Coyle v. Campbell

By the Court. Nisbet, J. delivering the opinion. [1.] The question made in this case is, whether Dr. Coyle, a hydropathic practitioner, is authorized, by law, to recover an account for services rendered in the way of his profession. We think that he is not so authorized,.but, on the contrary, is prohibited by the Statute. The Act of 1825, was passed, among other purposes, to regulate the licensing physicians in this State. It was amended in 1831, but.in no way to affect this question— was repealed in 1836, and revived in 1839, and re-enacted without alteration or modification, in 1847. The original Act of 1825 then, re-enacted in 1847, is the law which controls the question. The Act of 1825 prescribes the manner of granting licenses to all applicants to practise physic and surgery. In the 4th section, it declares, “ that all bonds, notes, promises and assumptions made to any person or q ersons not licensed in the manner pointed out, the consideration of which shall be services rendered as a physician or surgeon, in prescribing for the cure of diseases, shall be void and of no effect.” This section makes void all contracts founded on services rendered as a physician or surgeon, in prescribing for the cure of diseases. The only inquiry, in order to determine whether Dr. Coyle is embraced in the Act, must be this, to wit: is his account founded on services rendered as a physician or surgeon, in prescribing for the cure of diseases ? It is not pretended that he has a license, and his ac [573] count, upon its face, as to all the items, exceptthe one for board of the negro woman, shows that it is for services rendered as a hydropathic practitioner, in the treatment of the servant of Col. Campbell, the defendant in error, for disease. He, a cold-water doctor, is not, of course, a surgeon. But we hold, that in prescribing water or any thing else, or in prescribing any mode of treatment for disease, he assumes to be'a physician. It is as such that he claims pay. It is for an account made to him as a physician, that he asks the judgment of the Court. Now, it is wholly immaterial if he is not licensed, as the Act requires, whether he be an ignorant pretender, or as learned as Galen, he is, in either case, prohibited from collecting his account by law. It may even be a question, under the Act of 1825, whether a man, who holds a diploma from a Medical College, can recover for medical services, unless he is licensed by the board which it creates. For whilst the Act exempts such persons from an examination, it does not, in so many words, nor by a necessary construction, exempt them from the necessity of taking out a license. And the amendatory Act of 1831, authorises the board, if they have any doubts as to the qualification of an applicant, to examine him, although he may have a diploma from a Medical College, and either grant or withhold a license, as they may find him qualified or otherwise. It is, however, not pretended that Dr. Coyle had a diploma, and we decide nothing as to that matter. It suffices to say, that this “ assumption” is founded on the consideration of services rendered by the plaintiff in error, as a physidan, in prescribing for the cure of disease. He holds himself out as a physidan — he has prescribed for the cure of disease, and he demands that the law enforce payment for services rendered as a physician. The Act of 1825, in so many words, declares that just such an assumption as this is, made to just the person that Dr. Coyle is, shall be null and void. It cannot be seriously pretended, that because his physic is pure water, and his treatment swathing and friction, that he is not, therefore, one who as a physidan, prescribes for the cure of disease. He is clearly as obnoxious to the law, as he would be if he prescribed calomel and jalap, or steam and No. 6, or homeopathic infinitesimals, or [574] phlebotomy and hot water. If this view of section 4th of the Act of 1825 needed fortifying, it is sustained by other sections. The 1st section declares, that “No person shall be allowed to practise physic and surgery, or any of the branches thereof, or in any cases prescribe for the cure of diseases, for fee or reward, unless he or they shall be first licensed to do so,” &c. So the 2d section makes it highly penal for any one to practise physic or surgery, or in any manner prescribe for the cure of diseases, for fee or reward, without a license. Nor does Dr. Coyle come within the exception made by the Act of 1825. That exception extends to persons who, at the time of the passage of the Act, were practitioners of medicine or surgery, or who had, before that time, been practising physicians. I stated that the Act of 1825 was repealed in 1836, and revived in 1839. The reviving Act of 18.39, has this provision, to wit: “ Provided, that nothing in the said revived Act, be so construed as to operate against the Thomsonian or Botanic practice, or any other practitioner of medicine in this State.” Now, it was claimed in the argument, that Dr. Coyle was protected under this proviso, because in its terms it exempts from the operation of the Act of 1825, any other practitioners of medicine, as well as the Thomsonian or Botanic practitioners. The argument construes these words to embrace all practitioners of medicine, and inasmuch as Dr. Coyle is a practitioner of medicine, he is excluded. This construction would defeat the whole body of the Act, and let all the world practise medicine for fee and reward, without a license — the very thing the Act was intended to prevent. If this is the meaning of the proviso, then it is itself void, for a saving repugnant to the whole body of an Act is void. But it is not necessary to make it void. We give to it a meaning, and that no doubt is the meaning suggested by the counsel for the defendant in error, Mr. Harris, to wit: it means to except such persons as were, in 1839, in the practice of medicine, and who came into the practice between 1836 and 1839, whilst the Act of 1825 was repealed — persons who were then practitioners of medicine for fee and reward, and who began to practise when there was no law to prohibit them. Dr. Coyle was not one of these. And if hpdropathy could,] even by the ingenuity of our [575] brother Rockwell, be classed with the Thomsonian practice, Dr. Coyle would still be without any aid from the law to collect his account. Because, by the Act of 1847, no persons except graduates of the Southern Botánico Medical College, are allowed to practise physic or surgery on the Botanic or Thomsonian system of medicine, or any of the branches thereof, or in any case to prescribe for the cure of diseases, for fee oi$reward, without a license from the Botánico Medical Board of "Georgia; and if they do, their bonds, notes and assumptions, given in consideration of their services, are declared void. It was claimed, in the argument, that at least the Court erred in refusing to permit the plaintiff in error to prove and recover the fourth item in his account. We are unable to concede that to him. This item is, “ one outfit for Henrietta, of linen, cotton cloth and woollen blankets, bought and paid for at Mr. Treanor’s, $18.” The outfit of linen, See. was the means of applying his prescriptions and rendering his services. If he cannot recover them, he cannot recover for the means which he thought necessary to provide in order to apply them. The law intends that he shall not practise medicine for fee or reward, but upon terms, and its policy requires that he shall not be permitted to enforce any obligation, express or implied, which springs out of the illegal exercise of the profession. We do not say but that any citizen may gratuitously practise medicine. The Statutes are directed against its practice for fee or reward. Thus have we declared what seems to us the legislative will upon this subject. We can see no reason why the practice of hydropathy should not, upon judicious terms, be under the sanction and protection of the lawr, as well as any other practice. It is for the Legislature, not for us, to place it there. Cobb’s New Digest, 886 to 892. The Court properly left the question, whether the charge for board should be allowed, to the Jury, under the testimony. Let the judgment be affirmed.