(After stating the foregoing facts.)
I. The petition in this case was filed to enjoin the defendant from illegally practicing medicine in this State;'for cancellation of his medical diploma, on the ground that the same was fraudulently оbtained or is a forgery; and to have expunged from the records of Murray superior court, where the same was recorded, the license under which he claims the right to practice medicine. Has this board, as such, the power to file this suit for these purposes? This board is an administrative body and has only such powers as the legislature has expressly, or by necessary implicatiоn, conferred upon it. This is the rule which is well established as to other administrative bodies, such as the Eailroad Commission of Georgia (Zuber v. Southern Ry. Co., 9 Ga. App. 539,
2. The act of the legislature creating this board (Ga. Laws 1913, p. 101), as amended by the act of August 20, 1918 (Ga. Laws 1918, p. 173), does not expressly confer this power upon this board. Such power is not reasonably necessary to еxecute the express powers conferred upon this board by these acts, and for this reason can not be implied. It is insisted by learned counsel for the plaintiff that this language, “ to protеct the people from illegal and unqualified practitioners of medicine and surgery,” found in the caption of these acts, is an express grant of authority to file this suit. The above languagе appears only in the caption of the above-recited acts. The preamble or title of an act is no
If the above language found in the captiоn of this act were contained in its body, the proper construction thereof would not confer the power claimed by the plaintiff in this case. The methods of protecting the peоple in this State from illegal and unqualified practitioners of medicine and surgery are fully outlined and defined in these acts. They provide for examination of all applicants for license to practice medicine in this State. Applications for such licenses must be accompanied with proof that the applicant is a graduate of a legally incorporаted medical college or institution in good standing with the board; and it is made unlawful for any person without license to practice in this State. Before any person who has obtained a certificate from said board can lawfully practice in this State, he shall cause the certificate to be recorded in the office of the clerk of the superior court of the сounty in which he resides. The board is empowered to pass upon the good standing of any medical college. Only such medical colleges can be considered in good standing as possess a full and complete faculty for the teaching of medicine, surgery, and obstetrics in all their branches, as afford their students adequate clinical and hospital facilities, as require attendance upon at last eighty per cent, of each course of instruction, as give four graded courses of instruction of 120 weeks, as require at least forty-two months to have .elapsed between the beginning of the student’s first course of medical lectures and the date of his graduation, as require an
Section 14 of the act of August 20, 1918, above referred to, authorized this board to cause a licentiate’s name to be removed from the records in the office of any clerk of court in this State, when fraud or deception was used in applying for license, or in passing the examination provided for in said act; and for the other reasons mentioned in this section. Thus this section gives the board express authority to have a licentiate’s name removed from the records in the office of any clerk of court in this State. As this statute confers a specific remedy for expunging the name of a phjrsician from the records in the office of any clerk of court in this State, the power to procеed in equity for the same purpose will not be implied.
The fact that this section has been declared by this court unconstitutional (State Board of Medical Examiners v. Lewis, 149 Ga. 716,
It is made a crime for any person to practice medicine in this State without possessing in full force and virtue a valid license to practice under the laws of this State; and such person so practicing is declared to be guilty of a misdemeanor, and upon conviction of such offense he shall be punished for a misdemeanor, in accordance with section 1065 of the Penal Code of this State. Thus the statutes creating this board fully prescribed the means and methods of protecting the people of this State against illegal and unqualified practitioners of medicine and surgery; and when
This court has held that a court of equity, at the instance оf the State, can not enjoin a person from illegally practicing medicine in this State. Dean v. State, 151 Ga. 371 (
So we think that this board is without power, express or implied, to file the petition in this сase.
Furthermore, this board does not make a case of cancellation. Cancellation is an ancient head of equity jurisdiction, founded on the administration of a protectivе or preventive justice; and its exercise is had for the purpose of preventing or restraining the exercise of an injurious power which one man, under the common law, may hold over аnother. It operates to establish or protect individual rights; and is exercised in order to remove the obstacle which stands in the way of the enjoyment of one’s right, interest or estate. 9 C. J. 1159.
It is unneсessary in this case to determine what is the proper method of expunging from the records of a court the record of an instrument which is forged. The power of courts over their own records, and their power of correcting or canceling the same on their own motions, or at the suggestion of others, are not involved in this case. This suit is at the instance of this board, as such, and is nоt a proceeding by the court in reference to the correction
So we are of the opinion that the court erred in not sustaining the general demurrer to the petition in this case. This makes it unnecessary to deal with any other error of which the defendant complains.
■Judgment reversed.