State Board of Medical Examiners v. Lewis

• Decision Date: 16 January 1920
• Docket Number: 1524.
• Citation: 102 S.E. 24,149 Ga. 716
• Parties: STATE BOARD OF MEDICAL EXAMINERS ET AL. v. LEWIS.
• Court: Georgia Supreme Court

102 S.E. 24

149 Ga. 716

STATE BOARD OF MEDICAL EXAMINERS ET AL. v. LEWIS.

No. 1524.

Supreme Court of Georgia

January 16, 1920

Syllabus by the Court.

Section 14 of the act approved August 18, 1913 (Acts 1913, p. 101) entitled "An act to abolish the present state board of medical examiners and to establish a composite board of medical examiners for the state of Georgia; to define its duties and powers," etc., is unconstitutional and void in so far as it provides for the trial and conviction of a licensed physician of certain specified offenses, and the consequent revocation of his license; as the section, in so far as it provides for such trial and the penalty upon conviction, is violative of the due process clause of the federal and state Constitutions, inasmuch as no provision is made in that section, or elsewhere in the act, for due notice and hearing of the accused.

Where a licensed physician was tried and convicted under section 14 of the act first referred to, and appealed to a jury in the superior court, where he was again convicted, and then sued out a writ of error to the Court of Appeals of this state where the conviction was sustained, he could subsequently attack the judgments of conviction in the superior court and before the board of medical examiners, and, upon proper petition to a court of equity, prevent the enforcement of the penalties imposed by the act upon conviction.

Error from Superior Court, Carroll County; F. A. Irwin, Judge.

Suit by M. W. H. Lewis against the State Board of Medical Examiners and others. Decree in favor of plaintiff, and defendants bring error. Affirmed.

S Holderness, of Carrollton, for plaintiffs in error.

Boykin & Boykin and Buford Boykin, all of Carrollton, for defendant in error.

BECK P.J.

By an act approved August 18, 1913 (Acts 1913, p. 101), entitled "An act to abolish the present state board of medical examiners and to establish a composite board of medical examiners for the state of Georgia; to define its duties and powers," etc., the General Assembly created the state board of medical examiners, and conferred upon them enumerated powers and duties. Section 14 of the act declares that the board may refuse to grant a license to practice medicine in this state, or may cause a licentiate's name to be removed from the records in the office of the clerk of the court, on several stated grounds; and that the board may, upon satisfactory proof made that any licentiate has been guilty of any of the offenses defined in the grounds enumerated, suspend said licentiate from the practice of medicine and call in his license upon a majority vote of the board--

"provided, however, that said suspended physician shall have a right to appeal to a jury in the superior court of the county of his residence, and it shall be the duty of said board to prefer in writing the charge or charges against said physician, which shall be tried by a jury regularly empaneled and sworn. Said physician, the defendant in said proceedings, shall be entitled to an appeal to the Supreme Court. In the event of conviction by the jury of any of the charges preferred, the license of said physician shall be revoked."

This proviso is followed by other provisions relative to the restoration of the physician whose license has been revoked or called in. The petition in this case attacks the provisions of this section, upon stated constitutional grounds; among others, that it is violative of the due process clauses of our state and federal Constitutions, in that no provision is made in this particular section of the act, or elsewhere, for notice to him of the action to be taken by the board, as a result of which the physician's license might be revoked or called in, and that no provision for a hearing is made either in this section or in any other part of the act. In view of the ruling made in a recent case, Mott v. State Board of Optometry, 148 Ga. 55, 95 S.E. 867, the objection made to this section of the act is good. From that case it appears that Mott filed his petition for mandamus and other relief against the state board of examiners in optometry, and in his petition attacked section 7 of the act approved August 7, 1916 (Acts 1916, p. 83), entitled "An act to establish a board of examiners in optometry * * * to define its duties and powers," etc. In section 7 it was provided that the board of examiners could refuse to issue the certificate of registration provided in this act to any person who shall have been guilty of unprofessional and dishonest conduct--

"provided an appeal may be taken from the action of the board to the superior court of the county in which the certificate was refused or revoked by the board."

The attack upon this section of the act of 1916 was substantially the same as that made upon section 14 of the act of 1913 in the present case. In the course of the opinion it was said:

"Neither the portion of the act quoted above nor any other portion applicable to Mott makes any provision whatever for notice or hearing before condemnation, which is contrary to the rights guaranteed by both the State and Federal constitutions. Civil Code, §§ 6359, 6700. 'The fundamental idea in due process of law is that of "notice" and "hearing." It means that the citizen must be afforded notice and hearing before he is condemned. There must be a hearing first, and judgment can be rendered only after trial.' Arthur v. State, 146 Ga. 828 (92 S.E. 637). The benefit of notice and a hearing before judgment is not a matter of grace, but is one of right. Shippen Lumber Co. v. Elliott, 134 Ga. 699 702 (68 S.E. 509); Security, etc., Co. v. Lexington, 203 U.S. 333 (27 S.Ct. 87, 51 L.Ed. 204). Without notice and opportunity to be heard, there is no jurisdiction to pass judgment. The act contains the following: 'Said board shall prescribe such rules, regulations, and by-laws for its own proceedings and government as will carry into effect the provisions of this act.' And it is insisted that this provision will 'save the said act from being unconstitutional and void.' The provision is not sufficient to comply with the constitutional requirements. Even if it be conceded that a constitutional act can be passed which requires the board to provide due notice and hearing before judgment, this provision does not in terms make it mandatory upon the board to give due notice and hearing before judgment in the class of cases which includes the petitioner. The petitioner having complied fully with the requirements of the statute, the issue was, in contemplation of law, closed as to him. The action of the board as complained of was in effect the raising of a new issue by

them, of which the petitioner had no notice until after judgment. The provision in the act for an appeal to the superior court after the board has rendered judgment of condemnation is not a compliance with the mandate of the Constitution. It is not conceivable that the constitutional guaranty is satisfied when a hearing is provided only after judgment in such a case. To deprive one of the right to practice his profession is to subject him to humiliation, mortification, and injury, which the Constitution will not permit except in conformity with the law of the land and on evidence sufficient to authorize such a finding by an impartial tribunal. To say that one may be adjudged guilty of 'grossly unprofessional and dishonest conduct,' for the reasons stated by the

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