Bohn v. Lowery

• Decision Date: 12 March 1900
• Citation: 77 Miss. 424,27 So. 604
• Court: Mississippi Supreme Court
• Parties: HENRY R. BOHN v. RICHARD J. LOWERY

27 So. 604

77 Miss. 424

HENRY R. BOHN v. RICHARD J. LOWERY

Supreme Court of Mississippi

March 12, 1900

December 1899

From the circuit court of Harrison county, HON. THADDEUS A. WOOD Judge.

Bohn the appellant, a physician, was the plaintiff in the court below; Lowery, the appellee, was defendant there. The action was upon an account for professional services rendered by the physician to defendant during a severe illness of the latter. It was shown by way of defense that the services were rendered without compliance by plaintiff with the statute making it unlawful to practice medicine without a license. The court below decided the defense good and the man of medicine appealed to the supreme court.

Affirmed.

W. H. Maybin, for appellant.

From a legal standpoint, all wrongs are divided into two classes: First, those things that are wrong in themselves. Second, those things which are made wrong by operation of law. At no time in the life of jurisprudence has it been wrong in itself to practice medicine as a profession, so, if wrong at all, the wrongdoing is consequential of some inhibitory statute, and in this state we find that two statutes alone have been enacted by the legislature in reference to the practice of medicine: By § 3243 of the annotated code, all persons desiring to practice medicine, permanently, in the state of Mississippi, are required to be first examined and licensed by a board of examiners created for the purpose, and § 1258 fixes the penalty for the violation of § 3243. The two statutes construed together, and it is submitted that so far as the case at bar is concerned, they cannot be construed separately, mean simply that if any person shall practice the profession of medicine in Mississippi without having first been examined and licensed, such person shall, upon conviction, be fined or imprisoned, or both. To say that these statutes are penal statutes and must be strictly construed would be like announcing that white is the absence of color. To construe these statutes strictly is to simply say that the legislature intended to limit the punishment for their violation to a fine or imprisonment, or an infliction of both, and as the statutes here end, and there being nothing in their text from which anything else can be deduced, other than what is their plain wording, and as these statutes end in plain language, the courts are powerless to affix or inflict an additional penalty. It is the object of the construction of penal statutes, as of all statutes, to ascertain the true legislative intent, and the courts will not apply such statutes to cases which are not in the obvious meaning of the language employed, even though they be within the mischief intended to be remedied. 8 Pick. (Mass.), 370; 79 Iowa 560; 74 Am. Dec., 522; 43 Minn. 444; 42 Am. & Eng. R. R. Cases, 623; 74 Cal. 38; 40 F. 636; 42 F. 22; State v. Finch, 37 Minn. 433; United States v. Wiltberger, 5 Wheaton (U.S.), 76; Dwarris on Statutes, 736; Merrill v. Melchior, 30 Miss. 516; Sneed v. The Assurance Co., 72 Miss. 51; Harris v. Runnels, 12 How. (U.S.), 78 et seq.

A. Y. Harper and W. R. Harper, for appellee.

Whenever a law is passed for the protection of the public and to prevent improper and incompetent persons from engaging in particular callings and professions, the well-established rule is that if a penalty is pronounced in such cases it carries with it a condemnation of all contracts growing out of the violation of the law, without any express declaration that such contracts shall be void. Black's Interpretation of Law, 64; Dean v. McLendon, 30 Miss. 343; 18 Am. & Eng. Enc. of Law, 435; Harrison v. Jones, 80 Ala. 412; O'Donnell v. Sweeney, 5 Ala. 468; Fox v. Dixon, 12 N.Y.Sup., 257; Oscanyan v. Winchester Arms Co., 103 U.S. 267; Woods v. Armstrong, 54 Ala. 151; Renfre v. Lloyd, 64 Ala. 94; Guilding v. Driver, 99 Ga., 623.

Argued orally by W. H. Maybin, for appellant, and by W. R. Harper, for appellee.

OPINION

TERRAL, J.

By the common law a contract founded upon an illegal consideration, or one made against public policy, is void, and no action can be maintained thereon. And where the doing of an act is prohibited by legislative authority, under a penalty, it cannot constitute a consideration to support a contract.

The illegality, whether arising by the common law or from the statute, affects the act or contract with like infirmity. An exception to this rule of law prevails where the penalty is...