Hughes v. State Bd. Of Med. Exam'rs, (No. 5309.)

• Decision Date: 13 May 1926
• Docket Number: (No. 5309.)
• Parties: HUGHES. v. STATE BOARD OF MEDICAL EXAMINERS.
• Court: Georgia Supreme Court

162 Ga. 246

134 S.E. 42

HUGHES.

v.STATE BOARD OF MEDICAL EXAMINERS.

(No. 5309.)

Supreme Court of Georgia.

May 13, 1926.

Rehearing Denied June 28, 1920.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Proceeding by the State Board of Medical Examiners against T. W. Hughes. Respondent was found guilty on charges preferred by the State Board and on appeal to the superior court his demurrer was overruled, and he brings error. Affirmed.

Norman I. Miller, of Atlanta, for plaintiff in error.

J. Z. Foster, of Marietta, for defendant in error.

HILL, J. The state board of medical examiners caused to be served upon Talbert W. Hughes, a physican who had been licensed to practice medicine in this state, a notice preferring certain charges against him, a copy of which charges it was alleged was served upon Hughes personally by the deputy sheriff of Fulton county, Ga., on January 21, 1924, as provided by the act of 1913 (Acts 1913, p. 101), as amended by the act of 1918 (Acts 1918, p. 173). The charges preferred were: (1) Conviction of crime involving moral turpitude; (2) causing the publication and circulation of an advertisement relative to diseases of the sexual organs, and the proposed curing of the same. Before the charges were heard, Hughes filed an equitable petition in the superior court of Fulton county, to enjoin the state board of medical examiners from proceeding with the hearing, alleging the unconstitutionality of the acts authorizing the hearing before the board, etc. In that case (Hughes v. State Board of Medical Examiners, 158 Ga. 602, 123 S. E. 879) this court held that the proceeding against the licentiate was quasi criminal in character, and that a court of equity under the general rule would not enjoin prosecutions for criminal offenses or quasi criminal offenses, and affirmed the judgment of the court below in refusing to grant an injunction. After the notice was given to the plaintiff in error and his counsel, the hearing before the state board of medical examiners was had, at which time the plaintiff in error filed a demurrer and an answer, and introduced evidence in the case, after which he was found guilty on both charges. From this judgment of the board he filed his appeal to the superior court. On the hearing of the case in the superior court, the demurrer was overruled, and the plaintiff in error excepted.

1. The questions before this court to be decided are those raised by the demurrer. Grounds 1, 2, 3, 4, 5, 6, and 7 challenge the sufficiency of the notice served upon the plaintiff in error, for various reasons: That the notice fails to show that a copy of the charges therein referred to is attached to such notice, as provided by section 14 of the act of 1918 (Acts 1918, p. 173); that the notice shows that a copy of the charges relied upon is not attached, but that the hearing therein referred to and proposed to be held would be upon charges served at some different time than that when service of such notice was attempted; that the contents of the notice show that the same was not given upon the preferment of the charges before the board, but that the proposed hearing would be upon charges therein alleged to have been preferred and served on January 21, 1924, some nine months prior to the date of the notice in the present case; that the notice fails to set forth or refer to the law under which the board claims to have the authority or power to give such notice summoning demurrant to appear before it, and that the same should be made to appear; that the copy of the charges served upon the demurrant was undated, unsigned, and anonymous as to who was responsible for same, by way of recital in the body thereof, and for lack of signature thereto; that neither the notice nor the copy of charges shows any right, power, or authority by virtue of any law to receive or entertain the charges against demurrant, or to try him upon the grounds and complaints set up in the copy of the charges served upon him, or to revoke his license to practice medicine in this state.

