State Board of Medical Examiners v. Friedman

Decision Date31 May 1924
Citation263 S.W. 75,150 Tenn. 152
PartiesSTATE BOARD OF MEDICAL EXAMINERS ET AL. v. FRIEDMAN.
CourtTennessee Supreme Court

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

Suit by Dr. Ben Friedman against the State Board of Medical Examiners and others. Decree for complainant, and defendants appeal. Modified and remanded.

J. W Farley, of Memphis, for appellants.

Dr. Ben Friedman, in pro. per.

MALONE Special Judge.

The original bill in this case was filed by Dr. Ben Friedman, a citizen of Memphis, Tenn., to review the action of the state board of medical examiners in revoking his license to practice medicine, and to compel his reinstatement as a practitioner.

The board demurred to the bill on various grounds, hereinafter to be noted, and the chanceller overruled the demurrer.

The members of the board thereupon refused to plead further standing on their demurrer, and a final decree was entered in the case, adjudging that the action of the defendants in revoking the license of complainant was unwarranted by law, and of no binding force and effect, and directing that the clerk and master issue an order to the defendants, directing them to reinstate the complainant upon their records as a practitioner of medicine in the state of Tennessee.

Inasmuch as complainant raises certain constitutional questions in the original bill, and by amended bill disputes the constitutionality of the statute (chapter 78, of the Acts of 1901), under which the board was organized, and from which its authority was derived, the case comes direct to this court.

The allegations of the original bill are, in substance, as follows:

That on April 26, 1918, complainant received notice that the state board of medical examiners had revoked his license to practice medicine, on account of his conviction in the District Court of the United States, for violation of the Harrison Anti-Narcotic Act (U. S. Comp. St. §§ 6287g-6287q). This action, it is alleged, was taken without any notice to complainant.

That on May 23, 1918, complainant filed his original bill in the chancery court at Memphis, seeking a review of this action, by certiorari, and for other relief.

That on June 14, 1918, the board of medical examiners, by their solicitor, agreed to a decree in the case, reciting that the statements contained in the original bill were true, and that complainant was entitled to have the order of the board vacated, and his license restored, as prayed in the bill. It was thereupon so decreed; the order, however, reciting that nothing therein contained should affect the question whether complainant had been convicted of a crime involving moral turpitude.

That thereafter, on the ______ day of ______, 1918, the defendants composing the state board gave complainant notice to appear, together with a copy of the charge against him, viz., that he had been convicted in a court of the United States of an offense involving moral turpitude. The hearing was set before the board at Nashville, Tenn., on the ______ day of ______ 1918.

The bill then proceeds as follows:

"Complainant appeared before said board and resisted said charge on the ground that the offense of which he had been convicted was not one involving moral turpitude, but said board revoked his license to practice medicine in Tennessee, and said revocation is still in force against him; and said board, through its secretary, Dr. A. B. De Loach, of Memphis, refused to vacate the same and restore to complainant his license to practice medicine in Tennessee, without which complainant cannot practice medicine in Tennessee without violating the law.

Complainant believed he was right and within the law in what he did, which was writing prescriptions for incurable narcotic addicts to procure the drug, and felt so strongly he was right that he contested the conviction to the Supreme Court of the United States, where it was affirmed, and soon after the revocation of his license by said defendant board he commenced serving his sentence, and served 28 months in the federal prison in Atlanta, Ga., being released a short while only, and this is the reason complainant has not sooner taken proceedings to vacate the action of said board, and have his license restored to him. However, complainant did, a short while before commencing serving his sentence in the federal prison in Atlanta, Ga., file a petition for certiorari and supersedeas for a review of the action of said board by the circuit court of Davidson county in Nashville, and while complainant was confined in the federal prison at Atlanta, and unable to prosecute or look after his said case, the same was on the 10th day of July, 1920, dismissed by the circuit court in Nashville, and of which complainant knew nothing until his release from prison a short while ago.

After complainant's conviction in the federal court of a violation of the Harrison Narcotic Act, he was indicted, under the state law, in the criminal court of Shelby county for a similar offense, and was convicted in the criminal court of Shelby county, but upon appeal to the Supreme Court the case was reversed and dismissed on the ground that what complainant did (write a prescription for five bottles of morphine) for an addict did not constitute a violation of the state law.

