Bridges v. State Bd. of Registration for Healing Arts

• Decision Date: 18 July 1967
• Docket Number: No. 32737,32737
• Citation: 419 S.W.2d 278
• Parties: William Cullen BRIDGES, M.D., Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent.
• Court: Missouri Court of Appeals

Page 278

419 S.W.2d 278

William Cullen BRIDGES, M.D., Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent.

No. 32737.

St. Louis Court of Appeals, Missouri.

July 18, 1967.

Motion for Rehearing or for Transfer to Supreme Court Denied

Sept. 12, 1967.

Grant & Howard, St. Louis, for appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., St. Louis, for respondent.

DOERNER, Commissioner.

William Cullen Bridges, a physician licensed to practice in this state, was charged by the State Board of Registration for the Healing Arts with performing two unlawful abortions, in violation of Section 334.100, subd. 1(3), RSMo 1959, V.A.M.S. After a hearing the Board unanimously found him guilty of the offenses charged and revoked his license to practice. In accordance with Section 536.100 et seq., of our Administrative Procedure and Review Law, appellant filed his petition for judicial review in the Circuit Court of the City of St. Louis, which affirmed the Board's order. On the supposition that constitutional questions were involved he appealed to the Supreme Court. That court determined that it was without jurisdiction and transferred the cause to this court. Gaddy v. State Board of Registration for Healing Arts, Mo., 394 S.W.2d 284; Bittiker, D.O. v. State Board of Registration for Healing Arts, Mo.App., 404 S.W.2d 402.

Appellant's brief contains five 'points relied on,' one ofwhich has two subdivisions. As respondent notes, the second and third points were not raised in appellant's petition for review, in the hearing before the Circuit Court, or in his motion for a new trial, and a strict enforcement of the rules would require us to hold that they were not properly raised below, T. J. Moss Tie Co. v. State Tax Commission of Missouri, Mo., 345 S.W.2d 191, 193--194, and that they have not been preserved for appeal. Civil Rule 79.03, V.A.M.R.; State v. Keiter, Mo., 394 S.W.2d 399. The fifth point, that '* * * the competent evidence adduced is substantially insufficient to support the findings of fact, conclusion of law, and order * * *,' without any explanation of why it was insufficient, does not conform to Civil Rule 83.05(e); Domijan v. Harp, Mo., 340 S.W.2d 728. However, in view of the nature of the case and the seriousness to appellant of the order revoking his privilege to practice we have concluded, in the exercise of our discretion, to consider all of such points on their merits. It is appropriate to add that the proceedings were instituted and the hearing was held by the Board prior to the date on which our new Administrative Hearing Commission Act, Section 161.252 et seq., Laws 1965, Page 277, S.B. No. 284, became effective and that that Act, '* * * although it may provide desirable additions to agency hearing procedures, it does not void proceedings lawfully conducted prior to its enactment.' Rose v. State Board of Registration for Healing Arts, Mo., 397 S.W.2d 570, 576.

On January 9, 1965, the date specified in the notice of hearing, appellant and his counsel, Messrs. Raymond Howard and David M. Grant, appeared before the Board and announced that appellant was appearing specially and only for the purpose of presenting a motion for a continuance. Section 510.120 provides, in part, that 'In all civil cases or in criminal cases pending in any court of this state at any time when the general assembly is in session, it shall be a sufficient cause for a continuance if it shall appear to the court, by affidavit, that * * * any attorney * * * of such party is a member of either house of the general assembly, and in actual attendance on the session of the same, and that the attendance of such * * * attorney * * * is necessary to a fair and proper trial or other proceeding in such suit * * *.' Mr. Howard, a member of the General Assembly, which was then in session, filed his affidavit for a continuance which complied in all respects with Section 510.120, and undisputed evidence was offered which fully supported the affidavit. In all fairness it should be stated that the evidence showed that Mr. Howard had been employed as co-counsel as early as October 28, 1964, prior to the institution of these proceedings, to defend appellant against related criminal charges growing out of the same alleged abortions. See State of Missouri v. Bridges, Mo., 412 S.W.2d 455. The Board denied the motion for a continuance and its denial furnishes the basis for appellant's initial point on appeal.

