Lawton v. Board of Medical Examiners

• Decision Date: 18 July 1956
• Citation: 299 P.2d 362,143 Cal.App.2d 256
• Court: California Court of Appeals Court of Appeals
• Parties: M. Murray LAWTON and Lawton School for Medical Assistants, Inc., Plaintiffs and Appellants, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent. Civ. 21414.

Page 362

299 P.2d 362

143 Cal.App.2d 256

M. Murray LAWTON and Lawton School for Medical Assistants, Inc., Plaintiffs and Appellants, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent.

Civ. 21414.

District Court of Appeal, Second District, Division 2, California.

July 18, 1956.

Hearing Denied Sept. 13, 1956.

Ralph C. Curren, Los Angeles, and Lawrence Loopesko, Beverly Hills, for appellants.

Edmund G. Brown, Atty. Gen., Howard S. Goldin, W. B. Thayer, Deputy Attys. Gen., for respondent.

MOORE, Presiding Justice.

A general demurrer to the complaint for injunction having been sustained, judgment of dismissal was duly entered, The questions posed by the appeal are whether an instructor in a school for training dental and medical assistants may have 'M.D.' after his name wherever it appears on the doors of the school or on printed matter, although he is not a licensed physician in the State of California? Is the deprivation of his right thus to advertise his name actionable? Does such deprivation infringe upon his freedom of speech and press? Does section 2142 of Business and Professions Code ¹ contravene section 24, Article IV of the State's Constitution?

M. Murray Lawton, appellant, is a graduate of an Ohio school of medicine. He practiced medicine in Ohio for a number of years prior to his founding the Lawton School for Medical Assistants in California. On October 23, 1952, the Board of Medical Examiners caused to be filed in Beverly Hills Municipal Court a complaint alleging violation of section 2142 by appellant by reason of his having used the letters 'M.D.' following his name in advertising matter put out by the 'Lawton School' where medical and dental assistants were being instructed. He was found guilty and a fine was imposed. An affirmance of the judgment by the appellate department of the superior court was followed by this action for injunction against the Board of Medical Examiners to prevent further such criminal prosecutions by the Board. A judgment of dismissal having been entered, he now seeks a reversal.

Contending that because he was not engaged in the practice of medicine section 2142 could not in reason apply to him, he argues that it is unconstitutional as to him inasmuch as it deprives him of a valuable property right, to wit, the right to the use of the letters 'M.D.' to indicate the area of his professional training. Conceding, arguendo, that appellant has a property right in the significant letters, yet it must be acknowledged that such right does not take precedence over the public welfare which the section seeks to conserve. It is plainly apparent that the Legislature may well have demed it wise that those who instruct in the science of medicine should be forced to disclose their educational backgrounds and that they should not be allowed to mislead students into thinking their instructors are licensed to practice medicine in California. If in fact the teachers have had excellent medical training, there is nothing in the law that prevents them from indicating such fact. Medical schools do not uphold equally the same high standards, nor does California maintain reciprocity in the medical field with all other states. The student and the public are entitled to know the qualifications of those who indirectly or directly affect the public welfare as does the medical profession. Neither graduation from a reputable institution nor want of sufficient education will excuse the necessity of being certified before a person may advertise his right to adorn his name with Dr. or M.D. Such letters are false insignia when a physician attempts to tell the world he is licensed when in fact he is not. Whether or not they actually practice here is immaterial. The intent of the Legislature was to shield the public against those who for any reason have not been duly licensed. A similar situation was involved in Garfield v. Board of Medical Examiners, 99 Cal.App.2d 219, 223, 221 P.2d 705. There the doctors in question had each been licensed to practice medicine in another state. Question arose as to whether they were mere interns or residents, but the court ruled their exact status was immaterial. So long as they did not possess current, valid licenses, they were not entitled to use the letters 'M.D.' Appellant herein attempts to distinguish this case by contending that those convicted in the Garfield case were 'practicing' medicine whereas he, appellant, had made no attempt to do so. The purpose of section 2142, supra, is to protect the public; it is not primarily concerned with what the doctor does iwth his time. There is no contention on the part of the State that Lawton was practicing medicine. His offense lay in holding himself out as a physician in this state although he does not possess a valid license to do so. The enactment of measures for the protection of society is the exclusive prerogative of the legislature. Courts are not to be concerned with such statutes unless it is made to appear that the litigant's constitutional right is clearly violated. If it does not so appear, the statute will be regarded as one intended by the lawmakers to promote the general good. It is beyond the scope of appellate review to penetrate the findings of the legislature to determine that there did not exist such conditions as would justify the enactment. People v. George, 42 Cal.App.2d 568, 573, 109 P.2d 404.

Appellant contends that the so-called invasion of his rights cannot be justified under the police power of the State. The constitutionality of a statute must be upheld unless its nullity is clearly apparent, Bernstein v. Bush, 29 Cal.2d 773, 778, 177 P.2d 913 and all presumptions and intendments are in favor of its validity. Ray v. Parker, 15 Cal.2d 275, 280, 101 P.2d 665. Appellant contends that section 2142 has no relation to the public health or safety as applied to him, and is for that reason unconstitutional. The purpose of the section is defined above. A person in California who holds himself out to the public as a licensed physician and purports to teach here the science of medicine and the art of its practice to students to enable them to pass California examinations is clearly liable under section 2142 and the public is aggrieved by his representing himself in the manner forbidden by the statute. The legislature intended every person engaged in professional activities properly to represent himself in his true capacity by appropriate title. Berry v. Alderson, 59 Cal.App. 729, 732, 211 P. 836, 838. 'This simple requirement, so easily complied with, was not aimed particularly at the person who was willing to incur the odium of actual fraud, but was designed to offer a much wider protection to the public by assuring to it a reasonable certainty of knowing in every case precisely with whom it was dealing'. (Ibid.) A statute designed to protect the public good must be upheld unles its nullity clearly, positively and unmistakably appears. People v. Darby, 114 Cal.App.2d 412, 428, 250 P.2d 743; Denny v. Watson, 114 Cal.App.2d 491, 495, 250 P.2d 692. Where doubt arises as to the correct construction of a statute, such doubt must be resolved if possible in harmony with the constitution and it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language. Lockheed Aircraft Corporation v. Superior Court, 28 Cal.2d 481, 484, 171 P.2d 21, 166 A.L.R. 701. The wisdom of measures enacted for the protection of the general public is for the legislature and not for the courts unless a constitutional right is clearly violated by the statute. Werner v. Southern California Associated Newspapers, 35 Cal.2d 121, 129, 216 P.2d 825, 13 A.L.R.2d 252; People v. George, 42 Cal.App.2d 568, 573, 109 P.2d 404.

Appellant contends that section 2142, supra, infringes upon his freedom of speech and press. Such contention is effectively answered by Lewis Food Company v. State of California, 110 Cal.App.2d 759, 762, 243 P.2d 802, 804. 'To conserve and protect the health of its citizens is a paramount duty of the state, and a fair and reasonable exercise of the sovereign power. * * * it is true that in its legitimate exercise the police power at times works damage to property and even injustice to individuals. Indeed, in its exercise property may in some instances be utterly destroyed. Always the question in every case is whether the statute is within or without the legitimate purview and scope of the power. Is it reasonable? Does it have 'a substantial...