Hughes v. State Board of Health

• Decision Date: 26 February 1942
• Docket Number: 37805
• Parties: In the Matter of Talbert W. Hughes v. State Board of Health, E. Sanborn Smith, William M. West, John Aull, Charles H. Neilson, George W. Gay, L. Paul Forgrave and Harry Parker, Appellants
• Court: Missouri Supreme Court

159 S.W.2d 277

348 Mo. 1236

In the Matter of Talbert W. Hughes v. State Board of Health, E. Sanborn Smith, William M. West, John Aull, Charles H. Neilson, George W. Gay, L. Paul Forgrave and Harry Parker, Appellants

No. 37805

Supreme Court of Missouri

February 26, 1942

Appeal from Circuit Court of City of St. Louis; Hon. David J Murphy, Judge.

Reversed and remanded (with directions).

Roy McKittrick, Attorney General, Russell C. Stone and William C Connett, IV, Assistant Attorneys General, for appellant.

(1) Licenses of physicians and surgeons may be revoked for unprofessional and dishonorable conduct, and for being of bad moral character. Sec. 9990, R. S. 1939; State v Hathaway, 115 Mo. 36, 21 S.W. 1081; State ex rel. Lentine v. State Board of Health, 65 S.W.2d 943, 334 Mo. 220; Rust v. Missouri Dental Board, 348 Mo. 616. (2) Conviction of a felony constitutes such dishonorable and unprofessional conduct and brands one as being of bad moral character so that the State Board of Health is justified in revoking respondent's license, notwithstanding the fact that a full and unconditional pardon had been granted. People v. Fisher, 261 N.Y.S. 390, 145 Mics. 406; Seitz v. Ohio State Medical Board, 157 N.E. 304, 24 Ohio App. 154; State Board of Medical Examiners v. Harrison, 159 P. 769, 92 Wash. 577; White v. Andrew, 197 P. 564, 70 Colo. 50; Donnell v. Board of Registration of Medicine, 149 A. 153, 128 Me. 523; Sec. 8, Art. 5, Mo. Constitution; Secs. 4188, 4427, 4561, 9227, R. S. 1939; Hughes v. State Board of Medical Examiners, 142 S.E. 285, 165 Ga. 892; Hughes v. State Board of Medical Examiners, 49 S.Ct. 36, 278 U.S. 562; Art. 5, Par. 12, Art. 2, Par. 1, Constitution, State of Georgia; Secs. 27-2701-02, Statutes, State of Georgia; Page v. Watson, 192 So. 205, 140 Fla. 536; Sec. 8495, C. G. L. of Florida, 1927; State v. Hazzard, 139 Wash. 487, 247 P. 957, 47 A. L. R. 538; Nelson v. the Commonwealth, 109 S.W. 337, 128 Ky. 779; People ex rel. Deenen v. Gilmore, 214 Ill. 569, 73 N.E. 737; Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; State ex rel. Lentine v. State Board of Health, 65 S.W.2d 943, 334 Mo. 220. (3) A duly licensed physician, who knowingly permits an unlicensed employee to practice medicine upon his patients, is guilty of such dishonorable and unprofessional conduct as to warrant the revocation of his license. 11 C. J. 204; State ex rel. v. Clark, 9 S.W.2d 635, 320 Mo. 1190; Doran v. State Board of Medical Examiners, 240 P. 335, 78 Cal. 153; Sec. 9988, R. S. 1939; State v. Davis, 194 Mo. 485, 92 S.W. 484; State v. Smith, 233 Mo. 242, 135 S.W. 465; Rubin v. U.S. 37 F.2d 991; People v. Mash, 235 Ill.App. 314; State v. Heuser, 215 N.W. 643, 205 Iowa 132; State v. Miller, 229 N.W. 569, 59 N.D. 286; State ex rel. Lentine v. State Board of Health, 65 S.W.2d 943, 334 Mo. 220; Davis v. Calderwood, 146 N.E. 708, 251 Mass. 283. (4) If sufficient charges are sustained to constitute the respondent a person of bad moral character, and one who has been guilty of dishonorable and unprofessional conduct, the decision of the State Board of Health must be sustained, and it matters not that one or more of the charges preferred are not sufficient. Sec. 9990, R. S. 1939; State ex rel. Horton v. Clark, 9 S.W.2d 635; State v. Knight, 216 N.W. 104, 204 Iowa 819.

Frank Coffman for respondents.

