Manger v. Board of State Medical Examiners
| Decision Date | 15 February 1900 |
| Citation | 45 A. 891,90 Md. 659 |
| Parties | MANGER v. BOARD OF STATE MEDICAL EXAMINERS. |
| Court | Maryland Court of Appeals |
Appeal from court of common pleas; J. Upshur Dennis, Judge.
"To be officially reported."
Application for mandamus by Dr. John F. Manger to compel the state board of medical examiners to issue him a certificate to practice medicine. From an order dismissing the petition, plaintiff appeals. Reversed.
Argued before MCSHERRY, C.J., and PAGE, PEARCE, FOWLER, BOYD, JONES BRISCOE, and SCHMUCKER, JJ.
Howard Bryant, for appellant. E. P. Keech, Jr., Arch. Taylor, J. P Bruns, and Isidor Rayner, Atty. Gen., for appellee.
This is an application for a mandamus to compel the state board of medical examiners to issue to the appellant a permit or certificate authorizing him to be registered as a practitioner of medicine. The court of common pleas ruled against the application, and from the order refusing the writ this appeal was taken. If the appellant was entitled, under the terms of the statute, to the permit or certificate which he demanded, the writ should have been granted. If, on the other hand, he was not so entitled, or if the board of medical examiners or its president is clothed with a lawful discretion to issue or to withhold the permit, then the writ was properly refused. So the inquiry comes to this: Was the board, or the president of the board, bound, under the law, to issue the permit, on the facts alleged and proved? There is a subordinate question arising on the prayers, and that will be disposed of later on.
There has been considerable legislation in Maryland designed to regulate the practice of medicine. The authority of the general assembly to enact it in the exercise of the police power cannot be disputed or denied. That proposition need not be discussed just now, because it will be fully considered in another case argued at this term. The difficulties which confront us in the interpretation of these statutes grow, in a large measure, out of the numerous and successive modifications and changes made in these enactments, and out of an evident want of care in their preparation in the first instance. Indeed, a well-defined system seems to have been lacking at the beginning; and subsequent amendments and additions appear to have been suggested by original imperfections, and to have been devised to overcome unforeseen emergencies. Beginning with the Acts of 1888, c 429, the qualifications of persons to practice medicine were defined. By the first section of that act it was provided that a graduate of medicine, holding a diploma issued by a reputable medical college, was entitled to a certificate from the state board of health, and that certificate was made conclusive of the right of its holder to practice. By section 3 any person not a graduate, but then actually practicing medicine, was permitted to apply to the state board of health for examination, and, if found competent, the board was empowered to issue to him a certificate which gave him the right to practice. A proviso to section 1 expressly declared that the act should not apply to any person who had been practicing medicine continuously within this state for 10 years before the passage of the act. There were, therefore, three classes of persons contemplated by and included in the act of 1888, viz. those who had diplomas, those who had not, and those who had been in actual, continuous practice for 10 years. Persons who had diplomas, but had not been practicing for 10 years, were entitled to certificates upon presentation of their diplomas; persons who had no diplomas, and had not practiced 10 years, were required to be examined; and persons who had practiced 10 years were not within the act, whether they had diplomas or not. Section 1 of the act of 1888, codified as section 39, art. 43, of the Code, was repealed, and a substitute was enacted in its stead by the Acts of 1892, c. 296. This substituted 39th section declared that "every person not now practicing medicine and surgery who shall hereafter begin to practice medicine and surgery *** shall possess the qualifications required by this act." Then follow sections defining these qualifications, and creating two boards of medical examiners, which took the place of the state board of health. The forty-third section shows that the act of 1892 was intended to apply to persons commencing the practice of medicine after the passage of that act. Persons practicing before its adoption were not included within its terms, and were not required to undergo an examination, or to procure a license from either of the boards of medical examiners. After this came the Acts of 1894, c. 217, which, without repealing section 39, as enacted by the act of 1892, declared that "from and after the first day of July, 1894, no person shall practice medicine or surgery in the state of Maryland unless he or she shall be duly registered as a physician or surgeon, in accordance with the provisions of this act." By section 54 every person who was practicing medicine prior to June 1, 1892, was entitled to register as a physician by appearing before the clerk of the circuit court, and filing an application verified by oath; and by section 55 all persons who commenced to practice after June 1, 1892, were declared not entitled to register unless they filed with the clerk of the circuit court a license issued by one or the other of the two boards of medical examiners. The Acts of 1896, c. 194, repealed section 54, and in lieu of the privilege which every person who had been practicing prior to June 1, 1892, possessed, to register simply upon application to the clerk of the circuit court, substituted a requirement that all such persons "shall be entitled to be registered" upon making application to one of the two boards of medical examiners, provided the president of the board applied to should be satisfied that the applicant was a "duly qualified lawful practitioner of medicine in good standing, actually engaged in the practice of such profession in said state, on or before said first day of June, 1892"; and the proviso to the same section declared that the act should not be applicable to persons who had practiced medicine prior to June 1, 1892, and who had registered prior to July, 1894. Section 62 defines, or attempts to define, the meaning of the terms "practicing medicine" and "practitioner of medicine," and is in these words: This is the section which causes the trouble in the pending case. What does it mean?
If we bear in mind that the whole scheme devised by the act of 1888 was swept away by the act of 1892, and that the latter act was specifically made applicable to persons not then practicing medicine, but who should thereafter begin to practice, as sections 39 and 43 of article 43 of the Code make manifest and if we remember that these very sections of the act of 1892 are still on the statute book and still of full force, it becomes obvious that section 62, added by the act of 1896, cannot be construed in a way to make it antagonize these antecedent provisions, if any other reasonable interpretation can be placed upon it. It is a rule of very general application that statutes should be read so as to harmonize their various provisions, and so as to give effect to all their parts, if that be possible, rather than in a way to defeat or nullify any portion of them. Laying out of view the repealed scheme of 1888, the first provision, requiring a person who had practiced medicine prior to June 1, 1892, to procure a license from the board of examiners, was in the act of 1896. That provision does not supersede sections 39 and 43, as enacted by the act of 1892. Under the act of 1896 a person who had practiced prior to June 1, 1892, in a way that the term "practicing medicine" is defined or attempted to be defined in section 62, transcribed above, was entitled to a license, if he satisfied the president of the board of examiners that he had been engaged in practice as a means of livelihood prior to June 1, 1892. The difficulty presented by section 62 arises out of its punctuation. As printed, the section contains two sentences. The second sentence, separated by a period from the first, is utterly unintelligible. Obviously, it was not intended to read as it does read. The period after the word "registered," and the capital letter "I" following, break into two sentences what was evidently designed to be but one sentence. If the period be changed to a comma, and the capital "I" to a small "i," some meaning is given to the last clause of the section, and the whole section is made to harmonize with the general scheme of the legislation of which it forms a part. Can such a change be made? Neither bad grammar nor inaccurate punctuation can alter the obvious sense of a legislative enactment. This is necessarily so. The statutes in England are not punctuated in the original rolls, but more or less marks of punctuation appear in them as printed by authority. With us, the punctuation is the work of the draftsman, the engrosser, or the printer. In the legislative body the bill is read, so that the ear, not the eye, takes cognizance of it. Therefore the punctuation is not, in either country, of controlling effect in the...
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