The State ex rel. Johnson v. Clark

• Decision Date: 08 July 1921
• Citation: 232 S.W. 1031,288 Mo. 659
• Parties: THE STATE ex rel. HERBERT E. JOHNSON, Appellant, v. W. A. CLARK et al., Constituting State Board of Health
• Court: Missouri Supreme Court

232 S.W. 1031

288 Mo. 659

THE STATE ex rel. HERBERT E. JOHNSON, Appellant, v. W. A. CLARK et al., Constituting State Board of Health

Supreme Court of Missouri

July 8, 1921

Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.

Reversed.

Irwin & Haley for relator.

(1) The judgment in this case is insufficient and cannot stand because the same does not meet the requirements of Sec. 8317 R. S. 1909, now Sec. 7336, R. S. 1919. Said section, among other things, provides that: "If a majority of the board are satisfied that the licentiate is guilty of any of the offenses charged, the license shall be revoked for such period of time as may be agreed upon." It is the position of respondents that relator was found "guilty as charged" at a meeting of the board, alleged to have been held at Jefferson City, December 3, 1920. At no place in the record does it appear what members of the board, if any were present when such action was taken by the board; and particularly does the record fail to show that a majority of the members of the board were present at said meeting, if there was, in fact, such a meeting, or that a "majority of the board are satisfied that the licentiate is guilty of the offense charged." (2) The license of a physician to practice medicine or surgery is a valuable property right, and a statute which authorizes the State Board of Health to revoke the license of a physician to practice medicine is highly penal. State ex rel. Spriggs v. Robinson, 253 Mo. 271; State v. Mo. Dental Board, 221 S.W. 72. (3) Sec. 7336, R. S. 1919, being a penal statute, must be strictly construed against the respondents, as the representatives of the State, and liberally construed in favor of relator. State ex rel. Spriggs v. Robinson, 253 Mo. 284. (4) The testimony of Dr. Jose as to the alleged declarations of Edna Boothby was clearly inadmissible. Sec. 4034, R. S. 1919; State v. Johnson, 118 Mo. 501; State v. Colvin, 226 Mo. 482; State v. Gow, 235 Mo. 307; State v. Horn, 204 Mo. 528; State v. Parker, 172 Mo. 194; State v. Zorn, 202 Mo. 12. (5) The testimony of Dr. Gillham to the effect that "there was a great deal of belief and talk that this man (referring to relator) did cause abortions" was clearly erroneous. State v. Wellman, 253 Mo. 302; State v. Teeter, 239 Mo. 475; State ex rel. v. Robinson, 253 Mo. 271. (6) Likewise is the testimony of Dr. Hill, to the effect that from conversation had by him with patients that he was very positive that Dr. Johnson had been committing abortions, inadmissible and erroneous. Cases supra. (7) Sec. 7336, R. S. 1919, is unconstitutional and void, in that (a) Said act is in violation of Section 30, Article II, of the Constitution, in that it deprives relator of an existing vested right, and of an existing vested property right, and of liberty and property rights, without due process of law. (b) Said act is in violation of Section 28, Article II, of the Constitution, in that this relator has been denied the right of trial by jury. (c) Said act is in violation of Article III of the Constitution, in that said act vests in the State Board of Health judicial functions.

Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent; H. J. Westhues of counsel.

