Sapero v. State Bd. of Medical Examiners

• Decision Date: 25 April 1932
• Docket Number: 13029.
• Citation: 11 P.2d 555,90 Colo. 568
• Parties: SAPERO v. STATE BOARD OF MEDICAL EXAMINERS.
• Court: Colorado Supreme Court

11 P.2d 555

90 Colo. 568

SAPERO v. STATE BOARD OF MEDICAL EXAMINERS.

No. 13029.

Supreme Court of Colorado, En Banc.

April 25, 1932

Error to District Court, City and County of Denver; Charles C Sackman, Judge.

Proceeding by the State Board of Medical Examiners against Kalman C Sapero. To review a judgment upholding the revocation of his license, Kalman C. Sapero brings error.

Reversed and remanded, with directions.

Philip Hornbein, E. Clifford Heald, and Joseph E Newman, all of Denver, for plaintiff in error.

Clarence L. Ireland, Atty. Gen., and Charles H Haines, Sp. Asst. to Atty. Gen., for defendant in error.

ADAMS C.J.

The State Board of Medical Examiners, upon notice and hearing, revoked the license of Kalman C. Sapero to practice medicine. He took the case to the district court on certiorari, and that court upheld the medical board. Sapero brings the case here for review on writ of error.

The facts are undisputed. The charge against Dr. Sapero was alleged unprofessional and dishonorable conduct in the publication of certain advertisements. He has practiced medicine for upwards of thirty-five years, and no question of his professional skill, moral character, or misrepresentation of any kind is involved. He visits various parts of the state from time to time and advertises his comings in local newspapers. Evidence of three of these advertisements was produced; it is the only ground of the charge against him. He admits their publication, but denies unprofessional or dishonorable conduct. The first advertisement was published in Lamar on April 11, 1930; the second in Florence on September 3, 1930; and the third in Sterling on February 25, 1931--all in the state of Colorado.

The first publication is the most elaborate and objectionable, but Sapero's uncontradicted testimony is to the effect that he had been advertising for over thirty-five years; that at a previous informal hearing shortly Before the present action he promised the board that he would not use the large advertisement any more, and has not doen so; that it was his understanding at the last meeting of the board, Before his license was revoked, that he would be permitted to continue with a short form of advertising; that since his promises his announcements have not been over two inches, which he said was the least he could do to bring his visits Before the people. It is unnecessary to quote the first advertisement. The last two read as follow:

'Dr. K. C. Sapero is coming again to Sterling, one day only, Thursday, April 9 at Graham Hotel. He treats successfully diseases of the eye, ear, nose and throat, also catarrh, deafness, tonsils, adenoids, and goitre. Glasses fitted scientifically with or without chart. Dr. Sapero has been visiting here regularly for the past 30 years.--Adv.

'Now is your opportunity to consult Dr. Kalman C. Sapero, the well known Denver Specialist, who has been visiting Florence for more than 30 years. He will again be in Florence Friday, September 12, at the Florence Hotel. He treats successfully diseases of the eye, ear, nose and throat, also catarrh, deafness, tonsils, adenoids and goitre.

'Glasses fitted scientifically.'

Counsel for the medical board says on the concluding page of his brief: 'The action of the Board ought to be sustained on the ground its decision was not judicial but legislative, administrative, ministerial or quasi judicial, and power to make final decision (our italics) had been constitutionally committed to it by the General Assembly. * * * Even if the conclusion of the Board on this question was erroneous it is not subject to review by certiorari.' We shall consider these propositions.

Unfortunately, the merits of the cause, even to the question of whether a prima facie case was made, have been almost entirely overshadowed by arguments of learned counsel for the medical board on the subject of the official rights and duties of the board and other procedural questions. His propositions are of such a serious nature, and so candidly show the theory upon which Sapero was convicted, that we are compelled to discuss them, although all important questions raised by the board have been decided Before adversely to its contentions in previous decisions of this court. Without our volition these questions have been again thrust into the foreground. They go to the question of whether the medical board has exceeded its jurisdiction or greatly abused its discretion.

