Driscoll v. Com.

• Decision Date: 20 October 1892
• Citation: 20 S.W. 431,93 Ky. 393
• Parties: Driscoll v. Commonwealth. Commonwealth v. Rice.
• Court: Kentucky Court of Appeals

20 S.W. 431

93 Ky. 393

Driscoll v. Commonwealth.

Commonwealth v. Rice. ^[1]

Court of Appeals of Kentucky.

October 20, 1892

Appeals from Louisville city court.

"To be officially reported."

M Driscoll was convicted of practicing medicine without authority, and appeals. Affirmed.

Information against C. W. Rice for practicing medicine without authority. From a judgment sustaining a demurrer to the information the commonwealth appeals. Reversed.

Pryor J.

These two cases, involving the same question, will be considered together.

An act of the legislature was passed on the 23d of February in the year 1874 for the purpose of preventing incompetent physicians and surgeons from practicing their profession within the state, the act reciting that it is of the greatest importance that none but persons with competent qualifications should be allowed to practice a profession to whose skill and ability the life of the citizen is intrusted etc. This enactment has been amended from time to time, and by the act of April 25, 1888, it is provided that there shall be a registration of all physicians in the county court of each county, (that is, where they reside,) and by section 2 "that on and after the first day of April, 1889, it shall be unlawful for any person to practice medicine in any of its departments within the limits of this state who has not exhibited and registered in the county clerk's office of the county where he is practicing, or intends to commence the practice of, medicine, his authority for so practicing medicine, as prescribed in this act; the name and location of the college issuing the same; if it be a diploma, the date of the same; together with his age, residence, place of birth and the school or system of medicine to which he proposes to belong," etc.; and by section 3 it is provided "that authority to practice medicine under this act shall be a diploma from a medical school legally chartered under the laws of this state; a diploma from a reputable and legally chartered medical school of some other state or country, (certified and indorsed as such by the faculty of a legally chartered medical school in this state, or state medical society;) an affidavit from the person claiming the same that such person is exempted from obtaining a diploma under section 2 of the act to which this is an amendment." Sections 2 and 3 of the original act permitted one to practice who had been a practicing physician for 10 years, or who had been examined by the medical board and found qualified. Under the act of April, 1888, a diploma was required from a medical school of this state, or from one chartered out of the state and indorsed as such by a medical school or state medical society of this state. This requisite does not apply, however, to physicians who had practiced 10 years within this state prior to the passage of the original act of 1874. The act of April 25, 1888, was again amended on the 24th of May, 1890, dispensing with the indorsement of a medical school or medical society when the diploma was obtained out of the state, and requiring the indorsement to be made by the state board of health. This last amendment does not apply to cases where physicians have prior thereto by complying with the previous enactments on the subject, entered upon the practice of their profession, and affects only those who have failed to comply with the provisions of the former statute, or who, since the passage of the act of 1890, have commenced the practice without complying with its provisions. If Driscoll, who seems to have been practicing his profession before the act of 1890 was passed, had complied with the law in existence prior to that time, his right to practice could not be questioned. The act of 25th of April, 1890, is not retroactive, nor should such a construction be given it. He produces a diploma from the Starling Medical College, located in the state of Ohio. It is agreed that it is a chartered institution, and a reputable college. In the month of March 1889, he registered in the Jefferson county clerk's office by presenting his diploma with the indorsement of one Kalfus, who was the secretary of the board of regents, Kentucky School of Medicine. Kalfus had no authority to...