PATTERSON, J.
The appellant was indicted in the court of general sessions of the peace for a misdemeanor, charged to have been committed by violating that provision of section 153 of the public health law (chapter 661, Laws 1893, as amended by chapter 398, Laws 1895) which enacts among other things, that any person who, after conviction of a felony, shall attempt to practice medicine, or shall so practice, shall be guilty of a misdemeanor. It is alleged in the indictment that the appellant was convicted in March, 1878, of a felony, and was sentenced to a term of imprisonment, notwithstanding which, and contrary to the act of 1893, as amended in 1895, he did practice medicine at the city of New York on the 22d day of February, 1896. A demurrer was interposed to the indictment on the ground that the provision of the statute sought to be enforced against the prisoner is unconstitutional. The demurrer was overruled. On his arraignment for trial, the defendant admitted on the record that all the facts set forth in the indictment were true, whereupon he was found guilty, and sentence was imposed; but its execution was suspended, and a certificate of reasonable doubt was given, in order that the question of law involved might be passed upon by the appellate courts. That question is now brought up by appeal from the judgment and from the order overruling the demurrer; and, stated in its sim. plest form, it is whether the legislation of 1893-95, in so far as it relates to convictions had prior to that statute taking effect, is a lawful exercise of the police power of the state, or is an ex post facto law, or one in the nature of a bill of attainder or a bill of pains and penalties, and thus included in the powers the exercise of which is forbidden to the several states of the Union by subdivision 1 of section 10, art. 1, of the constitution of the United States.
It is not, and in reason cannot be, denied that that function of government called the “ police power of the state ” extends to the [124]*124regulation , control, and supervision of all matters relating to the ' public health,. or that legislation upon such subjects is entirely within the jurisdiction of the several states. As affecting public-health, each state has the absolute right to make such appropriate and constitutional laws as it may deem proper, relating toil) e conditions upon which any person will be allowed to practice medicine or surgery within its territorial limits. That power is-not confined merely to dictating conditions or requiring qualifications applicable to the acquisition of an original right or permission to practice, but it includes also the authority to prescribe-new conditions as the necessity for them may arise, upon'which-one practicing the healing art may continue in the pursuit of his-profession. As is said in Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, the same reasons that control in imposing conditions upon compliance with which the physician' is allowed to-practice in the first instance may call for further conditions as a requirement of his continuance in practice. All legislation exclusively directed to the accomplishment of that object comes within the police power of the state. Therefore, in its operation upon those convicted of felony after its passage, the- provision of the-public health law now under consideration is constitutional and valid; for it declares in advance that whosoever shall thereafter be convicted of a felony shall not be allowed to continue in the practice of medicine, and the additional punishment for crime is-announced before the crime is committed. But, with 'respect toil) ose who had acquired the right to practice and may have been convicted before the act of 1893, the question is presented in an entirely different aspect. As was said by Mr Justice McLean in-the Alien Passenger Oases, 7 How. 408 :
The police power of the state cannot draw within its jurisdiction objects which lie beyond it.” “ In guarding the safety, the health, and morals of its citizens, a state is restricted to appropriate and constitutional means.”
Assuming for the purpose of the argument that the legislature may require for the continuance in the practice of medicine that the practitioner shall possess professional knowledge and skill, and also good moral character, it is obvious that such requirement must relate to a present status or condition of a person coming [125]*125within the terms of the act. The law under which this appellant was indicted does not deal with his present moral character. It seizes upon a past offense, and makes that, and that alone, the the substantial ingredient of a new crime, and the conviction of it years ago the conclusive evidence of that new crime. It will be observed that this statute includes any and all felonies,—not only those committed in connection with the profession of medicine and surgery, but any and every felony in the whole catalogue of crime, whether committed here or in another jurisdiction. Its design is to deprive convicted felons of the right of practicing at all. Clearly, it acts directly upon, and enhances the punishment of, the antecedently committed offense, by depriving the person of his property and right, and preventing his earning his livelihood in his profession, only because of his past—and, in this case, expiated—-offense against the criminal law. This prisoner * has committed no new crime, except that which the statute has created out of the old one. He had absolutely the right to practice medicine the day before that statute was passed. His former conviction entailed the punishment of imprisonment and disfranchisement as a voter, but it did not take away from him his property in the right to earn his living on the expiration of his imprisonment by engaging in the profession of which he was and is a member. His civil rights were not extinguished, but only suspended during his imprisonment. 2 Rev. St. p. 701, § 19 ; Pen. Code, § 710. That his right to so engage in that profession is in the nature of a property right cannot be disputed. It is not a mere revocable license. As is said in the Dent Case, supra, in this country “ all vocations are open to every one on like conditions. All may be pursued as a means of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or as it is sometimes termed, the ‘ estate,’ in them (that is, the right to continue their prosecution), is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken.” That means that, if it is taken away, it must be for cause. It was held in that case that there is no arbitrary taking away of the right, where its exercise is not permitted for failure to comply with conditions imposed by the state for the protection [126]*126and welfare of the people, and hence a law requiring practitioners of medicine, under certain circumstances, to procure evidence of their fitness to continue in practice, was a valid exercise of legislative. power; and a conviction for practicing without such evidence was sustained. The authority of the Dent Case is invoked here as being conclusive upon the validity of the law under which this appellant was indicted, but the distinction between that case and this is broad and striking. ISTo question arose there of 'the construction of a new crime out of an old one, nor the taking away by legislation of a right because of the previous commission of an offense. It was the mere regulation of the right.
