Ott v. Bd. of Registration in Med.

• Citation: 177 N.E. 542,276 Mass. 566
• Parties: OTT v. BOARD OF REGISTRATION IN MEDICINE.
• Decision Date: 15 September 1931
• Court: United States State Supreme Judicial Court of Massachusetts

276 Mass. 566

177 N.E. 542

OTT

v.BOARD OF REGISTRATION IN MEDICINE.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 15, 1931.

Petition in Supreme Judicial Court, Suffolk County.

Petition by George J. Ott to the Supreme Judicial Court to review the action of the Board of Registration in Medicine in canceling petitioner's registration. From an adverse decree of a single justice, the respondent appeals.

Decree affirmed.

C. F. Lovejoy, of Boston, for appellant.

R. G. Dodge and G. L. Ellsworth, both of Boston, for appellees.

RUGG, C. J.

The petitioner was duly registered and entitled to practice medicine as a physician in this commonwealth. Upon due notice and after a hearing his registrationwas canceled by the respondent board for professional misconduct in that he made an agreement to perform an abortion on the person of a named woman. Thereupon this petition was brought. The Massachusetts Medical Society was allowed to intervene without objection. Its attitude is in effect in aid of the petitioner.

This proceeding is wholly statutory. The relevant statutes are three sections of G. L. c. 112. It is provided by section 61, as amended by St. 1921, c. 478, § 1, that the respondent board ‘after a hearing, may, by a majority vote of the whole board,’ cancel a registration for causes there enumerated, including the one stated in the notice to the petitioner and in the order for cancellation of his registration. Section 62 regulates the notice and the hearing before the board. Section 64 provides that upon the petition of a person whose registration has been canceled the ‘supreme judicial court * * * may enter a decree revising or reversing the decision of the board, if it appears that the decision was clearly wrong. * * *’ The scope of the hearing upon such a petition is not specified in the statute with further particularity. It has never been precisely determined by any adjudication. The first case arising under this statute was Lawrence v. Board of Registration in Medicine, 239 Mass. 424, 132 N. E. 174. The chief point there in issue was the constitutionality of the statute. It was said at page 429 of 239 Mass.,132 N. E. 174, 176: ‘The statute affords every reasonable safeguard to protect the rights of the petitioner by requiring a hearing [before the board] at which he may be present with witnesses and counsel and providing also for hearing in court and revision and reversal of the finding of the board, if justice demands such action.’ The proceeding in Davis v. Board of Registration in Medicine, 251 Mass. 283, 146 N. E. 708, was not under but related to said section 64. It was said at page 285 of 251 Mass.,146 N. E. 708, 709: ‘Every presumption is to be made in favor of the regularity and fairness of the methods of procedure and of the proposed action of such a board.’ A petition under section 64 was before the court in Dugdale v. Board of Registration in Medicine, 270 Mass. 65, 68, 69, 169 N. E. 547. It there was said, 270 Mass. 68, 169 N. E. at page 548: ‘The petitioner, in our opinion, was given a full, fair and impartialhearing before the board. * * * The board heard the witnesses, and the statements made by the petitioner; the degree of credibility to be given to the witnesses was for the board. With this evidence of unprofessional conduct, it could not be found that the decision of the board was ‘clearly wrong.”

