#### The People of the State of New York, Respondent, *v.*John H. Woodbury Dermatological Institute, Appellant.

First Department,

March 20, 1908.

Physicians—advertising to practice medicine — statute applicable to corporations — penalty—when corporation properly convicted.

(Per Lauqhlin, J., and Patterson, P. J.): Section 5 of the Statutory Construction Law, providing that the term "person” includes a corporation, applies in the construction of section 15 of chapter 344 of the Laws of 1907, making it a misdemeanor for "any person not a registered physician” to advertise to practice medicine, and, hence, 'the latter statute applies to corporations as well as to individuals.

Although a corporation as such cannot practice medicine, a corporation lawfully authorized to receive and care for individuals requiring medical and surgical treatment and to provide the proper treatment for them, either gratuitously or for hire, may advertise its business without becoming liable for a violation of the statute aforesaid, and it is immaterial whether it advertises that it prescribes for and treats patients or that this is done by its employees.

But a corporation organized under chapter 40 of the Laws of 1848, and authorized only for " manufacturing chemical preparations and printing, publishing and selling books and pamphlets relating to the same and advertising the same,” is not a corporation duly authorized to receive patients or furnish medical aid or treatment, and, hence, when it advertises that it is practicing medicine it is guilty of a violation of the statute aforesaid and liable to a fine.

(Per Ingraham and Clarice, JJ.): Under chapter 344 of the Laws of 1907, a corporation can never become legally authorized to practice medicine, and reading into said statute the definition of a “person” contained in sections of the Statutory Construction Law, a defendant corporation which advertises to practice medicine is violating the statute and properly convicted.

■Houghton, J., dissented, with opinion.

Appeal by the defendant, the John H. Woodbury Dermatological Institute, from a judgment of the Court of Special Sessions of 'the first division of the city of New York, rendered on the 2d day of January, 1908, convicting defendant of the misdemeanor of unlawfully advertising to practice medicine without lawful authorization and registration, and imposing a fine of $100 therefor.

*Roswell 8. Nichols,*for the appellant.

*Robert 8. Johnstone, Deputy Assistant District Attorney,*for the respondent.

*878Laughlin, «I.:

The defendant" is a domestic corporation. It' was duly incorporated on or about the 31st day of March, 1890, under ánd piursuant to the provisions of an act of the Legislature, passed on the 17th day of February, 1848,* entitled *“*An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” and acts amendatory thereof and supplemental thereto. , ...

The evidence satisfactorily shows that the defendant advertised that it was practicing medicine, as set forth in the information upon which it was tried. . 1

Section 15 - of chapter 344 of the Laws of 1907, which became of force prior to the time the defendant advertised the practice of medicine, as set forth in the information, provides, among other tilings, as follows : “ Any person, not a registered physician, who shall advertise to practice medicine, shall be guilty of a misdemeanor.” The conviction was for a violation of this provision of the statute. The learned noun sel for the appellant contends that the statute does not prohibit the practice of medicine by a corporation. The learned counsel for the People draws attention to sectibn 5 of the ,Statutory Construction Law (Laws of 1892, chap. 677), which provides that “ The term person includes a corporation and a joint stock association,” and insists that this is the rule of construction to be applied to the statute in question; Section 1 of the Statutory Construction Law piro vides as follows-: /‘-This chapiter * * * is applicable to every statute unless its general - object,/or the context of the language construed, or- other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.”

