who habitually holds himself out for the practice of the profession;8 and it is immaterial whether the services rendered during such period were gratuitous or for compensation;85 and the practice is usually required to have taken place before the act took effect.86 When the statute also provides for the refusal or revocation of certificates for incompetency, the applicant is not ipso facto entitled to a certificate on proof of the requisite period of practice; the board may inquire as to his competency, and refuse a certificate for palpable incompetency.87 But power to refuse or revoke certificates for dishonorable or unprofessional conduct applies only to applicants admitted on examination or certificates of the board, and not to those seeking admission on the ground of previous practice under statutes by which they are not regarded as having been licensed by the board, but by the statutory enactment itself.88 Whenever application is made for a certificate of admission to practise, on the ground that the applicant has practised medicine for the required period, the regent or board must determine whether the applicant is a physician or surgeon, and whether he was engaged in the practice at the time and for the period required; and, in performing its duty, the regent or board acts in a

"Hart v. Folsom, 70 N. H. 213, 47 Atl. 603. And see Queen v. General Council of Medical Education [1897] 2 Q. B. 203, 66 L. J. Q. B. N. S. 588, 76 L. T. N. S. 706, 46 Week. Rep. 2; Pacquin v. State Bd. of Health (R. I.) 33

Atl. 870.

Proof that a person, alleged to have practised as a physician, gave a bottle of medicine to a person, together with contradictory evidence pro and con as to other acts of practice, is not sufficient to show practice of five consecutive years, which would entitle him to a license. Ranald v. State (Tex. Crim. App.) 47 S. W. 976.

In a statute prohibiting any person from practising medicine or surgery without a certificate of qualification, but providing that it shall not apply to any physician who has practised in the state for the past five years, the words "any person practising medicine or surgery" and "any physician" refer to one of the same class of persons, and are used interchangeably. Harrison v. State, 102 Ala. 171, 15 So. 563.

Wert v. Clutter, 37 Ohio St. 347.

State v. Wilson, 62 Kan. 621, 52 L. R. A. 679, 64 Pac. 23; Chicago v. Honey, 10 Ill. App. 535. And see Maddox v. Boswell, 30 Ga. 38; Com. v. Wasson

(Pa.) 3 Crim. L. Mag. 726. Contra, Wert v. Clutter, 37 Ohio St. 347.

And the rule is the same though the practice was in another state. State v. Wilson, 62 Kan. 621, 52 L. R. A. 679, 64 Pac. 23.

But only those physicians and surgeons who were in practice in the state when the act was passed are entitled to registration under a statute conferring the right upon every person who was a practitioner of medicine and surgery in the state prior to the passage of the act. Hart v. Folsom, 70 N. H. 213, 47 Atl. 603. But see State v. Francis, 8 Mo. App. 584, Appx.

State v. Mosher, 78 Iowa, 321, 43 N. W. 202; State ex rel. Burroughs v. Webster, 150 Ind. 607, 41 L. R. A. 212, 50 N. E. 750.

88 Williams v. People, 121 Ill. 84, 11 N. E. 181.

And an applicant for admission to practise medicine is entitled to be heard on an investigation as to his conduct, before being refused a certificate upon the ground that he was guilty of unprofessional and dishonorable conduct. State ex rel. Powell v. State Medical Examining Board, 32 Minn. 324, 50 Am. Rep. 575, 20 N. W. 238.

judicial capacity, and is bound to receive and consider all evidence legally bearing upon the questions.89 And, in order to be exempt from the penal provisions of such acts, proper evidence of the previous practice must have been presented to the board by the applicant, and a certificate obtained.90 These provisions do not confer illegal special privileges on persons who have previously practised; and they are superseded by subsequent general legislation requiring an examination by a medical board."

