276 $275 caused by the sea shall belong to the pub-, lic domain unless the government shall declare otherwise, which must be regarded as expressing the understanding of the codifiers as to what the earlier law had been. plays too large a part to make it safe to generalize from a single passage in so easy a fashion. Alongside of the rule as to rivers we find that the right of alluvion is not recognized for lakes and ponds (D. 41, 1, [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 266-278, 281, 282; Dec. Dig. 12), a rule often repeated in the civil 844.*] [No. 11.] law codes; e. g., Philippine Civil Code of 1889, arts. 366, 367; Code Napoleon, art. 550; Italy, Civil Code 1865, art. 454; Mex Argued April 27, 1911. Decided February ico, art. 797. If we are to generalize, the IN 19, 1912. analogy of lakes to the sea is closer than that of rivers. We find further that In N ERROR to the Supreme Court of the agris limitatis jus alluvionis locum non Philippine Islands to review a judgment habet. And the right of alluvion is dewhich affirmed a judgment of the Court of nied for the agrum manu captum, which First Instance of the Province of Cavite, in was limitatum in order that it might be favor of defendant in an action of eject-known (exactly) what was granted. D. 41, ment. Affirmed. ion of the court: 1, 16. The gloss of Accursius treats this as the reason for denying the jus alluvionis. If this reason again were generalized, it might lead to a contrary result from the passage in the Institutes. Grotius treats the whole matter as arbitrary, to be gov. erned by local rules, and both the doctrine as to rivers and the distinction as to acDe J. B. & P. Lib. 2, cap. 8, 11, 12. A recurately bounded lands as rational enough. This is an action brought by Ker & Com-spectable modern writer thinks that it was a mistake to preserve the passage concernpany to recover possession of land held by the defendant under a claim of title in the ing definitely bounded grants in the Digest, 1 Demangeat, Droit Romain, 2d ed. 441 United States. The land is the present ("antiquirt," Puchta, Pandekten, § 165), but, extremity of Sangley point, in the province so far as we have observed, this is an excepof Cavite and island of Luzon, projecting tional view, and from the older commentainto Manila bay. It has been formed grad- tors that we have examined down to the ually by action of the sea; all of it since late brilliant and admirable work of Girard, 1811, about three-quarters since 1856, and Droit Romain, 4th ed. 324, this passage a part since 1871. For a long time the seems to be accepted as a part of the law. property was used by the Spanish Navy, and At all events, it shows that, as we have said, it now is occupied by the present govern- it is unsafe to go much beyond what we find ment as a naval station, works costing more in the books. And to illustrate a little than half a million dollars having been further the uncertainty as to the Roman erected upon it. The plaintiffs claim title doctrine, we may add that Donellus* menunder conveyances from the owner of the tions the opinion that alluvion from the sea upland. The Philippine courts held that goes to the private owner, only to remark under the Partidas, III., tit. 28, laws 3, 4, 6, that the texts cited do not support it (De 24, and 26, and the Law of Waters of 1866, Jur. Civ. IV., c. 27, 1 Opera, 1828 ed. the title to the accretions remained in the 839.n), and treats the rule of the Ingovernment, and the vexed question has been stitutes as peculiar to rivers, as also Vinnius, in his comment on the passage statbrought to this court. ing the rule, seems to do; while Huberus, on the principle that ought to prevail. lectiones, II., tit. 1, 34. the other hand, thinks that rivers furnish Prae That the question is a vexed one is shown not only by the different views of Spanish commentators, but by the contrary provisions of modern codes and by the occasional The seashore flowed by the tides, unlike intimations of the doctors of the Roman the banks of rivers, was public property; law. Justinian's Institutes, 2, 1, 20 (Gaius, in Spain, belonging to the sovereign powII. 