Towle v. Marrett , 3 Me. 22 ( 1824 )

Mellen C. J.

delivered the judgment of the Court.

The statute of 1817, ch. 131, denies the right of action to no surgeon or physician if licensed by any medical society. The Skat. 1818, ch. 113, denies such right to all not licensed hy the Massachusetts Medical Society, or honored with the degree of Doctor of Medicine from Harvard University ; and repeals the provisions on this subject in the former act; but does not in terms repeal the third section of it, which requires a copy of the diploma to be recorded in the office of the clerk of the town in which such surgeon or physician shall reside. This latter act went into operation from and after July 1, 1819. The plaintiff’s diploma bears date September 1819 ; and therefore it gave him no right to practice as a physician or surgeon in any part of Massachusetts, and enjoy the benefit of legal process to recover his fees or compensation for his services. Hence it follows that it is of no consequence whether the diploma or a copy of it was ever recorded in the office of the town clerk or not ; nor whether the third section of the former statute is repealed or not ; unless, if in force, it has relation to diplomas or letters testimonial granted by the Maine Medical Society, which will presently he considered. If the act of 1818 ch. 113, is now, or at the time the plaintiff’s services were performed, was in force, then this action cannot be supported. It is not repealed by the general repealing act of 1821, ch. 180. If it remained in force after the 15th of March 1820, it was in consequence of the provisions in the sixth section of the act of separation. It is contended that it did not, and could not, after this State became independent, because one of the five medical districts, created by the third section of that act, was composed of those counties of Massachusetts which now form the State of Maine. This objection seems to admit of no satisfactory answer. But supposing it did so remain in force after the 15th of March 1820 ; was it in force when the plaintiff’s services wave performed in 1822, or at any time after March 8, 1821, w'hen the Maine Medical Society was incorporated ? In deciding this question, it is necessary to consider the reasons which occasioned the introduction of the before mentioned provisions into the act of separation. It was evidently designed to prevent the confusion consequent upon a suspension of law, and the injury which would thereby result to the .community and individuals. It was for the purpose of giving time to the legislature of this State to re-enact, modify, or repeal those laws as, on consideration, they should determine most for the interest and best adapted to the situation of the State. Therefore any act of our own legislature, relating to the same subject with a statute of Massachusetts continued in force here by the act of separation, but expressive of sentiments different from those of the legislature of Massachusetts, establishing different principles, and containing provisions deemed better suited to our habits, views, and situation, ought to be considered as a virtual repeal of such act of Massachusetts ; and such an alteration or repeal as was intended in the'saving clause in the act.of separation alluded to. In this manner and on these principles we must construe the act establishing the Maine Medical Society. It was evidently intended to regulate and improve the practice of physic and surgery in this State ; and with this view to establish certain principles and rules [to be observed in medical education, as preliminaries to the obtaining of the letters testimonial of the Society, or a degree of bachelor or doctor of medicine inBowdoin College. In short, it was designed to supersede all legislative provisions which had been enacted in Massachusetts on the subject, and to place it on ground of our own. All'its provisions lead to this conclusion. It contains no clause requiring a copy of the letters testimonial to he recorded in the town clerk’s office ; nor does it attach any legal disabilities to a practitioner who has never obtained-a license, or never recorded it, if obtained, in the manner required by the two acts of Massachusetts. This being a distinct and full expression of the public mind on this interesting subject, we are bound to consider all the pre-existing laws and regulations in relation to it as superseded and at an end. Hence the position of the defendant’s counsel, that the third section of the St at. 1817, c h. 131, is now in force in this State, and that the letters testimonial granted by our own Medical Society must be recorded in the town clerk’s office, to entitle the licentiate to the benefit of legal process for the recovery of compensation for his professional services, cannotbe admitted to have any foundation. The whole spirit of the act incorporating our own Medical Society forbids us to admit the principle contended for. Besides, the very terms of the third section relied on, do not embrace the present case. It speaks only of those licensed to practice in the Commonwealth of Massachusetts ; and the meaning must have been,— licensed by some of the authorities described in that act, or the subsequent statute of 1818, ch. 113.

For these reasons we are satisfied that the judgment is erroneous, and must be reversed ; and a new trial may be had at the bar of this Court.