Hart v. Folsom
47 A. 603
N.H.
1899
Check Treatment
Pike, J.

“No person shall hold himself out to the public as a physician and surgeon, or advertise as such, or use the title of M. D. or Dr. (or any title which shall shоw or tend to show that the person using the same is a practitioner of any of the branches of medicine) in New Hampshire, after Seрtember 1,1897, unless previously registered and authorized, or unless licensed and registered as required by this chapter.” Laws 1897, c. 63, s. 1. Section 2 of the chapter provides for the appointment, by the governor and council, of boards to examine ‍​‌‌​​​​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌‌​​‌‌‌‌​‌​‌​​​​​‌​​‌​​‌‍applicants for a license; and section 4 provides that the superintendent of public instruction shall be, ex officio, the regent of the boards. By section 7, the regent is required to admit to examination any candidate who pays a fee of ten dollars, and submits satisfactory evidence, under oath if required, that he is twenty-one years of age and of good moral character ; that he is a college graduate, or has completed a сourse of study in an academy or high school, or an equivalent course; that he has studied medicine not less than nine months in each of fоur years, including a course of at least six months in each year in a medical college of satisfactory standing; and that he has reсeived the degree of bachelor or doctor of medicine from a medical school, or a diploma or license сonferring the right to practice medicine in some foreign country. Section 8 requires the boards to furnish to the regent questions for thorough еxaminations in anatomy, physiology, hygiene, chemistry, surgery, obstetrics, pathology, diagnosis, and therapeutics, including practice and materia medica, frоm which the regent is to prepare questions to be submitted to candidates. Section 9 requires that the answers to the questions shall be in writing, and that they ‍​‌‌​​​​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌‌​​‌‌‌‌​‌​‌​​​​​‌​​‌​​‌‍shall be marked by one of the boards and returned to the regent with a recommendation by the board whether a license shall be granted to the candidate. Section 10 *216 requires tbe regent to issue a license to the candidate if he successfully passes the exаmination and is recommended for a license. Section 13 provides that “ Every person who is a practitioner of medicine and surgеry in this state prior to the passage of this act shall be, upon satisfactory proof thereof to the regent and upon the payment of a fee of one dollar, entitled to registration,” and a certificate of the facts which shall entitle him to practicе medicine. Section 12 makes a person who holds himself out as a physician and surgeon, but is not authorized to do so as required by the aсt, liable to punishment.

The defendant is regent. June 14,1899, the plaintiff applied to him for registration and a certificate, and tendered the рrescribed fee. He furnished statements of three residents to the effect that he attended them as a physician prior to the pаssage of the act, and a certificate of the city clerk of Manchester that the ‍​‌‌​​​​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌‌​​‌‌‌‌​‌​‌​​​​​‌​​‌​​‌‍plaintiff certified to a death in 1896. His apрlication was denied because he did not comply with a rule of the regent requiring the applicant to furnish certificates of a member of one of the medical societies mentioned in the act, and of two well-known citizens, that he was a practitioner of mеdicine and surgery.

A practitioner of medicine and surgery is a physician and surgeon who habitually holds himself out for the practice of thе profession. State v. Bryan, 98 N. C. 644. The provision that “every person who is a practitioner ... in this state prior to the passage of tins act shall be . . . entitled to registration,” raises the question whether it is enough for the applicant ‍​‌‌​​​​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌‌​​‌‌‌‌​‌​‌​​​​​‌​​‌​​‌‍to show that he had been such a practitioner at some time in the past, or whether he must show that he was one when the act was passed. The language seems to refer to the presеnt time,— “ every person who is a practitioner.” Although these words are qualified by the expression “prior to the passage of this aсt,” they cannot reasonably be held to refer to persons who had been practitioners, but had ceased to be such when the аct was passed. A fair construction of the language is that only those physicians and surgeons who were in practice in this state when thе act was passed are entitled to registration under the section. This view is strengthened when it is considered that the purpose of the act was to prevent ignorant persons from administering drugs and trifling with the public health. The act prohibits a person from practicing medicinе in this state without a license, and requires applicants — not already physicians —to show that they have passed a prescribed course of training and possess the requisite degree of skill. But the fact that an applicant is a physician and surgeon, in practicе at the time, seems to have been deemed by the legislature as sufficient evidence that he had pursued the requisite course of training and possessed a reasonable degree of skill in the profession.

*217 It is the duty of tlie regent to issue a license to each applicant who comes within the provisions of tlie act. Whenever application is made under section 13, the regent must determine (1) whether the applicant is a physician and surgeon, and (2) whether he was engaged in practice when the act was passed. In performing this duty he acts in a judicial capacity, and is bound to receive and consider all evidence that ‍​‌‌​​​​‌‌‌‌‌‌​​‌‌​‌‌‌‌‌​‌‌​​‌‌‌‌​‌​‌​​​​​‌​​‌​​‌‍legally bears upon the questions. If for any reason the applicant is unable to furnish such a certificate as the regent may require, the fact does not cоnclusively show that the applicant does not possess the necessary qualifications. The regent should consider all competent evidence offered, and, if he is satisfied that the applicant comes within the provisions of the section, should issue to him a license.

The constitutionality of the act has not been considered, for the plaintiff has attempted to avail himself of its provisions and is thеrefore not in a position to question its validity.

Mandamus lies to compel a ministerial officer to perform a particular duty (Butler v. Selectmen, 19 N. H. 553; Ballou v. Smith, 29 N. H. 530; School District v. Carr, 63 N. H. 201; Boody v. Watson, 63 N. H. 320; School District v. Greenfield, 64 N. H. 84; Boody v. Watson, 64 N. H. 162), and to set inferior courts in motion if they refuse to hear a case which is properly before them (Smith N. H. 482), but not to compel them to find in a particular way. Spell. Ex. Rel., s. 1384; United States v. Seaman, 17 How. 225; United States v. Commissioner, 5 Wall. 563; Farwell's Petition, 2 N. H. 123; Gage v. Censors, 63 N. H. 92, 95; Mansfield v. Fassett, 63 N. H. 573.

The regent should give the petitioner a hearing, and admit all competent evidence bearing upon the questions аt issue. If the evidence submitted amounts to satisfactory proof that the plaintiff was a physician and surgeon in practice in this state at the time of the passage of the act, he should be registered, and a certificate should be issued to him; if not, his application should be denied.

Case discharged.

All concurred.