Baker v. Department of Registration

• Citation: 3 P.2d 1082,78 Utah 424
• Decision Date: 02 October 1931
• Docket Number: 5201
• Court: Supreme Court of Utah
• Parties: BAKER v. DEPARTMENT OF REGISTRATION et al

3 P.2d 1082

78 Utah 424

BAKER v. DEPARTMENT OF REGISTRATION et al

No. 5201

Supreme Court of Utah

October 2, 1931

Original proceeding by George W. Baker for a writ of prohibition prayed to be directed to the Department of Registration of the State of Utah and S.W. Golding, Director thereof, to prohibit revocation of plaintiff's license to practice his profession as a physician and surgeon.

Temporary writ previously issued vacated and set aside, and application for a permanent writ denied.

De Vine, Howell & Stine, A. W. Agee, and Lewis J. Wallace, all of Ogden, for plaintiff.

Geo. P Parker, Atty. Gen., and Byron D. Anderson, Deputy Atty. Gen for respondents.

ELIAS HANSEN, J. STRAUP, FOLLAND, and EPHRAIM HANSON, JJ., concur. CHERRY, C. J., did not participate on account of illness.

OPINION

ELIAS HANSEN, J.

The plaintiff, George W. Baker, has applied to this court for a writ of prohibition. His application is founded upon a verified complaint. He seeks to prohibit the department of registration of the state of Utah and its director, S.W. Golding, from revoking his (plaintiff's) license to practice his profession of a physician and surgeon. It is in substance alleged in the complaint filed in this court that plaintiff now is, and since the year 1894 has been, a duly licensed physician and surgeon of the state of Utah; that on or about May 18, 1931, a verified complaint was filed with the department of registration of the state of Utah, charging the plaintiff herein with unprofessional conduct, viz., with, on May 13, 1931, in Weber county, Utah, attempting to produce a criminal abortion upon a named female person; that upon the filing of the complaint with the department of registration its director, S.W. Golding, issued a citation directing the plaintiff herein to appear before the department at a time and place stated and show cause why his license to practice his profession should not be revoked; that the citation so issued was duly served, and the plaintiff herein filed in the cause with the department his answer; that on June 27, 1931, a hearing was had before the department of registration and a committee of five physicians and surgeons; that the committee found that the plaintiff herein was guilty of the unprofessional conduct charged and that S.W. Golding as director of registration will, unless prohibited by this court, revoke plaintiff's license to practice his profession.

Upon the filing of the complaint this court issued its writ directing the department of registration and its director, S.W. Golding, to desist and refrain from any further proceedings in the cause against the plaintiff herein until the further order of this court and to show cause why the order should not be made permanent and absolute. The defendants have appeared and demurred to plaintiff's complaint upon the ground that it does not state facts sufficient to constitute a cause of action or to entitle plaintiff to the relief prayed.

The proceedings concerning which plaintiff herein complains were had pursuant to chapters 130 and 91, Laws of Utah 1921, as amended by chapters 49 and 58, Laws of Utah 1923. Further amendments were made to the acts by chapter 124, Laws of Utah 1925, and chapter 71, Laws of Utah 1927. The amendments of 1925 and 1927 have no bearing upon the questions presented for determination in this proceeding, and therefore such amendments need not be here considered. So far as appears, the procedure prescribed by law was followed by the department of registration in the proceeding had against the plaintiff herein for the revocation of his license. The plaintiff does, however, allege in his complaint filed herein that "under the provisions of said act, five physicians had been appointed to take action and make report in writing, upon complaints charging physicians with unprofessional conduct, and at the time and place of said hearing one of said five persons did not appear, and thereupon the said S.W. Golding, acting as such director of registration, without any authority of law, appointed another person to act in his place, and the said five persons then present proceeded to hear the evidence in support of said complaint and of the answer, and upon the conclusion of said hearing made a report in writing recommending that the license of the plaintiff herein be revoked." It is urged by the plaintiff herein that the director of registration was not authorized to appoint a physician to act as a member of the committee instead of the regularly appointed physician who failed to appear at the hearing. The contention is not tenable. The act provides that the director of registration shall not exercise the functions and duties of the department of registration with respect to the granting or revoking of licenses of physicians and surgeons except upon the action and report in writing of five persons each of whom shall be a licensed practitioner of medicine and surgery in this state. The action or report in writing of a majority of the five persons constituting the committee "shall be sufficient authority upon which the director of registration may act." It is further provided in the act that "in making the designation of persons to act for the several professions, trades and occupations, the director shall give due consideration to recommendations by members of the respective professions, trades and occupations and by organizations therein, and the names of all persons so designated shall be submitted to the governor for confirmation or rejection, if confirmed, they shall serve until removed by the director."