1. Section 4536, C. L. 1921, contains numerous grounds for the revocation of a physician's license, among them being 'immoral, unprofessional or dishonorable conduct.' The above statute also specifies various kinds of advertising of a reprehensible character which are particularly inhibited, but it is not claimed that any of the publications in question come within the latter class. The complaint against Sapero is limited to alleged 'unprofessional or dishonorable conduct,' based solely upon the advertisements mentioned.

In addition to the statute, the medical board claims that it has legislative powers, delegated to it by the General Assembly. But the Legislature cannot delegate its powers, and we find no place in the Medical Act where it has been even attempted. The completeness of the statute is one of the strongest proofs that no delegation of power was intended. 6 R.C.L. 165; Travelers' Insurance Co. v. Industrial Commission, 71 Colo. 495, 498, 208 P. 465, 466.

Section 1, article 5, of the Constitution of Colorado, reads: 'The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people. * * *' In Cooley's Consititutional Limitations (8th Ed.) page 224, it is truthfully said: 'One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed.' As remarked in Travelers' Insurance Co. v. Industrial Commission, supra, the 'people have, by constitutional enactment, limited the exercise of this great power to those directly chosen by them and specifically authorized thereto.'

2. If counsel had said that it is the duty of the board to interpret the Medical Act, and put it into execution, subject to certiorari, we should have had no difficulty in agreeing with him. The General Assembly may not delegate the power to make a law; but it may delegate power to determine some fact or a state of things upon which the law, as prescribed, depends. Colorado & Southern Railway Co. v. State Railroad Commission, 54 Colo. 64, 84, 129 P. 506; Field v. Clark, 143 U.S. 649, 694, 12 S.Ct. 495, 36 L.Ed. 294. See also 48 C. J. page 1096, § 64, as applied to physicians and surgeons.

The subject of nondelegable powers covers a wide range, but we adopt the concise statement employed by our highest court in Field v. Clark, supra, at pages 693, 694, of 143 U.S., 12 S.Ct. 495, 505, which reads: "The true distinction * * * is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.' Cincinnati, Wilmington, etc., Railroad v. Commissioners, 1 Ohio St. 88. In Moers v. City of Reading, 21 Pa. 188, 202, the language of the court was: 'Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such discretion is the making of the law."

3. As a side light on the present Medical Act, interesting history was made in Chenoweth v. State Board of Medical Examiners, 57 Colo. 74, 141 P. 132, 51 L.R.A. (N. S.) 958, Ann.Cas. 1915D, 1188, decided at the January term, 1914. We there pointed out, at page 81 of 57 Colo. 141 P. 132, that the then existing statute (section 6068, R. S. 1908) did not make unprofessional or dishonorable conduct a ground of revocation of a physician's license. The 1915 (Laws 1915, p. 420) General Assembly, apparently mindful of this suggestion, remedied defects in previous acts, among other things by adding the words, 'immoral unprofessional or dishonorable conduct.' The same words were repeated in another amendment (Laws 1917, p. 359, section 11) identical with section 4536. We do not regard the words quoted as indefinite or uncertain; they have been repeatedly considered by the Legislature with care, and the same or similar words have been often made the bases of complaints or informations for the revocation of professional licenses in this state and other jurisdictions. State Board of Medical Examiners v. Spears, 79 Colo. 588, 247 P. 563, 54 A.L.R. 1498 and notes; Dilliard v. State Board of Medical Examiners, 69 Colo. 575, 577, 196 P. 866; State Board of Dental Examiners v. Savelle, 90 Colo. 177, 8 P.2d 693; State Board of Dental Examiners v. Miller, 90 Colo. 193, 8 P.2d 699; State v. Purl, 228 Mo. 1, 128 S.W. 196; Aiton v. Board of Medical Examiners, 13 Ariz. 354, 114 P. 962, L.R.A. 1915A, 691. Such conduct on the part of physicians is the most common statutory ground for the revocation or suspension of their professional licenses. 48 C. J. page 1099, § 72. Manifestly, it was impossible as well as unnecessary for the General Assembly to anticipate all evil deeds that the words 'immoral, unprofessional or dishonorable' were...