State ex rel. Ball v. State Board of Health

• Citation: 26 S.W.2d 773,325 Mo. 41
• Decision Date: 08 April 1930
• Docket Number: 28774
• Parties: The State ex rel. S. E. Ball v. State Board of Health et al., Appellants
• Court: United States State Supreme Court of Missouri

26 S.W.2d 773

325 Mo. 41

The State ex rel. S. E. Ball v. State Board of Health et al., Appellants

No. 28774

Supreme Court of Missouri

April 8, 1930

Motion for Rehearing Overruled April 8, 1930.

Appeal from Caldwell Circuit Court; Hon. Ira D. Beals Judge.

Reversed.

Stratton Shartel, Attorney-General, and A. B. Lovan Assistant Attorney-General, for appellants.

(1) There could be no question that under the law Doctor Ball was practicing medicine. It was proven conclusively that he examined the patients and prescribed for their treatment. If he did no more than he admitted doing, it would be practicing medicine. State v. Smith, 233 Mo. 260. (2) Section 7336, Revised Statutes 1919, among other things, provides that the State Board of Health may revoke a license for unprofessional or dishonorable conduct, and further provides that "soliciting patronage by agents" shall be deemed unprofessional and dishonorable conduct within the meaning of the section. The reason for this law is that such conduct on the part of a physician is dangerous to the community. 21 R. C. L. page 363; Thompson v. Van Lear, 92 S.W. 774. (3) The law does not contemplate that the State Board of Health shall be governed by the technical rules adopted by courts of law. The Board of Health is not a judicial body, and cannot be hampered by such technical rules put forth by the relator. 21 R. C. L. 367; Meffert v Parker, 1 L. R. A. (N. S.) 816; State ex rel. v. Goodier, 195 Mo. 559. (a) As to the technical points made with reference to the meeting of a board, the law will presume that the members of the board discharge their duty regularly and properly in accordance with the law. State v. Clark, 232 S.W. 1034. (b) And all the members of the board were not present when relator's license was revoked. (c) And in answer to the point made by relator that the order revoking relator's license is not in proper form because it does not say that the members of the board were satisfied that relator was guilty of said charges. State ex rel. Hurwitz v. North, 264 S.W. 679. (d) As to the point made that the order, revoking the license of relator, does not fix the period of time, no authorities are necessary. The statute speaks for itself. The board, under the statute, has the power to revoke the license. It has the power to fix the time during which the license will stand revoked. If no time is fixed, it, of course, follows that it is revoked permanently and for all time. (3) The relator cannot escape the provisions of the statute by hiding behind the incorporation of a company. Phillips v. Railroad, 211 Mo. 419.

Harris L. Moore and John W. Moore for respondent.

(1) The statute, sec. 7336, is highly penal and must be strictly construed, and in favor of the respondent. State ex rel. v. Clark, 232 S.W. 1034; State ex rel. v. Robinson, 253 Mo. 271; State ex rel. v. McMahon, 234 Mo. 611. (2) The review of the action of the board by the circuit court is a direct attack and the judgment quashing the record is right, even though such record would not be void if assailed collaterally. State ex rel. v. Juden, 274 S.W. 498; State ex rel. v. Neosho, 57 Mo.App. 192. (3) There was no meeting of the State Board of Health. It is elementary that to constitute a valid meeting of any board of this kind, either all of the members must be present or there must be a call. Not all of the members of the board were present, and there was no call or time fixed for the meeting by the board, as required by Section 5776. 43 C. J. 499, sec. 760; Forry v. Ridge, 56 Mo.App. 619; Harding v. Vandewater, 40 Cal. 77; Tompkins v. Clachamas County, 11 Ore. 364, 4 P. 1210. (4) The order of the board revoking Dr. Ball's license is void, because it does not follow or fulfill the requirements of the statute. In any special proceeding under a statute, whether before a board or a court of inferior jurisdiction or a court of general jurisdiction not proceeding according to the common law, all the requirements of the statute must be substantially complied with or such proceeding will be void and the record will be quashed on certiorari. State ex rel. v. Trimble, 269 S.W. 617; State ex rel. v. Neosho, 57 Mo.App. 192; State ex rel. v. Juden, 274 S.W. 498; McGregor v. Board of Supervisors, 37 Mich. 388; Zimmerman v. Snowden, 88 Mo. 218; State ex rel. Jones v. County Court, 66 Mo.App. 96; In re Bledsoe Hill, 200 Mo. 630; St. Louis v. Glasgow, 254 Mo. 262; Wheeler v. Poplar Bluff, 149 Mo. 36; State v. Sullivan, 58 Ohio St. 505, 65 Am. St. 781. (5) Where the statute says the board may revoke for a "period of time" this means a definite time which must be shown by the board's record. State v. Strass, 49 Md. 288; People ex rel. v. Kearney, 164 N.Y. 64. (6) The Health Culture Company had a right to conduct a sanitarium and contract with patients for medical attention. This was a proper exercise of its corporate powers. State v. Lewin, 128 Mo.App. 149; State Electro Medical Inst. v. Platner, 74 Neb. 23, 103 N.W. 1079; State Electro Medical Inst. v. State, 74 Neb. 40, 103 N.W. 1078. (7) The statutes (Chap. 79, R. S. 1919) contain no prohibition against osteopaths soliciting or against soliciting for osteopaths.

