Schireson v. Walsh

• Decision Date: 08 December 1933
• Docket Number: Nos. 21907,21945.,s. 21907
• Parties: SCHIRESON v. WALSH (two cases).
• Court: Illinois Supreme Court

354 Ill. 40

187 N.E. 921

SCHIRESON

v.WALSH (two cases).

Nos. 21907, 21945.

Supreme Court of Illinois.

Oct. 21, 1933.

Rehearing Denied Dec. 8, 1933.

Error to Superior Court, Cook County; Joseph H. Fitch, Judge.

The Department of Registration and Education revoked the license of Henry J. Schireson to practice medicine in all its branches in the state of Illinois, and he appeals and brings error, opposed by Michael F. Walsh, Director of the Department of Registration and Education.

Reversed and remanded, with directions.Sims, Stransky & Brewer, of Chicago (Franklin J. Stransky, of Chicago, of counsel), for plaintiff in error.

Otto Kerner, Atty. Gen. (William C. Clausen, of Chicago, and Truman A. Snell, of Springfield, of counsel), for defendant in error.

HERRICK, Justice.

This cause comes here on a purported appeal taken by the terms of section 60-k of the Civil Administrative Code. Smith-Hurd Rev. St. 1933, c. 127, p. 2769, § 60k, Cahill's Rev. St. 1933, chap. 24a, p. 672, par. 61(11). The cause is also brought here upon a writ of certiorari sued out of this court on a showing of probable cause, pursuant to subsection (c) of section 17 of the Medical Practice Act. Smith-Hurd Rev. St. 1933, c. 91, p. 1840, § 16b (c), Cahill's Rev. St. 1933, c. 91, pp. 1805, 1806, par. 18(c). The two causes have been consolidated in this court. Each proceeding seeks to review the judgment of the superior court of Cook county quashing a writ of certiorari sued out of that court to review a final order of the department of registration and education (hereinafter called the department), entered March 13, 1930, revoking the license of the appellant and plaintiff in error (hereinafter called the defendant) to practice medicine in all its branches in the state of Illinois.

The record is quite voluminous, consisting of about 2,000 pages of evidence and a large number of original exhibits which have been certified to this court. Neither side has seen fit to abstract any of the evidence or the exhibits, and the case is submitted upon the complaint filed against the defendant, the return of the director of the department to the writ of certiorari, which return includes all of the pleadings in the case as well as the findings of the committee of physicians which heard the case and the order of revocation entered by the department. We have not undertaken to read the evidence nor to examine the exhibits but have confined ourselives to the legal questions presented.

The complaint filed contained three counts. The first count charged that the defendant at the time he obtained his license to practice medicine and surgery in this state was not a man of good moral character. The second count charged that the defendant was guilty of the employment of fraud, deception, and unlawful means in applying for and securing his license to practice medicine in this state. The third count charged the defendant with being guilty of gross malpractice, resulting in permanent injury of a patient.

The case in its nature is necessarily important to the state and to the defendant. The power to revoke the license of any professional man is not arbitrary or despotic, to be exercised by any board, commission, or department, according to its pleasure or whim. A license to practice medicine in this state, strictly speaking, is not a property right, yet it is a privilege or right which is of great property value to the holder thereof. To qualify in the first instance for the obtaining of such license has cost any applicant years of arduous study and work and the outlay of a considerable sum of money. A license having been obtained according to the provisions of the statute, the holder of a license can only be deprived of it in accordance with the law of the land; not at the mere discretion of some department or board. The license being a valuable right, the owner, before he can be deprived of such right, is entitled to a full and complete hearing held in accordance with the statute. Where the hearing to revoke a license of any professional man is not before a court judicially convened, it may be more or less informal. The niceties and refinements of the procedure or the forms of questions to and the answers of witnesses are not so strictly applied as on a hearing before a judicial body, but the substance of the law must be at all times regarded, as well as the competency and materiality of the evidence. The correct rules of law applicable to the issues must be observed and followed at the hearing befor the commission or body hearing the cause. No higher legal tests are permitted to be adopted by the body trying the case than the law of the state recognizes as the correct tests to be applied to the issues being tried. The burden of proof never shifts to the license holder, but the burden remains throughout the hearing upon the department or body making the charge. The necessity for the strict enforcement of these salutary rules is particularly required where the charges often originate with the board, department, or commission sitting as the tribunal upon the trial of the charges. The guilt of any defendant of the charges made in the complaint against him must be established clearly and conclusively by competent evidence before the license of any defendant may be legally revoked. The body hearing the case should be a qualified body without prejudice, and strictly impartial as to the issues to be tried. Not to apply these rules of law to hearings of this character would be to deprive a defendant of the due process of law guaranteed to him by our State and Federal Constitutions. Const. Ill. art. 2, § 2; Const. U. S. Amend. 14. The proceeding must be an orderly one, conducted in accordance with established rules which do not violate the fundamental rights of the defendant. It is a well-recognized fact that to deprive a professional man of his license to practice his chosen profession is generally the death of his professional life.

