Hart v. Folsom

• Decision Date: 16 March 1900
• Citation: 70 N.H. 213,47 A. 603
• Parties: HART v. FOLSOM.
• Court: New Hampshire Supreme Court

47 A. 603

70 N.H. 213

HART

v. FOLSOM.

Supreme Court of New Hampshire. Hillsboro.

March 16, 1900.

since the applicant must have been in the practice at the time of the passage of the act to come within the provision of the statute.

2. Where relator applied for a certificate to practice medicine under an act of the legislature requiring the licensing of physicians, he is estopped, in mandamus to compel the issuance of such certificate, to question the constitutionality of the statute.

3. Mandamus will not lie to compel the regent of the board of medical examiners to issue a certificate to practice medicine, since in issuing such certificate he acts in a judicial capacity, and cannot be compelled to decide an application in a particular way.

Petition by Thomas H. E. Hart for writ of mandamus to compel Channing Folsom to issue the relator a certificate to practice medicine. Case discharged.

William J. McKay, for plaintiff.

Edwin G. Eastman, Atty. Gen., for defendant.

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 show or tend to show that the person using the same is a practitioner of any of the branches of medicine) in New Hampshire, after September 1, 1897, unless previously registered and authorized, or unless licensed and registered as required by this chapter." Laws 1897, c. 63, § 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 $10, and submits satisfactory evidence, under oath, if required, that he is 21 years of age, and of good moral character; that he is a college graduate, or has completed a course 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 four years, including a course of at least six months in each year, in a medical college of satisfactory standing; and that he has received the degree of bachelor or doctor of medicine from a medical school, or a diploma or license conferring the right to practice medicine in some foreign country. Section 8 requires the boards to furnish to the regent questions for thorough examinations in anatomy, physiology, hygiene, chemistry, surgery, obstetrics, pathology, diagnosis, and therapeutics, including practice and materia medica, from 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 requires the regent to issue a license to the candidate if he successfully passes the examination and is recommended for a license. Section 13 provides that "every person who is a practitioner of medicine and surgery 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 practice 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 act, liable to punishment.

The defendant is regent. June 14, 1899, the plaintiff applied to him for registration and a certificate, and tendered the prescribed fee. He furnished statements of three residents to the effect that he attended them as a physician prior to the passage of the act, and a certificate of the city clerk of Manchester that the plaintiff certified to a death in 1896. His application 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...