Du Vall v. Board of Medical Examiners of Arizona, Civil 3762

• Decision Date: 29 March 1937
• Docket Number: Civil 3762
• Citation: 66 P.2d 1026,49 Ariz. 329
• Parties: CLAUDE EMERSON DU VALL, Appellant, v. BOARD OF MEDICAL EXAMINERS OF ARIZONA, and I. E. HUFFMAN, J. H. PATTERSON, JOHN E. BACON, W. G. SCHULTZ and CHARLES C. BRADBURY, as Members of the Board of Medical Examiners of Arizona, Appellees
• Court: Arizona Supreme Court

66 P.2d 1026

49 Ariz. 329

CLAUDE EMERSON DU VALL, Appellant, v. BOARD OF MEDICAL EXAMINERS OF ARIZONA, and I. E. HUFFMAN, J. H. PATTERSON, JOHN E. BACON, W. G. SCHULTZ and CHARLES C. BRADBURY, as Members of the Board of Medical Examiners of Arizona, Appellees

Civil No. 3762

Supreme Court of Arizona

March 29, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.

Messrs Baker & Whitney and Mr. Lawrence L. Howe, for Appellant.

Mr John L. Sullivan, Attorney General, Mr. A. I. Winsett Assistant Attorney General, for Appellees.

OPINION

ROSS, J.

This is an appeal from a judgment in a certiorari proceeding wherein the superior court of Maricopa county affirmed an order of the Board of Medical Examiners of Arizona revoking the license of Claude Emerson Du Vall to practice medicine in Arizona. The charges against Du Vall, and on which the revocation of the medical board was based, were as follows:

"Before the Board of Medical Examiners of the State of Arizona

"In the Matter of the Revocation of the Certificate of Claude Emerson Du Vall, M.D.

Complaint.

"Comes now Nadine Meredith and for complaint against Claude Emerson Du Vall alleges as follows:

"I. That said Claude Emerson Du Vall has been guilty of unprofessional conduct as a physician and surgeon of the State of Arizona, in that prior to the filing of this complaint, he dispensed, prescribed by prescription or sold drugs for other than medical purposes to a person who was an habitual user of such drugs without any intent or purpose to cure said habitual user of the use of said drugs; that said conduct on the part of said Claude Emerson Du Vall is contrary to the ethics and professional conduct of a physician and surgeon and the laws of the State of Arizona and the United States of America.

"II. That Claude Emerson Du Vall was charged with a violation of the provisions of Section 696, Title 26, United States Code [now 26 U.S.C.A., § 1044 and note] a provision of what is known as the Harrison Narcotic Act, by indictment consisting of two counts of the Federal Grand Jury in and for the District of Arizona, and was convicted on said charge by a jury on the 29th day of June, 1935, on both counts contained in said indictment; and that thereafter on July 1, 1935, the United States District Court, in and for the District of Arizona, sentenced said Claude Emerson Du Vall to serve fourteen months in prison on each count, the sentences to run concurrently and in addition thereto assessed a fine against him of Five Hundred ($500.00) Dollars on each count; that the record of said charge and conviction may be found in the office of the Clerk in and for the District of Arizona, at Tucson, Arizona, under the name and style of United States of America v. Claude Emerson Du Vall, No. C-7287-Tucson; that the charge and offense on which said Claude Emerson Du Vall was convicted was one involving moral turpitude and that by reason of the conviction of said charge, said Claude Emerson Du Vall is guilty of unprofessional conduct as the same is defined by Section 2559, Revised Code of Arizona, 1928."

Du Vall was cited to answer the charges, and on October 3, 1935, he appeared with his counsel before the board, whereupon a hearing was had. At the hearing the prosecution introduced both oral and documentary evidence in support of the charges. The respondent did not testify nor did he introduce any evidence, but did object to all of the evidence on the ground that the charges failed to state any statutory ground authorizing the medical board to revoke his license.

Section 2556, Revised Code of 1928, empowers the medical board to issue licenses to practice medicine in the state. Section 2559, Id., provides that, if an applicant for a certificate to practice medicine has been guilty of unprofessional conduct, the board shall refuse to license him, but that the board shall give him a hearing before such refusal. Such section also provides, with reference to the revocation of a certificate to practice, as follows:

"Whenever a holder of a certificate is guilty of unprofessional conduct, or whenever a certificate has been procured by fraud or misrepresentation, or issued by mistake, the board shall revoke the same after citation and hearing thereon. The secretary shall certify the fact of revocation, under the seal of the board, to the county recorder of the county in which the revoked certificate had been recorded; and said recorder must thereupon indorse upon the margin or across the face of his register of the certificate the fact of such revocation. From the time of the revocation of a certificate the holder thereof shall be disqualified from practicing.

