Board of Medical Examiners v. Steward

• Decision Date: 14 January 1954
• Docket Number: No. 64,64
• Parties: BOARD OF MEDICAL EXAMINERS v. STEWARD.
• Court: Maryland Court of Appeals

Page 574

203 Md. 574

102 A.2d 248

BOARD OF MEDICAL EXAMINERS v. STEWARD.

No. 64.

Court of Appeals of Maryland.

Jan. 14, 1954.

J. Edgar Harvey, Deputy Atty. Gen. (Edward D. E. Rollins, Atty. Gen., on the brief), for appellant.

J. Cookman Boyd, Jr., Baltimore, and Lansdale G. Sasscer, Upper Marlboro (Henry M. Decker, Jr., Baltimore, and Hal C. B. Clagett, Upper Marlboro, on the brief), for appellee.

Argued before SOBELOFF, C. J., and DELAPLAINE, COLLINS and HENDERSON, JJ.

DELAPLAINE, Judge.

One of the Boards of Medical Examiners for the State of Maryland brought this appeal from an order of the Circuit Court for Prince George's County, which reversed the Board's revocation of the license of Dr. Napoleon B. Steward to practice medicine and surgery in the State of Maryland.

By direction of the Medical Practice Act, Code 1951, art. 43, secs. 117-147, there are in Maryland two Boards of Medical Examiners which have authority to issue licenses to practice medicine and surgery in this State. The members of one Board are appointed by the Medical and Chirurgical Faculty of Maryland, and the members of the other by the Maryland State Homeopathic Medical Society. Each Board consists of eight members, each of whom is appointed for a term of four years.

Section 144 of the Act provides that the Board, by a vote of five members, may revoke any license to practice medicine and surgery for any of the following causes: (1) the use of fraud or deception in passing the examination provided by the Act; (2) habitual drunkenness, (3) criminal abortion, (4) conviction of crime involving moral turpitude, and (5) unprofessional or dishonorable conduct. Before proceeding to revoke a license, the person against whom complaint is made shall be furnished a copy of the complaint and charges made against him, and shall be given an opportunity for a hearing before the Board, in person or by attorney, and at such hearing testimony may be offered for and against the accused. The action of the Board shall be reduced to writing, stating also the reasons for such action, and a copy thereof shall be delivered or mailed to the person against whom complaint is made.

Section 144 makes this provision for an appeal from the Board of the Circuit Court: '* * * within sixty days after said notice of revocation of license shall have been delivered or mailed to any person said party shall have the right of appeal to the circuit court of the city or county wherein he may reside, the judge or judges of which said court shall fully hear and determine all matters connected with the action of said board from which appeal is taken, and the decision of said court shall be final; * * *.'

The Board of Medical Examiners which represents the Medical and Chirurgical Faculty instituted the complaint to revoke Dr. Steward's license on June 5, 1951. The Board charged him with 'conviction of crime involving moral turpitude and with unprofessional and dishonorable conduct in that he was convicted of income tax evasion.'

The complaint was set for hearing on November 1, 1951, but the hearing was postponed until November 16.

The following eight physicians were members of the Board on November 1: Dr. Erasmus H. Kloman, president, Dr. Lewis P. Gundry, secretary, Dr. Henry T. Collenberg, Dr. Edward P. Thomas, Dr. John E. Legge, Dr. John H. Hornbaker, Dr. E. Paul Knotts and Dr. Edward Hanrahan. On that day Dr. Hanrahan, who is now deceased, submitted a letter of resignation. Having contracted tuberculosis, he was planning to leave for Saranac Lake. At the suggestion of the president of the Board, his letter of resignation was modified to request only a leave of absence for six months. The Board granted him leave of absence and appointed Dr. Samuel McLanahan to serve as a substitute for the remainder of his term.

On November 16 Dr. Steward appeared before the Board with his attorney and witnesses. On January 17, 1952, the Board, with six members present--Dr. Kloman, Dr. Gundry, Dr. Collenberg, Dr. Thomas, Dr. Legge and Dr. McLanahan--determined that the conviction of income tax evasion constituted a crime involving moral turpitude and also unprofessional and dishonorable conduct, and ordered that the license be revoked.

Dr. Steward appealed from that order to the Circuit Court for the County in which he resided. He contended that the Board was not validly constituted, as it had no authority to appoint a 'substitute' during Dr. Hanrahan's absence. He relied on Section 118, which provides as follows: 'In case of a vacancy occurring in either of said boards, the board in which such vacancy shall occur shall fill the same until the next annual meeting of the Medical and Chirurgical Faculty, or the Maryland State Homeopathic Medical Society, according as the board in question may be the representative of one or other of said societies, when said society shall elect an examiner to serve for the remainder of such unexpired term.'

The Attorney General, representing the Board of Medical Examiners, argued on the contrary that, since a license can be revoked by the votes of five members of the Board, and since six votes were cast in favor of revoking the license, the law was gratified without counting Dr. McLanahan's vote.

The Court said in its opinion that Dr. Steward is entitled to a fair and impartial hearing before a legally constituted Board, and that the Board was not legally constituted on November 16, 1951, when it heard the complaint. The Court took the view that the Board had no power to grant a leave of absence and allow Dr. McLanahan to sit as a substitute member. The Court asserted that the Board is an administrative agency created by the Legislature and possesses only those powers that are conferred upon it by statute, and that the statute provides that when there is a vacancy on the Board, the Board can fill it only by appointing someone for the unexpired term until the next annual meeting of the Medical and Chirurgical Faculty. The Court ruled that Dr. Hanrahan had not resigned from the Board, and therefore Dr. McLanahan was not a duly appointed member. Accordingly the Court remanded the case to the Board for another hearing, and refrained from expressing any opinion on the basic issue whether the conviction of income tax evasion constituted a crime involving moral turpitude and unprofessional and dishonorable conduct.

The Board has objected primarily to the concluding part of the Court's opinion, which reads as follows:

'The Board on November 1, 1951, was faced with a charge initiated by itself. On that date by appointing an unauthorized substitute for Dr. Hanrahan it disqualified itself from either legally expressing any opinion or taking any action affecting the doctor's license to practice that might result from its hearing on November 16, 1951. Since the order must be reversed the case will be remanded to the Board in order that a Board of Medical Examiners validly constituted may hear and determine the charge instituted on September 25, 1951.

'It seems appropriate to point out both to the Board and Dr. Steward, that any Board of Medical Examiners which might hear and determine this charge could not be composed of any of the five regular members who sat with Dr. McLanahan at the original hearing. Dr. Steward is entitled to a fair and impartial hearing before a regularly constituted board. He is entitled to have his case acted upon only through due process of law and can not be denied the equal protection of the law under the state and federal constitutions. This means that the members of any board which would determine his case must not be legally prejudiced against him. Again, while it is not intimated that Drs. Kloman, Gundry, Legge, Collenberg, and Thomas, if still members of the Board, would intentionally be unfair, they are in a legal sense held to be prejudiced in this case in that they have already committed themselves publicly to the interpretation disclosed in their order of revocation of January 17, 1952.'

Under the opinion the Court entered the following order: 'For the reasons herein contained the order of January 17, 1952, is reversed and the case remanded to the Board of...