Cutty v. Carson

Urner, J., delivered the opinion of the Court. The petition filed by the appellant’ in the Court below lecites that the Act of 1914, Chapter 786, providing for a ²⁷ State Board of Osteopathic Examiners and for the examining, licensing and registration of osteopaths in this State, includes a provision that nothing in the statute should he construed to affect the right to practice osteopathy on the part of any person who was engaged in such practice in Maryland at the time of the approval of the Act and to whom there had been granted a diploma from a legally incorporated and reputable college of osteopathy, but that such a person appearing before the Clerk of the Circuit Court of the county in which he or she was practicing, or before the . Clerk of the Circuit Court of Baltimore City, and making affidavit to that effect, and upon the payment of a fee of one dollar, should he registered. It was then alleged that the petitioner, being in the practice of osteopathy in this State at the time of the approval of the Act of 1914, and having so practiced for more than two years, and enjoying a large, successful and lucrative practice, and being a graduate of, and having a diploma from the Maryland College of Osteopathy, a body corporate under the laws of Maryland, duly authorized by its charter to issue such diploma, made application to the Clerk of the Circuit Court of Baltimore City to be registered under section 9 of the Act of 1914, and tendered himself ready and willing to make the affidavit and pay the fee required by that section, but the clerk refused to let the petitioner make the affidavit or to register him as provided by law.

The prayer of the petition is that the writ of mandamus may issue directing the clerk to duly register the petitioner as an osteopath upon his making the affidavit and paying the fee specified in section 9 of the Act. A demurrer to the petition was filed by the defendant, and upon this there was a joinder of issue. The Court below sustained the demurrer and dismissed the petition. Erom the order thus disposing of the case the petitioner has appealed.

The question we are to decide involves the construction of Chapter 186 of the Acts of 1914, codified as sections 290 and ²⁸ 303, inclusive, of Article 43., of the Annotated Code, in so far as the provisions of the statute are concerned with the rights of osteopaths in the situation of the appellant. The first six sections of the Act deal with the appiontinent, qualifications, tenure, powers, duties and compensation of the Board of Osteopathic Examiners. Then follows, in section 296, a provision that any person who was engaged in the practice of osteopathy in this State at the time of the approval of the Act might deliver to the secretary of the Board of Examiners, on or before June 15, 1914, a written application for license to practice osteopathy, together with satisfactory proof that the applicant is not less than twenty-one years of age, is of good moral character, and has obtained a diploma from some legally incorporated reputable osteopathic college, requiring a course of study and personal attendance of at least four terms of five months each for graduation, and that upon payment of a fee of ten dollars the secretary of the board should issue to the applicant a license to practice osteopathy in this State. Section 297 provides that from and after the approval of the Act (which occurred on April 13, 1914), any person not theretofore authorized to practice osteopathy in Maryland, and desiring to enter upon such practice, may deliver to the secretary of the Board of Examiners, upon the payment of a fee of twenty-five dollars, a written application for examination, together with satisfactory proof that the applicant is more than twenty-one years of age, is of good moral character, has obtained a preliminary education as later described in the Act, and has received a diploma conferring' the degree of doctor of osteopathy from some legally incorporated reputable osteopathic college, wherein the course of instruction consists of at least three separate years of not less than nine months in each year.

There are additional provisions in section 297 covering the educational requirements in cases of applicants who receive their degrees after January 1, 1917, and those who were graduate practitioners ²⁹ of osteopathy in other States of April 13, 1914. In the same section the subjects and standard of the examinations are prescribed, and it is directed that the board shall issue to each applicant who shall pass the examination and be adjudged duly qualified a license to practice osteopathy as provided in a later section. In section 298, which is the same as section 9 of the statute as enacted, there is a definition of the term “reputable” as previously applied in the Act to schools and colleges of osteopathy from which applicants are required to have diplomas. The section then provides: “that nothing in this sub-title (Act) shall be construed to affect the right to practice osteopathy, on the part of any person who is in the practice of osteopathy within this State on April 13, 1914, and who has had granted unto him or her a diploma from any legally incorporated and reputable college of osteopathy.

