I cannot agree with Mr. Justice Patterson. The question, as he states it, is whether the provision of section 153 of the public health law (chapter 661 of the Laws of 1893 ), in so far as it relates to convictions had prior to that statute taking effect, in 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 thusincluded in the powers the exercise of which is forbidden to the several states of the Union by subdivision 1 of sec. 10 of the constitution of the United States. It is not pointed out in the prevailing opinion whether the provision in question is an ex post facto law, or one in the nature of a bill of attainder or a bill of pains and penalties, but in the opinion the act is assumed to be valid unless it is in violation of this provision of the federal constitution. It is now too late to question the right of the state to make the regulations necessary for the preser*129ration of the public health; and although the exercise of that power must necessarily involve some restraint in the liberty of the individual, or in his right to pursue a particular avocation, dependent upon the condition of affairs at the time of the exercise of the power, still, where the court can see that the methods adopted have a reasonable connection with the preservation of the public health, I do not understand that they are necessarily ex post facto because rights of the individual that existed prior to the passage of the law that creates the restriction are curtailed. I suppose that, if an act was passed requiring that those having a contagious or infectious disease should be isolated so as to avoid communicating the disease, the fact that such disease existed prior to the time of the passage of the act would not make the act ex post facto, and so unconstitutional, nor would such isolation or control over a person who has such a disease be a punishment for having the disease; and so the power of the state to regulate the practice of those professions that have to do with the public health, and to determine who shall practice such professions within the state, and what qualifications they shall possess, has been recognized as being within this power of the state by a long series of legislative acts, and by the decisions of the hhigest courts of this state and of the United States. That question was directly presented to the supreme court of the United States in the case of Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231. It was there expressly held that an act of the legislature of the state of West Virginia prohibiting a person from practicing medicine unless such person had a degree of a recognized medical college, had passed an examination, or had practiced medicine in the state for at least 10 years prior to the passage of the act, was a valid exercise of this power by the state; and the conviction of a person who had practiced but five years prior to the passage of the act was upheld. The legislature had provided a test which would regulate the practice of all those who in the future should practice medicine within the state, and prohibiting those who had not the required qualifications from practicing. That prohibition applied to one who had practiced for five years prior to the passage of the act, and who was practicing at the time of its passage. The number of years in practice was the test there prescribed. It was a purely arbitrary one fixed by the legislature, and yet it was up-*130held as a valid exercise of this power.. Once concede that the legislature had the power to prescribe the qualifications, and the method by which those qualifications could be ascertained, it is difficult to see how the courts can interfere, so long as the test prescribed has a relation to the qualifications required. It must also, I think, be conceded that, considering the relation that a physician bears to his patient, and the acts that he is often required to do, which may, or may not be criminal, depending upon the bona fide belief of the physician that they are necessary for the protection of the life and health of the patient, the character of the physician is an important element in determining whether he possesses the necessary qualifications for the practice of his profession. The question, it seems to me, is whether the provisions of the statute which require that certain qualifications are required before an individual be allowed to practice the profession of medicine, and the test adopted to ascertain whether a physician assuming to practice has such qualifications, are, under the circumstances, reasonable.
By the public health law (chapter 661 of the Laws of 1893) the state has attempted to prescribe general rules for the protection of the public health. This act provides for a state board of health, and for local boards; prohibits the adulteration of food, drugs, and medicine; relates to contagious and infectious diseases, their suppression and treatment; regulates the practice of medicine and dentistry, and subjects relating thereto. By article 8 the practice of medicine in the state of New York is regulated, and by section 140 of the act the qualifications of those practicing medicine within the state are prescribed. It is there provided that no person shall practice medicine after September 1, 1891, unless previously registered and legally authorized. “ Nor shall any person practice medicine who has ever been convicted of a felony by any court, or whose authority to practice is suspended or revoked by the regents on recommendation of a state board.” Provision is then made for the examination of candidates to practice medicine, and the qualifications that must be shown before a license to practice is granted. Then by section 153 of the act it is provided that- “ any person who, * * * after conviction of a felony, shall attempt to practice medicine, or shall so practice, * * * shall *131be guilty of a misdemeanor:” and it was for a violation of this section that the defendant was convicted. It appeared on the trial that this defendant had been convicted in the year 1878 of the crime of abortion. So, when this act took effect he was not a person qualified to practice medicine, under section 140; and by so practicing after the 1st of September, 1891, he was guilty of a violation of the act. He was convicted of practicing medicine in the city and county of Hew York in February, 1896. The act, therefore, did not make him guilty of an offense committed before the passage of the act. It was the act of practicing medicine when he was not, under the provisions of section 140 of the statute referred to, qualified to practice within this state, that constituted the offense. The only question is whether the legislature