Horton v. Clark

• Decision Date: 15 February 1927
• Docket Number: (No. 27483.)
• Citation: 293 S.W. 362
• Parties: HORTON v. CLARK et at.
• Court: Missouri Supreme Court

293 S.W. 362

HORTON v. CLARK et at.

(No. 27483.)

Supreme Court of Missouri, in Banc.

February 15, 1927.

Appeal from Circuit Court, Cole County; Henry J. Westhues, Judge.

Suit by Ray B. Horton against W. A. Clark and others, composing the State Board of Health of the State of Missouri. From a judgment of dismissal, plaintiff appeals. Affirmed.

Grover, Tipton & Graves, of Kansas City, for appellant.

North T. Gentry, Atty. Gen., and A. B. Lovan, Asst. Atty. Gen., for respondents.

RAGLAND, J.

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, Mo., 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 the 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, Mo., 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, furthermore, 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, Mo
                                Notice to Appear
                            "30th day of June, 1925
                

"In the Matter of Dr. 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 23d 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.

(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. 542, 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 (section 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 revoke a license to practice medicine shall be instituted by the filing of a verified complaint, or by the filing of any complaint or information whatever. Evidently it contemplates that the state board of health may act upon any information, from whatever source and however communicated, which it may deem trustworthy. It is only necessary that the written notice provided for "contain an exact statement of the charges."

It is insisted that the complaint is insufficient in law on the further ground that its charges, if true, would not authorize the state board of health to revoke appellant's license. For a more precise statement of this insistence we quote from plaintiff's bill:

"When he, plaintiff, made his application for examination, * * * the law did not require * * * attendance either at a high school or a medical college for any certain length of time, * * * and therefore any statement in his application for said license, as to the time of his attendance at a medical college or a high school, could not have been required by said state board of health of the state of Missouri, and was not necessary in order to take said examination and to receive said license, and therefore could not have in any way been fraudulent as alleged in said complaint, and therefore said defendants, composing the state board of health of the state of Missouri, have no authority on account of the statement made in such application to revoke his said license."

The contention must be examined in the light of the governing statute, the relevant portions of which are as follows:

Section 7332, R. S. 1919 (as amended, Laws of 1921, p. 472). "* * * All persons appearing for examination shall make application in writing to the secretary of the said board 30 days before the meeting. They shall furnish satisfactory evidence of their preliminary qualifications, to wit, a certificate of graduation from an accredited high school or its equivalent or state normal school, college, university or academy. They shall also furnish satisfactory evidence of having received a diploma from some medical college of four years' requirements, including two years' experience in operative and hospital work at time of graduation; * * * and shall also furnish evidence of good moral character."

"Section 7336, R. S. 1919. "The board may refuse to license individuals of bad moral character, or persons guilty of unprofessional or dishonorable conduct, and they may revoke licenses,

or other rights to practice, however derived, for like causes, and in cases where the license has been granted upon false and fraudulent statements, after giving the accused an opportunity to be heard in his defense before the be and as hereinafter provided. * * *"

As disclosed by section 7332, an applicant, as a prerequisite to the taking of the examination for a license to practice medicine, must show, at least, that he is a graduate of an accredited high school, or its equivalent. The state board of health cannot require more of him with reference to his premedical education. The only evidence receivable of the fact that he is a graduate is a certificate of graduation. Other evidence n ay be received, and no doubt is frequently necessary, to show that the certificate of graduation exhibited by an applicant was issued by an accredited high school, or its equivalent. The length of time that the applicant attended the school issuing the certificate can be of no possible concern to the state board of health; provided, of course, that the certificate is genuine and was granted by a school coming within the class designated by the statute.

The complaint, In addition to charging that appellant did not attend the Purdy high school during the years which he stated in his application he did, alleges that he was not graduated—

"under the ordinary and regular procedure, but his record in that school * * * was fraudulent and procured through fraud."

This language is nebulous; it does not convey any definite or certain meaning. It is entirely conceivable that appellant could, in good faith, have completed the prescribed course of study of the Purdy high school, and by reason thereof have been entitled to receive its certificate of graduation, even though "the ordinary and regular procedure" were not followed. If, however, it was intended to charge...