State Bd. of Health v. Rot

• Decision Date: 27 March 1901
• Citation: 22 R.I. 538,48 A. 802
• Parties: STATE BOARD OF HEALTH v. ROT.
• Court: Rhode Island Supreme Court

48 A. 802

22 R.I. 538

STATE BOARD OF HEALTH

v. ROT.

Supreme Court of Rhode Island.

March 27, 1901.

Appeal from the state board of health.

Proceedings by the state board of health, on complaint of P. R. Nicol, against Joseph N. Roy, to' revoke defendant's certificate to practice medicine. Motion to quash the proceedings denied.

Clarence A. Aldrich and Ambrose Choquet for appellant.

Thomas Z. Lee, for state board of health.

ROGERS, J. This is a proceeding under Gen. Laws R. I. c. 165, § 5, to revoke a certificate to practice medicine that had been granted to the defendant under section 3 of said chapter. The section referred to reads as follows: "Sec. 5. The state board of health may refuse to issue the certificate provided for in section three of this chapter to any individual guilty of grossly unprofessional conduct of a character likely to deceive or defraud the public, and it may after due notice and hearing revoke such certificate for like cause. In all cases of refusal or revocation, the applicant may appeal to the appellate division of the supreme court, which may affirm or overrule the decision of the board." One P. R. Nicol, M. D., presented a petition in writing to the state board of health for the revocation of the certificate to practice medicine that had previously been granted to the defendant, charging that said defendant had been guilty of grossly unprofessional conduct of a character likely to deceive or defraud the public, in this: (1) The diploma from Laval University, presented to the said board by said defendant, was never issued to said defendant by said university, but was granted to one Joseph Napoleon Roy, an entirely different person. (2) That said defendant was not possessed of a proper and sufficient education in the science of medicine to enable him to practice medicine with safety to the people of the state. (3) That said defendant had been guilty of grossly unprofessional conduct in obtaining from said board of health a certificate to practice medicine in this state, which certificate was obtained by misrepresentation. The state board of health ordered said defendant to be cited to appear and answer the charges in said petition contained, and upon a hearing of the parties revoked the certificate as prayed, whereupon the defendant duly appealed to the appellate division of this court, as provided for under said section 5.

Before proceeding to the trial of his appeal, however, the defendant interposed a motion to quash the proceedings on several grounds, the first being that said board had no jurisdiction to try defendant on said charge and the specifications thereof, for the reason that neither of the specifications amounts to grossly unprofessional conduct of a character likely to deceive and defraud the public. We do not think the defendant's motion should be granted upon this ground. In Dent v. West Virginia, 129 U. S. 114, 122, 9 Sup. Ct. 231, 32 L. Ed. 623, the court says: "The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fraud. As one means to this end, it has been the practice of different states from time immemorial to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely, their possession being generally ascertained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subject, scientific or otherwise, with which such pursuits have to do. * * * Few professions require more careful preparation by one who seeks to enter it than that of medicine. * * * The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications." If the defendant in the case at bar obtained his certificate to practice medicine by misrepresentation and fraud in palming off upon the state board of health a diploma issued by Laval University to another as one that was issued to himself, he is guilty of conduct likely to deceive and defraud the public by inducing the public to believe that he is lawfully entitled to practice medicine by reason of the possession of qualifications that would honestly entitle him to the certificate. That such conduct would be grossly unprofessional seems to us too plain to require argument. The contention that the gross unprofessional conduct must occur after the granting of the certificate to practice has no application here, for the deception and fraud that was initiated at the granting of the certificate was kept up and continued every time he practiced medicine in this state under the pretended authority of a fraudulently obtained certificate.

The second ground urged for quashing the proceedings is that said board never found the charges against the defendant, nor any of the specifications thereof, to be true, and without such finding said board had no authority to pass the vote and order revoking his certificate. If it be true that the board found no charge against the defendant,—an allegation that we are not prepared to admit,—that would not Justify quashing the proceedings, but would only afford a good reason for the defendant's taking an appeal, just as he has done. Mere errors in proceeding do not afford ground for overthrowing or annulling the whole proceeding, so that an appeal provided to correct such errors cannot be prosecuted, as would be the ease if these proceedings were quashed. See Maryott v. Gardner, 50 Neb. 320, 69 N. W. 837. The appeal vacates the proceedings before the board so far as results go, and brings the matter up before the appellate division de novo for trial as fully as though it had never been heard before the board, save that the original charge or petition remains as the cause of trial, and save, also, that before it can be so tried before the appellate division it must have been brought before the board.

The third ground for the motion to quash is because section 5, c. 165, Gen. Laws R. I., is unconstitutional, in that it conflicts with section 1, art. 10, of the constitution of the state. That section provides that the judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly may, from time to time, ordain and establish; the contention being that the state board of health is not a court, and that the powers granted to it in Gen. Laws R. 1. c. 165, § 5, are judicial powers. Although it is provided in said section 5 that the state board of health "may after due notice and hearing, revoke such certificates," it is contended that these words do not by necessary implication confer the power to administer an oath, and that, inasmuch as there is no express enactment authorizing the board to administer oaths, such as is given to various official personages in Gen. Laws...