resort to the powers incident to it under the common law, and to obtain a jury according to that method. This view is supported by the authorities cited by the prosecution. In an opinion given in the case of the United States v. Rose, 6 Federal Rep., 136, Ewing, D. J., quoted the language of section 2 of the act of June 30th, 1879, which is: "And that all such jurors, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing at the time of each drawing the names of not less than three hundred persons possessing the qualifications prescribed in section 800 of the revised statutes, which names shall have been placed therein by the clerk of such court, and a commissioner to be appointed by the judge thereof, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and well known member of the principal political party in the district in which the court is held, opposing that to which the clerk may belong; the clerk and said commissioner each to place one name in said box alternately without reference to party affiliations, until the whole number required shall be placed therein;" and also the language of section 804, of the revised statutes of the United States, the former law, which is: "When, from challenge or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such deficiency of jurors happens, return jurymen from the bystanders sufficient to complete the panel," and said: "This section is not repealed in terms by the act of June 30th, 1879, nor do we think it is by implication. * * Besides, if such were the construction, the inconveniences and delays to the court in the transaction of business, would be incalculable;" and after pointing out the delays and inconveniences, the court further said: "It certainly was not in contemplation of congress that a construction working such inconveniences should be given to the law."

The language of the act of June 30, 1879, was more explicit and authorized a stronger inference of an intention to exclude any other method of obtaining a jury, than would section 4 of the act of June 23, 1874, on which the defendant relies. And the reasons for the former statute were similar to, and quite as important as the reasons for the latter. In the case cited the statutory method had not been exhausted; in the case in hand it had; and if the objection had been sustained by the court in the former case the delays and inconveniences would not have been so great as would have followed the sustaining of the objections in the court below.

In United States v. Mumford, 16 Federal Rep., 165, the court made an order directing the marshal to summon jurors from the bystanders, and the defendant made the same objections as were made in United States v. Ross supra, and the court, making the same ruling, said: "the jury law of 1879 is a general law relating to all jurors, and has been held by chief justice Waite and judge Bond, sitting together, not to conflict with section 804 of the re

*

vised statutes. * * A literal adherence to the jury law of 1879, and a discardal of the unrepealed provisions of section 804, would work in frequent cases, and would have operated in the present case, a delay of proceedings equivalent to a paralyzing obstruction of the business of the court. Congress could not have meant to impose upon the proceedings of courts the delays adverted to." Stall v. Harris, Chicago Legal News, November 1, 1884, has been cited. This case arose under laws of state of Iowa, which required a jury list to be made by certain persons named for that purpose; and that all jurors should be drawn therefrom. The regular panel being exhausted the district court refused to delay the trial in order to fill the panel from the jury list; but directed it to be filled by calling persons present in the courtroom. To this the defendant, who was charged with a crime, excepted, and on appeal, the supreme court of the state sustained the ruling of the district court and said: "the court is, and must of necessity be invested with a judicial discretion in this respect to the end that justice may be obtained and that unnecessary delays in the proceedings of courts will not occur." Also in the case of Mackey v. People, 2 Colorado R., 13, the court held that the statute which provided that grand jurors should be selected by the board of county commissioners, did not exclude the common law method, and if, after the regular panel has been discharged at a term of court, an exigency arises for another, a second panel may be selected and summoned by an open venire directed to the sheriff. To the same effect is the case of Stone v. People, 3 Scammon, 326.

The laws of the United States have established district courts in this territory and given them common law jurisdiction (power to try cases). All the specific powers and means which it is necessary for courts to employ are not specified, but the authority to hold the court confers the necessary power. The general rule is that such power is implied as is necessary to carry into effect expressly given When, therefore, a court is given jurisdiction to try a jury case (which simply means the power to do so), and the authority to summon a jury is not mentioned, it is implied; for without a jury there cannot be a court for the trial of jury cases. If the jury is denied, the court is incomplete. When the method of obtaining a jury, provided by the act of June 23d, 1874, was exhausted, if the court had no other authority, its power to try the appellant was gone for five months, at least. Our view is, that when the mode of obtaining a jury according to the statute had failed, the power to use the ordinary means (the means to which the lower court did resort), was implied; it was incident to the authority to hold the court and to try jury cases. In the case of the United States v. Hill et al., Brockenbrough's Reports, 156, Marshall, C. J., said: "It has been justly observed, that no act of congress directs grand juries, or defines their powers. By what authority then, are they summoned and whence do they derive their powers? The answer is, that the laws of the United States have erected courts which are invested

with criminal jurisdiction. This jurisdiction they are bound to exercise, and it can only be exercised through the instrumentality of grand juries. They are, therefore, given by a necessary and indispensable implication. But how far is this implication necessary? The answer is obvious. Its necessity is co-extensive with that jurisdiction to which it is essential."

The laws of the United States give the district courts of the territories common law jurisdiction, and we are of the opinion that these courts have the authority to employ the common law method of summoning a jury, when no other is furnished by statute, or when the method so furnished has been exhausted, as in this case. To this method the court below resorted.

Section 93, laws of Utah, 1884, page 169, provides that "when jurisdiction is by this code, or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given, and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted, which may appear most conformable to the spirit of this code or the statute."

If this section applies to a prosecution for a breach of a law of the United States, it gave the court ample power to adopt the method which was followed, after the statutory method had been exhausted. Whether this statute applies, we do not deem it necessary to decide in this case. Having disposed of the only exception argued, it only remains to be added that no error has been found in the record, sufficient to authorize a reversal of the judgment of the court below.

The sentence and judgment of the lower court is affirmed.
TWISS, A. J., concurred.

EMERSON, J., expressed no opinion.