Such a person appearing before the clerk of the county in which he or she is practicing, or clerk of the Circuit Court of Baltimore City, and making affidavit to that effect, and upon the payment of a fee of one dollar shall be registered.” Section 299 regulates the issuance of licenses in Maryland to applicants who have been examined and licensed in other States, and contains a provision that: “Any person receiving a license from said board shall file the same at once with the clerk of the Circuit Court of the county in which he or she may reside, or with the clerk of the Circuit Court of Baltimore City, if said person shall reside therein, and it shall be the duty of said clerk to register the name of said person and of the president of the board signing said license in a book kept for the purpose, as a part of the records of his office.” In case of the permanent removal of the licensee to another part of the State, the license, or a certified copy, is required to be filed at once with the clerk of the Circuit Court of the county or city to which the practitioner shall have removed. A fee of fifty cents is directed to be paid for such registration of licenses. ³⁰ Osteopathy is defined in section 300, which also declares it to he a misdemeanor, punishable as specified, for any person unlawfully to procure himself to be registered as an osteopath “either by false and untrue statement contained in his or her application to the clerk of the Court, as required by this sub-title, or by presenting to said clerk a false or untrue license, or one fraudulently obtained by false and fraudulent statements made to said Board of Osteopathic Examiners.” By section 301 osteopaths are made subject to all State and municipal regulations relating to the control of contagious diseases. Section 302 provides that: “From and after April 13, 1914, no person shall enter upon or continue the practice of Osteopathy in the State of Maryland unless he or she has complied with the provisions of this sub-title, and shall have exhibited to the clerk of the Circuit Court of Baltimore City, or the clerk of the Circuit ■ Court of the county in which he or she desires to practice osteopathy, a license duly granted to him or her, as hereinbefore provided, whereupon he or she shall be entitled, upon the payment of one dollar, to be duly registered in the office of the clerk of the Circuit Court of Baltimore City, or the clerk of the Circuit Court of the county; and any person who shall practice or attempt to practice osteopathy * * * without having first obtained the license herein provided for, or contrary to the provisions of this' sub-title * * * shall be deemed guilty of a misdemeanor,” .and upon conviction be subject to stated penalties. The final section, 303, directs the State Board to refuse or revoke licenses in cases where the applicant or licensee has been convicted of procuring, aiding or abetting a criminal abortion, and authorizes the board to. refuse, revoke or suspend the tight to practice osteopathy in this State for other specified reasons.

It is further provided that: “Any citizen of Maryland having information which causes him to believe that any ³¹ person has been heretofore wrongfully and improperly registered as osteopath, upon his application to the clerk of any Court, may apply, by petition, to the Circuit Court of the county wherein such registration was made, or to the Circuit Court of Baltimore City, if such registration was in Baltimore City, which petition shall be under oath, and shall state that the petitioner is informed and believes that the person named therein has been heretofore improperly and wrongfully registered as osteopath upon his own application and affidavit upon the register of osteopaths or book kept for such purpose in any Court of this State, for the reason (as said petitioner is empowered) that such person was not lawfully practicing osteopathy in the State of Maryland as a duly qualified osteopath in said State entitled to be registered as an osteopath upon his own application to the clerk of the said Court.” Provision is made for the trial and determination of the charge thus preferred. The section makes it the duty of the Police Commissioners of Baltimore City, and of the sheriffs of the various counties, to see that all practicing osteopaths in the State shall be duly registered according to the requirements of the Act. There are certain objects contemplated by the provisions to which we have thus referred as to which there can be no controversy. It is the evident purpose of the Act that all practitioners of osteopathy in this State shall be registered.

The intent is clear also to prohibit the practice of osteopathy except by graduates of institutions having the corporate char- • acter and affording the courses of study designated. These requirements apply as well to those who were in