Munk v. Frink

• Decision Date: 07 May 1908
• Docket Number: 15,029
• Citation: 116 N.W. 525,81 Neb. 631
• Parties: ERICK C. MUNK, APPELLANT, v. J. L. FRINK ET AL., APPELLEES
• Court: Nebraska Supreme Court

116 N.W. 525

81 Neb. 631

ERICK C. MUNK, APPELLANT, v. J. L. FRINK ET AL., APPELLEES

No. 15,029

Supreme Court of Nebraska

May 7, 1908

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.

AFFIRMED.

J. J Sullivan, A. M. Post and H. Halderson, for appellant.

W. T Thompson, Attorney General, Halleck F. Rose and H. C. Vail, contra.

FAWCETT, C. CALKINS and ROOT, CC., concur. REESE, J., not sitting.

OPINION

FAWCETT, C. J.

This case is before us for the second time. The opinion on the first hearing (75 Neb. 172) gives a full and accurate statement of the nature of the case. When the case was remanded to the district court, that court considered it upon its merits, and affirmed the findings of the state board of health revoking appellant's license to practice medicine, surgery, and obstetrics in this state; and to review such judgment this appeal is prosecuted.

The former opinion in this case and our opinion in State v. Walker, 75 Neb. 177, 106 N.W. 427, have settled adversely to appellant his contention that the complaint under which the state board of health proceeded is insufficient. It is argued that our holding on the former hearing that the complaint was sufficient is not the law of the case, for the reason that the reference to that question in the former opinion is mere dictum. In this contention we are unable to concur. Even if we were to hold that the discussion of the proposition by Commissioner AMES in that case is dictum, we would adopt his reasoning now in holding that the complaint is sufficient, and would support such holding by the authorities cited by Judge AMES. While it is true some courts have held that in a case of this kind the offense must be alleged with the same certainty and the evidence must be of the same degree as would be necessary in a criminal prosecution, the overwhelming weight of authority is against that idea. One of the strongest cases relied on by appellant in support of that contention is Skeen v. Craig, 31 Utah 20, 86 P. 487; but an examination of that case will show that the only reason the court so held was because section 4575 of the act under which that case was being prosecuted provided that "the trial * * * shall be conducted * * * in the same manner as the trial of an indictment or information for a felony." It will be seen, therefore, that that case could not be considered as an authority in this. Our holding in the former opinion that "a complaint filed before the state board of health for the purpose of procuring an order revoking the license of a physician is sufficient if it informs the accused, not only of the nature of the wrong laid to his charge, but of the particular instance of its alleged perpetration," is well sustained; and the contention of appellee that proceedings before the board for revocation of a physician's certificate are not to be conducted and carried on in conformity to the technical rules of procedure obtaining in courts of justice is fully supported by the following authorities: Meffert v. State Board, 66 Kan. 710, 72 P. 247; State v. Common Council, 53 Minn. 238, 55 N.W. 118; Traer v. State Board of Medical Examiners, 106 Iowa 559, 76 N.W. 833; People v. Thompson, 94 N.Y. 451; 1 Dillon, Municipal Corporations (4th ed.), sec. 255. In Traer v. State Board of Medical Examiners, supra, it is said: "The statute does not prescribe the practice to be followed in cases instituted for the revocation of certificates; and although it may, when practicable, follow somewhat the methods of the courts, yet, from the nature of the board and the character of the duties it is required to perform, a more flexible practice than that allowable in the courts must, of necessity, be followed in many cases." In State v. Common Council, supra, the court say: "We also recognize the fact that while in the exercise of this power their proceedings are quasi judicial, and hence reviewable by the courts, yet they are not courts, but essentially legislative and administrative bodies, and that their action should be considered in view of their nature and the purposes for which they were organized, and not tested by the strict legal rules which prevail in trials in courts of law. Hence, if such a body has kept within its jurisdiction, and the evidence furnished any legal and substantial basis for their action, it ought not to be disturbed for any mere informalities or irregularities which might have amounted to reversible error in the proceedings of a court. To apply any other rule to the proceedings of such bodies would be impracticable, and disastrous in the extreme to public interests." In People v. Thompson, supra, it is said: "The charges as made were sufficient to answer the purpose intended, and were within the requirements of the statute under which the proceeding was had. It was not necessary that the proceedings should be conducted with that degree of exactness which is required upon a trial for a criminal offense in an ordinary tribunal of justice, and it cannot be said that the charges made were insufficient." In Meffert v. State Board, supra, it is said: "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 courts of law. The act provides that the board shall be composed of seven physicians. These men are not learned in the science of law, and to require of a board thus composed that its investigations be conducted in conformity to the technical rules of a common law court would at once disqualify it from making any investigation. It is subversive of the morals of the people and degrading to the medical profession for the state to clothe a grossly immoral man with authority to enter the homes of her citizens in the capacity of a physician. It was the intention of the legislature to adopt a summary proceeding by which the morals of the people and the dignity of the profession might be protected against such a possibility without being embarrassed by the technical rules of proceedings at law."

The contention of appellee that the act in question was a proper exercise by the legislature of its police powers is assailed by counsel for appellant as inapplicable and unsound "because there is no necessity for the exercise of the power in that form"; but the contention of counsel for appellee is fully sustained in Meffert v. State Board, supra. The section of the statute under which these proceedings were had defines "unprofessional and dishonorable conduct," and includes "the procuring or aiding or abetting in procuring a criminal abortion" in that definition. Counsel for appellant assails his definition as "a profound legal bizarrerie," and says that the author of that definition "should be immortalized as an apostle of the incongruous." We are unable to concur in this severe criticism of the author of the section of the statute under consideration, or of the definition referred to. If "the procuring or aiding or abetting in procuring a criminal abortion" is not "unprofessional or dishonorable conduct" in one holding a certificate entitling him to practice medicine, then we are unable to conceive of any conduct of which such person might be guilty which could be called...