70), followed by the Partidas, 3, 28, 26, er. Inst. II. tit. 1, 3, 4, 5. D. 43, 8, 3. give the alluvial increase of river banks to Partidas, III., tit. 28, 3, 4. And it is a the owner of the bank. If this is to be tak- somewhat different proposition from that en as an example illustrating a general laid down as to rivers, if it should be held principle, there is an end of the matter. that a vested title is withdrawn by accesBut the Roman law is not like a deed or sions to what was owned before. Perhaps a modern code prepared uno flatu. History a stronger argument could be based on the For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *277 *278 *279 rule that the title to the river bed changes, versy at the conférence. See further, Mar- cadé, Explication, 5th ed. vol. 2, p. 439. Notwithstanding the argument that this article is only a futile declaration concerning accessions to the shore while it remains such in a literal sense, that is, washed by the tide, we think it plain that it includes and principally means additions that turn the shore to dry land. These all remain subject to public ownership unless and until the government shall decide that they are not needed for the purposes mentioned, and shall declare them to belong to the adjacent estates. The later provision in article 9, that the public easement for salvage, etc., shall advance and recede as the sea recedes or advances, simply determines that neither public nor private ownership shall exclude the customary public use from the new place. The Spanish Law of Ports of 1880, like the Law of Waters, asserts the title of the state, although it confers private rights when there is no public need. The presumption that the foregoing provisions of the Law of Waters express the understanding of the codifiers as to what the earlier law had been, becomes almost inexpugnable when we find that the other leading civil law countries have adopted the same doctrine. The Code Napoleon, after laying down the Roman rule for alluvion As the case was brought up on the single question that we have discussed, the judg ment of the court below must be affirmed. Judgment affirmed. Mr. Justice McKenna, dissenting: I cannot agree with the conclusion of the court. It seems to be conceded that it is not necessarily determined by the authorities which are cited. I think the better deduction from them is that they only declare the constant integrity of the shore, and the dominion of the government over it, whether it recede or advance. When it ceases to be washed by the tides or the seas, it becomes part of the upland, and belongs to the owner of the upland. And this is but the application of the principle, said to be of natural justice, that he who loses by the encroachments of the sea should gain by its recession. Banks v. Ogden, 2 Wall. 57, 67, 17 L. ed. 818, 821. (223 U. S. 288.) IRA W. COLLINS, Plff. in Err., V. STATE OF TEXAS. CONSTITUTIONAL LAW (§ 42*)-RIGHT TO PHYSICIANS-OSTEOPATHS. in rivers (arts. 556, 557), adds at the end chap. 123, with respect to licensing and 1. The requirements of Tex. Laws 1907, of the latter article: "Ce droit n'a pas lieu registering medical practitioners, which do à l'égard des relais des la mer," which not contemplate any inquiry into the ap seems to have been adopted without contro-plicant's knowledge of therapeutics or For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes materia medica, do not infringe the rights, under U. S. Const., 14th Amend., of a person holding a diploma from a school of osteopathy, who has not presented this diploma to the board of medical examiners created by the statute, or attempted to secure a license in any form. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig. § 42.*] CONSTITUTIONAL LAW ($ 42*)-WHO MAY QUESTION VALIDITY. 2. An osteopath whose constitutional rights are not infringed by the requirements of Tex. Laws 1907, chap. 123, with respect to registering and licensing medical practitioners, cannot complain that the statute may be unconstitutional in other to followers of Christian cases, or as Science, or others. CONSTITUTIONAL LAW (§ 92*) — VESTED NESS. 7. The prohibition against the practice of medicine by persons not licensed or registered, which is made by Tex. Laws 1907, chap. 123, is not invalid as to one who had an established business when the law was passed. [Ed. Note.-For other cases, see Constitutional view by writ of error a decision of a state 8. The Federal Supreme Court will recourt, refusing habeas corpus to a person in custody upon the charge of practising medicine without complying with the requirements of Tex. Laws 1907, chap. 123, with respect to licensing and registration, where, the facts being admitted, the quesCOURTS (§ 399*) — SUPREME COURT RE- tion of the validity of that statute under VIEWSTATE DECISIONS STATUTORY CONSTRUCTION "PRACTICE OF MEDICINE." the Federal Constitution appears as plain3. The ruling of the state court that ly as it ever will. