Bd. Of Med. Exam'rs v. Carroll

• Decision Date: 10 June 1927
• Docket Number: (No. 562.)
• Citation: 138 S.E. 339
• Parties: BOARD OF MEDICAL EXAMINERS et al. v. CARROLL.
• Court: North Carolina Supreme Court

138 S.E. 339

(194 N. C. 37)

BOARD OF MEDICAL EXAMINERS et al.

v.CARROLL.

(No. 562.)

Supreme Court of North Carolina.

June 10, 1927.

Appeal from Superior Court, Buncombe County; Shaw, Judge.

Petition by Mrs. Kate Burr Johnson, State Commissioner of Public Welfare, filed with the Board of Medical Examiners, to revoke the physician's license of Robert S. Carroll The license was revoked, and the defendant appealed to the superior court. From a ruling of the superior court holding that the defendant was entitled to a trial de novo with a jury, the State, on the relation of the Board of Medical Examiners, and the Commissioner of Public Welfare, appeal. Remanded.

Proceeding for the revocation of a physician's license to practice medicine in the state of North Carolina. The charge preferred against the respondent by Mrs. Kate Burr Johnson, state commissioner of public welfare, before the State Board of Medical Examiners, was sustained and the license revoked. On appeal to the superior court of Buncombe county, it was held that the respondent was entitled to a trial de novo and to have the issue of fact determined by a jury. From this ruling, the Board of Medical Examiners and the commissioner of public welfare appeal, assigning error.

D. G. Brummitt, Atty. Gen., Frank Nash, Asst. Atty. Gen., and Luther Hamilton, of Morehead City, for appellants.

Julius C. Martin, Robert R. Williams, and Mark W. Brown, all of Asheville, for appellee.

STACY, C. J. It is the contention of the State Board of Medical Examiners and the commissioner of public welfare that this is neither a criminal prosecution nor a civil action in the common-law sense, but a special proceeding under C. S. Supp. 1924, § 6618, to revoke a physician's license to practice medicine, and that, on appeal to the superior court, as allowed by the statute, the respondent is not entitled to a trial by jury. The appeal therefore presents for our decision solely a question of procedure, nothing more.

The alleged prematurity of the appeal is pretermitted, as the point raised has not heretofore been decided by us, and it would seem that an expression of opinion would be helpful at this time—a course pursued in a number of cases and permissible under our decisions. Corp. Com. v. Mfg. Co., 185 N. C. 17, 116 S. E. 178.

The initial step in the proceeding to revoke the license of respondent to practice medicine in this state was a petition filed by the commissioner of public welfare with the State Board of Medical Examiners on April 19, 1926, charging that "Dr. Robert S. Carroll has been guilty of 'grossly immoral conduct' with patients and nurses in the Highland Hospital in the city of Asheville, of which he is the owner and medical director, " and asking that his license be revoked in accordance with the provisions of section 6618, vol. 3 of the Consolidated Statutes. Thereafter, on June 26, 1926, following a full hearing of the case, had after due notice given the respondent, the State Board of Medical Examiners entered an order revoking Dr. Carroll's license to practice medicine in North Carolina. From this order the respondent appealed to the superior court of Buncombe county, under the following provision appearing in the above-mentioned statute:

"Provided, further, that the holder of a license so revoked shall have the right to appeal to the courts; and if action of the board of examiners be reversed, he shall be allowed to retain his...