State ex rel. Lentine v. State Board of Health
Citation | 65 S.W.2d 943,334 Mo. 220 |
Parties | State ex rel. Robert Lentine, Appellant, v. State Board of Health et al |
Decision Date | 06 December 1933 |
Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.
Affirmed.
J Henry Caruthers for appellant.
(1) Relator's motion to strike from the alleged complaint the phrase "have been guilty of unprofessional and dishonorable conduct" should have been sustained, for the reason that it states no cause of action. Sec. 9120, R S. 1929; State ex rel. v. Robinson, 253 Mo. 291; Hewitt v. Board of Medical Examiners, 148 Cal. 590. (2) Section 9120, Revised Statutes 1929, insofar as it authorizes the revocation of a physician's license to practice medicine, is a highly penal statute and must be strictly construed against respondents and liberally in favor of relator. State ex rel. v. Robinson, 253 Mo. 285; State ex rel. Johnson v. State Board of Health, 288 Mo. 671; Horton v. Clark, 320 Mo. 1199; State ex rel. K. C. C. of P. & S. v. North, 294 S.W. 1014. (3) The alleged offense of "bad moral character," set out in Section 9120, supra, is too vague, indefinite and uncertain to be enforceable. Ex parte Taft, 284 Mo. 554; Wabash v. O'Bryan, 285 F. 585; State ex rel. v. Robinson, 253 Mo. 290; Matthews v. Murphy, 54 L. R. A. 415; Hewitt v. Board of Medical Examiners, 148 Cal. 590. (4) The evidence presented to the Board of Health is reviewable by this court, and the finding of the board is not conclusive. The board's findings or orders are not judgments. Sec. 9120, R. S. 1929; State ex rel. Hathaway v. State Board of Health, 103 Mo. 29; State ex rel. Johnston v. Lutz, 136 Mo. 640; State ex rel. McCleary v. Adcock, 206 Mo. 558; Horton v. Clark, 316 Mo. 778; State ex rel. Horton v. Clark, 320 Mo. 1199. (5) The certified copy of the alleged conviction of relator admitted in evidence by the board is not sufficient to prove him a man of "bad moral character." "Character" is defined to be the peculiar qualities impressed by nature or habit on a person, which distinguishes him from others. Cox v. Strickland, 101 Ga. 482; Berneker v. State, 40 Neb. 810; Keith v. State, 152 S.W. 1029, 127 Tenn. 40; Greer v. Active, etc., 99 Conn. 266; Feibelman v. Fire Ins. Co., 108 Ala. 180; Glove v. State, 200 Ala. 384; Harrison v. Lakenan, 189 Mo. 601. (6) The law presumes that relator has a good character. State v. Reed, 250 Mo. 388. (7) The presumption of innocence of the offense of "bad moral character" must be overcome, and the guilt of relator proven beyond a reasonable doubt. State v. Hardelein, 169 Mo. 585.
Roy McKittrick, Attorney-General, and Harry G. Waltner, Jr., Assistant Attorney-General, for respondents.
(1) Appellate jurisdiction of this case is in the Supreme Court. State ex rel. Horton v. Clark, 9 S.W.2d 635. (2) "Unprofessional and dishonorable conduct" and "bad moral reputation" are definite, certain and sufficient and their interpretation does not involve a legislative or judicial act. State ex rel. Hathaway v. State Board of Health, 103 Mo. 22; State v. Hathaway, 115 Mo. 36; Richards v. State Board of Dental Examiners, 88 Kan. 684, 129 P. 1128, 43 L. R. A. (N. S.) 915; Morse v. State Board of Medical Examiners, 122 S.W. 446; State v. Thompson, 160 Mo. 333. (3) Acts of State Board of Health are exercise of police power of State. State ex rel. Farber v. Shot, 263 S.W. 804. Authority to revoke license essentially the same as authority to grant license. Horton v. Clark, 293 S.W. 362. (4) All evidence introduced, including evidence produced by relator, should be considered when determining whether or not there is substantial evidence to support judgment. State v. Lackey, 230 Mo. 707. Proof of specific acts proper to prove "bad moral character." Mower v. State Dept. of Health, 108 Conn. 74; Lerner v. State Dept. of Health, 108 Conn. 82; Posner v. State Dept. of Health, 108 Conn. 83. Proof does not have to be beyond a reasonable doubt. Sec. 9120, R. S. 1929; State v. Brown, 245 N.W. 348. (5) On review, action of Board of Health will not be disturbed in the absence of an abuse of discretion. State ex rel. Horton v. Clark, 9 S.W.2d 635.
Ferguson, C. Sturgis and Hyde, CC., concur.
In 1929 the relator, Robert Lentine, was licensed by the State Board of Health, under the Medical Act of this State (Art. 1, Chap. 53, R. S. 1929), to practice medicine and surgery. On June 11, 1930, after due notice and hearing upon charges made the State Board of Health revoked the license. Lentine thereupon petitioned the Circuit Court of the City of St. Louis for a review of "the proceedings of said board revoking his license and the evidence therein" (Sec. 9120, R. S. 1929) and the writ of certiorari provided for by said Section 9120, supra, was issued by that court. The proceedings of the Board of Health were sustained by the circuit court and this appeal followed.
Upon the oral argument in this court some question was suggested as to our jurisdiction of this appeal. The respondents are the members of and constitute the State Board of Health and it has heretofore been held that their "jurisdiction as members of the State Board of Health is co-extensive with the boundaries of the State and hence they are classed as state officers" within the meaning of that clause of Section 12, Article 6, of our Constitution giving this court jurisdiction "in cases where . . . any State officer is a party." [State ex rel. Conway v. Hiller et al. (State Board of Health), 266 Mo. 242, 180 S.W. 538.] In a similar case wherein the circuit court quashed the proceedings of the State Board of Health we said upon appeal:
[State ex rel. Horton v. Clark, 320 Mo. 1190, 1195, 9 S.W.2d 635.]
The statutory writ of certiorari provided for by Section 9120, supra, and whereby a right of review by the circuit court of the proceedings of the State Board of Health is granted, is much broader in its scope and effect than the common-law writ of certiorari. [See State ex rel. Horton v. Clark, supra.] Said section of the statute provides that, The statute then requires that the "petition for the writ of certiorari shall set forth the rights of the petitioner and the injuries complained of by him." We shall therefore confine our review to the matters of which relator complains by his petition to the circuit court and which were necessarily passed upon by that court in arriving at its judgment sustaining the proceedings of the Board of Health. Omitting wholly formal and preliminary allegations the petition follows:
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