Spears Free Clinic and Hosp. for Poor Children v. State Bd. of Health

• Decision Date: 01 July 1950
• Docket Number: No. 16204,16204
• Citation: 220 P.2d 872,122 Colo. 147
• Parties: SPEARS FREE CLINIC & HOSPITAL FOR POOR CHILDREN, Inc., v. STATE BOARD OF HEALTH et al.
• Court: Colorado Supreme Court

Page 872

220 P.2d 872

122 Colo. 147

SPEARS FREE CLINIC & HOSPITAL FOR POOR CHILDREN, Inc., v. STATE BOARD OF HEALTH et al.

No. 16204.

Supreme Court of Colorado, en Banc.

July 1, 1950.

Charles Ginsberg, Dickerson, Morrissey & Zarlengo and Creamer & Creamer, all of Denver, for plaintiff in error.

John W. Metzger, Allen Moore, Frank A. Wachob and James D. Geissinger, all of Denver, for defendants in error.

STONE, Justice.

September 27, 1943, the state board of health issued a 'temporary provisional license' to plaintiff in error to operate a chiropractic sanitarium. November 19, 1946, upon notice and after hearing, said board ordered and adjudged that the license so issued be revoked. January 9, 1947, action in the nature of certiorari was instituted by plaintiff in error for review of the action of said board, under rule 106(a)(4), R.C.P.Colo., and review is here sought of judgment of dismissal entered in such action by the trial court December 18, 1948. The record was filed in this court March 14, 1949, but as a result of numerous extensions of time stipulated or consented to by the parties final briefs were not submitted until May 3, 1950. The matter was then set for oral argument and heard by us May 22, 1950. The record of the evidence before the state board of health covers 1623 folios and the briefs total 432 pages.

It is first urged that the state board of health was without jurisdiction to issue or revoke a license to plaintiff in error in that its sanitarium is located within the City and County of Denver, which is a home-rule city; that said city has legislated in the field of licensing hospitals and sanitariums by ordinance covering the same field as the state statute and subsequent thereto and that its ordinance supersedes the statute within its territorial limits.

Under the provisions of Article XX of the Constitution and of its charter, the city acquired exclusive control of local and municipal affairs, but it remained 'as much amenable to state control in all matters of a public, as distinguished from matters of a local, character, as are other municipalities.' People ex rel. Hershey v. McNichols, 91 Colo. 141, 13 P.2d 266, 268. Health is a matter which may be either of general or of municipal concern. Infectious diseases in particular recognize no city lines, and under its police power the state retains the right to regulate such matters affecting public health as are of general concern, including the right to license and regulate hospitals wherever situated. At the same time, congested living conditions within cities may produce health problems justifying further regulation than those deemed necessary by the legislature, and as to such matters cities may possess the police power of further regulation within their limits. We are not here confronted with any conflicting mandate of statute and ordinance or with challenge to any particular statutory command, but only with challenge to the broad right of the legislature to provide for the licensing of hospitals within the limits of home-rule cities, in the interest of the general health. That challenge cannot be sustained.

It is next urged that the action of the state board of health is void for the reason that by subsequent statute jurisdiction over the practice of chiropractic has been taken away from the state board of health and transferred to the board of chiropractic examiners. Jurisdiction concerning the practice of chiropractic is but a small segment of the broader field of jurisdiction over matters concerning the general health, and authority to issue and revoke licenses for the practice of chiropractic, which was delegated to the board of chiropractic examiners, does not overlap the authority to regulate hospital premises for treatment of the sick in the interest of the general health. No method of treatment legally employed will be unduly impinged by reasonable requirements for the protection of the public health in institutions where such treatment is to be performed.

Many other questions are raised and argued in the briefs as to the procedure adopted, the admissibility of evidence received, the alleged prejudice of board members, their absence from sessions and voting without hearing all the evidence submitted, and other matters appearing in the record, but we do not find it necessary to consider these questions because of a more fundamental and precedent defect in the proceedings of the board.

Consistent with the contention of the attorney general, we shall assume that the scope of our review here 'is limited to the inquiry as to whether jurisdiction has been exceeded, discretion abused, or authority regularly pursued,' as stated in Public Utilities Commission v. Erie, 92 Colo. 151, 18 P.2d 906, 907.

In considering the question of the regular pursuit of authority, it is fundamental that authority to regulate does not include the authority to legislate, but is strictly limited by the law under which it is pursued. The practice of chiropractic is recognized and authorized by law. We must accept such practice as a lawful occupation and as in the public interest. It may not be arbitrarily limited or discriminated against, and its advocates may lawfully erect and operate buildings and facilities for the treatment, according to its tenets, of patients seeking its aid, subject only to the limitations set out in the law and to reasonable regulations under the police power. Such regulations must bear relation to the public health or welfare and must apply to all persons alike.

The sole authority of the board in the issuance and revocation of licenses is chapter 172, S.L.1909, being now subdivision 1, article 5, chapter 78, '35 C.S.A., constituting sections 133 to 138 inclusive of said chapter. This statute provides, insofar as we are here concerned, that it shall be unlawful to open or maintain any hospital or other institution for the treatment or care of the sick or injured without first having obtained a license therefor from the state board of health; that an application for such license shall be made as therein provided; that the board 'shall issue licenses to such applicants furnishing satisfactory evidence of fitness to conduct and maintain such institution in accordance with the provisions of this act and the rules and regulations adopted by such board; and such license shall be signed by the president and attested by the secretary of said board and have the seal thereof affixed thereto,' and that 'licenses may be refused to applicants not complying or meeting with the requirements of this act and of the rules and regulations of the board,' and...