I am of opinion that this Statutory Construction Law is applicable and governs the construction of the statute in question. The piurpose and object :of the statute -was to limit, tlib piractice of medi- . cine and advertising to practice medicine to those lawfully registered or otherwise authorized to practice medicine. Strictly, speaking, of course, a corporation can neither qualify -to practice medicine nor administer medical or surgical aid. If the Legislature enacted the prohibition against -piracticing medicine and advertising to practice *879medicine upon the theory that a corporation *could not practice*medicine, then there. would' he no reason for inferring that it intended to prohibit something which could not be done, for that would be quite unnéeessary. As I view it, the only theory upon which this prohibition can be deemed to extend to corporations is that the Legislature recognized that while corporations may not obtain diplomas and register as physicians or actually treat patients or perform surgical operations, they may, through agents and employees, as all corporations are obliged to perform their functions, practice medicine by providing accommodations for patients and facilities for their care and treatment, and physicians and surgeons to administer to them. This is and for many years has been done in hospitals, dispensaries, infirmaries and sanitariums with which the Legislature is presumed to have been familiar. Were the corporation authorized to receive, and by the aid of physicians and surgeons to treat patients, and by the aid of nurses and other employees to properly care for them, I am of opinion that they come within the exception contained in section 1 of the Statutory Construction Law, and are neither prohibited from practicing medicine in that sense, nor from advertising such practice. Although, therefore, in a technical sense, a corporation cannot practice medicine, yet, if it.be authorized to provide suitable accommodations for the care and treatment of the sick and to receive patients, and to employ physicians and surgeons to treat them, this law should not be construed as prohibiting it from advertising that which it is thus authorized to do. This being so, I see no public good or advancement in the cause of relieving the community from the imposition of quackery that will flow from a judicial decision that a corporation thus authorized *to receive and provide for the medical or surgical treatment of patients*may not advertise that *it prescribes medicines or performs surgical operations*for- the reason that it is not and cannot be registered as a physician, or surgeon and it is physically impossible for it to so prescribe or perform operations because of its inanimate nature, but that it may lawfully advertise just what it in fact does and that is that it receives patients and employs physicians and surgeons to treat them, for everybody knows that that is the only way it could treat them. If such an institution employed others than duly registered physicians and surgeons to treat thosq *880coming to it'for medical or surgical aid, then if it advertised that it was practicing medicine, it might be guilty of a. violation of this statute, even though it be authorized to thus practice medicine, employing duly registered physicians and surgeons; and of course the individuals prescribing for the patients in treating them surgically would be subject to prosecution if not duly registered.

Chapter 95 of the Laws of 1889,* which authorized the incorporation of “ hospitals, infirmaries, dispensaries' and homes for invalids or aged and indigent persons,” provided in section 5 that the certificate of incorporation might declare and prescribe the qualifications of members “ in the matter of adherence or non-adherence to any particular school or theory of medical or surgical treatment, and what system of practice, of medicine or treatment shall be used and applied in such hospital, infirmary or home,” and section 4 thereof, so far as material, provided that the property of the corporation should be exempt from taxation *“*to the extent that, and so long as,. the same shall be used exclusively for the care, reception, maintenance, medical and surgical advice, aid and treatment, * * * and provided that it shall and do actually render medical and surgical aid, advice and treatment to poor persons in need of such treatment without charge therefor.”

Section 8 provided, among other things, that “ the by-laws may specify, what classes and descriptions of persons shall or may receive treatment, advice, care and maintenance from said hospital, infirmary, dispensary or home.” These statutory provisions have been superseded by the provisions of article 6 of the Membership Corporations Law (Laws of 1895, chap. 559, as ámd. by Laws of 1900, chap. 404), in which they are substantially' re-enacted.† It will be seen that by the provisions quoted from sections 4 and 8 of the act of 1889 it was expressly contemplated *that the patients should be treated by the institution,*which, of course, is the practical effect in *881such cases. The hospitals or other institutions owe a duty with respect to the care and medical treatment even of free patients; and we may take judicial notice of the fact that they receive some patients for hire and incur a responsibility to exercise proper care in the selection of physicians, surgeons, nurses and other attendants, as is shown by the cases which have come before the court for adjudication. I am of opinion, therefore, as already observed, that these institutions which are authorized to receive patients for treatment and to provide medical and surgical treatment for them, do not come within the prohibition of the act'and they may lawfully advertise the business .which they are thus duly authorized to do. It may be that sanitariums and similar institutions, although incorporated under the Business Corporations Law,* are authorized to receive patients and employ physicians and surgeons to treat them; but that question is not presented for decision and upon it I express no opinion. £ limit my opinion to the proposition that any corporation *lawfully authorised to receive and care for*individuals requiring medical or surgical treatment, to provide proper treatment for them either *gratuitously or for*hire, may advertise its business without subjecting itself to 'liability for a violation of the statute in question and that it is quite immaterial whether it advertises ■ that it prescribes for and treats the patients or that this is done by its employees. The defendant,, however, has not-shown that it was duly authorized to receive patients or furnish them medical -or surgical aid or treatment. Its certificate of incorporation limits its business to “ manufacturing chemical preparations and printing, publishing and selling books and pamphlets'relating to the same and advertising the same.” It, therefore, does not come within the exception-contained in section 1 of the Statutory Construction Law, and the statute prohibits it from advertising the practice of medicine.