92

443. License from another state. Each state acts independently in the matter of licensing the practice of medicine; and the recognition by one state of a previous qualification to practise medicine does not carry with it a vested right to practise in another state. 93 But where licenses are issued to physicians or surgeons holding licenses from medical boards in other states requiring substantially the same acquirements, the board or council is entitled, before issuing a certificate, to exercise its judgment and discretion on the question as to the similarity of the acquirements. A provision in a statute, however, that nothing therein contained shall affect the rights and privileges of persons holding certificates issued to them prior to that act, refers to certificates issued by the board of that state, and does not apply to a certificate from a board of another state.95 And a statutory provision giving a state board of medical examiners jurisdiction for certain purposes over persons coming into the state, only applies to persons coming into the state with a view to engage in the practice of medicine or surgery relying upon a diploma obtained elsewhere,

603.

Hart v. Folsom, 70 N. H. 213, 47 Atl.

State v. Mosher, 78 Iowa, 321, 43 N. W. 202.

And a physician seeking to recover for medical services, under a statute prohibiting practising without a license, but excepting persons who have received a diploma from any regularly constituted medical institution, and who have engaged in the practice of medicine within two years previous, must, if he has no license, bring himself within both provisos by proving, not only the possession of a diplom, but that he has engaged in the practice within two years previous. Hill v. Boddie, 2 Stew. & P. (Ala.) 56.

Williams v. People, 121 Ill. 84, 11 N. E. 881.

"Allopathic Medical Examiners

Fowler, 50 La. Ann. 1358, 24 So. 809; State Bd. of Health v. Ross, 191 Ill. 87. 60 N. E. 811.

Allopathic Medical Examiners Fowler, 50 La. Ann. 1358, 24 So. 809. "Ludwig v. Medical Council, 2 Dauphin Co. Rep. 243. And see E parte Gerino (Cal.) 77 Pac. 166.

And the certificate of the secretary of a medical board of another state, which board had issued a license to a physician, alleging that the standard of acquirement adopted by that state was essentially the same as that adopted in another, is not conclusive on the ques tion of the issue of a license to the phy sician thereon in the latter state. Lud wig v. Medical Council, 2 Dauphin Co. Rep. 243.

V. 619.

Knowles v. State, 87 Md. 204, 39 Atl.

and not to residents of the state who have obtained a diploma elsewhere and returned to the state." 96

444. Registration.-Probably for protection of the public against pretenders and empirics not authorized to practise medicine, certificates authorizing the practice of medicine are frequently required to be registered or recorded in some public office. The registry under such a requirement is a public record under the control of the courts;97 and, as a general rule, a registration in the county of one's residence, and where he intends to practise, authorizes him to practise anywhere in the state.98 And the requirement applies to all desiring to practise, without reference to the source from which authority to do so was obtained;99 and it is mandatory, and not directory, so that a license is not efficacious without compliance.100 And where the purpose of the statute is to confine the practice of medicine to graduates of institutions of accredited repute, and a saving clause permits another designated class of persons to continue in the business provided they register within a designated time, a failure upon the part of one of such class to register within the designated time deprives him of the right to future registration, and of his right to

"State ex rel. Robbs v. Talley, 28 S. C. 589, 6 S. E. 824.

Where an applicant for permission to practise medicine presents himself with a diploma from another state, without the indorsement required by law, he has no authority to inquire into the validity of the reasons of any medical institution for refusing to indorse the diploma; it is enough for him to justify a refusal to register if no indorsements appear. Re Bauer (Pa.) 3 Cent. Rep. 157, 4 Atl. 913.

"Re Campbell, 197 Pa. 581, 47 Atl. 860.

The court of common pleas has jurisdiction to strike out a name improperly registered. Ibid.

See Martino v. Kirk, 55 Hun, 474, 8 N. Y. Supp. 758; Fishblate v. McCullough, 9 Pa. Super. Ct. 147; Com. v. Townley, 22 Pa. Co. Ct. 11.

