State Board of Medical Examiners v. Spears

• Decision Date: 07 June 1926
• Docket Number: 11325.
• Parties: STATE BOARD OF MEDICAL EXAMINERS v. SPEARS.
• Court: Colorado Supreme Court

247 P. 563

79 Colo. 588

STATE BOARD OF MEDICAL EXAMINERS v. SPEARS.

No. 11325.

Supreme Court of Colorado, En Banc.

June 7, 1926

Rehearing Denied July 6, 1926.

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

Proceeding before the State Board of Medical Examiners for revocation of the license of Leo L. Spears to practice chiropractic. An order of the Board revoking the license was annulled by the district court on certiorari, and the Board brings error.

Reversed with instructions.

Wm. L Boatright, Atty. Gen., and Charles H. Haines, of Denver, for plaintiff in error.

Carle Whitehead, Albert L. Vogl, and Floyd F. Miles, all of Denver, for defendant in error.

CAMPBELL J.

This writ of error is to review a judgment in a certiorari proceeding wherein the district court annulled an order of the state board of medical examiners revoking the license of Leo Spears by which the board previously had authorized him to practice chiropractic in this state. Our practice of medicine act passed by the General Assembly in 1915, and approved by the people on referendum in 1917 (chapter 81, C. L. 1921), creates a board of medical examiners and gives to it comprehensive enumerated powers relative to the protection of the public health and the control and regulation of the practice of medicine and of chiropractic. Included in the enumeration are the power to grant licenses to those desiring to engage in such practice, and the power to revoke the same upon the grounds and for the reasons specified in the statute. The procedure to be observed in revoking licenses is the same as to both classes of practitioners. It was followed in this case and affords due process of law. Spears, respondent in this proceeding, held a license to practice chiropractic only. A verified complaint was filed with the state board charging him with immoral, unprofessional, and dishonorable conduct, in that he caused to be printed and published in a newspaper certain false statements concerning the medical case of one Charles Culbertson, a patient of the government Fitzsimons Hospital, which were made recklessly without reasonable and adequate investigation to ascertain if they were true, and for the purpose of unjustly discrediting the officers and authorities of the hospital and the Veterans' Bureau, and for the further purpose of increasing his practice and income as a chiropractor. The advertisement in large type is headed:

'Another Disabled Veteran Sacrificed upon the Altar of Medical Greed.'

Then follows in smaller type:

'Intolerance of Medical Profession to Chiropractic Forces War Hero out of Fitzsimons Hospital to slow death.'

As a part of the advertisement is a copy of a petition said to have been numerously signed and addressed to the President and Congress of the United States, requesting these authorities 'to provide and pay for (what is now prohibited in the hospital) the one method at least that will most quickly and permanently restore us to normal--chiropractic.' This advertisement is signed Spears & Mathis, Chiropractors. Mathis was at one time a partner of Spears, but is no longer associated with him, but Spears uses the firm name in his advertising and his own picture as a trade-mark. Included in the advertisement is a picture of Dr. Spears, and a cut of Culbertson as he appeared upon his arrival in Denver 'under a sealed sentence,' and of Culbertson's mouth and teeth showing their decayed condition. This brief description is perhaps unnecessary, but it is sufficient to disclose the general character of the charges, and it throws light upon one of the defenses of Spears, which is that the advertisement was inserted in the newspaper for the purpose of aiding in a campaign which he was then conducting, in the interest of the veterans, to have Congress provide for treatment by chiropractors in their hospital. In a prolonged hearing, Spears being represented by counsel, much evidence was taken. The board sustained the charges and revoked his license. Thereupon Spears sued out a writ of certiorari in the district court and the district court upon the record certified by the medical board annulled and held for naught the order of the board of examiners revoking his license, and remanded the cause to that board for further proceedings, in conformity with the views of the district court, as might be necessary to carry out its judgment. The board has brought the case here for review of the judgment of the district court.

The board, in hearing evidence, permitted the respondent great latitude and the result is this record is burdened with much evidence far beyond and foreign to the real and only issues of fact involved. The board in its findings and judgment adverted to this, but evidently deemed it advisable to receive whatever the respondent chose to offer. The argument of respondent's counsel is largely addressed to issues of fact and propositions of law that are entirely foreign to a proceeding in certiorari. This and all other courts have so often defined the purpose of this proceeding that we content ourselves by reference to some of our own pertinent cases. One of the most exhaustive discussions in our reports of the function of this writ is in an opinion by Judge Gunter in City Council of the City of Cripple Creek v Hanley, 19 Colo.App. 390, 75 P. 600, wherein the learned judge said that district courts have jurisdiction to review the action of inferior courts and tribunals upon writ of certiorari only as to the question of their jurisdiction. Such was the nature of the common-law writ and such is the nature of our Code writ, to which is added, what really was included in the common- law writ, that if the court abused its discretion, or failed regularly to pursue its authority, which has the same meaning, the reviewing court might examine the evidence bearing on jurisdiction or abuse of discretion, but not with a view to determine facts or drew conclusions therefrom respecting guilt. As specially applicable to proceedings of the state board of examiners we cite several pertinent cases: Thompson v. State Board of Medical Examiners, 59 Colo. 549, 151 P. 436, is a review of an order of the medical board revoking a license. It is said there that on certiorari the district court is restricted to a determination of jurisdiction only, and will not go beyond this and inquire as to the sufficiency of the evidence or whether the state board reached a correct conclusion therefrom. In State Board v. Noble, 65 Colo. 410, 177 P. 141, this court, in an opinion by Mr. Justice Teller, cited with approval the Thompson Case, and said only questions of jurisdiction and abuse of discretion may be passed upon; whether a decision on the merits is right or wrong is not within the issue. In State Board of Medical Examiners v. Boulls, 69 Colo. 361, 195 P. 325, the same doctrine is again announced. In the original opinion in Dilliard v. State Board, 69 Colo. 575, 196 P. 866, by Mr. Justice Denison and in his opinion on rehearing, it was said that no act of any tribunal, within its jurisdiction and not greatly abusive of its discretion, however erroneous it may be, can be reversed upon certiorari, and courts can consider the evidence for no purpose, except to see whether the...