Patterson, J. :
The appellant was indicted in the Court of General Sessions of .the Peace for á misdemeanor, charged to have been committed by. violating that provision of section 153 of the Public Health Law (Chap.' 661,. Laws of 1893, as amended by chap. 398, Laws of 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 [189]*189indictment 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 Hew 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 simplest form, it is whether the legislation of 1893 and 1895, 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 of article 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 regulation, 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 to the. 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. 144), the same reasons that control in imposing conditions, upon compliance with which the physi[190]*190cian 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 to those 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 MoLban in The Alien Passenger Gases (7 How., [U. S.] 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 purposes 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 within 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 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 Ms profession only because of, Ms past, and in this case expiated, offense against the criminal lawn 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 [191]*191practice 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 R. S. 701, § 19 ; Penal 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 <c all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, .the estate acquired in them, that is, the right to ■continue their prosecution, is often of great value to the possessors <md cannot he arbitrarily taken from, them, any more than their real cr personal property earn, he 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 and 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 (supra) 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. Ho 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 á misdemeanor, charged to have been committed by. violating that provision of section 153 of the Public Health Law (Chap.' 661,. Laws of 1893, as amended by chap. 398, Laws of 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 [189]*189indictment 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 Hew 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 simplest form, it is whether the legislation of 1893 and 1895, 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 of article 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 regulation, 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 to the. 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. 144), the same reasons that control in imposing conditions, upon compliance with which the physi[190]*190cian 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 to those 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 MoLban in The Alien Passenger Gases (7 How., [U. S.] 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 purposes 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 within 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 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 Ms profession only because of, Ms past, and in this case expiated, offense against the criminal lawn 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 [191]*191practice 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 R. S. 701, § 19 ; Penal 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 <c all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, .the estate acquired in them, that is, the right to ■continue their prosecution, is often of great value to the possessors <md cannot he arbitrarily taken from, them, any more than their real cr personal property earn, he 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 and 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 (supra) 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. Ho 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 professions for past acts.” In the [192]*192Dent 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 irrebutable presumption that a man convicted of an infamous crime, “ treason, felony or the crimen falsi f ten or twenty or fifty 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 provision 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 past 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 nowise associated with their professional pursuits,” .for this act strikes at the unfortunate man who in Ins 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 inflicting an additional punishment through a newly-created offense inseparably connected with the anterior crime, [193]*193and 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 Y&e 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. Justice1 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 at bar. And so-in the Utah election cases (Murphy v. Ramsey, and four other cases, 114 U. S. 15) the question related to thé validity of an act of' the Congress operating the disfranchisement of voters in the Territory of Utah who were bigamists and 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. Ho 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: First. That the provision 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. Second. That it is unconst/it/utional in so fa'r as it applies by its terms to persons so convicted before the law went into operation.
[194]*194The judgment and order appealed from must be reversed; the indictment dismissed, and the appellant discharged.
Van Brunt, P.. J., Williams and O’Brien, JJ., concurred ; Ingraham, J., dissented.