Aiton v. Board of Medical Examiners of Arizona

• Decision Date: 27 March 1911
• Docket Number: Civil 1175
• Parties: R. A. AITON, Petitioner and Appellant, v. THE BOARD OF MEDICAL EXAMINERS OF ARIZONA, Respondent and Appellee
• Court: Arizona Supreme Court

114 P. 962

13 Ariz. 354

R. A. AITON, Petitioner and Appellant, v. THE BOARD OF MEDICAL EXAMINERS OF ARIZONA, Respondent and Appellee

Civil No. 1175

Supreme Court of Arizona

March 27, 1911

APPEAL from a judgment of the District Court for the Fourth Judicial District, in and for Maricopa County. Edward Kent, Judge. Affirmed.

See also, ante, p. 74, 108 P. 221.

STATEMENT BY COURT.

In June, 1893, the Board of Medical Examiners of Arizona issued a license authorizing appellant to practice medicine in this territory. In December, 1908, an affidavit was filed with the board, charging appellant with having been guilty, since the license was issued to him, of unprofessional conduct rendering him unfit to practice medicine in the territory, in that he willfully and knowingly published in a newspaper an advertisement of remarkable cures claimed to have been accomplished by means of certain mineral waters and preparations used and controlled by him, and claiming that such waters and preparations would cure incipient tuberculosis, systemic catarrh, and catarrh of the head Bright's disease, diabetes, rheumatism, and numerous other diseases. The advertisement was set forth in full in the affidavit, and it was charged that the publication was made for the purpose of soliciting and procuring wrongfully and fraudulently patients to submit themselves to medical treatment by him; that certain of the statements contained in the advertisement are false, and were known to appellant to be false when he made them, and were published with the intent to deceive the public and to impose upon the credulous and ignorant. Due notice of the charges was given, and a hearing was held at which testimony was heard, and which resulted in the license of the appellant being revoked. Application was made to the district court for a writ of certiorari to review the proceedings. A demurrer to the petition was sustained, and the writ refused, from which order this appeal is prosecuted.

C. F Ainsworth, for Appellant.

The legislature has no right or authority to vest in any board or commission the power or right to declare that certain acts after they have been done, shall constitute a crime for which such license shall be revoked, and that where a statute is indefinite or uncertain in pointing out what shall constitute the crime or ground of revocation, such board or commission has no power or authority to supply such omission by declaring that certain conduct or acts, not mentioned in the statute, shall be considered as coming within the purview of the law, and be ground for revoking such license. If physician's license is to be revoked for grossly improbable statements, it is requisite that the statute authorizing such revocation define what shall constitute such statements, so that the physician may know in advance the penalty he incurs in making them. Hewitt v. Board of Medical Examiners, 148 Cal. 590, 113 Am. St. Rep. 315, 84 P. 39, 3 L.R.A., N.S., 896, 7 Am. Cas. 750; Ex parte McNulty, 77 Cal. 164, 11 Am. St. Rep. 257, 19 P. 237; Matthews v. Murphy, 23 Ky. Law Rep. 750, 63 S.W. 785, 54 L.R.A. 415. "The liberty of the petitioner cannot be made to depend upon a thing so vague and uncertain as the undefined views of the members of the board as to what constitutes unprofessional conduct." The statute does not provide for any method of appeal from the decision of the appellee, and therefore a review by writ of certiorari is the proper proceeding. "It is the general rule that the writ will lie in all cases where no adequate remedy exists by which an erroneous determination can be reviewed or excess of jurisdiction restrained." Territory v. Doan, 7 Ariz. 89, 60 P. 893; People v. County Judge, 40 Cal. 479; People v. Betts, 55 N.Y. 600; Cunningham v. Berry, 17 Or. 622, 22 P. 115; Young v. Cannon, 2 Utah, 560. Where a statute is vague or indefinite in its terms, it is void. Tozer v. United States, 52 F. 917; Chicago v. Dey, 35 F. 866; Louisville v. Commissioners, 99 Ky. 132, 59 Am. St. Rep. 457, 35 S.W. 129, 33 L.R.A. 209; Ex parte Jackson, 45 Ark. 164.

