Maxwell v. Swigart

Byan, 0. The defendant in error recovered, in the district court of Adams county, a judgment upon a verdict in the sum of $275. In the petition upon which this recovery was had it was alleged that the plaintiff therein named, on or about September 4, 1891, had made necessary proofs upon which a certificate had been issued to him by the Nebraska state board of health, and that when the services of plaintiff were performed for the defendant, plaintiff was one of the persons authorized by law to be registered and ivas authorized by law to collect for his said services. The services rendered for the defendant were shown by the proofs to have been so rendered between October 15 and November 29, 1892. On the 20tb day of April, 1892, the certificate of the Nebraska state [790] board of health above referred to was filed in tbe office of tbe county clerk of Adams county. Tbis Avas after tbe services bad been rendered, but before tbe commencement of tbis action. The district court ruled that tbis registration before suit brought was a sufficient compliance with tbe statute to entitle tbe holder of tbe certificate to recover tbe value of his aforesaid services, and accordingly there was a verdict and a judgment. Tbe correctness of tbis ruling is tbe sole matter presented for our consideration. It is required by the provisions of section 10, chapter 35, Laws, 1891, that tbe bolder of a certificate of tbe state board of public health shall, before practicing, file such certificate or a copy thereof in tbe office of the county clerk of tbe proper county. Section 15 of tbe act just referred to is in the following language: “No person shall recover in any court in tbis state any sum of money whatever for any medical, surgical, or obstetrical services, unless be shall have complied with tbe provisions of this act and is one of tbe persons authorized by this act to be registered as a physician.” In argument it was urged that tbe case of Gardner v. Tatum, 81 Cal., 370, sustains the view taken by tbe district court that tbe filing of tbe physician’s certificate Avith tbe county clerk before suit brought for compensation for bis seiwices was such a compliance with tbe statutory requirement as to relieve against a disability of tbe nature of that imposed by our statute. It is provided in volume 3, section 7, page 560, Revised Statutes of California, 1880: “Any person practicing medicine or surgery in tbis state without first having procured a certificate to so practice shall, be deemed guilty of a misdemeanor,” etc. Tbe penalty prescribed in tbe California act is for practicing without first having procured a certificate, and although tbis certificate is required to be registered with tbe county clerk, no penalty is prescribed for a failure to register. It Avas therefore held by tbe majority of tbe court, in tbe case last cited, that while no recovery could be permitted for services rendered be [791] tween the date of application and that of the issue of the certificate, there could be a recovery for such services as were rendered after such issue. Nothing was said in the opinion about a failure to register, because, as is very obvious, that fact was not by statute made a necessary condition precedent to the right to practice medicine or surgery. This distinction renders unnecessary a prolonged discussion of the provisions of our statute, which as imperatively requires the registration as the issue of the certificate. The purpose of the statute was to protect the sick and afflicted against the knavery of quacks, and hence the construction that satisfies this statute by registration before suit brought is so foreign to the general scope of the entire act that it cannot be tolerated. In its holding adversely to the view just indicated the district court erred. Its judgment is therefore Reversed.