But the mere fact of a person being registered by the county clerk in the medical register is not conclusive of his authority to practise medicine, the authenticity and validity of his diploma, as well as the verity and sufficiency of the facts stated in his affidavit as to the length of time practised, may be called in question. Hargan v. Purdy, 93 Ky. 424, 20 S. W. 432.

"Dogge v. State, 17 Neb. 140, 22 N. W. 348.

But a statutory provision that a practitioner must either have been licensed in the manner therein provided, or have had a degree, and that a person licensed to practise physic or surgery shall deposit a copy of such license, requires the deposit in case of a license only, and does not require it in case of a degree. Wright v. La..ckton, 19 Pick. 288.

100 Nicholson v. State, 100 Ala. 132, 14 So. 746.

A statute requiring every person engaged in the practice of dentistry to cause his name and residence or place of business to be registered within six months from the date of the passage of the act refers to the date when it went into effect, and not to the date of its approval. Patrick v. Perryman, 52 Ill. App. 514.

A law making a physician's certificate conclusive as to the right of the holder to practise medicine, but providing, further, that every such person shall have his certificate recorded in the of fice of the clerk of the county in which he resides, does not make the recording a condition precedent to the right to practise medicine, or recover compensa

practise, without reference to his qualifications.1 A physician duly registered in the district of his own residence and practice, however, is not bound to register in another district before he can answer a call for his services in the latter district, when he does not make a business of practising in it. And an inadvertent registration in a wrong place or office of a certificate or license authorizing the licensee to practise medicine, under a statute requiring such registration, falls within general statutes providing that a subsequent registration shall make valid a previous imperfect registration, so that a subsequent registration would be a defense in an action for a penalty for failure to register. But to obtain such subsequent registration, the physician must submit satisfactory proof that he had all the requirements prescribed by law at the time of the imperfect registration. And one who, having duly qualified and performed all the conditions upon his part, practises, laboring under the mistake that his certificate has been filed for record, cannot be held criminally responsible for practising illegally, where the mistake was that of another, and did not arise from a want of proper care upon his part.5

3

445. Locality and duration.-The granting of a license to practise medicine, etc., is a state matter, and, as a general rule, the locality within which the license may be acted upon is coextensive with the state; and though there are several boards in a state, a license from any board entitles the licensee to practise anywhere in the state, in the absence of statutory restriction. In some of the states, however,

tion for his services rendered in such practice. Riley v. Collins, 16 Colo. App. 280, 64 Pac. 1052.

'Re Wadel, 25 Pa. Co. Ct. 60. Riley v. Collins, 16 Colo. App. 280, 64 Pac. 1052.

"New York v. Bigelow, 13 Misc. 42, 34 N. Y. Supp. 92.

And the registration of a regent's certificate, under a statute providing that, if any person whose registration is not legal because of some error, misunderstanding, or unintentional omission, shall submit satisfactory proof that he had all the requirements prescribed by law at the time of his imperfect registration, and was entitled to be legally registered, he may, on unanimous recommendation of the state board of medical examiners, receive from the regents a new certificate of the facts, which may be registered, and so make valid the previous imperfect registration,-validates the previous registration from the date of its filing, and wipes out all liabilities to prosecution for misdemeanors

committed by one practising during the time of imperfect registration, and renders legal the practitioner's contracts of employment. Ottaway v. Lowden, 172 N. Y. 129, 64 N. E. 812.

New York v. Bigelow, 13 Misc. 42, 34 N. Y. Supp. 92.

'Pettit v. State, 28 Tex. App. 24, 14 S. W. 127; Price v. State, 40 Tex. Crim. Rep. 428, 50 S. W. 700; Parish v. Foss, 75 Ga. 439.

And a conviction cannot be had, under a statute making it an offense to practise medicine without a license or diploma or certificate of qualification, or by one not a regular graduate of a medical college in the state, having had his diploma legally recorded, against a physician who had obtained a diploma from a medical college in another state, although he had not had it recorded in the county in which he practised. Stough v. State, 88 Ala. 234, 7 So. 150.