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PATTERSON, J.
The appellant was indicted in the court of general sessions of the peace for a misdemeanor, charged to have been committed by violating that provision of section 153 of the public health law (chapter 661, Laws 1893, as amended by chapter 398, Laws 1895) which enacts among other things, that any person who, after conviction of a felony, shall attempt to practice medicine, or shall so practice, shall be guilty of a misdemeanor. It is alleged in the indictment that the appellant was convicted in March, 1878, of a felony, and was sentenced to a term of imprisonment, notwithstanding which, and contrary to the act of 1893, as amended in 1895, he did practice medicine at the city of New York on the 22d day of February, 1896. A demurrer was interposed to the indictment on the ground that the provision of the statute sought to be enforced against the prisoner is unconstitutional. The demurrer was overruled. On his arraignment for trial, the defendant admitted on the record that all the facts set forth in the indictment were true, whereupon he was found guilty, and sentence was imposed; but its execution was suspended, and a certificate of reasonable doubt was given, in order that the question of law involved might be passed upon by the appellate courts. That question is now brought up by appeal from the judgment and from the order overruling the demurrer; and, stated in its sim. plest form, it is whether the legislation of 1893-95, in so far as it relates to convictions had prior to that statute taking effect, is a lawful exercise of the police power of the state, or is an ex post facto law, or one in the nature of a bill of attainder or a bill of pains and penalties, and thus included in the powers the exercise of which is forbidden to the several states of the Union by subdivision 1 of section 10, art. 1, of the constitution of the United States.
It is not, and in reason cannot be, denied that that function of government called the “ police power of the state ” extends to the [124]*124regulation , control, and supervision of all matters relating to the ' public health,. or that legislation upon such subjects is entirely within the jurisdiction of the several states. As affecting public-health, each state has the absolute right to make such appropriate and constitutional laws as it may deem proper, relating toil) e conditions upon which any person will be allowed to practice medicine or surgery within its territorial limits. That power is-not confined merely to dictating conditions or requiring qualifications applicable to the acquisition of an original right or permission to practice, but it includes also the authority to prescribe-new conditions as the necessity for them may arise, upon'which-one practicing the healing art may continue in the pursuit of his-profession. As is said in Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, the same reasons that control in imposing conditions upon compliance with which the physician' is allowed to-practice in the first instance may call for further conditions as a requirement of his continuance in practice. All legislation exclusively directed to the accomplishment of that object comes within the police power of the state. Therefore, in its operation upon those convicted of felony after its passage, the- provision of the-public health law now under consideration is constitutional and valid; for it declares in advance that whosoever shall thereafter be convicted of a felony shall not be allowed to continue in the practice of medicine, and the additional punishment for crime is-announced before the crime is committed. But, with 'respect toil) ose who had acquired the right to practice and may have been convicted before the act of 1893, the question is presented in an entirely different aspect. As was said by Mr Justice McLean in-the Alien Passenger Oases, 7 How. 408 :
The police power of the state cannot draw within its jurisdiction objects which lie beyond it.” “ In guarding the safety, the health, and morals of its citizens, a state is restricted to appropriate and constitutional means.”
Assuming for the purpose of the argument that the legislature may require for the continuance in the practice of medicine that the practitioner shall possess professional knowledge and skill, and also good moral character, it is obvious that such requirement must relate to a present status or condition of a person coming [125]*125within the terms of the act. The law under which this appellant was indicted does not deal with his present moral character. It seizes upon a past offense, and makes that, and that alone, the the substantial ingredient of a new crime, and the conviction of it years ago the conclusive evidence of that new crime. It will be observed that this statute includes any and all felonies,—not only those committed in connection with the profession of medicine and surgery, but any and every felony in the whole catalogue of crime, whether committed here or in another jurisdiction. Its design is to deprive convicted felons of the right of practicing at all. Clearly, it acts directly upon, and enhances the punishment of, the antecedently committed offense, by depriving the person of his property and right, and preventing his earning his livelihood in his profession, only because of his past—and, in this case, expiated—-offense against the criminal law. This prisoner * has committed no new crime, except that which the statute has created out of the old one. He had absolutely the right to practice medicine the day before that statute was passed. His former conviction entailed the punishment of imprisonment and disfranchisement as a voter, but it did not take away from him his property in the right to earn his living on the expiration of his imprisonment by engaging in the profession of which he was and is a member. His civil rights were not extinguished, but only suspended during his imprisonment. 