Meffert v. The State Board of Medical Registration and Examination

• Decision Date: 11 April 1903
• Docket Number: 13,413
• Citation: 66 Kan. 710,72 P. 247
• Parties: WILLIAM M. MEFFERT v. THE STATE BOARD OF MEDICAL REGISTRATION AND EXAMINATION
• Court: Kansas Supreme Court

72 P. 247

66 Kan. 710

WILLIAM M. MEFFERT v. THE STATE BOARD OF MEDICAL REGISTRATION AND EXAMINATION

No. 13,413

Supreme Court of Kansas

April 11, 1903

Decided January, 1903.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PHYSICIANS AND SURGEONS -- State Board Not a Judicial Tribunal -- Findings Conclusive. The state, in the exercise of its police power in the interest of the health good government, general welfare and morals of the people, may prescribe the qualifications of persons desiring to practice medicine, and may create a board whose duty it shall be to hear and determine any complaint made against any person holding a physician's license, and revoke such license for any cause provided for in the statute. Such board, while so acting, is not a judicial tribunal and is not governed by the technical rules applicable to law courts. In the absence of fraud, corruption, or oppression, the findings of the board are conclusive upon this court.

2. PHYSICIANS AND SURGEONS -- Cancelation Not a Punishment -- Law Not Ex Post Facto. Where the statute prescribes the qualifications of a physician, and proscribes the grossly immoral, and authorizes the cancelation of any certificate issued to such persons, the application of this law to one whose habits were grossly immoral before the passage of the law is not in the nature of a punishment; and, therefore, the statute is not ex post facto, but has in view only the qualifications of the physician and the protection of public morals.

3. PHYSICIANS AND SURGEONS -- Law Not Violative of Federal Constitution. The clause in the fourteenth amendment to the constitution of the United States, "nor shall any state deprive any person of life, liberty, or property, without due process of law," is not a limitation upon the police power of the state to pass and enforce such laws as in its judgment will inure to the health, morals and general welfare of its people.

J. Jay Buck, A. L. Redden, and W. N. Smelser, for plaintiff in error.

C. C. Coleman, attorney-general, and Clad Hamilton, for defendant in error.

GREENE J. All the Justices concurring. CUNNINGHAM, J., not sitting.

OPINION

GREENE, J.:

This is a proceeding in error to reverse the judgment of the district court of Shawnee county refusing to grant a temporary injunction prohibiting the state board of medical registration and examination from placing of record, and enforcing, an order theretofore made revoking the license of William M. Meffert to practice medicine and surgery in Kansas.

The statute under which the proceedings were had is chapter 254, Laws of 1901 (Gen. Stat. 1901, §§ 6669-6677), and is entitled "An act to create a state board of medical, registration and examination, and to regulate the practice of medicine, surgery and osteopathy in the state of Kansas, prescribing penalties for the violation thereof, and repealing chapter 68 of the Session Laws of 1870." The board consists of seven members. The only provision of this law specially involved in this litigation is that part of section 2 which reads:

"All persons engaged in the practice of medicine on the date of the passage of this act shall, within four months from the date of such passage, apply to the board of registration and examination for a license to practice. . . . The board may refuse to grant a certificate to any person guilty of felony or gross immorality or addicted to the liquor or drug habit to such a degree as to render him unfit to practice medicine or surgery, and may, after notice and hearing, revoke the certificate for like cause."

The petition in this action contains as exhibits copies of the accusations made against plaintiff in error to the state board of medical registration and examination. It appears that at a meeting of the citizens of Emporia a committee of three was appointed to formulate charges against plaintiff in error and present them to the state board of medical examiners for the purpose of having his license revoked. These charges, while not as formal or specific as would be required in an information or an indictment, were ample to challenge the attention of the board and to notify the plaintiff in error of the nature of the accusations made against him. Among these exhibits were a resolution passed by the board of education of the city of Emporia, discharging one of its female teachers for associating with the plaintiff in error; a statement "that he was a man notorious in Emporia for his immorality"; a request, signed by eighteen practicing physicians and surgeons of Emporia, stating that "we have ground to believe that he is grossly immoral and we know that he is guilty of other unprofessional conduct of such a degree that we will not meet him in consultation or recognize him as a member of the medical profession"; another request, signed by the pastors of nine of the churches of Emporia, and another, signed by thirty-eight of the business men of Emporia, each stating that Meffert was grossly immoral, and asking that his license to practice medicine be revoked; an affidavit of O. M. Wilhite, charging the plaintiff in error with numerous acts unprofessional, grossly immoral, and criminal. Copies of these charges and complaints were served on plaintiff in error and a notice informing him when such charges would be heard.