'Derrick v. State, 34 Tex. Crim. Rep. 21, 28 S. W. 818. And see Martino v. Kirk, 55 Hun, 474, 8 N. Y. Supp. 758;

a license is good only in the county of the licensee's residence. And, as a general rule, a license to practise is permanent unless revoked;8 but in some of the states a provision exists for the granting of temporary certificates to entitle physicians, etc., to practise until the next regular meeting of the board, under which the power of the board is exhausted upon the granting of one such license.10 But a statutory provision permitting a single member of the board of physicians to grant temporary licenses to applicants to practise medicine, such temporary licenses to continue until the next meeting of the board, does not confine a member of the board to the granting of a single license, but permits the granting of successive licenses; and a physician to whom such successive licenses have been granted is duly licensed and entitled to recover compensation for his services as such.1 11

446. Regulation of itinerants.-A number of states have statutory enactments intended to prevent itinerant physicians from going from county to county and practising medicine, or anyone from traveling from county to county vending drugs, nostrums, or appliances of any kind intended for the treatment of diseases or injuries, except on payment of a special tax.12 Such provisions are not unconstitutional;13 but they apply only to persons traveling from place to place,

Fishblate v. McCullough, 9 Pa. Super. Ct. 147; Com. v. Townley, 22 Pa. Co. Ct. 11, 7 Pa. Dist. R. 413.

'Orr v. Meek, 111 Ind. 40, 11 N. E. 787; Hilliard v. State, 7 Tex. App. 69.

Where a statute provides that a certificate issued by the board, when presented to the proper clerk, shall entitle the holder to a license to practise in the state, and upon presentation of the certificate to the clerk of the county in which the applicant resides, he shall receive a license to practise, if the practitioner changes his residence from one county to another, he must obtain a new license in the county where he proposes to reside. Mayfield v. Nale, 26 Ind. App. 240, 59 N. E. 415.

See McPherson v. Cheadell, 24 Wend. 15. Atty. Gen. v. Royal College of Physicians, 1 Johns. & H. 561, 7 Jur. N. S. 511, 4 L. T. N. S. 356, 30 L. J. Ch. N. S. 757, 9 Week. Rep. 590.

than one temporary certificate to the same person, is not to be taken as a legislative construction of a previous act to the effect that under it the issue of the second or third temporary certificate was warranted. Ibid.

7

"Wragg v. Strickland, 36 Ga. 559. 12 See State v. Ragland, 31 W. Va. 454, S. E. 424; People use of State Bd. of Health v. Blue Mountain Joe, 129 III. 370, 21 N. E. 923; Snyder v. Closson, 84 Iowa, 184, 50 N. W. 678; State v. Bair, 92 Iowa, 28, 60 N. W. 486; State ex rel. Wynne v. Lee, 106 La. 400, 31 So. 14; Moore v. Bradford County, 148 Pa. 343, 23 Atl. 896; Com. v. Townley, 22 Pa. Co. Ct. 11; Hairston v. State, 36 Tex. Crim. Rep. 470, 37 S. W. 858.

The requirement in Pennsylvania of a license fee of $50 of a physician opening a transient office in one of the counties was repealed by the act of June 8, 1881. Peebles v. Wayne County, 10 Pa.

'See Peterson v. Seagraves, 94 Tex. Co. Ct. 69. 390. 60 S. W. 751.

10 Ibid.

And the passage of an act regulating the practice of dentistry and pharmacy, expressly forbidding an issuance of more VOL. III. MED. JUR.-27.

13State v. Bair, 92 Iowa, 28, 60 N. W. 486; State use of Iowa Commission of Pharmacy v. Gouss, 85 Iowa, 21, 51 N. W. 1147; People use of State Bd. of Health v. Blue Mountain Joe, 129 III.