The Portland daily press., 1889-05-30
THE MEDICAL REGISTRATION BILL.
Supreme Courts Decision In a "a
nous Case.
The Registration am Decided Not to
be a Law.
The Full Text OF Judge HasksH's
Opinion.


be enacted an act entitled "An Act to Regu-
late the Practice OF Medicine" This act
was signed by the President Of the Senate
and Speaker OF the House on the forenoon
Of the same day. The act was then present.
ed to the Governor for approval. Gov. Bod
well, soon after receiving the bill. signed IL.
and It was sent to the Secretary Of State and
placed In the oficial custody Of that officer
as DILL which had become a law. The fact
OF the Governors approval was entered up
on the books kept In the office Of the Secre-
tary Of State. known as '.Biotter" and Reg
ister." In the afternoon Of the same day,
(the nth OF March, the Governor recalled the
bill and drew his pen through his signature,
and then caused the act, with his line drawn
through his signature, to be sent to the Senate.
together with a paper stating his objections
thereto The Senate did not pass 1t over his
objections.
In 1888. stephen II. Weeks, as president Of
the Maine Medical Association, In the name
Of the Attorney General. and by his author.
ty, petitioned the Chief Justice Of the Su
preme Court for a writ OF mandamus against
Oramandel Smith and Charles w. Tilden,
the former Secretary Of Shte and the latter
Secretary Of the Senate. commanding them
TO "restore said approved act entitled An
Act to Regulate the Practice Of Medicine
to its place among the acts Of the State In
the office Of the Secretary Of State"
The contention Of the petitioners was
practically that the act became a law when
Gov. Bodwell signed il. and deposited il In the
Office Of the Secretary Of State. and that his
subsequent recall Of IL and erasure OF his
signature exceeded his power and did not in
validate the act. The case was argued for
the petitioners by the Hon. G. w. Goddard
and Judge j. w. Symonds. and for the Sec
retary Of State and Deputy Secretary Of
the Senate by Attorney General Orville ID.
Baker.
The decision Of the court was announced
yesterday. II denies the petition and
declares that the act Is not a law.
The opinion. which was drawn by Judge
Thomas II. Haskell. is as follows:
THE OPINION.
Haskell j. The writ Of mandamus Is au-
thOrized by r. s., C. II ; 5: but, as that
statute does not provide In what behalf the
remedy may be had, the rules Of the common
law apply.
A private person may move for the writ.
In proper cases, when his personal rights
have been invaded beyond those rights that
he enjoys as part Of the public and that are
common to every one; but, when the COM
mon right is invaded, II Is a public grievance
and the remedy must be asked In behalf 0f
the public. and by the proper ofheer. who Is
required by law 70 prosecute In the States
behalf.
II then. the right be public right only, the
attorney for the state must Ba0ve for the
writ and tht4 - do In ha -.
half, In good faith, asking for no more than
ne believes the public veal 10 demand.
20l.
This application is signed by stephen II.
Weeks, who informs in the name Of and By
authority OF the attorney general That Of
heer, however, appears and resists the ap-
plication. lt seems as II this resistance
must work discontinuance Of the REALTORS
petition and end the case.
But. waving any irregularlty In the pro-
ceeding, the court considers it b3st 10 decide
the only remaining question In the case. viz:
whether IAN act to regulate the practice Of
medicine. supposed TO have been enacted
IN 1887, is statute Of the State.
This Is judicial question, ana has been so
regarded from the time OF hOrn-bOOks
Saunders said at the bar more than three
centuries ago in the time Of Edward. vi,
Q553):
"And as to the statute, you Judges nave a prL
vate knc-ledee aud judicial knowledge; and n
your private knowledge you cannot Judge buI
may use your discretion For the Judges
ought TO take notice OF statutes which appear 10
them tudieially, although they are not pleaded"
And 1t was so held In the common bench.
