Brinkley v. Hassig

• Decision Date: 13 June 1930
• Docket Number: 29,686
• Citation: 289 P. 64,130 Kan. 874
• Parties: JOHN R. BRINKLEY, Appellant, v. J. F. HASSIG et al., as Members of THE STATE BOARD OF MEDICAL REGISTRATION AND EXAMINATION, etc., Appellees
• Court: Kansas Supreme Court

289 P. 64

130 Kan. 874

JOHN R. BRINKLEY, Appellant, v. J. F. HASSIG et al., as Members of THE STATE BOARD OF MEDICAL REGISTRATION AND EXAMINATION, etc., Appellees

No. 29,686

Supreme Court of Kansas

June 13, 1930

Decided January, 1930.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PHYSICIAN AND SURGEON -- Hearing by Board for Revocation of License -- Validity of Statute. The statute providing that the board of medical examination and registration may revoke the license of a physician and surgeon for specified causes "after notice and hearing," is not unconstitutional as denying due process of law, under either the state or the federal constitution.

Fred S. Jackson and James E. Smith, both of Topeka, for the appellant.

William A. Smith, attorney-general, and W. C. Ralston, assistant attorney-general, for the appellees.

OPINION

BURCH, J.:

The action was one by plaintiff to enjoin the state board of medical examination and registration from holding a hearing on the subject of revocation of plaintiff's license to practice medicine and surgery. A demurrer to the petition was sustained, and plaintiff appeals.

The board of medical examination and registration consists of seven members appointed by the governor by and with the consent of the senate. Each member must be a physician in good standing in his profession, who received a degree of doctor of medicine from a reputable college or university not less than six years previous to appointment as a member of the board. Each member is required to take and subscribe the oath prescribed for state officers, and the oath is filed with the secretary of state. The board is organized by selection of a member as president and another member as secretary, and is required to hold regular meetings on stated days of the year in such of the chief cities of the state as the board may designate. The board has a common seal, and has power to formulate rules to govern its action. The president and secretary have power to administer oaths pertaining to all matters relating to the board's business. The board is required to keep a record of its proceedings and a register of applicants for license, and the books and register of the board are prima facie evidence of all matters recorded thereon. (R. S. Supp. 74-1001.)

All persons intending to practice medicine or surgery are required to apply to the board for license to practice. The application must be in writing, and must be accompanied with proof of moral character and satisfactory evidence of study for a prescribed time. All applicants must submit to an examination of a character to test qualification to practice medicine and surgery, except that graduates of certain medical institutions and holders of licenses from other states whose standards are as high as those of this state, may, in the discretion of the board, be admitted without examination. The statute further provides as follows:

"The board may refuse to grant a certificate to any person guilty of felony or gross immorality or addicted to the liquor or drug habit to such a degree as to render him unfit to practice medicine or surgery, and may, after notice and hearing, revoke the certificate for like cause, or for malpractice, or unprofessional conduct." (R. S. Supp. 65-1001.)

In the year 1916 the plaintiff, John Richard Brinkley, of Milford, Kan., was granted a license to practice medicine and surgery in Kansas, under the reciprocity provision of the law, and the license is still in effect. On April 28, 1930, a verified complaint was filed with the board, stating causes for revocation of the license. On April 29 the licensee was served with notice, signed by the president and secretary and under seal of the board, that the complaint had been filed, and that a hearing would be had on the complaint at a specified place in Topeka on June 17, 1930, at 2 p. m., which is the date of a regular meeting of the board. The notice informed the licensee he might appear before the board at the hearing, present his defense to the charges contained in the complaint, and be represented by counsel if he so desired. A copy of the complaint was attached to the notice. On May 7, 1930, this action was commenced, to prevent the board from holding any hearing to determine the truth of the charges contained in the complaint.

The petition did not allege that the statute was lame in regard to specifying grounds for revocation of license, and it was not. Neither did the petition allege that the complaint did not state grounds for revocation of license prescribed by the statute. The complaint was by no means confined to challenge of the success of the licensee's gland operation, the claimed result of which is that dotards having desire without capability may cease to sorrow as do those without hope, and the complaint was not that the licensee is a quack of the common, vulgar type. Considered as a whole, the gravamen of the complaint is that, being an empiric without moral sense, and having acted according to the ethical standards of an impostor, the licensee has perfected and organized charlatanism until it is capable of preying on human weakness, ignorance and credulity to an extent quite beyond the invention of the humble mountebank who has heretofore practiced his pretensions under the guise of practicing medicine and surgery. The petition for injunction denied the charges contained in the complaint, but the ground for injunction was, the board has no power to hold a hearing to find out whether the charges are true or false.

There was no allegation in the petition that the words "may, after notice and hearing, revoke the certificate," were insufficient to authorize action by the board, and they are not. There was no allegation that the board does not have rules relating to notice and hearing, and the court holds the statute authorizes the board to proceed according to its own rules, or in the absence of regularly adopted rules, to proceed according to such fair and reasonable methods as will accomplish the purpose of the statute, having due regard to the interest of the accused and to the interest of the public.

Paragraph VI of the petition alleged the board is threatening to and will proceed without giving plaintiff an opportunity to be heard. The allegation was contradicted by the notice served on plaintiff, a copy of which was attached to the petition, and in the absence of specification of some kind of deprivation of opportunity, the allegation gave the court no information on which it might grant an injunction.

Paragraph VII of the petition alleged the statute confers on the members of the board arbitrary and capricious power to revoke plaintiff's license by methods other than those established for the administration of justice. The specification following the allegation was defect of power, and the horrific words added nothing to the strength of the petition.

Paragraph XI of the petition alleged there is no provision of law whereby the charges made in the complaint may be reexamined so that plaintiff would be permitted to present his defense, which is true. Due process does not require two or three examinations of the merits of charges, and plaintiff must present his defense to the board. The paragraph also alleged the statute confers no right of appeal to another tribunal or court in which truth of the charges may be reexamined, which is true. The courts are always open, not to reexamine merits, but to ascertain whether the accused had notice and opportunity to be heard, and whether the board acted fairly and honestly within the scope of its authority; and that satisfies the requirement of due process under the state and federal constitutions.

Other general allegations of the petition may be passed by because they are plainly in the nature of introductions and complements to and deductions from allegations of specific shortcomings of the statute. The specific allegations are that the statute does not authorize the board to issue subpoenas for witnesses, or to enforce the attendance of witnesses, or to compel production of books, documents and records; and that there is no provision in the law for taking depositions to be used at the hearing. These allegations are true, and because the proceedings before the board are not judicial, the enumerated aids to judicial action may not be implied. Plaintiff's supposed plight, in view of the omissions from the statute, is described in the petition.

The injunction was properly denied because plaintiff's petition did not name any witness residing in the United States, or any European savant, whom he desires to examine; did not state what testimony any witness would give relative to any charge contained in the complaint; and did not specify any book, document or record pertaining to the inquiry by the board which plaintiff wishes produced. We have here a complaint that, by virtue of a license obtained by fraud, the impostor holding it is fleecing the defective, the ailing, the gullible, and the chronic medicine takers who are moved by suggestion, and is scandalizing the medical profession and exposing it to contempt and ridicule. The board has power to conduct a hearing regarding this matter, and the court was not obliged to stay the hand of the board without some statement of what somebody would say tending to clear the license holder of the charges preferred against him. The judgment will not be affirmed, however, on that ground. The court holds the statute does not violate either the constitution of the United States or the constitution of the state of Kansas.

Plaintiff's contentions are based on certain fundamental postulates. One is that...