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig. § 42.*] [Ed. Note.-For other cases, see Courts, Cent. osteopaths are persons practising medicine, Dig. & 1080; Dec. Dig. § 396.*1 [No. 165.] February 19, 1912. within the meaning of Tex. Laws 1907, chap. 123, providing for licensing and registering medical practitioners, will be fol- Argued January 25 and 26, 1912. Decided lowed by the Federal Supreme Court in determining the constitutionality of such statute on writ of error to the state court. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 1089, 1090; Dec. Dig. § 339:* Appeal and Error, Cent. Dig. $$ 3384-3394. 3396, 3398. 3399. For other definitions, see Words and Phrases, vol. 6, pp. 5488-5491; vol. 8, p. 7758.] - 4. The state may constitutionally require, as is done by Tex. Laws 1907, chap. 123, that osteopaths professing to help certain human ailments by scientific manipulation affecting the nerve centers shall have had a scientific training. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 2; Dec. Dig. § 2.*] PHYSICIANS AND SURGEONS (§ 2*) - LI- 5. The state legislature, when prohibiting the general practice of medicine for money by persons not licensed or registered, under Tex. Laws 1907, chap. 123, could constitutionally attach the same condition to a single transaction of a kind not likely to occur otherwise than as an instance of a IN ERROR to the Court of Criminal Ap a judgment which affirmed a judgment of the County Court of El Paso County in that state, refusing relief by habeas corpus to a person in custody upon the charge of prac tising osteopathy without a license. Affirmed. See same case below, 57 Tex. Crim. Rep. 2, 121 S. W. 501. The facts are stated in the opinion. Messrs. Millard Patterson and John F. Woodson for plaintiff in error. Mr. Jewel P. Lightfoot, Attorney General of Texas, Messrs. James D. Walthall and C. E. Lane, Assistants to the Attorney General, and Messrs. James N. Wilkerson, Timothy J. Scofield, and Frank J. Loesch for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This is a writ of error to the Texas court general practice, such as the treatment of of criminal appeals upon a judgment denya single patient for hay fever by osteop-ing the plaintiff in error a release by haathy. [Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. § 2; Dec. Dig. § 2. CONSTITUTIONAL LAW (§ 230*) - EQUAL PROTECTION-LICENSING-PAID AND GRA- 6. The distinction between gratuitous medical services and those paid for, made by Tex. Laws 1907, chap. 123, providing for registering and licensing medical practitioners who charge a compensation for services, does not render the statute repugnant to the Federal Constitution. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 687; Dec. Dig. § 230.*] beas corpus. The plaintiff in error is held upon an information charging him with practising medicine for money by treating a named patient for hay fever by osteopathy, without having registered his authority, as required by a Texas statute of 1907, chap. 123. He denies the constitutionality of the act. The statute establishes a board of medical examiners, and requires “all legal practitioners of medicine in this state, who, practising under the provisions of previous laws, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *295 or under diplomas of a reputable and legal college of medicine, have not already received license from a state medical examining board of this state," to prove their diplomas, or existing license, or exemption existing under any law; whereupon they are to receive a verification license. § 6. By § 7, applicants not licensed under § 6 must pass an examination, conditioned, among other things, on their being graduates of "bona fide reputable medical schools;" to be considered reputable "whose entrance requirements and courses of instruction are as high as those adopted by the better class of medical schools of the United States, whose course of instruction shall embrace not less than four terms of five months each." By § 9 the examinations are to be fair to every school of medicine, are to be conducted on the scientific branches of medicine only, and are to include anatomy, physiology, chemistry, histology, pathology, bacteriology, physical diagnosis, surgery, obstetrics, gynecology, hygiene, and medical