Conway v. Mississippi State Bd. of Health, 43430

• Court: Mississippi Supreme Court
• Writing for the Court: PATTERSON; LEE
• Citation: Conway v. Mississippi State Bd. of Health, 173 So.2d 412, 252 Miss. 315 (Miss. 1965)
• Decision Date: 22 March 1965
• Docket Number: No. 43430,43430
• Parties: John W. CONWAY, III, M.D., Defendant-Appellant, v. MISSISSIPPI STATE BOARD OF HEALTH and Joe T. Patterson, Attorney General, Complainants-Appellees.

Page 412

173 So.2d 412

252 Miss. 315

John W. CONWAY, III, M.D., Defendant-Appellant, v. MISSISSIPPI STATE BOARD OF HEALTH and Joe T. Patterson Attorney General, Complainants-Appellees.

No. 43430.

Supreme Court of Mississippi.

March 22, 1965.

Blass & Smith, Wiggins, for appellant.

Joe T. Patterson, Atty. Gen., by Martin R. McLendon, Asst. Atty. Gen., Jackson, for appellees.

PATTERSON, Justice.

This appeal arises from a decree of the Chancery Court of Greene County enjoining the appellant from engaging in the practice of medicine until he received a new license from the State Board of Health.

The basic issue before us is whether the court below erred in granting the temporary injunction, which action is assigned as error. This necessitates consideration of Mississippi Code Annotated section 8884 (1956) upon which the bill of injunction is predicated. This section provides:

'Every person who receives a license to practice medicine must file it in the office of the clerk of the circuit court of the county in which he resides within sixty days from the date of its issuance; otherwise it shall become void. When the license is filed the clerk shall record the same, with his certificate of the filing thereto attached, in a suitable book to be kept in his office for that purpose, upon the payment by the licensee of the fee provided by law; and, when recorded, he shall deliver the original, on demand, to the licensee. Whenever the licensee shall change the county of his residence and of usual practice, he must, under like penalty, file the original or a certified copy of the license, or of the record thereof, in the office of said clerk, in the county into which he shall move and practice, within sixty days of the time of such removal, to be there recorded in like manner and under like penalty.' (Emphasis added.)

The essential facts requisite to a decision of this cause are as follows: The appellant was issued a license to practice medicine within the state of Mississippi by the State Board of Health on June 21, 1961. The appellant was advised of the issuance of this license by the State Board of Health on June 24, 1961, by letter which contained the following: 'Please remember that your license must be recorded in the office of some circuit clerk in the state of Mississippi before August 21, 1961, or it becomes mull and void. In order to be sure you should have it recorded immediately after you receive it which will be in about two or three weeks.' And subsequently, another letter of July 14, 1961, from the State Board of Health, 'Be sure to have this license recorded in the office of some circuit clerk in Mississippi (preferably in the county in which you expect to practice) within sixty days from the date of issuance or it becomes null and void. In other words, it must be recorded by August 21, 1961.' Thereafter, the doctor began the practice of medicine in Amite County, Mississippi, and recorded his license with the circuit clerk of that county prior to August 21, 1961. About three months later the appellant moved to Decatur, Georgia, where he practiced his profession for approximately one year. He then moved to New Orleans, Louisiana where he practiced medicine with the Veterans Administration in that city until July 8, 1963, when he established his residence in Greene County, Mississippi, and engaged in the practice of medicine in that area.

On May 29, 1964, the appellant filed with the circuit clerk of Greene County the license to practice medicine which had been issued to him on June 21, 1961, and which had been theretofore filed with the circuit clerk of Amite County. On June 3, 1964, appellant made an oral request of Dr. Gray, the Secretary of the State Board of Health, that his license be re-issued. This request was denied by the secretary. However, the doctor was advised to appear before the State Board of Health on June 17 following and renew his request before such body for the re-issuance of his license. This the defendant did not do.

A petition was filed by the State Board of Health and the Attorney General of this state on July 8, 1964, seeking an injunction prohibiting the appellant from engaging in the practice of medicine within this state until such time as he is issued a valid license therefor. After notice and answer, a hearing was had resulting in a decree enjoining the appellant from engaging in the practice of medicine until a proper license was obtained. This injunction was stayed, after hearing, by this Court on supersedeas pending this appeal.

The appellant urges in support of his assignment of error the following points:

(1) The injunction was issued on purely technical, as opposed to equitable, grounds under a statute which is highly penal in character and which, under the facts of this case should be construed as directory only.

(2) The appellant relied upon the instruction received from the State Board of Health as to the filing of its license and that such Board should now be estopped to challenge the validity of the license on this point.

(3) Neither the State Board of Health nor the Attorney General of the state has authority to bring this suit.

(4) The writ of injunction should not lie for the reason (A) there is an adequate remedy at law, and (B) no irreparable injury is shown.

(5) Mississippi Code Annotated sections 8884, 8885 and 8893 (1956) deal with the same subject matter and are in pari materia and must be construed together and that when this is done, it becomes apparent that the license of a physician once granted can only be revoked or suspended in the manner provided for in section 8893.

We pass upon the points raised by appellant in the order of their presentation. The provisions of section 8884 supra which require the recording of a license to practice medicine within sixty days of its issuance and further provided that whenever the licensee shall change the county of his residence and usual practice, '* * * he must, under like penalty, file the original or a certified copy of the license, or of the record thereof, in the office of said clerk, in the county into which he shall move and practice, within sixty days of the time of such removal, to be there recorded in like manner and under like penalty' are clear and unambiguous and must be construed to mean what is said. Day v. Hart, 232 Miss. 516, 99 So.2d 656 (1958). The rule announced is discussed at length in Board of Disability and Relief, City of Pascagoula v. Hudson, 229 Miss. 631, 91 So.2d 718 (1957) by this Court wherein it is said that:

'In giving effect to the statute, we must construe it according to its plain and unambiguous language. The legislature must be deemed to have intended what it has clearly expressed. In the case of First National Bank of Memphis v. State Tax Commission, 210 Miss. 590, 49 So.2d 410 [411, 50 So.2d 146], the Court said: 'The language of the statute is plain and unambiguous and the legislature must be deemed to have intended what it has clearly expressed.' In the case of Hamner v. Yazoo-Delta Lumber Co., 100 Miss. 349, 56 So. 466, the Court said: 'The courts have no right to add anything to or take anything from a statute, where the language is plain and unambiguous. To do so would be entrenching upon the power of the Legislature.' In the case of City of Hazlehurst v....