State ex rel. Conway v. Hiller
| Citation | 180 S.W. 538,266 Mo. 242 |
| Parties | THE STATE ex rel. A. M. CONWAY, Appellant, v. F. B. HILLER et al., Constituting State Board of Health |
| Decision Date | 08 December 1915 |
| Court | United States State Supreme Court of Missouri |
Appeal from Cole Circuit Court. -- Hon. John M. Williams, Judge.
Affirmed.
Sebastian & Sebastian for appellant.
(1) The license of a practicing physician is a valuable privilege and property right, which can only be revoked by due process of law. State ex rel. v. McElhanney, 246 Mo. 606. (2) The State Board of Health can only revoke a physician's license, for unprofessional and dishonorable conduct, when the act specified comes clearly within the definition of Sec 8317, R. S. 1909. State ex rel. v. Robinson, 253 Mo 287. (3) This statute is highly penal and must be strictly construed. A physician cannot be held to have violated its provisions unless his acts come within the letter and the spirit of the law. Bishop on Written Law, secs. 189 and 194; State v. Balch, 178 Mo. 392; State v McMahan, 234 Mo. 614. (4) Where a statute specifically names several matters or things which shall be governed by its provisions, and then by general language undertakes to include other acts and things, not specifically named, it must be construed as to apply only to the things or acts of the same general nature as those set out. St. Louis v. Kaine, 180 Mo. 309; State ex rel. v. Berryman, 142 Mo.App. 373; State ex rel. v. Robinson, 253 Mo. 287. (5) The Constitution of this State vests the power to make law in the General Assembly. Article 16, section 1, and article 3 prohibit executive officers from performing legislative functions. The maxim, Delegata potestas non potest delegare, is fully expressed in these provisions of the Constitution. Cooley on Constitutional Law (5 Ed.), p. 139. (6) The writing of prescriptions for whiskey is not one of the acts designated by the statute as unprofessional or dishonorable conduct, nor is it one of the same general nature as the things definitely set out. State ex rel. v. Robinson, 253 Mo. 271; 30 Cyc. 1555. (7) If it could be contended that the State Board of Health could make the writing of prescriptions for whiskey unprofessional or dishonorable conduct, then there is nothing in the record of this case to show that they had ever undertaken to do so. The rule is, in such cases, that the complaint must allege and prove that the offense which is the basis of the complaint is one which is violative of the statute. The revocation of relator's license to practice medicine was without authority or sanction of law. Board v. Eisen, 123 P. 52; McCommer v. Board of Health, 8 L. R. A. (N. S.) 58; State ex rel. v. Kellogg, 36 P. 957.
John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondents.
(1) A constitutional question must be raised at the first opportunity, else it is waived. The first opportunity in this case was in relator's application for the writ. Raising the question for the first time in the motion for a new trial was too late. Sheets v. Insurance Co., 226 Mo. 617; Hartzler v. Street Ry. Co., 218 Mo. 564; Lohmeyer v. Cordage Co., 214 Mo. 687. (2) The party asserting the unconstitutionality of a statute must point out the specific provision of the Constitution violated. Lohmeyer v. Cordage Co., 214 Mo. 688; Excelsior Springs v. Ettenson, 188 Mo. 129; Davis v. Thompson, 209 Mo. 196; Independence v. Knoeper, 205 Mo. 342. (3) Section 8317, R. S. 1909, includes acts other than those specifically named, as unprofessional or dishonorable conduct. People v. Apfelbaum, 251 Ill. 22; Berry v. State, 135 S.W. 1; Morse v. State Board of Med. Ex., 122 S.W. 446; Meffert v. Packer, 1 L. R. A. (N. S.) 814; Meffert v. Packer, 195 U.S. 625; State ex rel. v. Goodier, 195 Mo. 556; Spurgeon v. Rhodes, 167 Ind. 11; Wolf v. State Board Med Ex., 109 Minn. 360; State v. Board, 34 Minn. 387; State v. Board, 32 Minn. 324; State Board v. McCoy, 125 Ill. 289; State Board v. Roy, 48 A. 802; In re Newell Smith, 10 Wend. 449; State ex rel. v. Hathaway, 103 Mo. 29. (4) Section 8317 is not unconstitutional because it authorizes the State Board of Health to revoke a license to practice medicine for unprofessional or dishonorable conduct. People v. Apfelbaum, 251 Ill. 22; Berry v. State, 135 S.W. 1; Oil Co. v. State, 48 Tex. Civ. App. 179; Morse v. State Board of Health, 122 S.W. 448. (5) A license to practice a profession is not a contract. State v. Gazlay, 5 Ohio 22; Cohen v. Wright, 22 Cal. 317; Ex parte Yale, 24 Cal. 242; Lanquille v. State, 4 Tex.App. 320; Simmons v. State, 12 Mo. 279; State ex rel. v. McIntosh, 205 Mo. 636; State ex rel. v. Gregory, 83 Mo. 123; State v. Hathaway, 115 Mo. 36; State v. Davis, 194 Mo. 501; State ex rel. v. Goodier, 195 Mo. 551; State v. Doerring, 194 Mo. 398. (6) The Board of Health may revoke a license for the same causes for which it may refuse to issue it. Sec. 8317, R. S. 1909; State ex rel. v. Goodier, 195 Mo. 560; Meffert v. State Board of Med. Ex., 1 L. R. A. (N. S.) 816, 195 U.S. 625; People v. Apfelbaum, 251 Ill. 25. (7) The granting or refusing to grant a license to practice medicine, or the revocation thereof by the board, is not the exercise of judicial power. Spurgeon v. Rhodes, 167 Ind. 12; State ex rel. v. Goodier, 195 Mo. 560. (8) The findings of a medical board in a proceeding to revoke a physician's license are conclusive upon the courts. 