is -for some limited term of time.
    B was indicted-¡for practising medicine, without a license from a board of medical censors: Held, it did not constitute any offence against the laws of this state, inasmuch as the tenure of office, prescribed by the statutes organising the board of medical censors, was abrogated by the provisions of the revised constitution.
    IN error to Wilkinson circuit court.
    This was an indictment in Wilkinson county, against Bryant, for practising medicine without a license from the board of medical censors, and came up to this court on a writ of error. To the indictment, the defendant below made plea of confession and evidence, viz., that he did practise medicine by administering to divers sick persons, at the times charged by the state; but that said medicines, and the administration of them were the same, and none other than as authorised by patent rights to Samuel Thompson and his assigns, and by the said Thompson permitted to be used and administered by the defendant. To which plea there was a demurrer, which was sustained by the court.
    Henderson, for plaintiff in error.
    The constitution of the United States, article 1, sec. 8, paragraph 8, gives to congress the power of promoting the progress of science and useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries, Pateht act by congress, (see Ingersoll’s Abridgment, 479,) is in conformity, as we insist, with the power above delegated.
    I lay down the proposition as well established and undeniable, that all the powers enumerated in the court of the United States, as delegated by the states to congress, may be exercised, and being exercised by congress, cannot be qualified,'restricted or rendered: nugatory by state legislation.
    
      Congress may regulate commerce among the states. See article 1, sec. 8, paragraph 3. Now can a state pass a law requiring navigators of a navigable tide water within their territory, &c., to obtain a license from a board of commerce or other state functionaries, to navigate such streams? Can they limit the navigation ■of such streams to their own citizens? Can they require such navigators to test their qualifications as mariners, before a board of mariners appointed by the state? Certainly not: merely because the state has granted the power to be exercised on the subject of commerce among the states to congress. Now the security to the lives and property of the citizens of the state by having no vessels in commission but such as are seaworthy, by having no navigators or mariners but such as are qualified in character and by experience, is obvious, and not much less important than the character and qualifications of medical men. But the states have relinquished the power of securing these objects to their citizens to congress alone.
    This single illustration may be applied and multiplied to every power delegated by the states to congress. When so delegated, the state cannot legally thwart and contravene its exercise by domestic legislation.
    But it may be said, that the power regulating the practice of medicine is not granted to congress by the states, as is the power to regulate commerce. I grant it: nor is the power of regulating the building of houses, steam-boats, saw-mills and bridges, or to regulate the construction of chimneys, implements of husbandry and the various utensils of the domestic household; but yet under the grant to congress, first above quoted, is there a single article among all these, but what may be, and has been, the subject of a United States patent, with exclusive rights to the inventor or discoverer? For instance, congress cannot prescribe that all the people of a state or of the United States shall build their saw mills after any particular construction, drive them with any particular power, or require them to be attended by an individual having a license from a United States officer, evidencing his particular qualifications as a miller. But congress may invest an individual with the exclusive right of constructing saw-mills in a particular way, throughout these United States, wherever and whenever any individual will employ him to do so. And congress may also provide that no other person throughout these United States than such individual, or those whom he may autho-rise, shall build a saw-mill after that particular construction.
    The theory of medicine is a science, which if one write a treatise on, he may ask the patent of the United States to be secured in the exclusive right of as author.
    The practice of medicine, the professional use or skilful use of drugs and medicines in healing diseases, is an art, and is certainly among the first of u useful arts,” in which if an individual make any new discovery which he deems useful and important, congress may certainly invest him, his heirs, administrators and assigns, with the exclusive right of administering and vending it. In making its application to a diseased and shattered constitution, he but administers his skill, his art as contained in his new discovery, as does the patentee in applying a new power to a mill, or his new discovery in constructing a watch. Can a state law forbid the patentee from the United States of a new discovery in constructing a saw-mill, from using his discovery in the state unless he shall first qualify himself by an apprenticeship to the old mode of mill-building, and get a license from a board of old fashioned mill-builders, that he is qualified in a theory which he has no desire to practise? If a state law can constitutionally require this, they may also require that a citizen of the United States shall not build a mill on the plan of his patent discovery, unless he also can make a watch. That a patentee to administer medicine according to his new discovery, shall not do so unless he first obtain a license to practise law. Such an exercise of power by a state is wholly incompatible with the power conferred upon congress first above quoted.
    I conclude, therefore, the defendant had full and ample authority to compound and administer the medicines as by his plea alleged, and that the law of the state, on which lies conviction, is hased, and his punishment demanded, was as to him and his acts confessed null and void. 2 Peters’s Rep. 251-2; Wheaton, 405, 6; 421, 3, 4, 5; 431, 2.
    
