Horton v. Clark

• Citation: 293 S.W. 362,316 Mo. 770
• Decision Date: 15 February 1927
• Docket Number: 27483
• Parties: Ray B. Horton, Appellant, v. W. A. Clark et al., Composing State Board of Health
• Court: United States State Supreme Court of Missouri

293 S.W. 362

316 Mo. 770

Ray B. Horton, Appellant, v. W. A. Clark et al., Composing State Board of Health

No. 27483

Supreme Court of Missouri

February 15, 1927

Motion for Rehearing Denied. April 8, 1927.

Appeal from Cole Circuit Court; Hon. Henry J. Westhues Judge.

Affirmed.

Grover, Tipton & Graves for appellant.

(1) The unsworn and unverified complaint or charges filed with the State Board of Health are insufficient in law to confer jurisdiction upon said board to conduct the threatened inquiry. In re Sizer, 267 S.W. 927; State ex rel. v. Gebhardt, 87 Mo.App. 546: In re Burr, 6 L.Ed. 152; State v. Kirke, 12 Fla. 296; Walker v. Commonwealth, 8 Bush (Ky.) 96; State ex rel. v Robinson, 253 Mo. 284; Hinkle v. Lovelace, 204 Mo. 208. (2) The charges made in the complaint filed with the State Board of Health are insufficient: (a) The complaint attempts to say that the appellant's preliminary education was insufficient, but does not state that: first, Purdy High School is not an accredited high school; second, that appellant is not a graduate of said high school, nor that appellant did not furnish satisfactory evidence of graduation from said high school; nor that he did not have an equivalent of a high school education. (b) Said complaint does not allege that the appellant did not furnish satisfactory evidence from some medical college of four years' requirement, including two years' experience in operative and hospital work at time of graduation, but merely alleges that plaintiff did not continuously and regularly attend the St. Louis College of Physicians and Surgeons from October 5, 1918, to May 15, 1919, nor from October 1, 1919 to June 2, 1920. (c) Sec. 7332, R. S. 1919, as amended by Laws 1921, p. 472, is highly penal and must be strictly construed against the board and in favor of the appellant. First, the record shows that appellant complied with Section 7332 by furnishing: (a) a certificate of graduation from Purdy High School; (b) a diploma from a four-year medical college. Second, appellant furnished a certificate of graduation from the Purdy High School, also appellant furnished a showing of his equivalent of a high school education, either of which entitled him to take the examination. Sec. 7332, R. S. 1919, as amended, Laws 1921, p. 472; State ex rel. v. Robinson, 253 Mo. 271. (3) A license to practice medicine is a property right, or at least a valuable right, and is protected by constitutional guaranties. People v. Lane, 298 Ill. 304; State ex rel. v. McElhinney, 241 Mo. 952; State ex rel. v. Robinson, 253 Mo. 271; Door Co. v. Fuelle, 215 Mo. 421. (4) Sec. 7336, R. S. 1919, empowering the State Board of Health, a ministerial body to revoke a license to practice medicine, is unconstitutional and void, violative and contrary to Article 2 of the Constitution of Missouri, and Articles 5 and 15 of the Amendments to the Constitution of the United States, for the reason it constitutes the taking of property without due process of law and does not afford to one subjected thereto his day in court. 12 C. J. 1241, par. 1018; St. Louis, I. M. & S. Ry. Co. v. Williams, 251 U.S. 63.

North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) The statute provides that "said notice shall contain an exact statement of the charge and the date and place set for the hearing before the board." This statute is complied with when a copy of the complaint, accompanied with a notice giving the date and place of the hearing, is served on the defendant. Wolf v. Kansas City, 246 S.W. 239. The statute does not require that the complaint be sworn to. The statute will not be made ineffective by technical rules and construction. State ex rel. v. Goodier, 195 Mo. 559; Sec. 7336, R. S. 1919. (2) The charge is that appellant obtained his license upon false and fraudulent statements. If he is guilty of that charge, the statute authorizes the board to revoke his license. Sec. 7336, R. S. 1919. (3) The respondent concedes that "a license to practice medicine is a property right or at least a valuable right." But, nevertheless, the State Board of Health, under the statute, has the power to revoke the license if it was obtained upon "false and fraudulent statements." Sec. 7336, R. S. 1919; State v. Hathaway, 115 Mo. 46. (4) The books are full of adjudications upholding the validity of statutes similar to the one in question. Out of a great number of cases the attention of the court is directed to the following: State v. Hathaway, 115 Mo. 46; State ex rel. Farber v. Shot, 263 S.W. 805; State ex rel. Hurwitz v. North, 264 S.W. 681.

