Ex parte McNulty

¶1There is no doubt that the exercise of the right to practice medicine, or to pursue any other lawful employment, may be regulated by law; but the right is one of the privileges and immunities in which the citizen is entitled to be secured and protected under the constitution and laws of the state. In Ex parte' Cox, 63 Oal. 21, it appeared that the petitioner had been convicted of a misdemeanor, consisting of a violation of one of the rules and regulations of the board of state viticultura! commissioners. This court there said: “The legislature had no authority to confer on the officer or board the power of declaring what acts shall constitute a misdemeanor. The legislative power of the state is vested •in the senate and assembly. That power could not, as to the case before us, be delegated to the officer or board.” In this case, even if it be conceded that, the legislature could delegate to the board of examiners the power to declare by rules and regulations what should constitute unprofessional conduct, and thus by its own act establish a crime, it is sufficient to say that no such rules jor regulations have ever been prescribed. Before one can be convicted of a crime, there must be some rule of action prescribing with some certainty and expressing intelligibly the sovereign will. Whatever may be said of the right of the board of examiners to revoke the license of the petitioner to practice medicine, and thus cast upon him the odium which must always follow such an expulsion from the ranks of reputable practitioners, the liberty of the petitioner cannot be made to depend upon a thing Sp vague and uncertain as the undefined views of the. *171members of the board as to what constitutes unprofessional conduct. In every case, to constitute crime there must be a union of act and intent. How can it be said there is an intent to commit a crime, where the law, which it is claimed has been violated, exists only in the minds ' of individuals? The authorities upon which the respondent relies, namely, State v. Board, 32 Minn. 324, In re Smith, 10 Wend. 449, are not in point so far as the question of crime is concerned. The first case cited was a mandamus to compel the state medical examining board to issue to the applicant a certificate. The other was certiorari to annul an order expelling Smith from a medical society, and declaring him incapable of practicing medicine.