Partridge VS.. Strange, Pl0w 50. See also the
case OF The Prince. Coke. %. g Jac. l6O6.l
A Judicial knowledge does not result from
plea and proof; but comes from an under
standing OF public laws and records, Of the
methods Of the executive and legislature.
from knowledge OF history and OF histOri-
cal facts and Of matters OF public nOt0Fiety
and interest; and commands inquiry from
the widest field Of general Information
In the Duke OF NorfOlk's case, Dyer, 81
Il Queen Mary, 1853, IL being much debated
among the judges, whether royal assent had
been given to an act Of Parliament through
letters patent, bearing the sign manual Of
Hen. VIII, for want OF the genuine sigma
ture Of the King, inasmueh, first, as 10 was
written beneath the tests Of the patent,
whereas he was used to put IL above the
head and, second, because the writing WAS
so perfect that 1t could not have been writ
ten by man so III and near his death as the
King was, for he died the same night; the
clerk Of Parliament brought the original
record Of the act before the judges for their
inspection OF 1t.
In Kingv. Arundel. Hob. los. "a JAG.
l6l7), the validity Of private act Of Farlia-
Lord Chancellor and Coke and Hobart, chief
justices, they, each more sa0, proceeded to
Inform themselves Of 1t by consulting the
original role and the journals Of Parliament.
In Rex v. Jeifries, / Strange. 446, Il Geo.
172l) The original Parliament roll was re-
utes.
So. in Rex v. Robotham, Burr. i472, "A
Geo. Ill, 1764), the original act OF Parliament
was examined and Lord Mansfield and his
associates declared It's true construction, not
withstanding manifest error In It.
The result Of all the authorities upon this
question Is well stated by Mr.. Justice Miller
of the Supreme Court, in Gardiner v. The
Collector, 6 Wall. 500. He says, p. 511
''we are Of opinion, therefore, on prlncisie as
well as authority, that whenever a question
arises In court OF law Of the existence oi stat
ute, the judges, who are called upon to decide IT,
tlon which, in its nature, IS Capable Of Conveying
to the judicial mind clear and satisfactory an
swer 70 such question; always seeking nrst for
less the positive law has enacted different rule
Post v. supervisors, los u. s., 667. state v.
Wagner, 81 Maine, IT'S.
Although the question to be here decided
Is judicial question, the legislature not hay-
ing enacted any rule touching the effect %
be given to those considerations from which
a conclusion must be reached. the rules Of
the common law must control so far as they
can be Of any aid.
The first and best evidence OF a statute Is
the enrolled act, accomplished by the de-
DOSit Of the original act, when approved by
the governor, In the Office Of the Secretary Of
State, who, by the Constitution, Art Wa.
Is required TO carefully keep and preserve
the records Of all the official acts and pro-
ceedings Of the Governor and Council, SEN
ate ana House Of Representatives !" and BY
X, s., C. l, 4, Is required to give written no
tice TO the Senate and House Of the approval
of all public acts by the governor; and. by
X. s., c. 2, "A, Is to cause 10 be printed all
public laws passed at each session Of the leg
islature within thirty days after the close
thereof.
The deposit Of a statute 10 the secretary's
Office is equivalent to the English custom Of
and the original act
thereby becomes the record; precisely
as private act OF the English
parliament has been held TO be the record Of
parliament without enrolment; for 10 Is not
to enroll private acts, but only 10
deposit them with the clerk OF parliament
The houses OF parliament were not re-
quired by law 10 keep journals; and these,
have been held not 20 De records
but remembrances only, that expired when
parliament dissolved. But our Constitution.
Ike the constitution of the United States
aud Of most or all of the sister States, re-
luires both branches Of the legislature 10
keep journals Of their proceedings, thereby
making them public records TO be looked 10
when no higher or better source
remains from which to establish the validity
Df statute.
But when the original act, duly certified
Dy the presiding officer Of each house 10 have
been properly passed. and approved by the
governor showing upon lis face no irregu-
arities or violation Of constitutional meth-