“The only specific fact alleged in the opposing affidavits, as ground of objection, was the publication by the relator of a professional advertisement, which was inserted in one or more of the Buffalo journals in May, 1855, and discontinued in January, 1857, more than two years before his application was presented. It is charged that the printing of this notice was an empiricism, and in conflict with the code of ethics adopted by the Erie County Medical Society.
“There is nothing in the terms of the advertisement from which any inference can justly be drawn against the relator, in respect either to his personal character or his professional skill. There is no suggestion, in the affidavits, that any of the statements of fact contained in the notice are untrue, and there is nothing in its contents inconsistent with perfect good faith on the part of the relator. It refers to the treatment of bronchitis, asthma, and consumption, as a special department of the profession to which he had directed his particular attention; and it alludes to his use of the method recently introduced, of medicated inhalation, through an instrument appropriate to that purpose, in aid of such general treatment as experience had proved to be beneficial in that class of diseases. It is not denied that the relator possessed peculiar skill in this department of the profession; and the case discloses the fact that the method of auxiliary treatment, introduced by him in the county of Erie, was not only successful in his own practice, but was adopted, with beneficial results, by members of the county society of high professional standing, and that it was accepted by a large proportion of the physicians of Western New York. If, at the time this remedy was introduced, he had been a member of the County Society or of the American Medical Association, he would not have been at liberty to direct attention, through the medium of the public journals, to the benefits resulting from its use. This would, perhaps, have been unfortunate for those who were suffering, in that vicinity, from this particular class of diseases; but it is undoubtedly true that the suppression of such an advertisement would have been more considerate toward his professional brethren, and more in accordance with the rules of delicacy and good taste. But an error, in this respect, by one who had no notice of the society regulation is not cause for disfranchisement. The act of the relator was neither immoral nor illegal. It was no violation of the by-laws; for, as to him, they were wholly inoperative. It was no present cause for exclusion; for the publication of the objectionable notice had been discontinued for more than two years. When he applied for admission, he proposed to become bound by the by-laws; and this the society refused to permit, for the sole cause that he had not observed them before they became rules of conduct for him. ‘Where there is no law, there is no transgression.’ The relator, therefore, had been guilty of no legal wrong which could bar his claim to the franchise.”
[157] In Macpherson v. Cheadell (24 Wend., N. Y., 15) the Court said, p. 24:
“In the first place I doubt much whether the defendant below, after retaining the plaintiff as a physician and accepting his services as such, could call upon him in the first instance to prove a regular license. In other like cases, the presumption is against the defendant. It is so as between attorney and client, in a suit for services performed under a retainer. Pearce v. Whale, 7 Donl. & Ryl., 512, 515, per Bayley, Judge; 5 Barn. v. Cress., 38, S. C. There, if the objection sound in the fact that the plaintiff was never admitted, or that his admission has become inoperative, it lies with the defendant to show it. Id., and see Berryman v. Wise, 44 T. R., 566. and other cases; 1 Phil. Ev., 227, Cowen v. Hill’s ed. Besides, the contrary would be doing great violence to the presumption that no man will transgress the command of a positive law.” See also Thompson v. Sayre (1 Denio, N. Y., 75), where this principle seems to have been assumed as correct without question upon the strength of the decision quoted above. A similar doctrine appears to have been enunciated in the State of Illinois in Chicago v. Wood, 24 Ill. App., 42; and Williams v. People, 20 Ill. App., 92. It may be sound, and undoubtedly the English cases cited in Macpherson v. Cheadell, supra, tend to support it. But in a case in which the physician’s right to practise is denied, the safe course will be for him to have a duly authenticated copy of his license ready to be offered in evidence. The general rule is that the burden is on the plaintiff to show all the facts which make up his right of recovery. See Bliss v. Brainard, 41 N. H., 256; Salomon v. Dreschler, 4 Minn., 278; Kane v. Johnston, 9 Bosw., N. Y. Superior Ct., 154.
[158] That is, the burden devolves upon the defendant, and this notwithstanding the presumption of innocence, of showing what must be peculiarly within his own knowledge, namely, that he has been duly licensed. People v. Nyce, 34 Hun, N. Y., 298, and cases cited; 1 Greenleaf on Ev., § 79, and cases cited. See, contra, State v. Evans, 5 Jones. N. C., 250.
[159] In Finch v. Gridley’s Executors (25 Wend., N. Y., 469-471), Nelson, Ch. J., said: “I am also inclined to think the evidence which was given competent to prove the diploma from Fairfield College. The witness identified the corporate seal, and had himself received a diploma from that institution subscribed by the same president and secretary. Though he did not actually see them subscribe the paper, he had every means of becoming acquainted with their signatures; the delivery of it to him was an acknowledgment they had signed it. Besides, he was familiar with diplomas from the institution under their signature,” etc.
And see, also, Raynor v. State, 62 Wis., 289; Wendel v. State, id., 300.
[160] In some of the States, persons who simply administered roots and herbs in treating disease, have been excepted from that portion of the statute which forbids the practice of medicine and surgery without a license. The proper construction of such an exception is, that it is a question of fact for the jury, whether the person accused who claims the benefit of the exception, simply administered a concoction of roots and herbs within the meaning of the statute, or whether, under the guise of so doing, he really held himself out as and acted as a regular practitioner. All such penal statutes are to be construed, like all other penal statutes, with due regard to the rights of the individual, and at the same time with such degree of liberality as will tend to preserve the public safety.
[161] It has been held that the act of a physician in reporting to a health-board in good faith that his patient is suffering from small-pox, is not actionable. Brown v. Purdy, 8 N. Y. St. Rep., 143. The Court said (per Sedgwick, J.): “In order to give the public the protection due to it, according to the intention of the statute, any physician that possesses in fact an opinion that a patient has a contagious disease, is bound to report the case, whether he has or has not used ordinary professional skill and knowledge. A physician of skill in everything but cases of small-pox, which happily are not numerous, may, unexpectedly to himself, be called to a case which presents to him the appearance of small-pox. It may be said that he may call in counsel. It cannot, however, be said that private counsel should be called in rather than such as the law has appointed. Certainly, if he really thinks the case to be one of small-pox, it is his duty to communicate his opinion to the public authorities, who furnish skilled physicians peculiarly competent to pass upon the case. They are the experts the law points out for the physician. The attendance of these experts upon a patient can cause no injury, and thereafter the responsibility rests solely upon the public officer.”
As to how far the decision of an inspector appointed by a board of health is regarded by the law as quasi-judicial, and therefore conclusive, see Underwood v. Green, 42 N. Y., 140; Raymond v. Fish, 51 Conn., 80. Health officers who were guilty of gross negligence in removing infected persons from a city in stormy weather, and putting them in an unprotected and unsafe structure, so that such persons died from the exposure, have been held liable. Aaron v. Broiles, 64 Tex., 316.