SUPREME COURT OF WASHINGTON TERRITORY.
Fox v. TERRITORY.

Filed September 17, 1884.

STATUTE PRESCRIBING QUALIFICATIONS FOR MEDICAL PRACTITIONERS-CONSTITUTIONAL LAW. A territorial statute prescribing certain qualifications for all persons proposing to practice medicine and surgery in the territory, and excluding all persons not having such qualifications except those who were engaged in practice at the time of the passage of the act, is neither an ex post facto law nor a bill of attainder, nor is it in conflict with the fourteenth amendment of the United States constitution.

NEW TRIAL-AFFIDAVIT ON MUST BE EMBODIED IN RECORD.-An affidavit used on a motion for a new trial will not be considered on appeal unless made part of the record by being incorporated in the bill of exceptions.

EXCLUSION OF INTOXICATED WITNESS FROM COURT ROOM-NEW TRIAL.-The exclusion of an intoxicated witness from the court room, and the refusal of the court to permit him to testify, is not error; but it might constitute a ground for a new trial, if the party offering the witness informed the court of the importance of his testimony aud asked an adjournment of the trial until he became competent to testify, and the court refused the request.

ERROR to the third judicial district court. The opinion states the facts.

P. P. Carroll, J. L. Murphy, and Jacobs, Jenner & Reed, for the plaintiff in error.

C. M. Bradshaw, prosecuting attorney, for the territory.

TURNER, A. J. The plaintiff in error was indicted, tried and convicted at the October term, 1883, of the district court for the third judicial district, holding terms at Seattle in King county, for the offence of practicing medicine for gain, contrary to chapter CLXIX of the code. The indictment is based on section 2,291 of the code, which section constitutes a part of the chapter before referred to. The plaintiff in error demurred to the indictment in the court below and his demurrer was overruled.

After verdict, plaintiff in error moved the court for a new trial on the grounds hereafter mentioned. The motion was supported by an affidavit from one of the attorneys in the case, which affidavit disclosed the following facts in substance, namely, one of the witnesses for the defense being called to testify on the trial was found to be intoxicated, and while in that condition was, by order of the court, removed from the courtroom before he had testified, and incarcerated in jail for contempt.

The affidavit then goes on to show the nature of the evidence which it was expected and believed this witness would have given, which was in short that the witness was a physician, and that he alone prescribed for and compounded the medicine for the particular person mentioned in the indictment as attended and prescribed for by the plaintiff in error, and that he alone received the compensation paid by said person therefor, the defendant having been simply an intermediary between himself and the said person to convey the medicine and receive the money.

The facts relied on in support of the motion for a new trial, do not appear in the record except from the motion and the affidavit filed in support of it.

The motion for a new trial was overruled. Subsequently the plaintiff in error moved in arrest of judgment upon some of the grounds relied on in support of the demurrer, and this motion was also overruled.

The case is brought to this court by writ of error.

The assignments in error go only to the constitutionality of the law and to the action of the court as shown in the affidavit, in excluding the intoxicated witness from the court-room, and to the refusal of the court below to grant the motion for a new trial.

Other alleged errors were urged by counsel for plaintiff in error, in argument and in the brief filed, but we do not feel authorized to consider them, especially as they do not refer to matters that are fundamental and vital to the prosecution.

In support of the proposition that the law is unconstitutional, counsel for plaintiff in error rely upon the cases of Cummings v.

State of Missouri, 4 Wall., 277; Ex parte Garland, 4 Wall., 333; Crandall v. Meade, 6 Wall., 35; Constitution of the United States, Fourteenth Amendment.

The cases in 4th Wallace, which are well known to the profession, go to the power of a state government or the general government, to pass ex post facto laws and bills of attainder. We do not think the provisions of chapter CLXIX of the code liable to the objection that they are in any sense ex post facto laws, or in the nature of a bill of attainder. They prescribe qualifications for all persons proposing to practice medicine and surgery in the territory, and in so doing exclude many from the practice who might otherwise engage in it, but this exclusion does not proceed upon the idea of punishment for past acts.

It was the attempt of congress in the one case, and the state of Missouri in the other-to prescribe punishment by legislative enactment for participation in the rebellion, directed at particular classes, prescribing additional penalties for acts before that declared crimes, rendering punishable acts not before criminal, and changing the rules of evidence by which less or different testimony was made sufficient to convict-that was declared by the supreme court of the United States to be violation of the federal constitution in the cases of Cummings v. Missouri, and Ex parte Garland, supra.

Neither do we find anything in said chapter that brings it within the principle laid down in the case of Crandall vs. State of Nevada, 6 Wall., 35.

It is claimed by counsel for plaintiff in error that the law is in. conflict with the fourteenth amendment to the constitution in that it prescribes a standard of qualification to entitle one to practice medicine and surgery, namely, the being a graduate of a medical college or university, and it relaxes the standard in favor of those who were engaged in the practice at the time of the passage of the law.

We see a discrimination here, it is true, but no deprivation of a right secured by the fourteenth amendment. It will hardly be contended that it is the right of medical practitioners, bearing diplomas from a medical college or university, to have excluded from the practice all who are not thus qualified.

Another objection to the law urged by counsel is that it discriminates between persons of equal learning and skill by permitting that person to practice medicine and surgery, who was so engaged the day before the passage of the law, while it denies the privilege to the person who may seek to engage in the practice the day after or at any time after the passage of the law. It appears to be an answer to this objection to say that the law does not deny the privilege of practicing medicine and surgery to anyone. Any citizen of the territory may qualify himself in the manner pointed out by the law, and thereafter may lawfully engage in the practice of medicine and surgery.

No. 59-4.