BLAKE, C. J. This case was tried upon an agreed statement of facts, and it appears that the appellant is a citizen of the United States, and a resident of this state; that he removed, in April, 1891, from the state of Maine, where he had been engaged 14 years in the practice of medicine and surgery; that he applied for and received from the respondent a certificate, dated April 22, 1891, which entitled him to practice his profession until the next regular meeting of the board; and that respondent demanded, and appellant paid, the sum of $15, which it retained. The remainder of the statement is as follows: "That said respondent board at said time, as a condition precedent to granting such certificate, required appellant to submit to and successfully pass an examination in the branches designated in section 4 of the act of February 28, 1889, entitled 'An act to regulate the practice of medicine in the territory of Montana, and to provide for the examination and issuing of certificates to persons desirous of practicing the same, and for the punishment of persons violating the provisions of this act.' That appellant refused to submit to such examination, or to any examination whatever. That said respondent board thereupon refused to grant to appellant a certificate to practice medicine and surgery in the state of Montana. That prior to such refusa! on the part of the respondent board, the appellant presented his diploma to said board for verification as to its genuineness. That said respondent board found appellant's diploma to be genuine, and to have been issued by a inedical school legal. ly organized and in good standing, whose teachers were graduates of a legally organized school, and that appellant was the same person to whom such diploma was originally issued, which facts were regularly found in appellant's favor, with in the meaning of section 3 of the said act of February 28, 1889. That a quorum of the members of said respondent board were present and conducted the said October, 1891, meeting. That appellant is, and since the 7th day of June, 1876, has been, a graduate in medicine, within the meaning of section 2 of the said act of February 28, 1889. That a certificate was not granted to appellant by said respondent board solely upon the ground of appellant's refusal to submit to the examination referred to in paragraph 7, supra, and for no other cause." The appellant claims that the board of medical examiners is not authorized by the statute, supra, to require him to pass an examination as a condition precedent to the issuance of a permanent certificate empowering him to practice medicine and surgery within the state. The appellant became a resident of this state about two years after the passage of the act, and this language of the fourth section is applicable: "All persons entitled to practice under the ten-year provision mentioned in section three of this act, and all persons hereafter commencing the practice of medicine and surgery in any of its branches in the territory, shall apply to said board for a certificate so to do, and such applicant, at the time and place designated by said board, or at the

regular meeting of said board, shall submit to an examination in the following branches, to-wit, anatomy, physiology, chemistry, histology, materia medica, therapeutics, preventive medicines, practice of medicine, surgery, obstetrics, diseases of women and children, diseases of the nervous system, diseases of the eye and ear, medical jurisprudence, and such other branches as the board shall deem ad visable, and present evidence of [having practiced the required term of ten years, or of] having attended three (3) courses of lectures of at least four (4) months each. Said board shall cause such examination to be both scientific and practical, but of sufficient thoroughness and severity to test the candidate's fitness to practice medicine and surgery. When desired, said examination may be conducted in the presence of the dean of any medical school, or the president of any medical society of this territory. After examination, said board shall, if the candidate has been found qualified, grant a certificate to such candidate to practice medicine and surgery in the territory of Montana, which said certificate can only be granted by the consent of not less than four (4) members of said board, and which said certificate shall be signed by the president and secretary of said board, and attested by a seal thereof." There can be no controversy respecting the meaning of these clauses when viewed by themselves; but the appellant contends that we must consider the entire statute, and that the third section limits its operation to non-graduates. This section provides "that every person wishing to practice medicine or surgery in any of their departments within this territory shall do so only upon complying with the requirements of this act. If a graduate in medicine, such person shall present his or her diploma to the territorial board of examiners, for verification as to its genuineness. If the diploma is found genuine, and is issued by a medical school legally organized and in good standing, whose teachers are graduates of a legally organized school, which fact the territorial board of examiners shall determine, and if the per son presenting and claiming such diploma be the person to whom the same was orignally granted, then the territorial board of examiners shall issue its certificate to that effect, and such certificate shall be conclusive as to the right of the lawful holder thereof to practice medicine and surgery within its territory; and any per.. son coming to the territory may present his or her diploma to any member of the board of examiners, who may issue a certificate, good until the next regular meet. ing of the board. If not a graduate, the person practicing medicine or surgery within this territory, unless he or she shall have been in continuous practice in this territory for a period of not less than ten years, of which fact he or she shall present to the territorial board of examiners satisfactory evidence of the same in the form of affidavits, shall appear before said territorial board of examiners, and submit to such examination as may be required.” The president and secretary of the board of examiners are authorized to administer

oaths to applicants for certificates and witnesses, and the act requires “meetings for examination" to be held at the capital and "other central points." Section 2. A graduate in medicine, who comes to the state after the enactment of this law, may present his diploma, and obtain a certificate, which is good until the "next regular meeting of the board." The fourth section declares that "all persons hereafter commencing the practice of medicine and surgery"-thereby ignoring all distinctions between graduates of medical schools and non-graduates-"shall submit to an examination.' There are no other clauses which mention in direct terms those who are not residents.