John B. Wright, Attorney General, for Respondent and Appellee.

Certiorari is not a right but depends upon the discretion of the court. In re Hitz, 111 U.S. 766, 4 S.Ct. 698, 28 L.Ed. 592. It is nowhere claimed that the lower court abused its discretion in refusing to grant the writ prayed for. This court will not interfere, therefore, with the exercise of the discretion of the lower court, unless it appears that such discretion has been abused. Reilly v. Clark, 2 Ariz. 299, 15 P. 141; Hampson v. Adams, 6 Ariz. 335, 57 P. 621. Act No. 59, Session Laws 1903, is valid, in so far as it permits the Board of Medical Examiners to determine what constitutes "unprofessional conduct"; and as conclusive of our contention, cite the case of Meffert v. Packer, 66 Kan. 710, 72 P. 247, 1 L.R.A., N.S., 811, 195 U.S. 625, 25 S.Ct. 790, 49 L.Ed. 350. "The objection that the statute attempts to confer judicial power on the boards is not well founded. The powers conferred on the boards of medical examiners are nowise different in character in this respect from those exercised by the examiners of candidates to teach in our public schools, or by tax assessors, or boards of equalization in determining, for purposes of taxation, the value of the property. The ascertainment and determination of qualification to practice medicine by a board of competent experts, appointed for that purpose, is not the exercise of a power which appropriately belongs to the judicial department of the government." Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; People v. Hasbrouck, 11 Utah 291, 39 P. 918; Dreyer v. Illinois, 187 U.S. 71, 83, 23 S.Ct. 28, 47 L.Ed. 79; Cochise County v. Copper Queen Co., 8 Ariz. 221, 71 P. 946; Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002.

OPINION

CAMPBELL, J.

The question presented by this appeal is as to the validity of section 7 of Act No. 59 of the Laws of 1903. The act creates a board of five members, to be known as the Board of Medical Examiners of Arizona, and provides a penalty for anyone practicing medicine without first having obtained a license therefor from the board. Provision is made for the granting of licenses to persons having certain qualifications. Section 7 provides: "Upon proper proof to the Board of Medical Examiners of Arizona that the holder of any license issued under the provisions of this act has been guilty, since the issuance thereof, of any grossly immoral or unprofessional conduct rendering him or her unfit to practice medicine in this territory, or has been convicted of any felony, said board shall, after due notice to such holder and full opportunity to him or her to defend against or refute such charges, revoke and cancel such license. . . ."

It is too well settled to admit of discussion that the state, in its exercise of the police power, may prescribe the qualifications of those who are permitted to practice medicine, and may commit to a board created by it the authority to ascertain whether an applicant for permission to practice possesses the requisite qualifications, and also the power, after notice and opportunity to be heard, to revoke the license of any who become disqualified either morally or intellectually. Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Meffert v. Packer, 195 U.S. 625, 25 S.Ct. 790, 49 L.Ed. 350.

It is contended by appellant, however, that the statute under consideration, since it does not declare what shall be considered unprofessional conduct, is void for uncertainty. It is argued that "the term 'unprofessional conduct' is so vague and indefinite that no one can be certain just what it embraces. It might be declared to include a breach of professional ethics irrespective of any moral turpitude, and might be declared to include acts of so trivial a nature and of so little importance as to wholly preclude any of the elements of a crime." He attempts to distinguish those cases to which we shall hereinafter refer, which hold valid statutes conferring upon boards power to revoke the licenses of those found guilty of immoral conduct, from that before us on the ground that the term "immoral conduct," while in a measure indefinite, "contains an element of moral turpitude or disregard of the settled ideas or principles of morality, and are very easily recognized, by reason of their being a breach of what we all know to constitute moral conduct,"...