"Whenever the director is satisfied that substantial justice has not been done, either in an examination or in the revocation of or refusal to renew a license, certificate or authority, he may order re-examinations or rehearings by the same or other examiners." Laws Utah 1923, chap. 49, p. 104, § 1. It will be observed that an appointment of a member of the committee made by the director must, before becoming effective, be confirmed by the Governor, but the director may, without the consent of the Governor or any one else, remove a member of the committee. No claim is made that the member of the committee who was appointed by the director to sit and hear the cause in the absence of one of the regular members was not qualified, or that the appointment was not confirmed by the Governor, or that plaintiff made any objection at the hearing to the member so appointed. Under such circumstances, the plaintiff may not avail himself of the claimed irregularity, especially upon an application for a writ of prohibition.

It is next earnestly urged on behalf of the plaintiff herein that the act which authorizes the department of registration to revoke the license of a physician and surgeon is unconstitutional. The constitutionality of the act is attacked upon two grounds, viz.: (1) That while the act provides that an "appeal to the courts may be had" from an order made by the director of registration revoking or refusing to renew the license of a physician and surgeon, no provision is made for the time within which the appeal shall be taken, nor the court or courts to which the appeal may be taken, nor the procedure that must be followed; (2) that the title of the act which creates the department of registration is defective in that it does not mention or refer to the revocation of licenses of physicians and surgeons to practice medicine.

In 1921 the Legislature of Utah (chapter 130, Laws of Utah 1921) "created a department of the state government to be known as the 'Department of Registration.'" Section 1. The department of registration, so created was by the act given power "to exercise the rights, powers and duties heretofore exercised and vested by law in the following boards and commissions: State board of accountancy, State board of architecture, Utah state board of examiners of barbers, State board of dental examiners, State board of medical examiners, State board of examination and registration of hospital trained and graduate nurses, Utah state board of examiners in optometry, State board of pharmacy, Utah state board of veterinary medical examiners." Section 2. The act further provides that "the department of registration shall, whenever the several laws regulating professions, trades and occupations which are devolved upon the department for administration so require, exercise, in its name, but subject to the provisions of this Act, the following powers: * * * (f) Conduct hearings on proceedings to revoke or refuse renewal of licenses, certificates or authorities of persons exercising the respective professions, trades or occupations, and to revoke or refuse to renew such licenses, certificates or authorities." Section 3.

In 1923 the Legislature of Utah amended subdivision (f) last above quoted by adding thereto at the end thereof these words: "Provided that appeal to the courts may be had." Laws of Utah 1923, chap. 49, p. 105, § 1.

It is plaintiff's contention that the provision "that appeal to the courts may be had" clearly indicates an intention on the part of the Legislature that an appeal lies from an order of the department of registration revoking the license of a physician and surgeon, but that such intention cannot be given effect because the act fails to designate the court or courts to which the appeal may be taken, and fails to fix the time within which the appeal shall be taken, and likewise fails to prescribe the procedure that must be followed in perfecting the appeal. And finally it is urged on behalf of the plaintiff that because the act grants the right of an appeal, but makes no provision for the exercise of such right, the entire act is unconstitutional and void. Counsel for the defendants concede...