
    Wert v. Clutter.
    1. Under the act of May 5, 1868 (65 Ohio L. 146), to protect the citizens of Ohio from empiricism, it is not unlawful for a person of good moral character to practice medicine and surgery for reward or compensation, who has been engaged in the continuous practice for ten years or more.
    2. Such ten years of continuous practice may embrace time since, as well as before, the taking effect of said act.
    3. It is immaterial whether the services rendered during such period of practice were gratuitous or for compensation.
    Error to the District Court of Crawford County.
    The original action was brought by T. IT. B. Clutter, defendant in error, against David Wert, plaintiff in error, to recover for services rendered by the plaintiff as a physician and surgeon, at the request of the defendant. The plaintiff alleged that at the time of rendering the services, to wit, on and after March 17, 1874, he was a person of good moral character and had been continuously engaged in the practice of medicine for a period of ten years and more, &c. These allegations were denied by the defendant.
    On the trial in the court of common pleas, the plaintiff offered testimony tending to prove the rendition of the services as alleged in his petition, and that previous to such services he had been continuously engaged in the practice of medicine for more than ten years, but it was not claimed that he had been so engaged for a period of ten years before October 1, 1868: and it was also admitted on the trial, that at the time the alleged services were performed by the plaintiff, for the defendant, on the said 17th day of March, 1874, he the said plaintiff had not attended two full courses of instruction and graduated at some school of medicine, either of the United States or some foreign country; that he did not have and could not now produce a certificate of qualification from any state or county medical society; and that he then was, and now is, a person of good moral character.
    Whereupon the defendant, by his counsel, asked the court to charge the jury: “ That in order to recover in this case, the plaintiff must satisfy the jury by a preponderance of evidence,’ that prior to the time the alleged services were performed by plaintiff, as alleged in his petition, that he, the said plaintiff, had attended two full courses of instruction and graduated at some school of medicine either of the United States or some foreign country; or could produce a certificate of qualification from some state or county medical society; or, that prior to October 1, 1868, he had been continuously engaged in the practice of medicine for a period of ten years.” Which instructions the court refused to give to the jury, but did charge the jury that, “ If the plaintiff had been continuously engaged in the practice of medicine, for a period of ten years prior to rendering the services alleged in his petition, and if the services were performed at the request of the defendant;, under a promise of the defendant to pay him therefor, he will be entitled to recover what the testimony shows the services were reasonably worth, with interest.” To which refusal to charge as requested, and to the charge as given, the said defendant excepted.
    A verdict and judgment' were rendered for the plaintiff, which judgment was afterwards affirmed by the district court.
    This proceeding is prosecuted to reverse the judgments below.
    
      Finley & Swigart and S. R. Harris, for plaintiff in error.
    
      Nathan Jones, for defendant in error.
   McIlvaine, J.

The only questions for decision in this ease arise on the statute of May 5, 1868 (65 Ohio L. 146), which is as follows: An act to protect the citizens of Ohio from empiricism, and elevate the standing of the medical profession.” “ Section I. “ That it shall be unlawful for any person within the limits of said state, who has not attended two full courses of instruction and graduated at some school of médicine, either of the United States or some foreign country, or who cannot produce a certificate of qualification from some state or county medical society, and is not a person of good moral character, to practice medicine in any of its departments for reward or compensation, or attempt to practice medicine, or prescribe medicine or medicines, for reward or compensation, for any sick. person in the said state of Ohio; provided that in all cases when any person has been com tinuously engaged in the practice of medicine for a period of ten years or more, he shall be considered to have complied with the'provisions of this act, and that where persons have been in continuous practice of medicine for five years or more, they shall be allowed two years in which to comply with such provisions.”

“ Section II. Any person living in the state of Ohio, or any person coming into said state, who shall practice medicine, or attempt to practice medicine in any of its departments, or perform or attempt to perform any surgical operation upon any person within the limits of said state, in violation of section one of this act, shall, upon conviction thereof, be fined not less than fifty nor more than one hundred dollars for such offense, and upon conviction of a second violation of this act, shall, in addition to the above fine, be imprisoned in the county jail of the county in which said offense shall have been committed, for the term of thirty days, and in no case wherein this act shall have been violated, shall any person so violating receive a compensation for services rendered; provided, that nothing herein contained shall in any way be construed to apply to any person practising dentistry.

“ Section III. This act shall take effect and be in force on and after the first day of October, 1868.”

The defendant in error claims, that the admission of his good moral character excludes him from the operation of the statute. The letter of the statute sustains this claim, but we think the evident intent of the legislature, being “ to protect the citizens of Ohio from empiricism,” as declared in the title of the act, was to exclude from the profession of medicine and surgery all persons who do not possess both qualifications and character, by making it unlawful for any person who has not the prescribed certificate, or a good moral character, to practice medicine for reward or compensation. In construing the statute in this respect, we must substitute the disjunctive “ or” for the copulative “ and.”