There are numerous other statutes providing by various forms of words for greater or less judicial supervision of the acts of administrative or executive boards or officers affecting individuals or rights of property. For example in Swan v. Justices of Superior Court, 222 Mass. 542, 543, 111 N. E. 386, 387, the jurisdiction as to removal from office by a mayor was ‘for a review of the charges, of the evidence submitted thereunder, and of the findings thereon by the mayor’ with power to ‘affirm or revoke the order of the mayor.’ The distinction was drawn between a review and an appeal. These words conferred no power to re-examine the witnesses and to hear the case anew, but conferred power only to examine the conclusion of the mayor as to facts, law and decision. In Murray v. Justices of Municipal Court, 233 Mass. 186, 187, 123 N. E. 682, 683, the duty of the court was to ‘review’ the action of the officer or board making the removal, hear the witnesses and affirm the order of removal unless it was made ‘without proper cause or in bad faith.’ It was held that no retrial could be had but only a re-examination of a proceeding already concluded for the purpose of preventing a decision not based upon an unbiased and reasonable judgment, or made without proper cause, and that the decision should not be reversed merely because the reviewing magistrate might feel that he would have decided the matter differently on the evidence. In Selectmen of Wakefield v. Judge of District Court, 262 Mass. 477, 481, 160 N. E. 427, 430, the governing statute required the judge to ‘review’ the action of the officer or board, ‘hear any or all of the witnesses and determine whether or not upon all the evidence such action was justified.’ This was held to require an affirmative finding upon all the evidence that the action was taken upon adequate reasons sufficiently supported by evidence credible to an unprejudiced mind guided by sound judgmentand correct rules of law. It has been held that G. L. c. 161, § 142, and its predecessors conferring jurisdiction in equity ‘to review, annul, modify or amend the rulings of any state department or commission relative to street railways as law and justice may require’ extend only to rulings of law and not to findings of fact. See, also, G. L. c. 25, § 5; c. 161, §§ 140, 141; Paine v. Newton Street Railway, 192 Mass. 90, 77 N. E. 1026;Donham v. Public Service Commissioners, 232 Mass. 309, 328, 122 N. E. 397;Boston & Albany Railroad v. New York Central Railroad, 256 Mass. 600, 618, 153 N. E. 19. There are sundry statutes affording varying degrees of review of action taken by boards and officers exercising administrative or quasi judicial functions more or less analogous to the one here to be considered. See for example G. L. c. 167, § 33, as to bank commissioner, Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95, 113, 136 N. E. 403; G. L. c. 174, § 7; as to insurance commissioner, G. L. c. 175, §§ 5, 108, 132, 134; c. 152, § 55; AEtna Life Ins. Co. v. Hardison, 199 Mass. 181, 85 N. E. 407; as to minimum wage, G. L. c. 151, § 4; as to compensation for joint use of certain railroad properties, G. L. c. 160, §§ 60, 131; Boston & Albany Railroad v. Public Service Commissioners, 232 Mass. 358, 122 N. E. 384; as to orders affecting common carriers, G. L. c. 159, §§ 40, 47, 48; Barrows v. Farnum's Stage Lines, Inc., 254 Mass. 240, 150 N. E. 206; and G. L. c. 161, § 128. No aid is to be derived from a review of those statutes or decisions. Where it has been the purpose of the General Court to provide for a new trial by a court of questions determined in the first instance by a public board or officer the word ‘appeal’ has been used. See for example as to appeals from refusal to abate taxes, G. L. c. 59, §§ 7, 65, 73, 81; c. 62, §§ 47, 51; c. 63, §§ 51, 71; c. 60A, § 2, added by St. 1928, c. 379, § 1. Compare G. L. c. 58A, § 6, added by St. 1930, c. 416, § 1. In other instances provision is made that relief may be sought according to ordinary procedure in equity, which implies an entire trial of the case upon its merits. G. L. c. 63, § 77; c. 65, §§ 27, 30.

The statutory words here governing are not precisely the same as those used elsewhere in our statutes. The proceeding is to be begun by a ‘petition.’ That is a word familiar in equity. See G. L. c. 214, § 7. The decision of the court is to be expressed by the entry of a ‘decree.’ That word commonly is used to describe the expression of an adjudication in equity. Gould's Case, 215 Mass. 480, 482, 102 N. E. 693, Ann. Cas. 1914D, 372. See Holcombe v. Creamer, 231 Mass. 99, 103-104, 120 N. E. 354. The power of the court may be put forth to change a determination by the board only in the event that it appears to be ‘clearly wrong.’ That also is a phrase familiar in equity to express the reluctance of an appellate court to change findings of fact made by a magistrate before whom the case has been tried at large and on oral testimony. Dean v. Emerson, 102 Mass. 480, 482;Lindsey v. Bird, 193 Mass. 200, 79 N. E. 263;Tingley v. North Middlesex Savings Bank, 266 Mass, 337, 339, 165 N. E. 119. The scope of the jurisdiction of the court on the petition is restricted to ‘revising or reversing’ that which was done by the board. That is different from a decision on appeal. To revise in this connection means in substance the same as to review. That does not import an entire retrial such as would arise on appeal. It indicates a re-examination of proceedings already had. Swan v. Justices of Superior Court, 222 Mass. 542, 547-548, 111 N. E. 386. The procedure then is that there is not to be a new trial on the merits of the issues, with hearing and decision as in the ordinary suit instituted by petition in equity, tried before a judge who reaches his own conclusion on an independent examination of the case at large unaffected by anything which has gone before. The decision of the board is to be examined on such a petition with every reasonable presumption in its favor and it is not to be revised or reversed without plain proof of such error or mistake as to vitiate fairness in the hearing or justice in the decision or to show that the conclusion reached by the board is palpably not in accordance with truth, is the result of error or mistake, or is unsupported in law. Mayor of Medford v. Judge of District Court, 249 Mass. 465, 144 N. E. 397;Selectmen of Wakefield v. Judge of District Court, 262 Mass. 477, 160 N. E. 427;Newcomb v. Board of Aldermen of Holyoke, 271 Mass. 565, 568, 569, 171 N. E. 826.

At the trial of the case at bar before...