19

The question was inquired into when the subject was before this court in State v. Board, 10 Mont. 162, 25 Pac. Rep. 440, and it was adjudged that these provisions required the examination of all graduates "who commence to practice medicine in this state after the passage of this act." We approve this construction of the statute. The appellant maintains that, if this view be sound, the act creates an unjust discrimination against the rights and privileges of the citizens of another state, and is in conflict with the constitution of the United States, of the fourteenth amendment, to-wit: "The citizen of each state shall be entitled to all privileges and immunities of citizens in the several states." Article 4, § 2. “No state shall inake or enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any state deprive any person of life, liberty, or property, without due process of law. Const. Amend. 14, § 1. Legislation similar to that under consideration has been thoroughly discussed in many cases, and uniformly upheld by the court. It is founded upon the police power of the state. We refer to some of the leading authorities, which cover every point suggested by the counsel for the appellant. State v. Dent, 25 W. Va. 1, 129 U. S. 114, 9 Sup. Ct. Rep. 231; Ex parte Spinney, 10 Nev. 323; Harding v. People, 10 Colo. 387, 15 Pac. Rep. 727; Fox v. Washington, 2 Wash. T. 297, 5 Pac. Rep. 603; Logan v. State, 5 Tex. App. 306; People v. Blue Mountain Joe, 129 11. 370, 21 N. E. Rep. 923; Eastman v. State, 109 Ind. 278, 10 N. E. Rep. 97; State v. Green, 112 Ind. 462, 14 N. E. Rep. 352. The case of State v. Dent, supra, was affirmed by the supreme court of the United States, and Mr. Justice FIELD, for the court, said: "It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex, and condition. This right may in many respects be considered as a distinguishing feature of our republican institutions. Here 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, and cannot be arbitrarily taken away from them, any more than their real or personal property can be thus taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of failure to comply with conditions imposed by the state for the protection of society. The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end it has been the practice of different states, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely; their possession being generally ascertained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. The nature and extent of the qualifications required must depend primarily upon the judg ment of the state as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty." We concur in this opinion, which has not been criticised, and it is needless to multiply citations. It is ordered and adjudged that the judgment be affirmed.

HARWOOD and DE WITT, JJ., concur.

(12 Mont. 11)

STATE V. BIESMAN et al. (Supreme Court of Montana. March 28, 1892.) RECOGNIZANCE-DISMISSAL OF APPEAL-LIABILITY OF SURETIES-ACTION ON BOND.

1. Crim. Prac. Act § 508, provides that, in cases of conviction before a justice of the peace, the court shall enter judgment against defendant for fine and costs. Section 510 provides that defendant may appeal to the district court by entering into a recognizance, with security to appear "and pay all judgments for fine and costs that may be rendered against him in such case. Section 515 provides that, "if the judgment of the court shall be affirmed or modified, or if, upon trial in the district court, the defendant shall be convicted and any fine assessed, judgment shall be rendered for such fine and costs, in both courts, against the defendant and his securities. " Defendant was convicted, and sentenced to pay a fine in a justice's court, and committed. He appealed, and was released, on filing a bond, with sureties, conditioned that, if defendant "will appear in the said district court on the trial therein, and pay all judgments for fine and costs that may be rendered against him in the district court in such case," then to be void. On motion of defendant, his appeal was dismissed by the district court; whereupon the court declared the bond forfeited, and the facts of such forfeiture were duly entered on the records of the court. No surrender of defendant was made by his sureties. Held, in an action on the bond for the fine levied in the justice's court, that the sureties were liable; the dismissal of the appeal, being an affirmation of the justice's judgment, did not release such sureties. DE WITT, J., dissenting.

2. In such action it is not necessary to aver

in the complaint that a demand for payment was made on the sureties.

Appeal from district court, Deer Lodge county; DAVID M. DURFEE, Judge.

The state of Montana against August Biesman and others. Judgment for defendants. The state appeals. Reversed.