"The words 'unprofessional conduct' shall include the procuring, or aiding or abetting in procuring a criminal abortion; the wilful betrayal of a professional secret; all advertising of medical business which is intended, or has a tendency, to deceive the public or impose upon credulous or ignorant persons, and so be harmful or injurious to the public morals or safety; all advertising of any medicine or of any means whereby the monthly periods of women can be regulated or the menses reestablished if suppressed; conviction of any offense involving moral turpitude, in which case the record of such conviction shall be conclusive evidence; habitual intemperance in the use of alcohol or narcotic drugs; and the personation of another licensed practitioner of a like or different name."

The extent of the power of the court to review upon certiorari is limited to a determination of the question as to whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer; in other words, to a determination as to whether the tribunal, board, or officer has exceeded its jurisdiction. Sections 4391, 4394, Rev. Code 1928; In re Farish, 18 Ariz. 298, 158 P. 845. If it appears that the facts stated in the complaint against Du Vall were sufficient to confer jurisdiction upon the medical board to proceed to a hearing, and that a hearing was had at which he was given an opportunity to present his defense, errors and irregularities in the proceedings and in the medical board's conclusion may not be reviewed on certiorari. While the complaint should state a statutory ground or grounds as cause for revoking a license to practice, it is not necessary that the complaint set forth such ground or grounds with the preciseness and particularity observed in an indictment or information or perhaps in a complaint in a civil action. The proceedings before the board are more or less informal. If the accusation is sufficient to advise the party charged of the nature and character of the charges so that he may prepare himself to defend thereon, it is sufficient.

Appellant says the first count of the complaint is insufficient both in fact and in law. He contends that conduct or acts authorizing the revocation of his license must be one of the several kinds enumerated in section 2559, supra; in other words, that the statutory definition of "unprofessional conduct" is exclusive and that what he is charged with doing in count 1 does not fall within such definitions. He also contends that, if what is charged in said count be admitted to be true, it would not constitute unprofessional or unethical conduct, since it does not appear therefrom that the "drugs" dispensed, prescribed, or sold were of the habit-forming kind, such as morphine, cocaine, etc., or that such drugs were destructive to health or character. It seems to us that the last criticism is justified and that count 1 should be rejected as not being sufficient either in law or fact. In this view of count 1 it becomes unnecessary to decide whether the statutory definition of "unprofessional conduct" is exclusive or not.

While count 2 is awkwardly phrased, we think it sufficiently advised the defendant of the charge against him. His conviction and sentence for violating the Harrison Narcotic Act (as amended, 26 U.S.C.A., §§ 1040-1054, 1383-1391), as alleged in count 2 was not controverted. In fact, he urged before the medical board that its proceeding should be abated pending the determination of his appeal before the United States Circuit Court of Appeals of the Ninth Circuit. The question then is, Does a conviction of a regularly licensed physician under the Harrison Narcotic Act involve moral turpitude? The Harrison Narcotic Act is a revenue act and not an act to regulate the sale and disposition of narcotics, or to regulate the practice of medicine. The Congress, under the federal Constitution, has power to levy a tax upon narcotics and their sale, but the states have not delegated to the United States the power to regulate such sales and to punish therefor, or to regulate the practice of medicine. The constitutionality of the Harrison Narcotic Act has been upheld only on the ground that it was the exercise of the taxing power. Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819, 39 A.L.R. 229; United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493; Du Vall v. United States, (C.C.A.) 82 F.2d 382, certiorari denied 298 U.S. 667, 56 S.Ct. 751, 80 L.Ed. 1391; United States v. Anthony, (D.C.) 15 F.Supp. 553. In practically all the cases it is stated that, while the Harrison Narcotic Act has a moral end, it is incidental and accomplished only through the revenue features of the act. One federal court has said of the Harrison Narcotic Act:

"The act is ostensibly a revenue measure, and within limits the courts must recognize it as such. At the same time any one with sense enough to be at large without a keeper knows the revenue feature, which possibly returns cents for...