129 S.W. 600 | Tex. | 1910
The defendants in error, husband and wife, brought this action in the District Court to compel the plaintiffs in error, by mandamus, to issue to Mrs. Taylor, formerly Zindel, the verification license to practice medicine provided for by section 6 of the Act of 1907. (Laws 30th Leg., 224). The duty sought to be enforced depends mainly upon the effect to be given to a certificate issued to the female plaintiff in 1889 by a then existing district board of medical examiners which is as follows:
"This is to certify that we have, this the 15th day of March, 1889, examined E.C. Zindel and find her qualified to practice the branches of obstetrics, and diseases peculiar to women and children, as required by the laws of the State of Texas."
Under this the female plaintiff has practiced medicine since its date, but respondents, upon presentation of it as the basis for a verification, refused to issue any evidence of authority to practice except a license to practice obstetrics only, which refusal was the occasion of this action.
The provision of the Act of 1907, before referred to, requires the issuance by the present board of the "verification license" upon production of documents sufficient to establish "the existence and validity" of the "valid and existing license heretofore issued by previous examining boards." What the verification license is to be the law does not expressly say, but its name and the purpose for which it is required *447 plainly indicate that it is to be merely the evidence of the continuance of authority to practice as before, neither adding to nor taking from that authority. Preexisting lawful authority is thus recognized and continued in force by compliance with the law. This further appears from section 15 of the Act. Therefore if it is true that the first certificate was a valid license to practice medicine at all, either generally or in the branches mentioned in it, it must follow that the plaintiffs were entitled to a verification license to continue in force such authority as it had conferred. The question is controlled by the provisions of the Revised Statutes which formerly regulated the licensing of physicians, the provisions directly applicable being articles 3784 and 3785 as follows:
"It shall be the duty of said board to examine thoroughly all applicants for certificates of qualification to practice medicine in any of its branches or departments, whether such applicants are furnished with medical diplomas or not, upon the following named subjects, to wit: Anatomy, physiology, pathological anatomy and pathology, surgery, obstetrics and chemistry; but no preference shall be given to any school of medicine."
"When the board shall be satisfied as to the qualifications of an applicant, they shall grant to him a certificate to that effect, which certificate shall entitle the person to whom granted to practice medicine in any county, when the same has been recorded as required by article 3787."
Counsel for the parties agree that these provisions made it the imperative duty of the board to examine all applicants upon all the subjects mentioned in article 3784 and to grant license to none except those found qualified in all those subjects, whether the licenses applied for were general, or restricted to some branch or department, and we think there is no doubt of the correctness of that view.
Counsel for the board contend that the certificate granted to the female plaintiff shows by its statements that this requirement was not complied with and that it was issued upon a finding by the former board that she was only qualified in obstetrics and in diseases peculiar to women and children and that she was not qualified in the other subjects named in the statute. If it were true that the certificate showed all this it would probably follow that the board so transcended its authority in extending a license of any character as to make its action void, since it is true that the statute did not admit anyone to practice without the examination in all the prescribed subjects resulting in the satisfaction of the board of the applicant's proficiency therein. But we can not say that the certificate means that, consistently with the presumption that the board did its duty, which presumption we must indulge unless its action shows the contrary. The most that can be conceded is that a certificate so worded might be used to cover up a state of facts such as that which it is thus asserted to show affirmatively. It can not even be admitted that those facts would be fairly consistent with the truthfulness of the certificate, assuming the members of the board knew their duty. They say they have examined the applicant as required by law, which means that they have examined her in all the named subjects, and that they have *448 found her qualified to practice the branches named. They could not truly have said that she was so qualified, in the sense of the law they were sworn to follow, unless they were satisfied that she possessed the knowledge required by that law of all the prescribed subjects. All that renders the certificate ambiguous or questionable is the mention of particular branches, and that may be explained by the fact that the statute (article 3784) plainly contemplated that there might be applicants who intended to confine their practice to particular branches or departments, which made it natural and not improper, in such cases, to mention the branches or departments in the certificate, without restricting its meaning as to the scope of the examination and of the qualifications of the applicant. The statute proceeds upon the conviction that qualification to practice in any branch or department could only be attained through adequate knowledge of the subjects named, and we think it should be presumed that a board of medical gentlemen, selected because of their own proficiency, would proceed upon a like conception and would not issue a certificate affirming fitness to practice a branch without having satisfied themselves of the adequacy of the information of the person licensed concerning those things declared to be essential to that fitness. The language of article 3785, "when the board shall be satisfied as to the qualifications of an applicant, they shall grant him a certificate to that effect," means no more than that the certificate shall state they are satisfied as to his qualifications to practice medicine, and a certificate in that language would have entitled an applicant to practice in all the branches or departments or in particular branches or departments as he might choose. The certificate in question, if the board understood their duty and spoke the truth, implies as full an examination and as complete qualifications as if it had been the more general one just instanced, since, under the statute, no one could be qualified, as is certified, to practice in the diseases peculiar to women and children without the required knowledge of the subjects mentioned, the provisions referred to did not apply to females practicing midwifery. The fact that for so long a time the female plaintiff practiced under this license should, we think, remove whatever doubt might arise from the wording of the certificate, since it shows that such certificate has been acted upon and recognized as having the meaning we ascribe to it.
The question discussed in the opinion of the Court of Civil Appeals and in the argument before us, whether it entitles Mrs. Taylor to practice medicine generally or restricts her to the branches mentioned, is not involved. The respondents are not required to enlarge or diminish her authority, but only to issue to her a verification license to have the effect we have already explained. The judgment of the District Court only requires them to issue such a verification license as is required by the Act of 1907, "according to the provisions and wording" of the former certificate and to that we think the plaintiffs are entitled.
Affirmed. *449