H. J. Haskell, Atty. Gen., for the State. J. R. Boorman and Word, Smith & Word, for respondents.

BLAKE, C. J. The complaint alleges that a complaint was filed July 15, 1890, in the justice's court of Deer Lodge county, which charged Biesman with the crime of unlawfully obstructing the public highway. He was convicted, and sentenced to pay a fine and the costs, and remanded to the custody of the sheriff to stand committed until the same should be satisfied. Biesman then filed a notice of appeal, and, in order to secure his release, entered into a recognizance undertaking, which contained these recitals and conditions: "Whereas, on the 18th day of July, A. D. 1890, one August Biesman was convicted of obstructing a public highway, before J. M. Hartwell, Esq., justice of the peace in and for Deer Lodge county, state of Montana, and was fined the sum of $5.00, together with costs, amounting to the sum of $191.35; and whereas, the said August Biesman is dissatisfied with said judgment, and is desirous of appealing from the said judgment to the district court of the third judicial district of the state of Montana, in and for Deer Lodge County: Now, therefore, the condition of the above obligation is such that if the said August Biesman, the said defendant in said action, will appear in the said district court, on the trial therein, and pay all judgments for fine and costs that may be rendered against him in the district court in such case, then this obligation to be null and void; otherwise to remain in full force and effect." Afterwards this recognizance was approved and filed, and Biesman was released from the custody of the officer, and the appeal was perfected. The case was set for trial in the court below on the 8th day of September, 1899, and continued until the 10th day of September, 1890. The complaint says that on the last-named day "the defendant appeared by his attorney, J. R. Boarman, and, on motion of the defendant, the court permitted said appeal to be dismissed, and said appeal was, by the judgment of said court, dismissed; that the court duly declared said appeal-bond of the defendants forfeited and the facts of the said forfeiture duly entered upon the records of the court; that on the- day of

1890, said defendant August Biesman paid on said judgment of $191.35 the sum of $44.40, leaving a balance due and unpaid of $146.95." This action was brought to recover from Biesman and his sureties the said sum of $146.95. The court below sustained a demurrer to the complaint, upon the ground that it did not state facts suffi cient to constitute a cause of action, and entered a judgment for the defendants for their costs.

The respondents contend that the complaint fails to state facts sufficient to con

stitute a cause of action, in this: that there is no allegation that a demand for the payment of the amount in controversy was made upon the sureties. They cite Morgan v. Menzies, 60 Cal. 341, 65 Cal. 243, 3 Pac. Rep. 807, but these decisions have been qualified in Coburn v. Brooks, 78 Cal. 443, 21 Pac. Rep. 2, and it is held that an averment to this effect is not required.

The principal question which has been discussed by counsel is more difficult, and the authorities are inharmonious. It is conceded that the sureties upon this recognizance are entitled to stand upon the strict letter of their contract, and that their liability cannot be enlarged by implication. The observations of the supreme court of Illinois in Shreffler v. Nadelhoffer, 133 Ill. 552, 25 N. E. Rep. 630, should be considered in this connection: "It is not meant by this rule, however, that the courts, in endeavoring to ascertain the precise terms of the contract actually made by a surety, may not resort to the same aids, and invoke the same canons of interpretation, which apply in case of other contracts." The criminal practice act provides that, in all cases of conviction, the court shall enter his judgment for the fine and costs against the defendant, and may commit him until the judgment is satisfied. Section 508. Such person may appeal to the district court "by entering into recognizance with sufficient security, conditioned that he will appear in the district court on the trial therein, and pay all judgments for fine and costs that may be rendered against him in such case. Section 510. "If the judgment of the court shall be affirmed or modified, or if, upon trial in the district court, the defendant shall be convicted, and any fine assessed, judgment shall be rendered for such fine and costs in both courts against the defendant and his securities. Section 515. The respondents assert that no judgment for the payment of any fine and costs was ever rendered against Biesman in the district court, and that the dismissal of the appeal released them from all liability. The appellant insists that the ruling of the court below, within the meaning of the conditions of the recognizance, was the rendition of a judgment which was binding upon Biesman and his securities. This is a case of first impression in our court, and we have concluded to follow the doctrines which seem to be applicable to the facts, in the light of the reason of the law. Biesman appeared by his attorney in the proper district court, and, after a continuance, voluntarily dismissed his appeal. What were the consequences of his conduct? What is the sound construction of the statute under which the undertaking was given?

The case of Harrison v. Bank, 3 J. J. Marsh. 375, was decided in the year 1830, and the bond was conditioned to pay "in case said judgment shall be affirmed in said court of appeals," and the appeal was dismissed. Judge BUCKNER, in the opinion, said: "The main, if not the only, object in requiring an appeal-bond is to secure to the plaintiff in the judgment the payment of such judgment, with costs and damages, when awarded, unless it

should be reversed by the appellate court, and, to attain that object, such must be considered to be its legal effect, in every case where it has been executed in the words of the act, or in other words substantially the same. In such cases we must remember that qui hæret in litera hæret in cortice; we must regard substance, and not form, or the law will have been in vain; and, under that view of it, the dismission must be considered as a virtual affirmance of the judgment. A different interpretation of the law would lead to fraud and injustice, subjecting creditors in many instances to the entire loss of their debts. Appeals would be taken without an expectation of successful prosecution by principals, and the bonds entered into by sureties without the fear of responsibility.

