Hughes v. State Board of Health

• Decision Date: 06 March 1940
• Docket Number: 36065
• Citation: Hughes v. State Board of Health, 137 S.W.2d 523, 345 Mo. 995 (Mo. 1940)
• Parties: Talbert W. Hughes v. State Board of Health, Fred W. Bailey, E. Sanborn Smith, W. S. Brandon, T. S. Bourke and H. F. Parker, composing the State Board of Health, Appellants
• Court: Missouri Supreme Court

137 S.W.2d 523

345 Mo. 995

Talbert W. Hughes v. State Board of Health, Fred W. Bailey, E. Sanborn Smith, W. S. Brandon, T. S. Bourke and H. F. Parker, composing the State Board of Health, Appellants

No. 36065

Supreme Court of Missouri

March 6, 1940

Appeal from Circuit Court of St. Louis County; Hon. Peter T Barrett, Judge.

Reversed and remanded (with directions).

Roy McKittrick, Attorney General, and Russell C Stone, Assistant Attorney General, for appellants.

(1) The State Board of Health has the exclusive authority, in the first instance, to determine whether charges filed against a medical licentiate are sufficient to revoke the license of such licentiate.Sec-9120, R. S. 1929;State ex rel Lentine v. State Board of Health,334 Mo. 220, 65 S.W.2d 943;State ex rel. Schneider v. Bourke,89 S.W.2d 31;State ex rel. Farber v. Shot,263 S.W. 804, 304 Mo. 523.(2) Injunction should not be used for the purpose of prohibiting members of the State Board of Health from proceeding with a hearing on charges preferred against a licentiate, when such members are acting lawfully.Horton v. Clark,293 S.W. 362, 316 Mo. 770;Selecman v. Matthews, 15 S.W.2d 788, 321 Mo. 1074.

Frank Coffman for respondent.

(1) Where there is no other adequate remedy, "the remedy by writ of injunction shall exist in all cases . . . to prevent the doing of any legal wrong whatever."Sec. 1519, R. S. 1929.(2) The demurrer admitted the truth of all matters well pleaded in the petition.Hence, when such demurrer was overruled and appellants declined to plead further, plaintiff was entitled to judgment according to the prayer of his petition.State ex rel. Gentry v. Monarch Transfer & Storage Co.,20 S.W.2d 63, 323 Mo. 562;State ex rel. Cantley v. Meyer Tailoring Co.,25 S.W.2d 100, 324 Mo. 795.(3) Admittedly, appellants have heretofore, on November 12th, 13th and 14th, 1929, tried respondent and revoked his license on the charge that said license had theretofore been revoked by the State of Georgia; also that there record, in doing so, was quashed by the Circuit Court of Jackson County; nevertheless (also admitted), appellants are threatening to try him again on the same charge.Conclusively, this illustrates that appellants' acts are illegal, oppressive, and amount to a legal wrong, and that the remedy of certiorari, provided by statute, is not adequate.Such merits injunctive relief.Sec. 1519, R. S. 1929.(4) All disabilities arising out of and attaching to a conviction are removed by an absolute pardon.The grantee of such pardon stands as if he had never been convicted.Removal of the conviction removes the disabilities because they are but consequences of the conviction.Knote v. United States,95 U.S. 149;Sanders v. State,1 S.W.2d 901;Scott v. State,25 S.W. 337;Secs. 4172, 12970, R. S. 1929.(5) The charge that respondent"caused, permitted and instructed one Steinmeyer to practice medicine by giving medical treatment to patients at respondent's office under his direction and instruction," is a mere conclusion that said Steinmeyer was practicing medicine, not justified, because the facts stated show he was not so practicing; is meaningless; does not constitute respondent a person of bad moral character, or amount to unprofessional or dishonorable conduct.Sec. 9120, R. S. 1929;State ex rel. Lentine v. State Board of Health,65 S.W.2d 950, 334 Mo. 220.(6) Where the wrongful acts ar being repeated, or it appears that an action for damages will not afford an adequate remedy, it is not necessary to show that defendants are insolvent, or even that the injury is irreparable.Turner v. Stewart,78 Mo. 480;Nokol Co. v. Becker,300 S.W. 1116;Carpenter v. St. Joseph, 263 Mo. 713.

OPINION

Hays, J.

This suit was instituted in the Circuit Court of St. Louis County on March 4, 1937, by the plaintiff, a licensed physician practicing in St. Louis.The defendants are the State Board of Health and its component members.The suit is founded on a situation we outline thus: on February 13, a complaint against plaintiff was filed with the board's secretary, who, on February 16, notified the plaintiff thereof and cited him to appear before the board on March 10, to answer and defend against said complaint.Regularity in the filing and the giving of notice of the complaint is not questioned.Instead of complying with such notice and citation this plaintiff sought, by the present suit, to enjoin the board from further proceeding on said claim, which at the close urged the revocation of plaintiff's license.