(1) Section 9990, R. S. 1939, under which appellants proceed, is penal and the acts for the commission of which the right to practice medicine may be taken away must come both within the letter and spirit of the said statute. State ex rel. v. Robinson, 253 Mo. 271; State ex rel. v. Clark, 9 S.W.2d 635, 320 Mo. 1190. (a) The statute does not make a conviction as such, a ground for revoking a physician's license, but such revocation is made to depend upon acts and conduct of the physician. Sec. 9990, R. S. 1939. (b) After respondent's conviction the President of the United States gave him two respites and then a full and unconditional pardon. Thus, we submit, it affirmatively appears, the President was satisfied of his innocence. Under such circumstances, in asking a pardon, respondent was not admitting guilt and begging for mercy, but was asking for justice. Hence the conviction is not proof of bad moral character. State v. Jacobson, 152 S.W.2d 1061. (c) No acts or conduct of respondent, involved in the transaction culminating in his conviction, were charged or attempted to be proved, but appellants stood alone upon the conviction. Hence, when evidence of such conviction was met with a full and unconditional pardon, then such conviction was no longer proof that respondent was guilty of the acts and conduct involved in the transaction which culminated in his conviction. Scott v. State, 25 S.W. 337. (2) The practice by a physician of permitting lay persons in his employ to give medical treatment to patients in his office and under his direction and instruction is a common practice by physicians, and is not such conduct as would be, by general opinion and common judgment, either unprofessional, dishonorable, immoral or disreputable, and therefore not a cause for the revocation of a physician's license. State ex rel. v. State Board of Health, 65 S.W.2d 943, 334 Mo. 220. (a) If appellant's charge that respondent "caused, permitted and instructed . . . Steinmeyer to . . . give medical treatment to patients at respondent's office under his direction and instruction" be permitted to stand as a charge that Steinmeyer gave medical treatment to patients, not under respondent's direction and instruction, but according to his own judgment, which appellants attempted to prove, then respondent was not furnished an exact copy of the charges he was required to meet, and was not apprised of the evidence he would need to refute such charges, and was deprived of an opportunity to make a defense. Such is violative of the statute under which appellants proceed. Sec. 9990, R. S. 1939; Horton v. Clark, 293 S.W. 362, 316 Mo. 770. (3) The statutes under which appellants proceeded against respondent contemplate that the investigation be honest and in good faith. State ex rel. v. Goodier, 195 Mo. 551. (4) The State Board of Health cannot act arbitrarily or without substantial evidence in taking away the privilege of practicing medicine. Nor can they act against the great weight of the positive testimony. State ex rel. v. Adcock, 206 Mo. 550.

OPINION

Douglas, J.

The State Board of Health entertained this proceeding against Dr. Talbert W. Hughes, respondent, to revoke his license to practice medicine. The statutory hearing before the board was held. The board found respondent to be a person of bad moral character and guilty of unprofessional and dishonorable conduct and revoked his license. On certiorari, the Circuit Court of the City of St. Louis quashed the record of the board and ordered the board to restore respondent's license. From that judgment the board appeals to this court.

There were several charges filed against respondent. One of these was: "That the said Talbert W. Hughes, on March 5, 1915, was convicted in the District Court of the United States for the Southern District of Texas for the crime of using the United States mails in the furtherance of a scheme to defraud and conspiracy in violation of Section 215 of the Federal Code (18 U.S.C. A., para. 338)."

The Missouri Statute does not expressly specify conviction of a crime as a ground of revocation of a physician's license. Our statute (Sec. 9990, R. S. 1939) authorizes the State Board of Health to "refuse to license individuals of bad moral character, or persons guilty of unprofessional or dishonorable conduct" and to revoke licenses "for like causes." Certain acts, habitual drunkenness for example, are specified as being unprofessional and dishonorable conduct. We have held such specific enumeration does not thereby exclude other acts indicative of unprofessional or dishonorable conduct not mentioned in the statute. Any conduct, although not specified, which by common opinion and fair judgment is determined to be unprofessional or dishonorable may constitute grounds of revocation. State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943.

The argument that the ground of revocation must be expressly specified by statute is based on our decision in State ex rel. Spriggs v. Robinson, 253 Mo. 271, 161 S.W. 1169. There we held that this statute was a penal law and therefore should be construed liberally in favor of the physician and strictly against the State. We followed this holding without comment in State ex rel. Johnson v. Clark, 288 Mo. 659, 232 S.W. 1031. Then in State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635, we said: "We have held this statute penal and ruled that the acts for the commission of which the valuable privilege or right to practice medicine and surgery may be taken away must come within both the letter and spirit of the law. State ex rel. Spriggs v. Robinson, 253 Mo. 271, l. c. 285, 161 S.W. 1169. Nevertheless it is a wholesome and well-recognized rule of law that powers conferred upon boards of health to enable them effectually to perform their important functions in safe-guarding the public health, should receive a liberal construction. 29 C. J. sec. 30, page 248, also sec. 6, page 243."

The effect of this statement was to overrule the Spriggs case and to hold that the statute was not essentially a penal one for the punishment of physicians, at least so far as the ground of revocation is concerned, but was one for the protection of the public in safe-guarding public health. There was no express statement in the opinion that the Spriggs case was overruled, yet such was the fact. Both decisions could not logically stand. Long before the Spriggs...