(1) The order and judgment of the board is sufficient; and the board fully complied with the requirements of Sec. 7336, R. S. 1919. (a) For the purpose of this appeal, the action of the board will be presumed to be regular, in the absence of any facts to the contrary appearing in the record. City of St. Joseph v. Farrell, 106 Mo. 441; Belkin v. Rhodes, 76 Mo. 652; Bayha v. Kessler, 79 Mo. 559; Brewing Co. v. Niederweiser, 28 Mo.App. 236. (b) In a trial, upon complaint, before the State Board of Health, it is not necessary that the proceedings should be conducted with that degree of exactness which is required upon trial for a criminal offense in an ordinary tribunal of justice. Such board is not a judicial tribunal. Meffert v. State Board of Medical Registration, 66 Kan. 710, 195 U.S. 625; Traer v. State Board of Medical Exam., 106 Iowa 559; Munk v. Fink, 116 N.W. 525, 17 L.R.A. (N. S.) 439; State ex rel. v. Goodier, 195 Mo. 560, 562; Spurgeon v. Rhodes, 167 Ind. 12; People v. Apfelbaum, 251 Ill. 23. (2) Sec. 7336, R. S. 1919, authorizing the State Board of Health to revoke a license to practice medicine for unprofessional and dishonorable conduct, is not unconstitutional. (a) It does not violate Section 30, Article II, of the Constitution of Missouri, which declares: "That no person shall be deprived of life, liberty or property without due process of law." State v. Hovorka, 110 N.W. 870; Reetz v. Michigan, 188 U.S. 505; St. Louis v. Missouri Pac. Ry. Co., 211 S.W. 672; State ex rel. v. Purl, 228 Mo. 22; Morse v. State Board of Medical Examiners, 122 S.W. 448; People v. Apfelbaum, 251 Ill. 22; Re Smith, 10 Wend. 449; State ex rel. v. McIntosh, 205 Mo. 636. (b) It does not violate Section 28, Article II, of the Constitution of Missouri, which declares: "The right of trial by jury, as heretofore enjoyed, shall remain inviolate." Munk v. Fink, 116 N.W. 525, 17 L.R.A. (N. S.) 439; Gulley v. Territory, 91 Pac. (Okla.), 1037; Re Smith, 10 Wend. 449. (c) It does not violate Article III of the Constitution of Missouri. The power conferred upon the State Board of Health to revoke a physician's license for cause is an administrative, and not a judicial function. Munk v. Fink, 116 N.W. 525, 17 L.R.A. (N. S.) 439; State ex rel. v. Goodier, 195 Mo. 563; Spurgeon v. Rhodes, 167 Ind. 11; People v. Apfelbaum, 251 Ill. 23. (d) Said act is not in violation of the Fourteenth Amendment to the Constitution of the United States. It does not abridge the privileges and immunities of a citizen of the United States, and does not deprive relator of liberty and property without due process of law, nor does it deny to relator the equal protection of the law. Spurgeon v. Rhodes, 167 Ind. 12; Reetz v. Michigan, 188 U.S. 505.

ELDER, J. James T. Blair, C. J., and David E. Blair, J., dissent.

OPINION

In Banc.

ELDER J.

This is an appeal from a judgment rendered by the Circuit Court of Cole County upon a writ of certiorari directed to respondents as members of the State Board of Health of Missouri, which judgment affirmed the action of the said board in suspending, for a period of five years from Decmber 3, 1290, the license of relator herein to practice medicine and surgery. The pleadings and facts involved are substantially as follows:

Relator is a duly licensed and practicing physician of Jefferson City, Missouri. On September 14, 1920, Honorable H. J. Westhues, Prosecuting Attorney of Cole County, filed a complaint before the State Board of Health, charging that relator had been and was guilty of unprofessional and dishonorable conduct in this, to-wit: "That he, the said Herbert E. Johnson, on or about the 26th day of August, 1920, in the City of Jefferson City, State of Missouri, unlawfully produced a criminal abortion upon one Edna Boothby, a pregnant woman; he, the said Herbert E. Johnson, being then and there aforesaid a licensed physician and then and there not intending necessary medical or surgical treatment; not being then and there engaged in an act necessary to preserve the life of said Edna Boothby, or that of an unborn child, and not then and there intending any injury other than the destruction of the pregnancy." The said complaint prayed that an inquiry be had and that relator's license to practice medicine and surgery in this State be revoked.

Pursuant to such complaint notice was served upon relator that a hearing upon the charges preferred would be held before the said Board of Health, and, on October 28, 1920, such hearing was had at the City of Jefferson, when and where relator appeared in person and by attorney.

The evidence for respondents consisted of the oral testimony of Doctors J. E. Jose, Frank W. Gillham and James A. Hill, all of Jefferson City.

Dr. Jose, upon direct examination, testified that he had known Edna Boothby for the last eighteen months or two years; that he treated her in her last illness; that he was called to her home on August 30th, reached there about ten o'clock in the morning and found her trying to expel an afterbirth; that he knew from the afterbirth that there must have been a baby, but that he did not see a baby. Over the objection of counsel for relator the witness was permitted to testify as follows:

"Q. Did she tell you whether or not an abortion was performed upon her? A. Yes, sir.

"Q. Did she state to you who performed the abortion? A. She said Dr. Johnson performed the abortion on her on Thursday before.

"Q. Was anyone else present at the time? A. No, sir."

The witness further testified that he called in Doctors Gillham and Hill, but that Dr. Hill did not arrive until the girl was dead; that about one o'clock the next morning he telephoned the relator "that the girl had died and that she made a confession before she died; that if he wanted to know any of the particulars he could see me in the morning."

On cross-examination Dr. Jose testified that Miss Boothby died on August 31st about eleven or eleven-thirty o'clock at night, while he was present; that on the day before, at the time she made the statement with reference to relator, she was rational.

"Q. Say anything about that she realized the end was near, or say anything about dying? A. No.

"Q. Or any words to that effect? A. No, nothing said about that neither by her nor me. . . .

"Q. And outside of the girl's statement to you, you know nothing about the trouble at all? A. I know the girl was in a family way. . . . I know that the girl came to me and told me she was that way and wanted to know what she could...