In the year 1840 the case of McConnel v Swailes, 2 Scam. 571, was decided, and the court, by Mr. Justice BREESE, said "This court does not entertain a doubt but that the dismissal of an appeal or certiorari is equivalent to a regular, technical affirmance of the judgment, so as to entitle the party to claim a forfeiture of the bond, and have his action therefor. The bond given in such case is conditioned 'to pay the debt and costs, in case the judgment shall be affirmed on the trial of the appeal.' What is the object of this requirement, and what its meaning and intention? Manifestly, to secure the oppo. site party in his debt and costs, in case the judgment shall not be reversed, in case he shall be in the circuit court the successful party. By a dismissal of the appeal, either by the court, or by the act of the appellant himself, the appellee is the successful party." Chief Justice FIELD in Karth v. Light, 15 Cal. 324, approved Harrison v. Bank, supra, and said "A judgment may, in the contemplation of the statute, be said to be affirmed when, by any action of the appellate court, it is no longer open for review, whether that be either by a dismissal of the appeal or by a direct decree of affirmance. By the statute, the undertaking providing for the liability of the sureties, upon the condition of the affirmance of the judg ment, operates as a stay; and if by a mere neglect to prosecute an appeal, and for that reason suffering it to be dismissed, after the respondent has been deprived of his rights under the judgment by the undertaking, the sureties could be released, upon the pretense that the judgment was not affirmed, it is evident that great injustice would be, in many instances, perpetrated, and a fraud practiced upon respondents." Chase v. Beraud, 29 Cal. 138; Simpson v. Prather, 5 Or. 86; Garrick v. Chamberlain, 97 Ill. 620. We think that the proceedings which are set forth in the complaint constitute, according to the statute, an affirmance of the judgment of the justice court against Biesman.

*

Some of the authorities to the contrary are collated in Freas v. Engelbrecht, 3 Colo. 385. While we respect highly the courts in which these views prevailed, it is unnecessary to examine and compare the conflicting opinions. The complaint

ment of said court dismissed,” and that "the court duly declared the said appealbond of defendant forfeited, and the facts of said forfeiture duly entered upon the records of the court." It can be implied from these allegations that "the proper steps authorizing such forfeiture had been taken." Friedline v. State, 93 lod. 368. After Biesman had been committed in pursuance of the sentence of the justice for the non-payment of the fine and costs assessed against him, he was released through the execution of this obligation by respondents. The responsibility of the sureties then attached. People v. Wolf, 16 Cal. 385; People v. Penniman, 37 Cal. 273. The statute draws the distinction between the affirmance of a judgment and the conviction of a defendant upon a trial in the district court, and in both cases judgment shall be rendered for a fine and "the costs in both courts against the defendant and his sureties." Crim. Prac. Act, §§ 510, 515, supra. This was the duty of the court below when the appeal was dismissed. The word “required,” which is used in the recognizance and these sections, has been defined in many cases. Gray v. Palmer, 28 Cal. 416; McLaughlin v. Doherty, 54 Cal. 519, Thomas v. Anderson, 55 Cal. 43. A judgment is "rendered" when the court makes an order therefor. The complaint may be ambiguous in this respect, and may not state with certainty all the proceedings of the court below, but, as against this demurrer, a cause of action has been alleged. The recognizance was forfeited, and the facts thereof were entered upon the records, and all presumptions are in favor of the regularity of these proceedings, and that the court below performed its duty. It is the theory of the law that the defendant in criminal proceedings is under the control of the court, and in actual or constructive custody. Biesman was in the custody of his sureties. People v Genet, 59 N. Y. 81; Lee v. State, 51 Miss. 666; Koch v. Coots, 43 Mich. 30, 4 N. W. Rep. 534; Reese v. U. S., 9 Wall. 13. In the last case Mr. Justice FIELD for the court said: "By the recog nizance the principal is, in the theory of the law, committed to the custody of the sureties as to jailers of his own choosing, not that he is, in point of fact in this country, at least, subjected, or can be subjected, by them to constant imprisonment; but he is so far placed in their power that they may at any time arrest him upon the recognizance, and surrender him to the court, and, to the extent necessary to accomplish this, may restrain him of his liberty" The respondents have not paid any sum by reason of their recognizance, and have not surrendered Biesman in open court or to the sheriff. We are authorized to weigh the circumstances under which the sureties assumed this responsibility. Shreffler v Nadelhoffer, supra. If the respondents can secure the release of their principal from the custody of the officer, and escape liability in this action, by the dismissal of the appeal, it is clear that the administration of justice will be obstructed. The court erred in entering a judgment for the respondents, under these con