It follows that the judgment should be affirmed.

Patterson, P. J., concurred; Houghton, J., dissented.

*

Laws of 1848, chap. 40.— [Rep.

*

 See Laws of 1894, chap. 256.— [Rep.

†

 See Tax Law (Laws of 1896, chap; 908), § 4, subd. 7, as amd. by Laws of 1897, chap. 371; Laws of 1903, chap-. 204; Laws of 1906, chap. 336, and Laws of 1907, chap. 693. Sec, also, *Matter of Troy Press Co.*(187 N. Y. 279, 284,285). For repeal of act of 1889, except section 4,. see Mémb. Corp. Law, §§ 147, 148. For by-laws see Memb. Corp. Law, § 8, and Gen. Corp. Law (Laws of 1892, chap. 687), §§ 11, 29, as respectively amd. by Laws of 1895, chap. 672, and Laws of 3*904, chap. 737. See, also, 2 Birdseye’s R. S. (3d ed.) 2298, § 8, note.— [Rep.

*

 See Laws of 1890, chap. 567, as amd. by Laws of 1892, chap. 691, and other statutes.— [Rep.

Ingraham, J. (concurring):

The district attorney presented to the Court of Special Sessions an information charging that the defendant, a domestic corporation *882not lawfully authorized to practice medicine within this State and so registered according to law, did cause and procure to be .printed and published in certain newspapers in the city of New York an-advertisement that it was practicing medicine within the said city. Upon the. trial before the Court of Special Sessions the defendant was convicted aiid fined, and from that" judgment the .defendant appeals. ' .

The defendant was incorporated under an act (Laws of 184.8, . chap. 40). which provides for the formation of corporations for mining, manufacturing, mechanical or chemical purposes, and the several acts of the Legislature amendatory thereto. The object for which the said defendant was incorporated was “ the carrying on of.' business of manufacturing chemical preparation's and .printing, publishing and selling books and pamphlets relating to the same and ■advertising the same.” The capital stock of the company was $1,000 and this certificate was filed March 31, 1890. Subsequently the defendant inserted in various newspapers advertisements offering to give medical treatment for certain defects or deficiencies, and also published certain books and pamphlets with the same object. The only question presented on this appeal is whether a corporation can.be guilty of- a crime under section 15 of the Medical' Law (Laws of 1907, chap. 344).

The Statutory Construction Law (Laws of 1.892, chap. -677), which by section 1 is applicable to every statute, unless its general object or the context of. the language construed or other, provisions of law indicate that a different meaning or application was intended from that required to be given by the chapter, provides in section 5 that *“*the term person includes a corporation and a joint stock association.” This provision in the Statutory Construction Law was taken ■ from subdivision 13 of section 718 of the Penal Code* and from section 955 of the Code of Criminal Procedure,† there applicable to the commission of. crimes and to the procedure in criminal prosecutions, and which sections of the Penal Code and Code of Criminal Procedure were repealed by sections 35 and 36 of the Statutory Construction Law as being covered by section 5 of that act. The *883effect of the enactment of this provision in the Statutory Construction Law with the. simultaneous repeal of these sections in the Penal Code and Code of Criminal Procedure would seem to clearly indicate that it was the intention of the Legislature to make this provision apply to all cases in which a corporation had committed an act which by law was made a criminal offense if committed by a “person.” After the enactment of the Statutory Construction Law the laws relating to the practice of medicine were revised by the enactment of the Medical Law (Laws of 1907, chap. 344). By subdivision 7 of section 1 of that act the practice of medicine is defined as follows: “A person practices medicine within the meaning of this act, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injuiy, deformity or physical condition, and who shall either offer or undertake, by any means "or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition.” And section 2 provides that no person shall practice medicine unless registered and legally authorized prior to September 1, 1891, or unless licensed by the Regents and registered under the provisions of certain acts specified, or unless licensed by the Regents and registered as required by the act. The statute then provides for the appointment of a State Board of Medical Examiners; for the examination of candidates for admission to practice, for the issuing of licenses to the successful applicants and for the revocation of a license for certain specified offenses, and then by section 15 provides that “ Any person who, not being then lawfully authorized to practice medicine within this State and so registered according to law, shall practice medicine within this State without lawful registration or in violation of any provision of this article*; * * * or any person not a registered physician who shall advertise to practice medicine, shall be guilty of a misdemeanor.”