Ragland, J. All concur, except Graves, J., absent.

OPINION

RAGLAND

Injunction. On the 9th day of June, 1925, there was filed with the State Board of Health a document of which the following is a copy.

"complaint

"To the State Board of Health:

"Comes the undersigned Ross Hopkins and alleges and charges that one Ray Beeman Horton has been for some time and is now engaged in the practice of medicine and surgery at Purdy, Barry County, Missouri, under and by virtue of a license or certificate granted to him by the Missouri State Board of Health under the date of October 18, 1922; that said license or certificate so granted was secured by false and fraudulent statements and representations made by said Ray Beeman Horton to the Missouri State Board of Health, in that said Ray Beeman Horton stated under oath in his application to the State Board of Health for a license to practice medicine and surgery in this State dated August 29, 1922, that, among other things, he attended the Purdy High School, Purdy, Missouri, for four years during the years 1912-13, 1913-14 and 1915-16, from which institution he claims to have been graduated on May 24, 1916, and that he attended the St. Louis College of Physicians and Surgeons from October 5, 1918, to May 15, 1919, from October 1, 1919, to June 2, 1920, from October 10, 1920, to May 2, 1921, and the Kansas City College of Medicine and Surgery from September, 1921 to May, 1922.

"Whereas in truth and in fact, the said Ray Beeman Horton did not attend the Purdy High School during the years 1912-13, 1913-14, 1915-16, nor was he graduated from the Purdy High School on May 24, 1916, as aforesaid, under the ordinary and regular procedure, but his record in that school upon which the Missouri State Board of Health admitted him to examination was fraudulent and procured through fraud, and futhermore he did not continuously and regularly attend the St. Louis College of Physicians and Surgeons from October 5, 1918, to May 15, 1919, nor from October 1, 1919, to June 2, 1920, as aforesaid, which the Ray Beeman Horton then and there well knew.

"Ross Hopkins."

Thereafter the State Board of Health caused to be issued and served upon the said Ray Beeman Horton (plaintiff herein) a written notice, in words and figures as follows:

"State Board of Health of the State of Missouri,

Jefferson City, Missouri, 30th day of June, 1925.

"Notice To Appear:

"In the Matter of Doctor Ray Beeman Horton.

"Doctor Horton, Take Notice:

"That there has been filed with the State Board of Health of Missouri, at Jefferson City, on the 9th day of June, 1925, a certain complaint a copy of which is hereto attached and made part of this notice.

"Wherefore, you are hereby notified to appear before the said State Board of Health at the city of St. Louis at the office of Health Commissioner on the 23rd day of July, 1925, at 9 A. M., to answer the said complaint.

"James Stewart, M. D.

"James Stewart,

"(Seal) Secretary, State Board of Health."

The date of the service is not shown by the record here, but after the service the hearing on the charges referred to in the notice was, by agreement presumably, set over until the 17th day of September, 1925.

On September 12, 1925, plaintiff instituted the present proceeding by filing in the Circuit Court of Cole County his bill in equity wherein he seeks to have the defendants, who compose the State Board of Health, "perpetually enjoined and restrained from the hearing of said purported complaint and from conducting said inquiry, hearing or trial." The grounds upon which the bill predicates the right to such relief are as follows: (1) The complaint is insufficient in law to confer jurisdiction; and (2) the statute under which the defendants are purporting to act is unconstitutional.

A temporary restraining order was granted, but on final hearing it was dissolved and plaintiff's bill dismissed. From such judgment he appeals.

Other pertinent facts will be noted in the course of the opinion.

I. 1. The first point made against the complaint is that it was not verified by the oath of the complainant. The contention is based upon precedents to the effect that regardless of statutory requirements, proceedings for the disbarment of an attorney at law must be instituted by verified information. Those precedents are not binding or even persuasive in a case such as this. Disbarment proceedings are not governed exclusively by statute. Independent of any statute on the subject courts have the inherent power to disbar attorneys; and a statute, where there is one, is not regarded as restrictive, but merely as declaratory of the common law so far as it goes. [State v. Gebhardt, 87 Mo.App. 548.] The power to revoke the license of one who is thereby authorized to practice medicine and surgery, on the other hand, does not exist apart from statute. In this State the statute (Sec. 7336, R. S. 1919) is not only the sole source of the power to revoke, but it prescribes and regulates exclusively the procedure to be followed in the exercise of the power. Looking then to the statute we find no requirement that a proceeding to...