2 Rev. St. p. 701, § 19 ; Pen. Code, § 710. That his right to so engage in that profession is in the nature of a property right cannot be disputed. It is not a mere revocable license. As is said in the Dent Case, supra, in this country “ all vocations are open to every one on like conditions. All may be pursued as a means of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or as it is sometimes termed, the ‘ estate,’ in them (that is, the right to continue their prosecution), is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken.” That means that, if it is taken away, it must be for cause. It was held in that case that there is no arbitrary taking away of the right, where its exercise is not permitted for failure to comply with conditions imposed by the state for the protection [126]*126and welfare of the people, and hence a law requiring practitioners of medicine, under certain circumstances, to procure evidence of their fitness to continue in practice, was a valid exercise of legislative. power; and a conviction for practicing without such evidence was sustained. The authority of the Dent Case is invoked here as being conclusive upon the validity of the law under which this appellant was indicted, but the distinction between that case and this is broad and striking. ISTo question arose there of 'the construction of a new crime out of an old one, nor the taking away by legislation of a right because of the previous commission of an offense. It was the mere regulation of the right. All that the statute of West Virginia required related to physicians habitually practicing in that state furnishing themselves with evidence of their qualifications to continue in the pursuit of a calling, and making it a misdemeanor to practice without that evidence. The court was very careful to point out the difference between it and that „ other class of cases in which laws were “ designed to deprive parties of their right to continue in their profession for past acts.” In the Dent Case the statute applied to every person, without exception, practicing in the state of West Virginia, and related directly to fixing a then present status as to the qualifications of every physician in the state. Conceding, but not deciding, that the legislature may require, as a condition for continuing in the practice of medicine, that every practitioner shall be possessed of, and continue to have, a good moral character, that, requirement would refer-to some present qualification, to be ascertained by conditions existing at the time the enforcement of the requirement was sought. Conviction of a felony certainly raises a presumption of bad character, but it is not an irrebuttable presumption that a man convicted of an infamous crime, “ treason, felony, or the crimen falsi,” 10 or 20 or 50 years ago, is to-day absolutely an immoral person, unfit to practice any profession. There is no such conclusive presumption. Even as to the competency of. witnesses) the old-rule of disqualification of convicts Is completely done away with in the state of New York. Code Civ. Proc. § 832. The provi-, sion of the statute we are now considering does not take hold of an existing condition of moral character. That may be never so good,, and yet the new crime exists, arising exclusively out of-a [127]*127past transgression. It is said that the legislature has only made the former conviction evidence of a disqualification which it had the power to impose. But that is not so. It makes the prior conviction, which is but the establishment by adjudication that a crime was committed, the very essence of the newly-created crime. The design of the act is therefore fully apparent. Ho matter how praiseworthy the motive may be, it is meant to deprive one class of persons, otherwise lawfully engaged in the exercise of a right, of that right, because of past occurrences, “ many of which are in no wise associated with their professional pursuits ”; for this act strikes at the unfortunate man who in his youth may have violated the law, and without real evil intent, have committed and been convicted of any felony, and pardoned the very day of his conviction, as well as the hardened criminal, guilty of as foul an offense as that of which this appellant was convicted. The underlying purpose of the act may be to purge the medical profession of members unworthy of confidence, but the real effect is to accomplish that by in dieting an additional punishment, through a newly-created offense inseparably connected with the anterior crime, and thus bring about a result the constitution forbids, no matter in what form the statute is drawn. The distinction between the two classes of cases runs through the leading authorities on the subject. It is plainly pointed out in the Garland Case, 4 Wall. 333. In the opinion of the court in that case, it is declared that “exclusion from any of the professions, or any of the ordinary avocations of life, for past conduct, can be regarded in no other light than as punishment for such conduct ” ; and it was held that laws of that character come within the constitutional inhibition. Hot only is this defendant punished by exclusion from his profession, but he is to suffer fine and imprisonment also. That fine and imprisonment may be said to be punishment for violating the new law, but the exclusion from the profession under pains and penalties for continuing in its practice is only because of the previous crime, and hence additional punishment for that crime. The chief arguments to be urged in favor of the constitutionality of this law are very powerfully advanced by Mr. Justice Miller in the minority opinion in the Garland Case, and they are, to a great extent, the same general considerations relied upon by the people in the case [128]*128at bar. And so in the Utah Election Cases (Murphy v. Ramsey, 114 U. S. 14,5 Sup. Ct. 747) the question related to the validity of an act of congress operating the disfranchisement of voters in the territory of Utah who were bigamists or polygamists. The act was declared constitutional because it operated upon the present status of voters then having a plurality of wives. The disfranchisement was not because the person had committed bigamy or polygamy, but because he persisted in crime by continuing in the criminal or forbidden relation in violation of a statute. No additional punishment was added to a past crime. In-the case at bar, as before remarked, the real substance of the present misdemeanor is created from the past offense.
Our conclusions, therefore, are (1) that the provisions we have considered of the public health law is constitutional so far as it operates prospectively, and upon persons convicted of felony after its passage; (2) that it is unconstitutional in so far as it applies by its terms to persons so convicted before the law went into operation.
The judgment and order appealed from must be reversed, the indictment dismissed, and the appellant discharged.
VAN BRUNT, P. J., and WILLIAMS and O’BRIEN, JJ., concur.