jurisprudence. Those who pass are to be granted licenses to practise medicine. By § 10 nothing in the act is to be construed to discriminate against any particular system, and the act is not to apply to dentists legally registered and confining themselves to dentistry, nurses who practise only nursing, masseurs, or surgeons of the United States Army, Navy, etc., in the performance of their duties. The only other material sections of the act are §§ 13 and 14, the former of which declares that "any person shall be regarded as practising medicine within the meaning of this act. (2) Or who shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof, and charge therefor, directly or indirectly, money or other compensation." By § 14 any person practising medicine in violation of the act is punished by fine and imprisonment, and is not to recover anything for the services rendered. medica, which, it will be observed, are not mentioned in the act. On these facts we are of opinion that the plaintiff in error fails to show that the statute inflicts any wrong upon him, contrary to the 14th Amendment of the Constitution of the United States. If he has not suffered, we are not called upon to speculate upon other cases, or to decide whether the followers of Christian Science or other people might, in some event, have cause to complain. We are far from agreeing with the plaintiff in error that the definition of practising medicine in § 13 is arbitrary or irrational, but it would be immaterial if it were, as its only object is to explain who fall within the purview of the act. That it does, and of course we follow the Texas court in its decision that the plaintiff in error is included. It is true that he does not administer drugs, but he practises what at least purports to be the healing art. The state constitutionally may prescribe conditions to such practice, considered by it to be necessary or useful to secure competence in those who follow it. We should presume, until the Texas courts say otherwise, that the reference in § 4 to the diploma of a reputable and legal college of medicine, and the confining in § 7 of examinations to graduates of reputable medical schools, use the words "medicine" and "medical" with the same broad sense as § 13, and that the diploma of the plaintiff in error would not be rejected merely because it came from a school of osteopathy. In short, the statute says that if you want to do what it calls practising medicine, you must have gone to a reputable school in that kind of practice. Whatever may be the osteopathic dislike of medicines, neither the school nor the plaintiff in error suffers a constitutional wrong if his place of tuition is called a medical school by the act for the purpose of showing that it satisfies the statutory requirements. He cannot say that it would not have been regarded as doing so, because he has not tried. Dent v. West Virginia, 129 U. S. 114, 124, 32 L. ed. 623, 626, 9 Sup. Ct. Rep. 231. The facts charged against the plaintiff in error are admitted. It also is admitted An osteopath professes-the plaintiff in that before the passage of the statute he error professes, as we understand it-to had spent $5,000 in fitting up his place, help certain ailments by scientific manipu and was deriving a net income from his lation affecting the nerve centers. It is incalling of at least the same sum. He held telligible, therefore, that the state should a diploma from the chartered American require of him a scientific training. Dent School of Osteopathy, Kirksville, Missouri, v. West Virginia, 129 U. S. 114, 32 L. ed. after a full two years' course of study there, 623, 9 Sup. Ct. Rep. 231; Watson v. Marybut it does not appear that he presented land, 218 U. S. 173, 54 L. ed. 987, 30 Sup. this diploma to the board of medical ex- Ct. Rep. 644. He, like others, must begin aminers, or attempted to secure either a by a diagnosis. It is no answer to say that verification license or license in any form. in many instances the diagnosis is easy,The board, in passing upon qualifications, that a man knows it when he has a cold or does not examine in therapeutics or material a toothache. For a general practice science *296 (223 U. S. 200.) RUTHER JACOBS, Lillie Jacobs, and E. V. A. G. PRICHARD, Trustee. STATUTES (§ 219*)-EXECUTIVE CONSTRUC is needed. An osteopath undertakes to be | something more than a nurse or a masseur, and the difference rests precisely in a claim to greater science, which the state