People v. Apfelbaum

• Decision Date: 04 October 1911
• Citation: 251 Ill. 18,95 N.E. 995
• Parties: PEOPLE v. APFELBAUM.
• Court: Illinois Supreme Court

251 Ill. 18

95 N.E. 995

PEOPLE

v.APFELBAUM.

Supreme Court of Illinois.

June 20, 1911.

Rehearing Denied Oct. 4, 1911.

Error to Municipal Court of Chicago; William N. Cottrell, Judge.

Action for penalties by the People of the State of Illinois against David Apfelbaum. Judgment for plaintiff, and defendant brings writ of error. Affirmed.Elijah N. Zoline and Moses, Rosenthal & Kennedy (Burres & McKinley, Walter Bachrach and Sidney S. Stein, of counsel), for plaintiff in error.

Charles Alling, Jr. (Charles G. Hoffman, of counsel), for the People.

DUNN, J.

This writ of error has been sued out to reverse a judgment for $100 rendered against the plaintiff in error by the municipal court of Chicago as a penalty for practicing medicine without a license.

The plaintiff in error received the degree of doctor of medicine and surgery from the College of Physicians and Surgeons, and after having passed an examination received from the state board of health a license to practice medicine. June 21, 1910, the state board of health revoked this license, and, having practiced medicine thereafter, he was sued for the penalty provided by law. The license was revoked by virtue of section 6 of the medical practice act, for advertising under a name other than his own, and other unprofessional and dishonorable conduct. The plaintiff in error contends that this section is void for uncertainty; was repealed by implication by an act of May 11, 1901; is unconstitutional, because it confers judicial powers on the state board of health; violates sections 1, 2, and 4 of the Bill of Rights, section 22 of article 4 of the Constitution, and the fourteenth amendment to the Constitution of the United States. He also insists that the record of the state board of health does not show sufficient cause for the revocation of the license, and that section 9, which makes it penal to practice medicine without a license, prescribes no penalty for practicing after the revocation of the license.

[1] Section 6 is not void for uncertainty. It authorizes the refusal of the license for certain specific reasons, and also generally for unprofessional and dishonorable conduct, and provides that the license may be revoked for the same reasons. The reasons particularly named are certain enough, but it would scarcely be possible for the statute to catalogue specifically every act of unprofessional or dishonorable conduct which would justify the refusal or revocation of a license. In any event, the plaintiff in error here was found guilty of the specific offense of advertising under another name than his own, and as to this charge the statute is not uncertain.

[2][3] The medical practice act, containing section 6 above mentioned, was passed in 1899. On May 11, 1901, an act of two sections was passed, providing that it should be unlawful for any physician to practice medicine in another physician's name, or to hold himself out as another physician by advertisement, for the purpose of imposing upon or defrauding any other person, under penalty of fine and imprisonment. It is insisted that this act modifies, and by implication repeals, that part of section 6 of the medical practice act which prohibits advertising by a physician under a name other than his own. A later act will not be held to repeal a prior statute, unless the two cannot be reconciled. There is no such inconsistency between these two acts that both cannot stand. The one deals with the case of a physician who practices under a false name, whether that of another physician or not, and without regard to his motive, the penalty for which is the refusal or revocation of his license. The other deals with the physician who for fraudulent purposes practices under the name of another physician, or holds himself out as another physician; the penalty being fine and imprisonment. The one act deals with the licensing of physicians to practice, and does not create or define any criminal act; the other deals with the practice of physicians and declares that certain acts shall constitute criminal offenses.

[4][5][6] Neither the granting nor the revocation of a license to practice medicine is the exercise of ‘judicial power,’ as that term is understood in reference to the distribution of the powers of government. It is not contended that the state has not the power to prescribe the qualifications of physicians practicing medicine and to punish unqualified persons engaging in such practice, and the existence of such power is not debatable. People v. Blue Mountain Joe, 129 Ill. 370, 21 N. E. 923;Williams v. People, 121 Ill. 84, 11 N. E. 881;Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563; 22 Am. & Eng. Ency. of Law (2d Ed.) 780. The possession of the required qualifications must be ascertained by some authority, and the Legislature has imposed this duty upon the state board of health. In the administration of the law the state board of health necessarily exercises discretion and judgment in determining whether or not an applicant possesses the required qualifications, and to that extent its action is judicial in character, but it is not the action of a court or action appropriate for a court. It is similar in its nature to the acts of assessors in valuing property for taxation; of boards of review in reviewing such valuations; of clerks of courts and of sheriffs in approving bonds taken by them; of commissioners of highways in laying out and opening roads; of city councils in granting or revoking licenses to keep dramshops, or of superintendents of schools in granting or revoking teachers' certificates. In none of these cases does the tribunal engaged in the execution of the law exercise judicial power within the meaning of the Constitution. ‘The power exercised is ministerial, only, although, as an incident to its exercise, the board is required to do a judicial act, or, rather, an act which is in its nature judicial. No law is construed or applied by the board, and no legal rights are submitted to and adjudicated by it, without which, we have seen, judicial power is not exercised.’ Owners of Lands v. People, 113 Ill. 296. In that case are cited many cases illustrative of the distinction between the exercise of judicial power and of judgment and discretionin the performance of administrative or ministerial functions.

Reetz v. Michigan, supra, was a prosecution for a violation of the statute of Michigan of 1899 (Pub. Acts 1899, No. 237), prohibiting the practice of medicine by unregistered persons. It was objected that the board of registration was given authority to exercise judicial powers, inasmuch as it might refuse a certificate of registration if it should find that no sufficient proof was presented that the applicant had been legally registered under an act of 1883 (Pub. Acts 1883, No. 167). The court overruled this contention, and in doing so quoted with approval the following language from the opinion in the case of People v. Hasbrouck, 11 Utah, 291, 39 Pac. 918: ‘The objection that the statute attempts to confer judicial power on the board is not well founded. Many executive officers, even those who are spoken of as purely ministerial officers, act judicially in the determination of facts in the performance of their official duties, and in so doing they do not exercise...