Complainant desired to make application to the state board for a restoration of his license, and applied to its secretary in Memphis, Dr. A. B. De Loach, and was informed to (by) him that he would be advised ten days in advance of the meeting of the board; after waiting some time, complainant wrote two letters to Dr. De Loach again, inquiring when the board would meet, but received no reply to either of his letters, and he then had his brother call up Dr. De Loach for the information, and he was informed by Dr. De Loach that the board had met and adjourned until next year. Complainant then had a friend make inquiry, and ascertained that the board was to meet on the 3d day of July, 1922, in Nashville. He at once went to Nashville, and applied to the board of medical examiners for a restoration of his license, and was informed later in the day, by its secretary, Dr. De Loach that the board had refused his application."

After setting forth the grounds prescribed in the act (Acts of 1901, chapter 78), for the revocation of a practitioner's license, one of which is "conviction of any offense involving moral turpitude," complainant alleges that a conviction in the federal courts for a violation of the Harrison Anti-Narcotic Act is not an offense involving moral turpitude.

Complainant claims:

(a) That the right to practice a profession is a property right.

(b) That the meaning of the phrase "moral turpitude" is well settled in law, and said board has no right to place its own interpretation upon it, thereby depriving complainant of his property right.

(c) That the illegal and unwarranted action of the board in so doing is a violation of the Fourteenth Amendment to the Constitution of the United States.

Complainant then alleges that "he is not guilty of anything that would authorize or justify said defendant board to revoke or cancel his license to practice medicine in Tennessee."

It is further alleged:

"There being no provision in said act creating said defendant board, for an appeal from its findings, unless the same be reviewed and relief granted, or its judgments annulled and quashed, as void without force and effect and complainant placed in statu quo, a great, permanent, and irreparable damage and injury will have been done complainant, from which he would otherwise have no relief."

The bill prays for a writ of certiorari, to the end that the proceedings of the board be certified to that court, and its action there reviewed set aside and vacated.

In the alternative complainant prays that, if not entitled to that relief, an order be made, adjudging that the action of the board, based solely upon conviction of an offense not involving moral turpitude, was unwarranted in law, and a violation of complainant's property rights under the Fourteenth Amendment to the Constitution of the United States, and that a mandamus issue, directing that the board reinstate complainant as a practitioner, etc.

On August 21, 1922, complainant filed an amended bill, in which it is charged that:

"Nowhere in said act is any provision made for a notice to the accused of charges preferred against him, or to give him a hearing and trial of any such charges."

The same insistence is advanced in other portions of the amended bill, and it is charged that "this section of said act is in violation of the due process clauses of our state and federal Constitutions," and especially the first section of the Fourteenth Amendment to the Constitution of the United States.

Complainant then charges:

"That the action of said state board of medical examiners, was invalid and void on the constitutional grounds pointed out, and its proceedings, which resulted in finding complainant guilty of certain charges, as set out in the original bill herein, were nugatory and without effect and void, as its action was based solely upon an unconstitutional and void act, as hereinabove set out."

Complainant prays:

"That said act of the Legislature of Tennessee, 1901, chapter 78, be declared unconstitutional and void, and the action of said defendant board thereunder, declaring complainant's license to practice medicine revoked and annulled, be decreed nugatory, void, and of no binding effect, and that said defendant board be ordered and commanded by proper injunctive process to reinstate complainant on its records as a licensed practicing physician and surgeon in the state of Tennessee."

The defendants demurred...

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  • Martin v Sizemore
    • United States
    • Tennessee Court of Appeals
    • 22 Agosto 2001
    ...v. Board of Dental Exam'rs, 168 Tenn. 16, 22, 73 S.W.2d 687, 690 (1934) (practice of dentistry); State Bd. of Med. Exam'rs v. Friedman, 150 Tenn. 152, 166, 263 S.W. 75, 79 (1924) (practice of medicine); Janeway v. State Bd. of Chiropractic Exam'rs, 33 Tenn. App. 280, 286, 231 S.W.2d 584, 58......
  • Martin v. Sizemore
    • United States
    • Tennessee Court of Appeals
    • 22 Agosto 2001
    ...v. Board of Dental Exam'rs, 168 Tenn. 16, 22, 73 S.W.2d 687, 690 (1934) (practice of dentistry); State Bd. of Med. Exam'rs v. Friedman, 150 Tenn. 152, 166, 263 S.W. 75, 79 (1924) (practice of medicine); Janeway v. State Bd. of Chiropractic Exam'rs, 33 Tenn.App. 280, 286, 231 S.W.2d 584, 587......
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