Frank, J. All concur, except Blair, J., who dissents in separate opinion, and Walker, J., absent.

OPINION

FRANK

This is an appeal from a judgment of the Circuit Court of Caldwell County quashing the record of the State Board of Health revoking the license of relator, Dr. S. E. Ball, to practice medicine and surgery in the State of Missouri.

On August 30, 1926, a complaint was filed with the State Board of Health charging relator with unprofessional conduct in that he did at Excelsior Springs, Missouri, between September, 1925, and August, 1926, unlawfully solicit patronage by agents. After notice to relator, a hearing was had before the board, at which relator appeared in person and by attorney. After hearing and considering the evidence of both complainant and relator, the board, by order entered of record, revoked relator's license to practice medicine and surgery in the State of Missouri. A writ of certiorari was issued by the Circuit Court of Clay County to review the proceedings and orders of the board. In obedience to this writ, the board made return of all its proceedings to said circuit court. Thereafter a change of venue was awarded to the Circuit Court of Caldwell County, where, after hearing, the order of the board revoking relator's license was quashed, and the board was ordered to restore said license to relator. From this judgment an appeal was granted to this court.

Relator has filed a motion to dismiss the appeal on account of alleged defects in the abstract. We have examined the abstract in the light of the grounds urged in the motion to dismiss and find nothing which would justify a dismissal of the appeal. The motion is overruled.

It is contended that the order revoking relator's license is void because not made at a legal meeting of the board. The record shows that the hearing was had and relator's license revoked at a called meeting of the board, at which meeting six members of the board were present and one absent. The gist of relator's contention is that as all members of the board were not present, and as the record does not show that there was a call made or time fixed for the meeting, by the board, as provided by Section 5776, Revised Statutes 1919, the meeting was unauthorized and no business could be legally transacted thereat. The pertinent part of Section 5776, supra, provides that the meetings of the board shall be in January and July of each year, and at such other times as the board may deem expedient, and that four members shall constitute a quorum. It is true that it does not appear how or by whom this meeting was called, but the fact that the record does not show the call does not necessarily render the meeting illegal or unauthorized. The record of the board contains the following recitation:

"A called meeting of the Missouri State Board of Health was held at the Hotel Snapp in Excelsior Springs, Missouri, on the 23rd day of November, 1926 at 1:30 p. m. The following members were present."

Then follows the names of all members of the board showing six members present and one absent.

The board had power to call this meeting and the record recites it was a called meeting. Four members of the board constitute a quorum. Six of the seven members were present and participated in the meeting. In the absence of evidence to the contrary it should and will be presumed that the meeting was legally and properly convened. A kindred question was before us in Rutherford v. Hamilton, 97 Mo. 543, 548, 549, 11 S.W. 249, whereat we said:

"Defendant claims that proper approval of the contract for the work was never given because of the facts shown regarding the time and circumstances of the council meeting when the contract was acted upon. Under the city charter, the mayor had power to call a special meeting of the council at any time. A majority of the members constituted a quorum. Here a meeting appears to have been held in which eight of the ten members participated. The mayor presided. Nothing is stated regarding the cause of their assembling. It may have been upon special call of the mayor, or in supposed compliance with the adjournment of eight days before. It appears that regular municipal business was transacted, and the record thereof was preserved in the usual way by the proper officer. In the absence, therefore, of any evidence to the contrary, it will be presumed that these public officers rightly acted in the premises, and that the meeting was properly convened. [Chouteau Ins. Co. v. Holme's Admr., 68 Mo. 601; State ex rel. v. Smith, 22 Minn. 218; State v. Vail, 53...