The principal question in the case, however, is: In order to entitle the medical practitioner to a reward or compensation for his services, under the proviso in the first section, must it be shown that the period of ten years of continuous practice elapsed prior to the taking effect of the act, • or is it sufficient to show that the period was complete at the time of rendering the service for which compensation is claimed % By the purview of the first section it is made unlawful for any person to practice medicine or surgery in the state of Ohio for reward or compensation, without having graduated at a school of medicine, or producing a certificate of qualification from some state or county medical society.

The evidence of qualification here prescribed is without limit as to date—it is sufficient that it can be shown to exist at the time when the right to practice is drawn in question. By the proviso, a period of ten years’ continuous practice is made exactly equivalent to the evidence of qualification prescribed in the purview; and there is no reason, as far as the protection of the public is concerned, why a different rule should prevail as to the time when a person may qualify himself for the practice of medicine. If the experience of an empiric, for ten consecutive years before the passage of the act, was sufficient to protect “ the citizens of Ohio ” from the evils to be apprehended from unskilled practitioners, the like experience, after that date, should also suffice. That this was the legislative view is evident from the language of tho proviso: “ That in all cases when any person has been continuously engaged in the practice of' medicine for a period of ten years or more, he shall be considered to have complied with the provisions of thi3 act.” In the opinion of a majority of the court, this proviso is a clear declaration, that whenever the right of a person of good moral character to practice medicine or surgery for reward or compensation, is questioned, such right may then be established by showing, that previous to that time he had been continuously engaged in the practice for ten years or more.

The latter clause of the proviso, “ that where persons have been in continuous practice of medicine for five years or more, they shall be allowed two years in which to comply with such provisions,” does not conflict with this view. We admit that the five years here referred to must antedate the taking effect of the act. But the case here provided for does not exclude the empiric from practicing for reward or compensation during the two years of probation, while the empiric seeking to qualify himself by continuous practice subsequent to the taking effect of the act is debarred from reward or compensation until the whole period of ten years is completed.

It must be observed that this statute does not declare the practice of an empiric, ipsofaoto, unlawful, but only such practice for reward or compensation. The provision in the penal section of the act (section 2) that “in no case wherein this act shall have been violated, shall any person so violating receive a compensation for services rendered,” does not extend the inhibitions of the first section. Hence, for this reason, the judgments below could not be disturbed, as the record does not show that the plaintiff below practiced for reward or compensation, after the passage of the act, until his period of ten years’ continuous practice was complete.

But, a majority of the court do not put their judgment of affirmance on this ground; but on the broader grounds that ten years of continuous practice of medicine, whether before or after the taking effect of the act, and whether for compensation or not, relieves the practitioner from the inhibition im- - posed upon empirics by its provisions. Unquestionably, if such period were devoted to the practice beyond the limits of this state, such practitioner -would not be amenable to the provisions of the statute. True, it may be said that such probationary practice is not in violation of the act; but that circumstance does not add or detract Rom the knowledge or skill which the statute assumes is gained from experience, and which is deemed to constitute the necessary qualification of a practitioner.

We fully appreciate the force of the argument on the other side, that a statute should not be so construed as to create a right in one who acts in violation of its provisions. But that rule of construction does not apply in this case. This statute was not intended to create a right in any one to practice medicine. It was simply intended to prohibit the exercise of the right (which before was universal) by unqualified persons. The right remains in all persons exeejff those from whom it is taken away by the statute, and it is not taken away from a person who, at any time, has been in the continuous practice for ten years or more. Such, we think, is the manifest intent and purpose of the act when considered as a whole, and a manifest purpose cannot be defeated by any general rule of construction.

Judgment affirmed.

White, J.

dissenting. Section 1 of the statute makes it unlawful for any person to practice, or attempt to practice, medicine, for reward or compensation, without having the qualifications therein prescribed. By the proviso two classes of persons are excepted from the operation of the act: (1) persons who lime been continuously engaged in the practice of medicine for a period of ten years; (2) persons who hme been in the continuous practice of medicine for a period of five years. The last named class is allowed two years within which to comply with the prescribed provisions. The second section of the act declares the practice, or attempt to practice, in violation of the first section, an offense, and prescribes the penalty to be not less than $50, nor more than $100. For a second offense, imprisonment is added. The act was passed May 5, and took effect October 1, 1868. Its object is declared to be to protect the citizens of Ohio from empiricism, and it should receive such construction as will promote this object. In the opinion of the majority of the court this is accomplished by the continuous violation of the statute for a period of ten years, thus during that time exposing the citizens to all the evils of empiricism. The claim is, as I understand it, that ten years of such practice is by the statute made equivalent to having the other qualifications prescribed. This, in effect, makes the statute operate to reward and punish the same acts or conduct. To this reasoning I cannot assent. The proviso embraces only the two classes named, who had been engaged in practice five and ten years respectively at the time the act took effect, and was intended ‘solely for their benefit.

Oket, C. J., concurs in the foregoing dissenting opinion. 
      
       The term “ empiric ” is here used, as in the statute, to mean a medical practitioner who has not graduated in a medical college, or has a certificate of qualification from a medical society, or has not been engaged in the continuous practice for the period prescribed in the statute.
     