To plaintiff's petition the defendants filed demurrer, which the court overruled.Defendants refused to plead further, suffered judgment of perpetual injunction and, in due course, appealed.The demurrer rested upon the specified grounds: (1) that the petition showed want of facts sufficient to entitle plaintiff to any relief in equity or at law; (2) that the circuit court had no original jurisdiction in the premises; and (3) that under the laws of this State, particularly Section 9120,Revised Statutes 1929, the board of health is given exclusive initial jurisdiction to determine in the proceedings pending before that body whether plaintiff's license shall be revoked.

Said complaint is set out in the petition word for word.In substance it is as follows: that Talbert W. Hughes has been and "is guilty of unprofessional conduct and dishonorable conduct, and is a person of bad moral character," in this to-wit: -- (1)he was convicted of using the mails to defraud; (2)he published and circulated an advertizement relative to disease of sexual organs, at Atlanta and around the country; (3) that by reason of the matters stated in (1) and (2) his license to practice medicine was revoked by the Board of Medical Examiners of the State of Georgia; (4)he permitted and instructed one Steinmeyer, his bookkeeper, to give medical treatment to patients at plaintiff's office, under his direction and instruction.

The petition alleges relative to number (1) that plaintiff received presidential pardon for said conviction and hence same furnished no basis for a charge of bad moral character.Relative to number (2), the petition alleges that same constitutes no ground for revocation of plaintiff's license in Missouri; also that same is res judicata, by reason of the judgment of the Jackson County Circuit Court quashing, on certiorari, the record of the then Missouri Board of Health, wherein his license was revoked; and that the revocation so quashed was also founded upon and included the matter contained in number (3)supra.The petition alleges that it is obvious from number (4) that the alleged acts of Steinmeyer were not the practicing of medicine, and alleges that the board is cognizant of the matters above specified, yet they threaten, without authority of law and oppressively, to conduct the scheduled hearing, to plaintiff's irreparable damage, and that hence he has no adequate remedy at law unless the defendants be restrained by injunction, which the prayer invoked.

Respondent asserts the well established rule that all matters well pleaded in the petition are admitted by demurrer, of which rule we regard the term well as being the touchstone.Holding that view and having further reasons, we cannot agree with the conclusion proposed by respondent, that the demurrer was properly overruled and he was entitled to judgment as prayed.

Not much need be said of the challenges attempted in the petition.They have one quality in common: they allege that not one of the specified charges contained facts sufficient to constitute a charge upon which plaintiff's license might lawfully be revoked -- manifestly a conclusion of law.Next, allegations of matter in defense, actual or supposed, are made.Other allegations are made in the form of conclusions, or characterizations, supported by no factual basis laid in the petition, touching defendants' conduct in receiving and proceeding with the complaint filed against the plaintiff, which, as so challenged, is that the board acted in bad faith, unlawfully and oppressively in the premises.The demurrer does not accept conclusions of law as true.[State ex rel. Ashauer v. Hostetter, 344 Mo. 665, 127 S.W.2d 697.]It admits only ultimate, constitutive facts and not evidential or merely probative facts.[Nichols v. Nichols, 134 Mo. 1. c. 194, 35 S.W. 577.]It neither admits the truth of the conclusion of the pleader ( Stephens v. Liverymen & Und. Assn.,295 Mo. 596, 246 S.W. 40), nor admits as a fact that which the petition contradicts (Farm & Home Sav. & Loan Assn. v. Armstrong,337 Mo. 349, 85 S.W.2d 461).Thus it is seen the petition discloses that the conclusions referred to above and those drawn by the pleader, with respect to the actuating motives of the defendants, are in violation of the governing rules just referred to, are inconsequential and unacceptable.

So the result is that no case for respondent is pleaded on the facts considered above.But we emphatically state that we have not ruled and do not intend to rule upon the adequacy or inadequacy of the complaint left pending before the board since our decisions have ruled that question to be within the province of the board as an agency or tribunal of first instance in that regard.It is the questioned action of the circuit courtwe are concerned with and not the issues of the proceeding that gave rise to this case.Irrespective of the infirmities of the petition, as noted, this case has no basis on which to lie in equity, or at common law (State ex rel. v. Shot,304 Mo. 523, 263 S.W. 804), since the respondent had a complete and adequate remedy at statutory...