Mower v. State Department of Health

• Decision Date: 18 June 1928
• Citation: 108 Conn. 74,142 A. 473
• Court: Connecticut Supreme Court
• Parties: MOWER v. STATE DEPARTMENT OF HEALTH.

142 A. 473

108 Conn. 74

MOWER v. STATE DEPARTMENT OF HEALTH.

Supreme Court of Errors of Connecticut.

June 18, 1928

Appeal from Superior Court, New Haven County; Allyn L. Brown, Judge.

The State Department of Health revoked the license of Etamar A Mower to practice medicine, and, from a judgment of the superior court dismissing his appeal, Etamar A. Mower appeals. No error.

Samuel E. Hoyt and Harry L. Edlin, both of New Haven, for appellant.

James W. Carpenter, of Hartford, Benjamin W. Alling, Atty. Gen and Cyril Coleman and J. H. Bartholomew, Jr. both of Hartford, for appellee.

Argued before MALTBIE, HAINES, HINMAN, BANKS, AND WOLFE, JJ.

MALTBIE, J.

Prior to January, 1924, the appellant had been examined and found qualified to practice medicine by the Connecticut eclectic medical examining Board, had received from it certificates to that effect, and from the state department of health a certificate of registration, commonly called a license, authorizing him to practice. In January, 1924, upon the request of all members of the examining Board, the state department of health revoked this license upon the ground that it had been procured by fraud. From this action of the state department of health he appealed to the superior court, in accordance with the provisions of section 2860 of the General Statutes, then in force, and that court dismissed the appeal. From this judgment he has appealed to this court.

The appeal from the revocation of his license by the state department of health was taken to the superior court for Hartford county. At the same time several appeals were taken by persons whose licenses had also been revoked, some to the superior court for Hartford county, others to the superior court for other counties. While these appeals were pending, the Legislature amended section 2860 of the General Statutes (Public Acts 1927, c. 229), adding a provision which authorized any judge of the superior court upon motion, if in his opinion the cause of justice required it, to order any appeal pending in that court to be transferred to the superior court in any other county and expressly stating that this provision should apply to all appeals pending at the time of the passage of the act. Thereafter this appeal, with several others from three counties, were ordered transferred to the superior court in New Haven county, where a number of like appeals were then pending. The act was approved May 2, 1927, and took effect upon its passage. On June 16th another act amendatory of section 2860 was approved, which contained no provision for transferring appeals. Public Acts of 1927, c. 317, § 14. It had no provision that it should take effect upon it passage, and hence it did not take effect until July 1, 1927. Public Acts of 1921, c. 350. The appellant claims that the superior court in New Haven county was without right to proceed with the appeals which were transferred to it because the act authorizing the transfer was repealed before they were tried. But all the transfers were actually made while the earlier act was in effect, so that, when the later act became effective, they were all pending in the superior court for New Haven county, and the later act certainly cannot be construed as intended to remand them back to the county from which they came. The appellant also claims that the first act was passed for the temporary and special purpose of transferring these particular appeals; but we cannot adopt that view as the basis of our decision because the act is general in terms and may well represent a general intent in the mind of the Legislature at the time it was passed, though in the later act, a revision of the whole law concerning the practice of the healing arts, a changed purpose was given effect. Moreover the appellant speaks of the transfer as effecting a change in jurisdiction, but it is merely one in venue, for the superior court is one court for the whole state. Allis v. Hall, 76 Conn. 322, 327, 56 A. 637. Hence the question not being jurisdictional, and not having been raised in the lower court, it is not now open to the appellant to raise it here. 40 Cyc. 111.

The appellant's license was revoked under the provisions of section 2859 of the General Statutes, then in force, which authorized the state department of health, upon the written request of all members of the examining Board to revoke a license which had been procured by fraud. That statute contained no requirement as to notice or hearing before revocation, and there was neither in this case. By reason of these facts the appellant claims that he was deprived of due process of law, in contravention of the Fourteenth Amendment of the Constitution of the United States. Upon his appeal to the superior court the appellant appeared, and the case was fully heard; the issue of fraud in the procuring of his license being one of the litigated questions. Pending the decision of the appeal, he was permitted to continue practicing medicine. In Brein v. Connecticut Eclectic Examining Board, 103 Conn. 65, 130 A. 289, we had before us the appeal of one whose license to practice medicine was revoked at the same time and under much the same circumstances as was the appellant's, and one of the questions presented was whether the revocation of the license by the state board of health, acting under section 2859 of the General Statutes, without notice or hearing, was in deprivation of due process of law. We held that it was not. While the record of that case does not disclose any specific reference in the claims of the appellant to the Fourteenth Amendment of the United States Constitution, the broad language of our opinion and the decisions of the Supreme Court of the United States cited in it make it futile to claim that the effect and bearing of that amendment upon the issues was not involved and determined, even though the appellant did not so specifically claim the violation of the amendment as to warrant the Supreme Court of the...