The defendant is a practicing physician in Hillsdale county, Michigan. On complaint of LeRoy A. Potter, State health inspector, he was arrested on a complaint charging failure to treat the eyes of a newly-born infant with prophylaxis as required by the statute relative to the prevention of blindness in the newly-born. An examination was had before a magistrate, and the defendant was held to the circuit court for trial. After arraignment, the circuit judge granted a motion to dismiss the cause and discharge the defendant on the ground that the testimony did not show he had committed any offense under the statute. The people have brought error.
The applicable portion of the statute, 1 Comp. Laws 1915, §§ 5037-5040, reads as follows:
"(5038) SEC. 2. It shall be the duty of any physician, nurse or midwife, who shall assist and be in charge at the birth of any infant, or have care of same after birth, to treat the eyes of the infant with a prophylaxis approved by the State board of health; and such treatment shall be given as soon as practicable after the birth of the infant and always within one hour."
The facts upon which the prosecution is based are not in dispute. Wanita Cornish was born at three o'clock in the morning on the 10th of November, 1928. No doctor was present. Her father attempted to secure the attendance of the defendant, but he was busy at the hospital and did not arrive until eight hours after the birth of the child. He did not treat her eyes, but left some medicine for the mother. Seven days later it was found that the baby was suffering from gonorrhea ophthalmia. Treatment at Ann Arbor failed to save her sight, and she is now blind. On these facts the defendant says that he is *Page 380 not guilty of any offense under the statute above quoted, that the penalty provided is for failure to give the approved prophylaxis within an hour after birth and he was not in attendance at that time.
The facts show that the defendant had professional care of the child eight hours after its birth. The question is whether he is excused by the statute from administering the prophylaxis at that time. If so, it is because of the language which reads:
"And such treatment shall be given as soon as practicable after the birth of the infant and always within one hour."
It is urged that the statute in question is a penal statute and must be construed strictly. That is true, but penal statutes are not to be construed so strictly as to defeat the plain purpose of the legislature in enacting them. 25 R. C. L. p. 960.
The rule that penal statutes are to be construed strictly does not apply to provisions that are directory merely. These ought to be liberally construed to accomplish the purpose of the act. 36 Cyc. p. 1173.
The one-hour provision of this statute is directory and ought to be liberally construed. Considering the reason for the statute and its obvious purpose, surely it was not the intention of the legislature to exempt from the penalty a doctor who does not arrive until I hour and 5 minutes after the birth of the child and fails to give the required treatment. The gist of the offense is not in failure to give the treatment in 1 hour after birth, but in not giving it as soon as practicable. The provision in regard to time was evidently inserted to induce prompt action on the part of the physician. Having in mind the obvious purpose of the statute, it would be absurd to *Page 381 say that it was intended to limit the time in which he should act to one hour after birth. Undoubtedly, treatment 5 minutes after that time would be just as beneficial as though given during the hour. As we construe that provision of the statute in which time of treatment is specified, it means that it should be administered always within one hour after birth if possible, and, if not possible, as soon as practicable thereafter. Obviously such was the legislative intent, and "intention of the legislature constitutes the law." 25 R. C. L. p. 960. The undisputed facts in this case show a violation of the statute by the defendant.
The court erred in discharging him. The judgment should be reversed, and the cause remanded for further proceedings.
BUTZEL and SHARPE, JJ., concurred with McDONALD, J.