These grounds of the demurrer are without merit, and the court did not err in overruling them. The record in the case shows that in January, 1924, the plaintiff in error was served, by the deputy sheriff of Fulton county, with notice to appear before the state board of medical examiners to answer certain charges as a licentiate to practice medicine in this state, a copy of which charges was attached to the notice. Following that, as stated above, the plaintiff in error filed an equitable petition to enjoin the state board of medical examiners from proceeding with the hearing, and the decision in that ease was adverse to the plaintiff in error. Subsequently the following notice, properly entitled, was served upon the plaintiff in error:

"You are hereby notified that a hearing before the said board will be had on the second Tuesday, in October, 1924 (October 24, 1924), at 10 o'clock a. m., in the Senate chamber at the capitol in Atlanta, Georgia, upon the charges preferred against Talbert W. Hughes, a copy of which charges was heretofore served upon Talbert W. Hughes personally by F. L. Smith, deputy sheriff of Fulton county, Georgia, on January 21, 1924; and you are hereby required to be at said hearing and show cause, if any you have, why the license of Talbert W. Hughes to practice medicine in this state should not be revoked, and his name as such licentiate be removed from the records in the office of the clerk of the superior court of Fulton county, Georgia, and from the records in the office of any other clerk of court in this state, registering him as such licentiate. This 26th day of October, 1924. State Board of Medical Examiners, by C. T. Nolan, Sec. Treasurer."

A copy of the charges, the substance of which is set out above, preferred by and before the state board of medical examiners, appears in the record.

Section 14 of the act of 1918, supra, provides that:

"Upon the preferment before" the state "board of either of said charges above enumerated [including "conviction of crime involving moral turpitude, " and "causing the publication and circulation of an advertisement relative to any disease of the sexual organs"] against any licentiate or applicant for license it shall be the duty of said board to cause written notices of the time and place of hearing upon said charge, together with a copy of the charge preferred, to be served upon such licentiate or applicant twenty days before hearing."

It is not necessary that in the notice given to the demurrant the law under which such notice is given shall be set forth. The law presumes that every one knows the law, and it is not incumbent upon the state board of medical examiners to specifically state what the law is under which the notice is given. The other objection to the notice, that it was unsigned and undated, is without merit, for the copy of the notice set out in the record with it was both dated and signed.

2. Grounds 8 and 9 of the demurrer attack the constitutionality of the acts of 1913 and 1918, which latter act is amendatory of the act of 1913, on the ground that they deny to the plaintiff in error due process of law under both the state and federal Constitutions, as provided in article 1, § 1, par. 3, of the Constitution of Georgia, which is as follows:

"No person shall be deprived of life, liberty, or property, except by due process of law, "

—and of the Fourteenth Amendment to the Constitution of the United States, which provides:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without clue process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

Section 14 of the act of 1918 (Acts 1918, p. 173, 193) is as follows:

"Be it further enacted, that said hoard may refuse to grant a license to practice medicine in this state, or may cause a licentiate's name to be removed from the records in the office of any clerk of court in this state, on the following grounds, to wit: The employment of fraud or deception in applying for license or in passing the examination provided for in this act; conviction of crime involving moral turpitude; conviction for the violation of any penal provision of the 'Opium Act of 1914, ' or 'Harrison Act, ' also called the 'Harrison Narcotic Law'; the practice of medicine under a false or assumed name or the impersonation of another practitioner of a like or different name; habitual intemperance in the use of ardent spirits, narcotics, or stimulants to such an extent as to incapacitate him for the performance of professional duties; the procuring or aiding or abetting in procuring a criminal abortion; the obtaining of a fee on representation that a manifestly incurable disease can be permanently cured; causing the publication and circulation of an advertisement of any medicine by means whereby the monthly periods of women can be regulated, or the menses, if suppressed, can be re-established; causing the publication and circulation of an advertisement relative to any disease of the sexual organs; said board may upon satisfactory proof made that any applicant or licentiate has been guilty of any of the offenses above enumerated refuse to grant a license to said applicant or may revoke the license of said licentiate upon a majority vote of said board. There may be an appeal from the judgment of said board by the party who is refused a license by the board, or whose license is revoked, as the case may be, if dissatisfied with the judgment, to a jury in the superior court of the county of the residence of such dissatisfied party, said appeal to be had as in other cases now provided by law. The party whose license is revoked or refused shall be liable for cost as follows: Preparing copies of notice, $2.00; procuring service of...