3 Cyc. 1557; Meffert v. State Board of Med. Ex., 1 L. R. A. (N. S.) 816, 195 U.S. 625; Munk v. Frink, 116 N.W. 528; Walker v. McMahan, 116 N.W. 528. (9) The practice in revocation proceedings before a medical board is more flexible than that allowable in the courts, and any evidence which tends to prove or disprove the point in issue may be introduced, although not the best evidence which might be had. 30 Cyc. 1557; Traer v. State Board Med. Ex., 106 Iowa 559. (10) The doctrine of ejusdem generis is only a rule of construction to be applied as an aid in ascertaining the legislative intent, and does not control where it clearly appears from the statute as a whole that no such limitation was intended. 36 Cyc. 1120; State v. Smith, 233 Mo. 257; Henderson v. Railroad, 81 Mo. 607; 2 Lewis's Sutherland on Stat. Const. (2 Ed.), secs. 363, 364, 437; Grimes v. Reynolds, 184 Mo. 698. Of the legislative intent: Darlington L. Co. v. Railroad, 216 Mo. 671; Clark v. Railroad, 219 Mo. 524; Glaser v. Rothschild, 221 Mo. 180; Scott v. Royston, 223 Mo. 631; Fruin v. Meredith, 145 Mo.App. 586; Hicks v. McCown, 144 Mo.App. 544; Granitoid Co. v. George, 150 Mo.App. 650; Louisiana Pur. Ex. v. Schnurmacher, 151 Mo.App. 601; Hawkins v. Smith, 242 Mo. 688; Spicer v. Spicer, 155 S.W. 382; Blanchard Co. v. Hamblin, 162 Mo.App. 242; Christie L. & P. Co. v. Hamblin, 144 S.W. 882; State ex rel. v. Seehorn, 246 Mo. 568; State ex inf. v. Amick, 247 Mo. 271; Pub. Co. v. McNichols, 153 S.W. 562; Rodgers v. Nat. Council, 155 S.W. 875; State ex inf. v. Railroad, 238 Mo. 605; State v. Robinson, 163 Mo.App. 221; Herberg v. Railroad, 164 Mo.App. 514; Gantt v. Brown, 238 Mo. 560; State v. Schenk, 238 Mo. 429; Moon v. Western U. Tel. Co., 164 Mo.App. 175; Shohoney v. Railroad, 231 Mo. 157; State ex inf. v. Oil Co., 218 Mo. 354. Of the doctrine of ejusdem generis: Ex parte Smith, 231 Mo. 119; State v. Eckhart, 232 Mo. 52; Warner v. Cartersville, 142 Mo.App. 127; State v. Smith, 233 Mo. 257; State ex rel. v. Harter, 188 Mo. 528. (11) A license to practice medicine may be revoked for acts that were not grounds for revocation at the time they were committed, but were afterwards made so by statute. Meffert v. State B. of Ex., 1 L. R. A. (N. S.) 818, 195 U.S. 625; State Board of Health v. Roy, 22 R. I. 538; State v Schaffer, 129 Wis. 465. (12) The portion of the statute making unprofessional or dishonorable conduct a ground of revocation of a license to practice medicine is reasonable, definite and certain. People v. State Bd. Health, 125 Ill. 289; State ex rel. v. State Med. Ex., 34 Minn. 391; State ex rel. v. Goodier, 195 Mo. 551; State v. Med. Ex. Bd., 32 Minn. 324; Aiton v. Medical Ex., 13 Ariz. 358; Wert v. Clutter, 37 Ohio St. 350; Forman v. Board of Health, 162 S.W. 798; Richards v. Simpson, 47 L. R. A. (N. S.) 915; People ex rel. v. Reid, 136 N.Y.S. 430; State ex rel. v. Board of Health, 103 Mo. 283; Meffert v. State Bd. Med. Ex., 1 L. R. A. (N. S.) 811, 195 U.S. 625; People v. Apfelbaum, 251 Ill. 22; Berry v. State, 135 S.W. 631; Morse v. Board Med. Ex., 122 S.W. 448; Spurgeon v. Rhodes, 167 Ind. 11; Wolf v. Board Med. Ex., 109 Minn. 360; State v. St. Ry. Co., 146 Mo. 167; Kennedy v. Board of Reg. Med., 108 N.W. 730.
Appellant Conway filed in this court an abstract of record, and the Attorney-General has filed a counter-abstract of record. It appears from appellant's abstract that on April 27, 1910, Emmett McDonnell and two other citizens of Boone county, Missouri, filed complaint before the State Board of Health against said Conway, who was a physician, authorized to practice medicine in said county, charging him with unprofessional and dishonorable conduct. The petition to said board specified the grounds on which they sought to have the license of said Conway revoked and will be referred to hereafter. A copy of this complaint was served on Dr. Conway and a hearing was had before the State Board of Health in Jefferson City, Missouri, on May 24, 1910. Dr. Conway appeared before the aforesaid board and objected to the hearing for the alleged reason that said board of health was without authority or jurisdiction to hear or determine the charges made against him.
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