
    Staniforth v. The State of Ohio.
    (Decided October 28, 1929.)
    
      
      Messrs. Emerson & Black, for plaintiff in error.
    
      Mr. Bay T. Miller, for defendant in error.
   Levine, J.

Plaintiff in error, William F. Staniforth, was convicted on the charge of unlawfully practicing veterinary surgery without a license, in violation of Sections 1177-16b and 1177-16g, General Code of Ohio.

Section 1177-16b provides that an applicant, before taking the examination, shall be a graduate of a veterinary college recognized by the state board of veterinary examiners. It provides further that no person shall practice veterinary medicine and surgery in this state without having first obtained from the state board of veterinary examiners a certificate entitling him to engage in such practice.

Section 1177-16g provides a penalty for the violation of any provision of the act relating to the practice of veterinary surgery and medicine.

Error is prosecuted from said conviction on the ground that the above act of 1925, relating to examination of applicants to practice veterinary surgery and medicine in this state, has no application to the accused. It is pointed out in support of said conténtion that by an act of the Legislature passed May 21, 1894 (91 Ohio Laws, 391), to regulate the practice of veterinary medicine and surgery, the accused was expressly excepted from its operation. It provided in Section 1 that “All persons who now, or shall hereafter, practice veterinary medicine and surgery in the state of Ohio, and have not been engaged in such practice for at least three years prior to the passage of this act, in the state of Ohio, shall be examined as to their qualifications by a state board of veterinary examiners, to be appointed as hereinafter provided. ’ ’

It is to be taken as undisputed from the record in this case that the accused was engaged in such practice for some forty years preceding his arrest, and also that he had been engaged in said practice for at least three years prior to the passage of the act of 1894, heretofore referred to. It must be conceded that up to the time the act of 1925 was passed (111 Ohio Laws, 340), and until the same became effective, the accused under the provisions of the act of 1894 was expressly exempted from the requirement of taking an examination. By said act he was given a legal status to the same extent as if he had taken an examination before the state board of veterinary examiners, had successfully passed said examination, and had obtained a certificate to that effect.

The question naturally arises as to the power of the state Legislature to destroy the legal status heretofore conferred upon the accused. It is well settled that where the successful prosecution of a calling requires a certain amount of professional knowledge and skill, and the lack of them in the practitioner will result in material damage to the one who employs him, it is the 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 qualifications to practice the profession.

The pursuit of skilled professions is a profitable employment to the public as well as to the practitioner ; and the only element of danger arising from the-practice of said profession lies in the admission of incompetent persons into it. By the weight of authority it may be taken as settled that, while the Legislature may enact legislation for the protection of the public, any prohibition which extends further than to prevent the admission of incompetent men will be unconstitutional.

Prof. Tiedeman, in his treatise on the limitations of the police power in the United States, has this to say, at page 202: “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.”

A careful reading of the prohibitory section under which the accused is being prosecuted indicates clearly that the Legislature carefully kept in mind the limitations upon the police power of the state to regulate skilled professions.

Section 1177-16b, in addition to the prohibition against practicing veterinary medicine and surgery in this state without having first obtained a certificate, contains the following proviso: “Provided, that the provisions of this section shall not be deemed to apply to those persons who are duly licensed under the laws of this state to practice veterinary medicine or surgery and the various branches thereof at the time this act * * * becomes operative, it being the intention hereof to allow such license holders to continue in the practice of their profession.”

The question arises: Who is deemed “a license holder” within the meaning of said proviso? Unquestionably, those who have applied for examination and obtained certificates of qualifications under tbe provisions of tbe act of 1894 are license holders. Tbe accused was not required to take an examination when tbe act of 1894 became effective. He was permitted by tbe state to pursue tbe practice of veterinary medicine and surgery without tbe requirement of taking an examination and obtaining a certificate to that effect. At tbe time said act became effective he bad been engaged in tbe practice of veterinary medicine and surgery for at least three years. He was, by tbe express language of tbe act, given permission to pursue bis calling to tbe same extent as if be bad taken an examination, successfully passed said examination, and obtained a certificate to that effect.

It will be noted that tbe proviso contained in Section 1177-16b excepts from tbe operation of tbe act of 1925 those persons who are duly licensed under tbe laws of tbe state to practice veterinary medicine and surgery at tbe time of tbe passage of tbe act.

A “license” is permission conferred by proper authority to pursue a certain trade, profession, or calling, and it is distinguishable from a permit in that the latter relates to permission to do a particular act.

In our opinion tbe plaintiff in error having been given a legal status by tbe act of 1894, and having been permitted to pursue bis calling of veterinary surgery and medicine without tbe requirement of taking tbe examination, must be regarded as a license bolder within tbe meaning of Section 1177-16b, General Code (of tbe act of 1925), for there can be no doubt that be was given permission by tbe state to pursue bis calling. We therefore bold that plaintiff in error comes within the meaning of the exception set forth in the proviso of Section 1177-16b, because he was duly licensed under the laws of this state to practice veterinary medicine and surgery at the time of the passage of the act. License holders, not being required to submit to an examination, may lawfully pursue their calling of veterinary surgery and .medicine. The accused comes within the excepted class, and in our opinion he did not violate the law in pursuing his calling of veterinary surgery and medicine.

In view of said holding, it follows that the accused was improperly convicted, and the judgment of the lower court is ordered reversed, and plaintiff in error is ordered discharged.

Judgment reversed.

Vickery, P. J., and Sullivan, J., concur.  