had the power to require, as one of the qualifications of a physician, that he should be a man of good moral character, and that the fact that he had been convicted of a felony should be conclusive that he was not of such a character as would justify his being allowed to practice. If it is conceded that the legislature had the power to prescribe qualifications for those in practice at the time of the passage of the act, which would exclude some who were then practicing, and that a man of bad character should not be allowed to practice, upon what principle can it be said that it was beyond the power of the legislature to declare that a conviction of a felony should be evidence of the lack of the necessary qualifications to entitle the person convicted to be allowed to practice ? In Dent v. West Virginia, supra, the fact that a physician had practiced ten years prior to the passage of the act was evidence that he had the qualifications required, while the practice of nine years was not such evidence. Here the legislature has said that the fact that a person has been convicted of a felony shall prohibit him from practicing, not as an additional punishment, or as any punishment for the offense for which he had been convicted, but as a test of his qualification. Was not the physician who had practiced five years, in the case of Dent v. West Virginia, supra, as much punished because of the fact that he had practiced less than ten years, as was the defendant in this case punished because he had, prior to the time of the passage of the act, been convicted of a felony? In both cases the legislature had prohibited the defendant from practicing, *132and had provided that in case he should violate the provisions of the law and practice without the qualifications prescribed, he should be guilty of a crime. The legislature having, concededly, the power to determine what should be the qualifications, and what tests should be applied to determine whether such qualifications existed, I cannot see how the court can say that a test which provides that a ten-years’ practice is evidence of such qualification is valid, but that a test which provides that a conviction of a felony shows that the necessary qualifications did not exist is void. An examination of this whole act shows that it relates solely- to the regulation of the public health, and not to the punishment of any one for any offense, except for a violation of its provisions subsequent to the passage of the act; and when this defendant, in the face of this prohibition of the statute, practiced medicine within this state, he was guilty of a crime, unless the prior conviction of a felony had no reasonable connection with the qualification, mental or moral, of those who should practice medicine.
The extremely interesting discussion of the question as to what is an ex post facto law in the case of Cummings v. State of Missouri, 4 Wall. 277, and Ex parte Garland, Id. 384, does not seem to me to be applicable here. In Ex parte Garland, Mr. Justice Field, in delivering the opinion of the court, at page 379, says:
“ The legislature may undoubtedly prescribe qualifications for the office, to which he must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of any of the ordinary avocations of life. The question in this case is not as to the power of congress to prescribe qualifications, but whether that power has been exercised as a means for the infliction of punishment, against the prohibition of the constitution.”
Applying this test, an examination of the act conclusively shows that this power has not been used here as a means for the infliction of punishment at all, but solely to prescribe the qualifications of a person practicing medicine within this state. The constitution of the state of Missouri, in Cummings v. State of Missouri, supra, and the act of the United States, in Ex parte Garland, supra, were both held to be intended to inflict penalties for acts committed prior to . the adoption of the constitution, in one case, and the passage of the act of congress, in the other, and thus were held to be ex post facto *133laws, and within the prohibition of the constitution. Mr. Justice Field, who delivered the opinion of the court in the Cummings and Garland Cases, speaking for the court in the case of Dent v. ■ West Virginia, supra, says of the first-named cases:
“ The constitution of Missouri and the act of congress in question in those cases were designed to deprive parties of their right to continue in their professions for past acts, or past expressions of desires and sympathies, many of which had no bearing upon their fitness to continue in their professions. The law of West Virginia was intended to secure such skill and learning in the profession of medicine that the community might trust with confidence those receiving a license under authority of the state. ”
It seems to me that this applies to the case at bar.
Attention is called in the prevailing opinion to the fact that:
“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.”
This suggestion is only attacking the propriety of the test which the legislature has established to determine whether or not the moral qualifications exist; and it might as well be said that the test provided for in Bent v. West Virginia, supra, was not a perfect test, because a practice of five years in a large city would better qualify a person for the practice of medicine than a ten years’ practice in a country district. It was for the legislature to establish the test, and, as long as it had a reasonable connection with the object sought to be attained (that is, the qualification of the physician), its discretion is not subject to review. It certainly seems to me to be a not unreasonable test of the moral qualification of a man who is to be admitted to the intimate relation that must exist between a patient and a physician, that it should not appear by his past life that he had been guilty of a serious crime. As was stated by the court of appeals in the case of People v. Havnor, 149 N. Y. 201, 43 N. E. 541:
“ When thus exercised, even if the effect is to interfere to some extent with the use of the property or the prosecution of a lawful pursuit, it is'not regarded as an appropriation of the property, or *134an encroachment upon liberty, because the preservation of order and the promotion of the general welfare, so essential to organized society, of necessity involve some sacrifice of natural rights. ”
I thing the legislature liad the power to say that a person: who had been convicted of a felony did not have the necessary qualifications to practice medicine within this state, and that, therefore, the judgment should be affirmed.