In brief, the question presented is whether, despite the restrictive language in Section 510.120 ('all civil cases or in criminal cases pending in any court') it is applicable to a proceeding before an administrative agency. Appellant frankly states that he has been unable to find any authority holding that it is, but he points to the recognized purposes of the statute and argues that it should be so construed since their actions are judicial or quasi-judicial in nature. We readily agree that Section 510.120, '* * * has a dual purpose, that of protecting the business of an attorney or a person engaged in some other business while serving in the Legislature, thereby encouraging good men to sacrifice their time in the interest of good government; and that of protecting a party to a suit whose attorney may be serving in the Legislature. * * *' State v. Myers, Mo., 352 Mo. 735, 179 S.W.2d 72, 75. But while the Board's actions are judicial or quasi-judicial in nature, Article V, Section 22, Const. of 1945, V.A.M.S., we cannot agree that the Board exercises judicial powers or that it is in any sense a court, for the decisions regarding its administrative predecessor have all been to the contrary. Horton v. Clark, 316 Mo. 770, 293 S.W. 362; State ex rel. McAnally v. Goodier, 195 Mo. 551, 93 S.W. 928; State v. Hathaway, 115 Mo. 36, 21 S.W. 1081. Indeed, in the recent case of Gaddy v. State Board of Registration for Healing Arts, Mo., 394 S.W.2d 284, the Supreme Court defined the Board as '* * * an artificial legal entity in the nature of a quasi public corporation * * *' and classified it with other Boards and commissions which carry on '* * * much of the important work of the executive branch * * *' of our state government.

The language employed in Section 510.120 is clear and unambiguous. By its terms it is applicable only when a civil or criminal case is pending in a court of law. A proceeding of the nature of the one here under consideration is neither a civil nor a criminal case within the meaning of those terms, State of Missouri v. Harold, 364 Mo. 1052, 271 S.W.2d 527; State ex rel. Ball v. State Bd. of Health, 325 Mo. 41, 26 S.W.2d 773; and as the authorities heretofore cited hold, an administrative agency is not a court. Where, as here, the language of a statute is plain and admits of but one meaning there is no room for judicial construction. Foremost Dairies, Inc. v. Thomason, Mo., 384 S.W.2d 651; Rathjen v. Reorganized School District R--11 of Shelby County, 365 Mo. 518, 284 S.W.2d 516; Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920. And under the guise of judicial construction we have no right to change the meaning of a clear and unambiguous statute. Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577; McLaurin v. Frisella Moving and Storage Co., Mo.App., 355 S.W.2d 360. It may well be that in view of the salutary purposes of Section 510.120, the great increase in the number of administrative agencies, and the scope of their activities that the statute should be amended to provide for similar continuances of matters pending before such boards and commissions. But such an amendment must be made by the Legislature, not by this court by a construction which in effect would be judicial legislation.

Following the overruling of the motion for a continuance appellant next filed a written motion attacking the jurisdiction of the Board and seeking the dismissal of the charges, or, in the alternative, a continuance pending the disposition of the indictments previously returned against him. The Board also denied that motion, which ruling appellant likewise assigns as error. The identical question raised under a similar factual situation was decided adversely to appellant's contention in State ex rel. Hurwitz v. North, 304 Mo. 607, 264 S.W. 678, 682, aff. 271 U.S. 40, 46 S.Ct. 384, 70 L.Ed. 818, where it was held:

'* * * As to the oral application for continuance, it should be added that there is no substantial reason for postponing a proceeding like this until after the criminal prosecution is concluded. * * *'

Having failed in his efforts to obtain the dismissal of the charges pending before the Board or a continuance of the hearing appellant then orally requested time in which to seek an injunction to restrain the Board from proceeding with the hearing. That request was also denied, and the denial is raised in the 'points relied on' portion of appellant's brief but is not developed in the argument portion and might therefore be held to have been abandoned. Terry v. Boss Hotels, Inc., Mo., 376 S.W.2d 239; Holt v. Queen City Loan & Investment, Inc., Mo., 377 S.W.2d 393. We have, however, considered it and find it to be without merit. The Board's refusal to dismiss the charges or continue the hearing pending the disposition of the criminal charges was proper, as was held in State ex rel. Hurwitz v. North, supra. And its ruling in that regard did not furnish appellant with sufficient grounds upon which to obtain an injunction. Hughes v. State Board of Health, 345 Mo. 995, 137 S.W.2d 523.

The concluding sentence of subsection 2 of Section 334.100 reads: '* * * Before a license is revoked, there shall be included in the majority of the board voting for the revocation, the vote of at least one board member, if any, who is a graduate of a professional school approved and accredited as reputable by the association which has approved and accredited as reputable the professional...