Sloan v. Mitchell

• Decision Date: 28 March 1933
• Docket Number: (CC. No. 469)
• Court: West Virginia Supreme Court
• Parties: R. M. Sloan, M. D., etc., et al, v. R. B. Mitchell

113 W.Va. 506

R. M. Sloan, M. D., etc., et al,

v.R. B. Mitchell

(CC. No. 469)

Supreme Court of Appeals of West Virginia.

Submitted January 11, 1933.

Decided March 28, 1933.

1. Physicians and Surgeons

The right of a licensed physician and surgeon to practice his profession is a valuable franchise in the nature of a property right to protect which he may sue in equity in the interest of himself and other physicians similarly situated, to enjoin a person from encroaching upon said right by engaging in the practice of medicine and surgery without a state license.

2. Courts

A court is not powerless to prevent the doing of an act involving encroachment upon valuable franchise rights of others merely because such conduct is denounced as a public offense. State v. Lindsay, (Kan.) 116 P. 207.

Litz. Judge, absent.

Case Certified from Circuit Court. Cabell County.

Suit by R. M. Sloan, M. 1)., for the benefit of himself and all other physicians similarly situated, and others, against R. B. Mitchell. A demurrer to the bill was sustained, and the rulings certified for review.

Reversed and remanded.

Samuel Biern and Rolla D. Campbell, for plaintiff.

Arthur S. Dayton. Chairman of Committee on Unauthorized Practice of Law of West Virginia Bar Association as amicus curiae.

Dougherty & Dougherty, for defendant.

Maxwell, President:

On this certification there is presented the question of the sufficiency of a bill in chancery. The trial chancellor sustained a demurrer to the bill and certified his action to this Court for review.

The plaintiff, a licensed physician under the laws of this state, prosecutes the suit for the benefit of himself and all other physicians similarly situated. The purpose of the suit is to enjoin the defendant from practicing the profession of a physician and surgeon in this state without a license.

In the bill as amended it is alleged that the plaintiff has been a licensed practitioner of medicine and surgery in the state of West Virginia for eight years and that for the greater part of that time he has maintained, and now maintains, an office in the city of Huntington for the practice of his profession; that for several years last passed the defendant has been, and is now, practicing the profession of medicine and surgery in the said city without "license, franchise, or right from the State of West Virginia so to do "; that the defendant is now treating, and for several years has been treating, in said city, numerous persons for various kinds of ailments and infirmities, and purports to diagnose diseases and to prescribe treatment, and that for his services as a practicing physician and surgeon he charges and receives monetary reward; that the defendant refers to himself in newspaper advertisements as "Dr. R, B. Mitchell", and describes his office as "Mitchell General Health Center''; that he holds himself out as having the right to practice medicine and surgery; that the defendant's said conduct is in violation of article 3 of chapter 30 of the Code of West Virginia of 1931, which article forbids any person to practice medicine and surgery in this state without a license from the State Public Health Council; that the practicing of medicine and surgery is not a common right, but a privilege to be exercised only by virtue of a public grant; that the right of plaintiff and those similarly situated to practice medicine and surgery is in the nature of a franchise, and that they have such interest as is in the nature of a property right which entitles him and them to equitable relief against encroachment upon such right by one not possessing the required qualifications and license; that the said conduct of the defendant is resulting in irreparable injury to the plaintiff and those in whose behalf he sues.

We are of opinion that these allegations present a proper prima facie case for equity jurisdiction.

We approve the reasoning of the court and the conclusions reached in the case of Dworken v. Apartment Rouse Association, 176 N. E. 577, decided by the Court of Appeals of Ohio March 9, 1931, which decision the Supreme Court of that state refused to review, by order of June 10, 1931. The plaintiff, a licensed attorney, practicing his profession in the courts of the state of Ohio and elsewhere, instituted suit for the benefit of himself and all other attorneys at law similarly situated to enjoin the defendant, a corporation, from practicing law in said state. It was alleged that the defendant practiced law by hiring attorneys to carry on the work of the practice of law. and that the defendant advertised that it had a legal department for the use of others. The court held:

"The right to practice law is an exclusive valuable privilege; exclusive in that it is restricted to those who, after special training and after examination and determination of special fitness, are accorded the right to follow the profession of attorneys and counselors at law; and valuable, in that it carries with it the opportunity to secure material benefits and to earn a livelihood, not given to those outside the profession. This right is in the nature of a franchise, and a practicing attorney at law, and others similarly situated, have such an interest as members of the legal profession, in the nature of a property right, as will support the authority of such attorney at law to proceed, as a proper party, in an action to secure equitable relief against encroachment upon such right by a corporation."

By various authorities cited in the opinion the court sustains the propositions, "that the right to practice law is in the nature of a franchise from the state", that "franchises are property and are frequently invested with the attributes of property generally," and that "equity is not restricted to the protection of property rights, in any technical or limited sense." The court distinguishes that case from the Ohio case of Merz v. Murchison, 30 Cir. Ct. Rep. 616, decided in 1908. There, the plaintiff, a physician, was refused an injunction to restrain the defendant from practicing chiropody without a medical license. In the Dworken opinion, the court said: "The action in Merz. v. Murchison, was by a physician, not for his class, against an individual who had committed an offense punishable by criminal statute, and the court properly held that under the facts of that case injunction would not lie. The syllabus seems to be more comprehensive than the opinion. The right of the plaintiff in the action now before us is based upon broader grounds than was that of Merz in the Erie county case."

Cases are legion holding, in one way or another, that the right of a licentiate to practice his profession is a property right, or a right in the nature of a property right, or a valu- able franchise, or a valuable privilege, Most of these cases are the outgrowth of proceedings for the revocation of professional licenses, but their recognition of the high order of the licentiate's right is as pertinent in a case such as at bar as in the cases where iterated. "The right of a person to practice the profession for which he has prepared himself is property of the very highest character." Cavassa v. Off et at., (Cal.) 271 P. 523. "The right to practice medicine is, like the right to practice any other profession, a valuable property right, in which under the Constitution and laws of the state, one is entitled to be protected and secured." Hewitt v. Board of Medical Examiners, (Cal.) 84 P. 39, 3 L. R. A. (N. S.), p. 896. "The right of a physician to practice his profession is a property right, of which he cannot be arbitrarily deprived." Butcher v. Maybury, 8 Fed. (2d) 155. "Right to practice medicine is property right, of which one cannot be illegally deprived." State Board of Medical Examiners v. Friedman, (Tenn.) 263 S. W. 75. "The right of a physician to toil in his profession as well as that of all other citizens to labor in their chosen work is both liberty and property, partaking of the nature of each, and is guaranteed by constitutional mandate from unwarrantable interference. * * * This right with all its sanctity and safeguards is not absolute. It must yield to the paramount right of government to protect the public health by any rational means." Lawrence v. Briry, (Mass.) 132 N. E. 174. In State ex rel. Spriggs v. Robinson, (Mo.) 161 S. W. 1169, the court referred to the case of State v. McEl- hinney, (Mo.) 145 S. W. 1139, holding that the right of a licensed attorney to practice law is "a valuable property right," The court said: "By analogy, it must be admitted that if the right...