      2. But we contend there is no existing law of this state, nor was there at the time charged in the indictment, requiring a license as a prerequisite to practising as a physician, and administering medicine to sick persons.
    The statute, Revised Code, 416, organising a board of medical censors, does not create them a body corporate, but creates them a civic tribunal to discharge certain duties deemed necessary to the state, the public, the body politic; and by statute of amendment 'in 1827, p. 25, 6, 7, is made of such public importance, as to require courts to. give the act in charge, &c., and affixes heavy penalties for violating said statute, and disregarding the powers and prerogatives with which the agents and officers of government are invested. It cannot be doubted, therefore, that the board of medical censors were created to discharge a public trust, duties much more essentially connected with the general policy of the state, than is exercised by this court, in examining and licensing lawyers. The duties, therefore, of the board of medical censors, not being private, not being individually professional, not being the duties of a corporate body, but being essentially the discharge of a public trust, they are public officers.
    The second section of the Revised Code,p. 416, directs these censors to be appointed by the governor of the state, to hold their appointment during good behavior; and section 5 gives them the power of perpetuity in filling vacancies in their own body.
    Revised Code, p. 6, sec. 30, forbids the power to appoint to office during “ good behavior,” and demands a limitation of tenure to all officers; and p. 26, sec. 4, continues only such acts in force as are not repugnant to this constitution. The tenure of office fixed by the statute above referred to, is certainly repugnant to the new constitution, and, therefore, repealed thereby.
    This charge was preferred against defendant at April term, 1833, and consequently since the new constitution repealed the repugnant statute in the Revised Code. There was therefore no such offence known to the law, as is charged in the indictment, and hence the judgment below should be reversed and given for the defendant. 2 Peters’s Rep. 251-2; Rev. Code, p. 416, s. 2, 5; Statute 1827, p. 25, 26, 27; New Const, p. .6, s. 30, p. 26, s. 4; Const. U. S.'Rev. Code, p. 492-3, art. 1, sec. 8, paragraph 8; p. 498, art. 6, paragraph 2; Gordon’s Digest Laws U. S. p. 547; s. 2811, 2816, 2820, 2825.
    Attorney-General for the state.
   Mr. Chief Justice Shaukey

delivered the opinion of the court.

Bryant, the plaintiff in error, was indicted in the circuit court of Wilkinson county, at November term,. 1833, for practising medicine without a license.

To the indictment, he pleaded that he was authorised so to practise by virtue of a patent issued by the proper department of the Federal Government, to one Samuel Thompson, under whom the plaintiff claims by transfer, or as having a special authority to use the invention. The privilege secured to the patentee and his assigns, is that of using, compounding, mixing, preparing and administering, certain medicines according to the schedule attached to the patent, which is commonly denominated the “ Thompsonian System.” There was a demurrer to the plea, and various causes assigned, which was sustained by the circuit court.

We are precluded from any inquiry as to the merits of the plea, by ah interposing question which goes directly to the foundation of the indictment, and that is, was the act stated as the offence, a violation of an existing law of the state? The act of 1819, incorporated into the Revised. Code, 416, provided for the appointment of a board of medical censors, who were authorised and required to decide on the qualifications of applicants, for license to practise medicine, and to grant such license to those who might be qualified. The first act was found to be imperfect, and séveral amendments were subsequently passed, by which it was made an indictable offence; subjecting the offender to heavy penalties, to practise medicine without a license. Under these provisions, the plaintiff in error was indicted, at a period subsequent to the adoption of the revised constitution: we must necessarily determine how far these several laws are in confliction with the constitution, and consequently inoperative. There is but one feature in the law, that tends to place it in conflict with the paramount authority of the revised constitution, and that arises from the tenure of office conferred on the members of the board. They went into office by appointment by the governor and were to hold during good behaviour, and had power to fill vacancies. The mode of appointment, and their holding during good beha-viour, and the object of the appointment being to carry into effect a general law of the state, go very far to show that they must be considered as officers. They were doubtless subject to impeachment for malconduct in office, because they hold their office during good behaviour, which necessarily implies that a power of inquiry into their conduct was reserved to the authorities of the state. If we consider them as officers, the provisions of the constitution must bear on them. The first provision which must be considered relates to the term of office, and is contained in the 30th section of the Bill of Rights. It declares that no person shall be appointed or elected to office in this state, for life, or during good behaviour, but the tenure of all offices shall be for some limited timed’ This section may be considered as more properly relating to offices, thereafter to be appointed or elected, but it very clearly shows the spirit of the constitution to be in opposition to an unlimited tenure of office, and must have its due weight in the investigation of a constitutional question. The fourth section of the schedule shows conclusively, that the convention did not intend to permit any law which was repugnant to the constitution, to remain in force, and for that reason particular care was taken to perpetuate all laws' that were not repugnant, leaving no other conclusion, than that they intended to abolish all that were of a different character. The provisions of this law are manifestly in opposition to the spirit as well as the declared provisions in the constitution, and must be considered as void.

It is true the 3d section of the schedule provides that officers then in office should remain in until their successors should be qualified; but neither the convention nor the legislature contemplated the continuance of the board by making provisions to fill the offices of the members. We cannot, therefore, consider it, as the legislature may by possibility continue it, but must look at it as it is, and contrast it with the constitution. The several amendments must be taken as part of the general law, and must altogether depend for their validity on the powers of the board, for the provisions of the law are nugatory without the essential officers, who alone are authorised to perform the duties required. A law containing the same provisions in regard to the particular officers necessary to the enforcement of it could not now be constitutionally passed by the legislature; and, by parity of reasoning, I do not think it can constitutionally exist in the face of the 4ih section of the schedule by having been in operation at the adoption of the constitution. The act charged in the indictment was, therefore, no violation of law, and the judgment must be reversed.  