Warren v. Saxby

12 Vt. 146 | Vt. | 1840

The opinion of the court was delivered by

Redfield, J.

— In this case the plaintiff seeks to recover for medicines, and for services rendered the defendant, as a physician, without being licensed jn the manner provided by the statute of 1820, and while that act was in force. The act provides, that no person, who shall be employed in the practice of physic and surgery &c., within this state, shall, hereafter, have any right to make any demand for the same, or shall be entitled to the benefit of law, for the collection of his fees, &c., unless &c., stating the modes of license. This statute was repealed before the commencement of the present action. It is now contended, that the plaintiff is entitled to recover.

The history of legislation, in regard to apothecaries, surgeons and physicians, from the date of the statute of 14 Henry 3, when the subject was first attempted to be regulated by law in England, to the present time, would afford a curious subject of investigation, and might tend, in some degree, to throw light upon the present question. Since that period, there have been many statutes passed in England, with a view to establish scientific practice and to discourage mere pretenders. The college of physicians was incorporated there as early as 14th. Henry 6, with most enormous powers, both of restriction and coercion, in relation to all who attempted either of the above named acts. And it seems still to be supposed, there, that much harm may be prevented by these legislative restrictions. In this state, no doubt, the legislature who passed the statute of 1820, entertained the same opinion.

But, as the grand contest here is, first, for subsistance, and, finally, for wealth, ivhich is supposed, by many, to confer almost the only solid distinction, it was well supposed, by the legislature, that, by depriving mere pretenders, in' physic and surgery, of all hope of pecuniary advantage, they would remove from that class of practitioners, the principal motive to intrude themselves upon the educated members of that honorable profession. And the court entertain no doubt that it was the design of the legislature, not only to take away all right of action for.such services, but to make them, when rendered, absolutely gratuitous. Such being the effect of the statute, it is obvious the mere repeal of the statute could give no right of action for past, services. It needed something more than to remove an impediment. There must be life infused, and a course of' action created, which before did not exist. This was not done by the repeal of the statute and could not legally and constitutionally have been done by a positive enactment even. It is not competent for the legislature, even, to create an obligation out of a by-gone transaction, which, at the time of its ochurrence, all parties understood 'to be and was strictly gratuitous.

If this had been the repeal of a statute of limitations, which only interposes an impediment to the recovery, or if it had been the repeal of the statute against frauds and perjuries, which provides that “ no action shall be maintained” upon certain contracts, unless reduced to writing, leaving the contracts themselves in force, for certain purposes, it might have merited a different consideration.

Judgment affirmed.