Towle v. Marrett

• Decision Date: 01 May 1824
• Parties: TOWLE v. MARRETT
• Court: Maine Supreme Court

3 Me. 22

TOWLE v. MARRETT

Supreme Judicial Court of Maine, Cumberland

May, 1824

[Syllabus Material]

IN a writ of Error coram vobis to reverse a judgment of the Court of Common Pleas, the question was, whether a licensed physician might now maintain assumpsit for his fees, without having deposited a copy of his license with the town clerk of the town in which he resided, agreeably to Stat. 1817 ch 131?

The Statutes on this subject were as follows.

By Stat. 1817, ch. 131, it was required that persons commencing the practice of medicine after July 1, 1818, should first be licensed by some medical society, or college of physicians or by three fellows of the Massachusetts Medical Society; or have received a medical degree at some college; --and by Sec 3. it was enacted that any person who might be thereafter licensed to practice physic should deposit a copy of his license with the clerk of the town where he might come to reside; --on pain of being debarred the benefit of law to recover his fees.

By Stat. 1818, ch. 113, persons commencing the practice after July 1, 1819, were first to be licensed by the Massachusetts Medical Society, or to receive the degree of doctor of medicine at Harvard University; --the counselors of the Massachusetts Medical Society were directed to appoint five examiners in each District; --the State was divided into five districts, Maine being one; --and all matters and clauses in the former act, " which are contrary to the provisions of this act," were repealed.

By Stat. 1819, ch. 161, separating Maine from Massachusetts, all the laws which should be in force in Maine on the fifteenth of March 1820, were to remain in force,--" such parts only excepted as may be inconsistent with the situation and condition of said new State, or repugnant to the constitution thereof."

By the Statute of Maine, passed March 8, 1821, [Private Statutes ch. 56.] the Medical Society of Maine was established, with power to examine students in medicine, and to license all who should be approved; which examination should not be refused to any candidate under the penalty of a sum not exceeding one hundred dollars, to his use.

And by Stat. 1821, ch. 180, [passed March 21,] the laws of Massachusetts which had been revised, or re-enacted, were repealed so far as it respects this State; but among the acts thus repealed, the titles of which are all recited in the repealing act, the above mentioned Statutes were not enumerated.

The plaintiff in error, who was also original plaintiff, was licensed by the New-Hampshire Medical Society in September 1819, soon after which he came to reside in this State, but did not deposit a copy of his license with any town clerk; and was never licensed by any other society, nor received the degree of doctor of medicine. The services were performed in April 1822.

Judgment reversed.

Fessenden and Deblois, for the plaintiff in error, contended that the Stat. 1817, ch. 131, was repealed. Its first sections, they said, were clearly embraced in the provisions of the law of 1818; --and the third was repealed by implication, in subsequent enactments. The Massachusetts Medical Society never appointed censors in Maine, under the latter statute, because the period of separation was at hand, and a just respect for the profession in this State prohibited this exercise of their authority. And after the separation, it was not consistent, nor to be tolerated, that a corporation of another State, over which our tribunals could have no control, should exert its influence over our own citizens and within our own territory. If no society then could grant licenses, no copies need or could be left; --and if there was any one period in which the act could not operate here, it was wholly functus officio as to Maine, and could never be revived but by a new statute.

But if it was not repealed by the separation, yet it was in fact repealed by the statute incorporating the Maine Medical Society; for by this statute the legislature have in general terms regulated the whole practice of physic and surgery within this State, and provided all the sanctions which they have thought necessary, either for the purity of the profession, or for the safeguard of the people.

Greenleaf e contra, argued that the third section of that statute was not repealed.--1. Because the subsequent statute of 1818, ch. 113, does not expressly repeal it; but only repeals all matters and things which are contrary to its provisions; and this language applies only to the first two sections.--2. Because the second statute contains nothing repugnant to the section referred to. 11 Co. 63. 64. 5 Com. Dig. tit. Parliament R. 9. Capen v. Glover, 4 Mass. 305. Pease v. Whitney, 5 Mass. 382. --3. Because the second act is not a revisal of the whole subject matter of the first. The subsequent statutes only regulate the mode of obtaining the license. What should be done with it when obtained, remains fixed by the first statute alone. Bartlett v. King, 12 Mass. 545. Rex v. Cator, 4 Burr. 2026. Goodenow v. Buttrick, 7 Mass. 143.--4. The separation act does not repeal it, because it was not " inconsistent with the situation and condition of the new State." A candidate might be licensed in any county of Massachusetts, after as well as before the separation; and it could never be derogatory to this State to avail itself of the aid of a respectable society in the parent State, till it could...