Peterson v. Seagraves

WILLIAMS, Associate Justice. The following certificate has been made by the Court of Civil Appeals for the Second District and the questions therein stated have been submitted for decision: “On December 5, 1898, suit was instituted by appellee in a justice court of Denton County upon an account for medicines and medical services rendered appellant's wife at his request during her last sickness. The appellant pleaded in reconvention for damages in the sum *393 of $150, and specially that at the time of the service for which appel- . lee sned he was not authorized to practice medicine in that he, appellee, was then practicing under a void temporary certificate issued by Dr. J. M. Inge, a member of a board of medical examiners. Appellee prevailed in the Justice Court and also on an appeal to the County Court, The judgment of the County Court in appellee’s favor was affirmed by us on November 10, 1900,. Justice Hunter dissenting, and the cause is now here pending on motion for a rehearing in which appellant prays that the question of law involved be certified, and we have decided to do so, as provided in Revised Statutes, article 1043. “So far as necessary to an understanding of the question involved, the facts are that Dr. J. M. Inge, who at all times herein stated was one of the duly appointed and acting members of the board of medical examiners for the district that included Denton County, on the 16th day of November, 1897, issued and delivered to appellee a temporary certificate as provided by article 3786, Sayles’ Texas Civil Statutes, 1897. This was the third temporary certificate issued by Dr. Inge to appellee, the board of medical examiners for the district at each of its regular biennial meetings after the issuance of the two preceding certificates having refused to issue to appellee a permanent certificate after examination. At appellant’s request, ■ appellee, during the life of said third certificate, attended appellant’s wife and performed certain services and administered certain remedies not necessary to here particularize, which the evidence tended to show were beneficial, and for which appellee charged the usual and reasonable physician’s fees, and it therefore became material to determine, and we accordingly certify to your honors for decision, the question involved; that is, whether, under the facts stated and under the law regulating the practice of physicians, Dr. Inge had the authority to issue to appellee the third temporary certificate of November 16, 1897, and consequently whether thereunder appellee was authorized to practice as a physician and to charge for his services as such.” Both questions are answered .in the negative. The statutes (title 82, Revised Statutes) provide for the appointment of a “board of medical examiners” for each judicial district to be composed of not less than three physicians, and such board is required to meet “regularly semiannually” in its district to conduct examinations and grant certificates. The board is required fo examine thoroughly all applicants for certificates of qualification to practice medicine, and, when satisfied as to the qualifications of an applicant, to grant him a certificate entitling him to practice medicine in any county, when the same has been recorded, as further provided. By article 3786 it is provided as follows: “Any two of the members of such board of medical examiners may grant a certificate of qualification to an applicant, and any member of said board shall have authority to grant a temporary certificate to an applicant upon examination until the next regular meeting of the board, at which time the temporary certificate shall cease to be of force.” This *394 title of the Revised Statutes contains' no express prohibition against the practicing of medicine by persons without certificates, but article 438 of the Penal Code makes it a misdemeanor for any person to practice “without first having obtained a certificate of professional qualification from some authorized board of medical examiners, or without having a diploma from some accredited medical college,” etc., and article 440 makes it a misdemeanor for any person to practice without having first filed for record his authority to do so mentioned in article 438. Both the Civil Statutes and the Penal Code make certain exceptions which are unimportant here. This court had occasion in the case of Wilson v. Vick, 93 Texas, 88, to consider the effect of these several provisions upon a different- question from that now presented. The effect of the provisions of title 82 is to give to the board or two members thereof authority to issue a certificate, which, when recorded, shall permanently entitle the recipient to practice medicine, and to each member of the board authorhy to give a temporary certificate entitling the applicant to practice until the next meeting of the board. No authority save this is conferred upon one member of the board, and consequently he can have no other. Rot only is there an absence of express authority to issue more than one temporary certificate to the same person, but there is an express limitation of the duration of such certificate to the next meeting of the board. The purpose was to afford opportunity to any person, who might be able to satisfy one of the board of his qualifications, to engage at once in practice without waiting for a regular meeting of the board, but not to substitute the judgment of the individual member for that of the board after the latter had once acted. If one member, after the board has decided against an applicant, may continue his license to practice, it is apparent that the special and limited authority conferred on such member may be made to supplant the general control given to the board,—a result antagonistic to the spirit and purpose of the statute. The board is required to hold two meetings a year, and this affords ample facility for all who may qualify themselves by further application after being once rejected to have another examination. An express prohibition of more than one temporary license was unnecessary. The question is, what was the authority given to the individual member of the board, and the answer is that it was only to issue a temporary certificate, good until the next meeting of the board. The fact that the laws regulating the practice of dentistry and pharmacy contain provisions expressly forbidding the issuance of more than one temporary certificate can not determine the construction of the statute under consideration. These provisions are not parts of the same act; were not even passed at the same session of the Legislature. A statute regulating the practice of medicine was passed in 1873 and another in 1876, which has gone into the Revised Statutes. The provisions of both of these acts upon the point before us were in substance the same as that carried into the revision, and the latter must receive the same construction as would have been given to the former. The *395 other laws were passed, one in 1889 and the other in 1897. They can not be taken even as a legislative construction of the law already existing upon a different subject. The third temporary certificate not giving to appellee the right to practice medicine and not being such as is mentioned in Penal Code, article 438, his contract to render medical services was one made in violation of law and can not be made the foundation of a recovery for services performed. In the case of Wilson v. Vick, supra, this court recognized the correctness of the holding by the Court of Civil Appeals of the Fourth District in the case of Kenedy v. Schultz, 6 Texas Civil Appeals, 461, and it is unnecessary that we should add anything further to the discussion of this branch of the question.