requires him to prove. The same considerations that justify including him justify excluding the lower grades from the law. Watson v. TION. Maryland, 218 U. S. 173, 179, 180, 54 Lment of the Interior to the consents of In1. The construction given by the Depart dian allottees, under the act of March 3, 1893 (27 Stat. at L. 612, chap. 209), to the sale and appraisal of that portion of the allotted land not required for their homes, as surviving the decease of those biguity in the statute, especially since the giving them, would control in case of amSecretary of the Interior is directed "to make the necessary regulations to carry out the purposes" of its enactment. [Ed. Note.-For other cases, see Cent. Dig. §§ 296, 297; Dec. Dig. § 219.*] INDIANS (8 15*)—ALLOTMENTS-CONSENT TO SALE EFFECT OF DEATH. ed. 987, 990, 30 Sup. Ct. Rep. 644. Again, it is not an answer to say that the plaintiff in error is prosecuted for a single case. If the legislature may prohibit a general practice for money except on the condition stated, it may attach the same conditions to a single transaction of a kind not likely to occur otherwise than as an instance of a general practice. A distinction between gratuitous and paid-for services was made in the Maryland statute sustained in Watson v. Maryland, 218 U. S. 173, 178, 54 L. ed. 987, 990, 30 Sup. Ct. Rep. 644. Finally, the law is not made invalid as against the plaintiff in error by the fact that he had an established business when the law was passed. Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Reetz v. Michigan, 188 U. S. 505, 510, 47 L. ed. 563, 567, 23 Sup. Ct. Rep. 390. Statutes, 2. The consents of the Puyallup Indian allottees and owners to the sale of such portion of the lands alloted to them under the treaty with the Omahas as was not required for their homes, when given and approved conformably to the act of March 3, 1893, must be deemed to survive their decease, in view of the provision of the act that such consents should make the commissioner appointed thereunder trustee to sell the lands and make deeds to the purchasers for the same, subject to the ap proval of the Secretary of the Interior, which deeds should operate as a complete conveyance of the land upon the full pay ment of the purchase money. The objections that prevailed against a writ of error like this in Bailey v. Alabama, 211 U. S. 452, 53 L. ed. 278, 29 Sup. Ct. Rep. 141, do not exist here. There, as here, it was attempted to interrupt the ordinary course of a trial by habeas corpus, and there, as here, the state allowed the attempt, and discharged the writ on the merits. But in that case it did not appear that the constitutional question relied upon had Submitted December 8, 1911. Decided Feb arisen or necessarily would arise, although afterwards it did. 219 U. S. 219, 55 L. ed. 191, 31 Sup. Ct. Rep. 145. But here the facts are admitted, the question appears as plainly as it ever will, and is supposed to go to the jurisdiction of the court. Therefore we have discussed the case on the merits; perhaps more than it needed, in view of the decisions cited and others that establish the right of the state to adopt a policy even upon medical matters concerning which there is difference of opinion and dispute. Hawker v. New York, 170 U. S. 189, 42 L. ed. 1002, 18 Sup. Ct. Rep. 573; Meffert v. Packer, 195 U. S. 625, 49 L. ed. 350, 25 Sup. Ct. Rep. 790; Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 A. & E. Ann. Cas. 765. See also Williams v. Arkansas, 217 U. S. 79, 54 L. ed. 673, 30 Sup. Ct. Rep. 493, 18 A. & E. Ann. Cas. 865. Judgment affirmed. [Ed. Note.-For other cases, see Indians, Cent. Dig. 88 17, 37-44; Dec. Dig. 15.] [No. 93.] ruary 19, 1912. IN ERROR to the Supreme Court of the State of Washington to review a decres which affirmed a decree of the Superior Court of the County of Pierce, in that state, in favor of plaintiff in a suit to quiet title to land. Affirmed. See same case below, 46 Wash. 562, 90 Pac. 922. The facts are stated in the opinion. and Jesse Thomas for plaintiffs in error. Messrs. W. H. Doolittle, E. D. Wilcox, Messrs. Stanton Warburton, Overton G. Ellis, and John D. Fletcher for defendant in error. Mr. Justice McKenna delivered the opinion of the court: Error to the supreme court of Washington to review a decree of that court which affirmed a decree of the superior court of the county of Pierce, adjudging defendant For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 32 S. C.-19 ⚫207 |