The whole object of this act is clearly to restrict the practice of medicine to those therein authorized. Section 2 expressly provides that no person shall practice medicine unless registered and licensed as therein provided.' It could not have been the • intention of the *884.Legislature to restrict an-individual from practicing medicine unless lie had .complied, with the very careful ¡Revisions of "the act for testing his competency to so practice and yet allow a corporation through its agents to practice without any examination or license whatever.' Such a construction would be against the avowed and clearly expressed intention of the Legislature. It is also manifest that it was the intention *to*prohibit any one.not. legally.authorized to practice, medicine from advertising to practice. Under this act a corporation never could-become lawfully authorized to practice .medicine, and reading into the act the definition contained in the Statutory Construction Law the: statute would then provide: “ Any .person, including a corporation and a joint stock association, who, not being then lawfully authorized to practice medicine within this State, and so registered according to law, shall- practice medicine within this State without lawful registration or in violation of any provision of this article; **** * or any person,including a corporation and a joint stock association, not a registered physician, who shall advertise to practice medicine, shall be guilty of a misdemeanor.”. The defendant, a corporation, having advertised to practice medicine, was,, therefore, acting in violation of this provision, and was properly convicted.

We are referred to several English cases .which are claimed to be .contrary to this construction of the statute, but it is quite unnecessary to -refer to them, more than.to say that they.arose'under statutes which are essentially different from .the one now under consideration, and present an entirely different question, and this view would seem to be incidentally approved by the Court of Appeals in .. *Hannon*v. *Siegel-Cooper Company*(167 N. Y. 244). But it seems tó me .the question is entirely clear. A consideration of the Medical Law, the clearly-avowed object of which was to prevent incompetent and irresponsible persons.from practicing medicine —as well as the clearly:expressed intention of the Legislature by the Statutory Construction Law, substituting in place' of various provisions defining and creating crimes,, as well as civil rights and. remedies, the defini- - tion of “person,” and substituting this definition for the definitions . theretofore contained in the Penal Code and the- Code of-Criminal Procedure — seems to me to clearly demonstrate that the provisions of the Medical Law were intended to apply to all persons, natural *885or artificial, and to prohibit any person, whether a natural individual or a corporation or joint stock association, from practicing or advertising to practice medicine unless expressly authorized by the act.

This conclusion necessarily results in the affirmance of the judgment appealed from, and it is, therefore, affirmed.

Clarke, J'., concurred.

*

Sic.

*

 See Laws of 1881, chap. 676, § 718, subd. 13, as renumbered from subd. 14 by Laws of 1882, chap. 384.— [Rep.

†

 See Laws of 1881, chap, 442, § 955.— [Rep,

Houghton, J. (dissenting):

The purpose of that part of the Medical Law relating to the practice of medicine is to regúlate the qualifications of a physician and prescribe what attainments he shall possess before being permitted to practice: Manifestly, the necessary attainments are such as only a natural person can acquire. Ho corporation can ever qualify itself to practice medicine and henee I do not think the Legislature intended to include a corporation in any of the provisions of the law.

There could have been no intent to prohibit a corporation from advertising to do what every one would know it could not do and. which could be no fraud, because no one could be deceived. The Legislature well knew that certain corporations throughout the State were engaged in the business of conducting satiatoriums and hospitals quite necessary and beneficial to the community. If the construction contended for by the People is correct, each one of these violates the statute by advertising that it conducts an establishment for the treatment of diseases and maintains a corps of physicians of the highest standing to treat its patients. Mery probably the defendant is not engaged in such a legitimate business and is exceeding its corporate powers, but that does not make it guilty of the charge upon which it has been convicted. If it employed any unlicensed physicians and received the fruits of their services, quite another question would be presented and possibly in such case it might be convicted of some crime, and, of course, the individuals so practicing would be guilty. So far as appears, however, no unlicensed physicians are employed.

It seems to me the defendant corporation does not come within the statute and that its conviction was improper.

Judgment affirmed.