Ex parte Frazer

In bank, McKinstry, P. J.: It is argued by counsel for petitioner, that the Act of April 3rd, 1876, “ to regulate the practice of medicine,” as amended in 1878, (Laws 1877-8, p. 918) is void, because a violation of the provisions of the late Constitution: “ Corporations may be formed under general laws, but shall not be created by special act.”

The second section of the act confers the exclusive power to appoint Boards of Examiners upon three medical societies, and prohibits such appointment by any other corporation, society, person, or persons. The eighth section of the amendatory act makes it a misdemeanor for any person (except an appointee of one of the three societies named) to sign, seal, or issue a certificate purporting to authorize the practice of medicine.

It is claimed by petitioner, that the power to appoint is a franchise which the act attempts to confer upon the three named [96]incorporations, and which is not enjoyed by other medical societies incorporated under the general laws ; that the act is, therefore, violative of the provisions of the Constitution above recited, as the same was construed in San Francisco v. Spring Valley Water Works, 48 Cal. 493.

I. We shall assume that the State, in the exercise of the police power, may provide for boards authorized to examine persons seeking to be admitted to practice medicine, to be appointed by any citizen or citizens named.

There is nothing in the language of the law to indicate tnat it was the purpose to confer this power of appointment - upon the particular corporations. If it should be made to appear that the societies named had never been incorporated, the power of appointment would still remain to be employed by the societies or aggregations of individuals who had adopted the society names mentioned in the act. The assumption of the power by these individuals or societies would be the assumption of a public duty, and the performance of the duty simply would not be profitable or beneficial to them, as societies, nor, should they happen to be incorporated, as private corporations. The second section of the act confers the power of appointing Boards of Examiners upon the three named societies, which are said to be “ existing corporations ” ; but, as we have seen, this designation does not oblige us to declare that it was intended to confer the power of appointment on the three societies as corporations. The words “ existing corporations ” may be treated as merely “ descriptio per sonar umV