Upon the hearing the plaintiff in error appeared with his counsel. Affidavits and oral testimony were introduced by both parties. The board found that plaintiff in error was grossly immoral, and revoked his license to practice medicine or surgery in Kansas. Proceedings were then instituted in the court below perpetually to enjoin the board from entering such order or otherwise enforcing the same. A demurrer was filed to the petition, which was sustained, from which this proceeding was prosecuted.

It is alleged in the petition:

"Said board has no power or authority to revoke said license and said certificate for the reason that this plaintiff has a vested interest in his calling and profession, and the practice thereof, and he cannot be deprived of the same except by the judgment of a court of competent jurisdiction, duly rendered, for offenses and actions committed by himself that pertain and relate to the practice of his said profession, and that have been committed since the 21st day of March, 1901, and are of the nature and character that would warrant, and for which the law authorizes, a revocation of his license and certificate; and said board is not a judicial body and has no power or right to act in a judicial capacity and any and all acts and attempts on their part to so act are a nullity and void."

There are no allegations of fraud, corruption or oppression on the part of the board in its proceedings, and we think the questions presented for our determination are involved in the allegations of the petition quoted.

One of the rights reserved to the state is to determine the qualification for office and the conditions upon which citizens may exercise the various callings and pursuits within its limits. This power was recognized in England more than 300 years ago, and has been the law of that country ever since. (Dr. Bonham's Case, 4 Coke, 367.)

In Dent v. West Virginia, 129 U.S. 114, 122, 9 S.Ct. 231, 233, 32 L.Ed. 623, the court said;

"The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end it has been the practice of different states, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely."

A surfeit of authority might be cited holding that the state in the exercise of its police power may prescribe the qualifications which a physician must possess before entering upon the practice of medicine or surgery. (State v. State Medical Examining Board, 32 Minn. 324; 20 N.W. 238, 50 Am. Rep. 575; Thompson v. Hazen, 25 Me. 104; Eastman v. The State, 109 Ind. 278, 10 N.E. 97, 58 Am. Rep. 400; State v. Call, 121 N.C. 643, 28 S.E. 517; People v. Hasbrouck, 11 Utah 291, 39 P. 918; Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; The State v. Wilcox, 64 Kan. 789, 68 P. 634.)

The board of medical registration and examination is not a judicial tribunal. While it may be said to act quasi-judicially, it is only a ministerial board and performs no judicial functions. It is classed with such boards as the county boards of equalization, boards for the examination of applicants for teachers' certificates, city councils in granting and refusing a business or occupation license, and numerous other boards of similar character. Such boards perform no judicial functions, are not judicial tribunals, and have never been classed as such. ( State v. State Board of Medical Examiners, 34 Minn. 387, 26 N.W. 123; Wilkins v. The State, 113 Ind. 514, 16 N.E. 192; The State, ex rel. Burroughs, v. Webster et al., 150 id. 607, 50 N.E. 750, 41 L. R. A. 212; State v. Hathaway, 115 Mo. 36, 21 S.W. 1081; State Board of Health v. Roy, 22 R.I. 538, 48 A. 802.)

It is contended that the procedure before the board in the admission and rejection of evidence was violative of the rights of Meffert, in that the evidence received and acted upon was made up largely of unsupported accusations, hearsay and street rumor, and was not sufficient to sustain the findings. The provisions of the act creating the board plainly indicate that such investigation was not intended to be carried on in observance of the technical rules adopted by cour...