Department of Health v. Owen , 88 N.Y.S. 184 ( 1904 )

Laughlin, J.

(dissenting):

I am of opinion that the Legislature intended to make it the duty of a physician not only to make out and keep a register of the births he has attended professionally, but also to' see to it that a copy of the entry in such register concerning a birth reaches the department of health within ten days. Of course it is not necessary that he should present it in person. He may employ the mails or any agency for the purpose of transmission; but, in that event, he-must by inquiry or otherwise ascertain that it has reached its proper destination within the time prescribed therefor by the statute. The language employed is fairly susceptible of this construction and the efficiency of the statute requires it. The construction given- in the prevailing opinion opens the door to collusion' and corruption and will render the law ineffectual. Physical or mental inability to comply with the law would doubtless be a defense to a prosecution for the penalty ; but in the absence of such disability it was clearly competent for the Legislature to require an individual practicing a profession requiring a license to perform, as a condition of his right to practice his profession, an act manifestly justified by public policy and essential to the enforcement of the criminal laws and to the establishment, preservation and enforcement of ■ personal and property rights. This construction of the statutes relating to the filing of certificates of births, marriages and deaths will not impose an onerous burden upon the practitioner who wishes to comply with the law. If he sends the certificate through the mail or otherwise than by a personal delivery, he may readily 'ascertain by telephonic communication whether it has been received, and there should be no difficulty in having an understanding with the department of health that the receipt of such certificate will be timely acknowledged. The reputable, careful practitioner will take pride in observing the law. The penalty was only necessary to compel compliance by the disreputable and negligent members of the profession. It is no refltection on the medical profession, the great body of whom are conscientious upright citizens, to say that in it as in all other professions there are unfortunately some who could for a sufficient consideration be induced to omit filing a certificate of death, marriage or birth. The construction I have indicated will remove this temptation and will naturally insure the accuracy and completeness of the official records.

• Determination of Appellate Term affirmed, with costs.