It is vigorously urged by the defendant that jurisdiction of this cause was not conferred upon the department because the complaint filed was verified upon the information and belief of the Assistant Attorney General making the affidavit. On behalf of the department it is claimed that the defendant waived this defect, because on the petition for rehearing this error was not urged as one of the grounds for the setting aside of the order of suspension. Section 60-i of the Civil Administrative Code (Smith-Hurd Rev. St. 1933, c. 127, § 60i) is cited in support of that position. The department also cites in support of its position the case of Bodenweiser v. Department of Registration, 347 Ill. 115, 179 N. E. 462, which case cites section 60-i, and holds, in substance, that all grounds urged for the vacating of the departmental order must be set forth in the written notice for rehearing provided for under section 60-i. The constitutionality of the amendment of 1927 to the Civil Administrative Code was not raised in the Bodenweiser Case. However, regardless of the provisions of section 60-i, we are of the opinion that the defendant, not having raised the question of the sufficiency of the verification either before the committee hearing the charges or before the department, and having voluntarily submitted himself without objection to a hearing of the cause as far as this ground is urged, waived the objection, and the sufficiency of the affidavit cannot be raised here.

Section 6 of the Bill of Rights provides, in substance, among other things, that no search warrant shall issue without probable cause, supported by affidavit. This court has held Reed, 287 Ill. 606, 122 N. E. 806; People v. Bill of Rights a defendant may waive this provision by not raising the question of the sufficiency of the affidavit in the lawer court before the trial of the case. People v. Leinecke, 290 Ill. 560, 125 N. E. 513;People v. Reed, 287 Ill. 606, 122 N. e. 806;People v. Powers, 283 Ill. 438, 119 N. E. 421;People v. Green, 281 Ill. 52, 117 N. E. 764.

This proceeding was conducted throughout under the amendment of 1927 to the Civil Administrative Code, being sections 60 to 60- l, inclusive (see Smith-Hurd Rev. St. 1933, c. 127, § 60 et seq.). It is earnestly urged by the defendant that section 60-c, added to the Civil Administrative Code by the amendment of 1927 (Smith-Hurd Rev. St. 1933, c. 127, p. 2768, § 60c, Cahill's Rev. St. 1933, c. 24a, p. 671, § 61(3), is unconstitutional, being in violation of article 3 of the state Constitution. Section 60-c and the other sections hereinbefore referred to, added to the Civil Administrative Code by the act of 1927, do not attempt to define any of the causes for which the license of a physician may be revoked or suspended. Section 60-c, amongst other things, provides that certificates may be revoked or suspended in the manner provided by said act, but not otherwise; that the department may upon its own motion, and shall upon verified complaint in writing of any person, provided such complaint, or such complaint together with evidence, documentary or otherwise, presented in connection therewith, shall make a prima facie case, investigate the action of any person holding or claiming to hold a certificate from the department. Section 60-c further provides that before suspending or revoking any certificate the department shall issue a citation notifying the registrant of the time and place when and where the hearing on the charges made against him shall be had. The act of 1927 does not, nor does the Civil Administrative Code in any of its sections, define what shall be the causes for revocation or suspension of a license issued by the department to a physician.

The legislative act apparently has attempted to place in the department the power to determine for itself what constitutes sufficient cause for the revocation of the license of a physician to practice medicine and surgery. It also vests the department with the...