Ottaway v. Lowden

Spring, J.: The plaintiff was engaged in the practice of medicine in the city ■of Rochester and brought this action to recover for medical services rendered defendant in the year 1894, and claims his due $273 besides interest. The nonsuit was granted on the ground that the plaintiff -at the time of the rendition of the services was not legally qualified to practice his profession, and that is the only issue on this appeal. The plaintiff was graduated from the medical department of the University of Michigan in 1886 and commenced practice in Penn Yan, Yates county, in this State. On the eighth day of October in that year he caused his affidavit to be registered in the office of the clerk ■of that county, setting forth that he held a diploma from the University of Michigan, which was his authority for the practice •of physic and surgery. In 1889 the plaintiff moved to Monroe ■county and before engaging in the practice of medicine in that county •caused a transcript of the said affidavit to be filed in the clerk’s office -of that county. On January 10, 1899, the. State Medical Board Tecommended that the “ imperfect registration ” of the plaintiff , be made valid,” and this was supplemented by the certificate of the said [412] Board of ¡Regents of date February 2, 1899, reciting the facts j>re^ sented to the State Medical Board and the recommendation that was-made by that body and this certificate was filed in Monroe county February 14, 1899. On the 8th day of November, 1899, an entry was made in the register of the physicians and surgeons in the county of Monroe, stating that plaintiff’s authority for the practice of medicine was his university diploma “registered in Yates county October 8, 1886, registered on certificate from Yates county.” Chapter 513 of the Laws of 1880, which is entitled’, “ An Act to regulate the licensing of physicians and surgeons,” was in force at the time the plaintiff began the practice of medicine in Yates county. Section 4 of that, act prescribes the procedure by which a person coming into the State may be licensed to practice physic and surgery. If he holds a diploma issued to him by a medical school without the-state he can secure the indorsed approval of “the faculty of some incorporated medical college or medical school of this State.” There must, however, accompany the presentation of the diploma to the-faculty “satisfactory evidence of his good moral character” together-with “ such other evidence, if any, of his qualifications as a physician or surgeon as said faculty may require.” That is, .the faculty of the medical college in this State to which this evidence is presented is the examining board which passes upon liis acquirements to engage in the practice of medicine, and they use his diploma as a basis, but-their approval must include not alone the diploma but his qualifications and moral character. There is no pretense that plaintiff ever-attempted to comply with the plain requirements of this statute. Chapter 647 of the Laws of 1887 is another regulation of the-licensing of physicians, but it does not in any way lessen the restrictions-of the statute referred to. Subdivision 3 of section 2 permits-the indorsement and approval to be made not only by the faculty of a medical school or college in the State,-but also by the Regents of the State University “ on the recommendation of a legally constituted board of medical examiners of this State.” ' Chapter 500 of the Laws-of 1890 is amendatory of the act of 1887,- and subdivision 3 of section 2 vests the right of approval in the Regents of the University alone. Chapter 661 of the Laws of 1893 is an elaborate act pertaining to the public health and regulating the registration and licensing of ' physicians and surgeons. ' By that act the authority to issue licenses413 still rests with the State Board of Begents and its permission is an indispensable prerequisite to engaging in the practice of physic and surgery. These enactments show an unfaltering purpose to exclude from the medical profession quacks and charlatans who seek to ply their calling without the essential preliminary training. The statute last referred to, at section .148, provides that if there has been an “ imperfect registration ” through some technical or unintentional omission, the Board of Begents may in the manner therein provided ' “ make valid the previous imperfect registration.” It is under this provision that the plaintiff claims he is now duly licensed to continue the practice. Assuming this to be correct, there is no suggestion in the act that this provision is to be retroactive in effect. Such .a construction will not be given to the act unless that is the only deduction from its language. (Geneva, & Waterloo R. Co. v. N. Y. C. & H. R. R. R. Co., 163 N. Y. 228, 232; New York & Oswego M. R. R. Co. v. Van Horn, 57 id. 473, 477.) When the services in question were rendered plaintiff possessed no license and had no authority to prosecute his calling. The State Board cannot endue him with a cause of action where none existed before. It may do away with the necessity of any further license or registration- by injecting life into the papers he has already filed and give him a “ clean bill of health ” for the future, but that, under this "act, is the extent of its authority. • A license during all this period was necessary to enable the plain-. tiff to practice his profession. Confessedly he had none. There is no warrant in the law for the State Board to determine that he in fact during all this period was licensed to practice. Section 3 of chapter 513 of the Laws of 1880, above mentioned, makes a violation of the provisions of the act a misdemeanor. A similar provision is contained in the cognate statutes. (Laws of 1887, chap. 647, § 6; Laws of 1893, chap. 661, § 153.) The agreement with the defendant, therefore, is void and no recovery can be had. (Fox v. Dixon, 34 N. Y. St. Repr. 710.) In that case, which' is cited approvingly in Accetta v. Zupa (54 App. Div. 33), the court ase this language: “ ‘ It is a settled principle that one cannot recover compensation for doing an act to do which is forbidden by law and is a misdemeanor. The contrary rule would make an absurdity. It would permit one to hire another to [414] commit a misdemeanor, and would compel the payment of the contract price for doing what the law forbids. Whether this statute is wise or not we cannot examine. It is enacted in the interest of, the health of the public, to 'prevent incompetent persons from practicing as physicians. We must give effect to it. ■ And we cannot permit a recovery of compensation for, doing an act which this statute declares to be-a misdemeanor. (Oscanyan v. Arms Company, 103 U. S. 261.)’ ” During the time these services were performed the plaintiff was liable to indictment and conviction for practicing physic and surgery without proper warrant. If this act is to be given a retroactive, effect, we have the anomalous condition of affairs whereby he can recover for services, the rendition of which by him constituted a crime. This interpretation may operate as an injustice in a particular case, but the statutes are a safeguard both to the public and to those, engaging in the practice of physic and surgery, and should be rigorously enforced. The judgment and order should be affirmed, with costs to the respondent. McLennan and Williams, JJ., concurred; Adams, P. J., dissented in opinion, in which Laughlin, J., concurred.