State ex rel. Lentine v. State Board of Health, No. 31168.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtFerguson
Citation65 S.W.2d 943
PartiesSTATE EX REL. ROBERT LENTINE, Appellant, v. STATE BOARD OF HEALTH ET AL.
Docket NumberNo. 31168.
Decision Date06 December 1933
65 S.W.2d 943
STATE EX REL. ROBERT LENTINE, Appellant,
v.
STATE BOARD OF HEALTH ET AL.
No. 31168.
Supreme Court of Missouri.
Division One, December 6, 1933.

[65 S.W.2d 944]

Appeal from Circuit Court of City of St. Louis.Hon. Robert W. Hall, Judge.

AFFIRMED.

J. Henry Caruthers for appellant.

(1) Relator's motion to strike from the alleged complaint the phrase "have been guilty of unprofessional and dishonorable conduct" should have been sustained, for the reason that it states no cause of action. Sec. 9120, R.S. 1929; State ex rel. v. Robinson, 253 Mo. 291; Hewitt v. Board of Medical Examiners, 148 Cal. 590. (2) Section 9120, Revised Statutes 1929, insofar as it authorizes the revocation of a physician's license to practice medicine, is a highly penal statute and must be strictly construed against respondents and liberally in favor of relator. State ex rel. v. Robinson, 253 Mo. 285; State ex rel. Johnson v. State Board of Health, 288 Mo. 671; Horton v. Clark, 320 Mo. 1199; State ex rel. K.C.C. of P. & S. v. North, 294 S.W. 1014. (3) The alleged offense of "bad moral character," set out in Section 9120, supra, is too vague, indefinite and uncertain to be enforceable. Ex parte Taft, 284 Mo. 554; Wabash v. O'Bryan, 285 Fed. 585; State ex rel. v. Robinson, 253 Mo. 290; Matthews v. Murphy, 54 L.R.A. 415; Hewitt v. Board of Medical Examiners, 148 Cal. 590. (4) The evidence presented to the Board of Health is reviewable by this court, and the finding of the board is not conclusive. The board's findings or orders are not judgments. Sec. 9120, R.S. 1929; State ex rel. Hathaway v. State Board of Health, 103 Mo. 29; State ex rel. Johnston v. Lutz, 136 Mo. 640; State ex rel. McCleary v. Adcock, 206 Mo. 558; Horton v. Clark, 316 Mo. 778; State ex rel. Horton v. Clark, 320 Mo. 1199. (5) The certified copy of the alleged conviction of relator admitted in evidence by the board is not sufficient to prove him a man of "bad moral character." "Character" is defined to be the peculiar qualities impressed by nature or habit on a person, which distinguishes him from others. Cox v. Strickland, 101 Ga. 482; Berneker v. State, 40 Neb. 810; Keith v. State, 152 S.W. 1029, 127 Tenn. 40; Greer v. Active, etc., 99 Conn. 266; Feibelman v. Fire Ins. Co., 108 Ala. 180; Glove v. State, 200 Ala. 384; Harrison v. Lakenan, 189 Mo. 601. (6) The law presumes that relator has a good character. State v. Reed, 250 Mo. 388. (7) The presumption of innocence of the offense of "bad moral character" must be overcome, and the guilt of relator proven beyond a reasonable doubt. State v. Hardelein, 169 Mo. 585.

Roy McKittrick, Attorney-General, and Harry G. Waltner, Jr., Assistant Attorney-General, for respondents.

(1) Appellate jurisdiction of this case is in the Supreme Court, State ex rel. Horton v. Clark, 9 S.W. (2d) 635. (2) "Unprofessional and dishonorable conduct" and "bad moral reputation" are definite, certain and sufficient and their interpretation does not involve a legislative or judicial act. State ex rel. Hathaway v. State Board of Health, 103 Mo. 22; State v. Hathaway, 115 Mo. 36; Richards v. State Board of Dental Examiners, 88 Kan. 684, 129 Pac. 1128, 43 L.R.A. (N.S.) 915; Morse v. State Board of Medical Examiners, 122 S.W. 446; State v. Thompson, 160 Mo. 333. (3) Acts of State Board of Health are exercise of police power of State. State ex rel. Farber v. Shot, 263 S.W. 804. Authority to revoke license essentially the same as authority to grant license. Horton v. Clark, 293 S.W. 362. (4) All evidence introduced, including evidence produced by relator, should be considered when determining whether or not there is substantial evidence to support judgment. State v. Lackey, 230 Mo. 707. Proof of specific acts proper to prove "bad moral character." Mower v. State Dept. of Health, 108 Conn. 74; Lerner v. State Dept. of Health, 108 Conn. 82; Posner v. State Dept. of Health, 108 Conn. 83. Proof does not have to be beyond a reasonable doubt. Sec. 9120, R.S. 1929; State v. Brown, 245 N.W. 348. (5) On review, action of Board of Health will not be disturbed in the absence of an abuse of discretion. State ex rel. Horton v. Clark, 9 S.W. (2d) 635.

FERGUSON, C.


In 1929 the relator, Robert Lentine, was licensed by the State Board of Health, under the Medical Act of this State (Art. 1, Chap. 53, R.S. 1929), to practice medicine and surgery. On June 11, 1930, after due notice and hearing upon charges made the State Board of Health revoked the license. Lentine thereupon petitioned the Circuit Court of the City of St. Louis for a review of "the proceedings of said board revoking his license and the evidence therein" (Sec. 9120, R.S. 1929) and the writ of certiorari provided for by said Section 9120, supra, was issued by that court. The proceedings of the Board of Health were sustained by the circuit court and this appeal followed.

[1] Upon the oral argument in this court some question was suggested as to our jurisdiction of this appeal. The respondents are the members of and constitute the State Board of Health and it has heretofore been held that their "jurisdiction as members of the State Board of Health is co-extensive with the boundaries of the State and hence they are classed as state officers" within the meaning of that clause of Section 12, Article 6, of our Constitution giving this court jurisdiction "in cases where ... any State officer is a party." [State ex rel. Conway v. Hiller et al. (State Board of Health), 266 Mo. 242, 180 S.W. 538.] In a similar case wherein the circuit court quashed the proceedings of the State Board of Health we said upon appeal:

"Respondent insists that no appeal lies to the Supreme Court from said judgment of the Circuit Court of the City of St. Louis. While we have held that the State Board of Health is not a court or judicial body (State ex rel. v. Goodier, 195 Mo. 551, 93 S.W. 928), yet when relator availed himself of the right of review given by Section 7336, Revised Statutes 1919, and filed his petition in the Circuit Court of the City of St. Louis for a writ of certiorari against the members of the State Board of Health, that proceeding was a `case' within the meaning of Section 12, Article 6, of the Constitution, and as respondents are state officers within the meaning of said section an appeal from the decision of the trial court in the certiorari proceeding properly goes to the Supreme Court." [State ex rel. Horton v. Clark, 320 Mo. 1190, 1195, 9 S.W. (2d) 635.]

[2] The statutory writ of certiorari provided for by Section 9120, supra, and whereby a right of review by the circuit court of the proceedings of the State Board of Health is granted, is much broader in its scope and effect than the common-law writ of certiorari. [See State ex rel. Horton v. Clark, supra.] Said section of the statute provides that, "Any person whose license has been or shall be revoked by the board shall have the right to have the proceedings of said board revoking his license and all the evidence therein reviewed, on a writ of certiorari, by the circuit court of the county in which said board held its session when said license was revoked. Said writ ... shall command the said board and the secretary thereof to certify to said court the record and proceedings of said board, and a complete transcript thereof, and of all the evidence therein pertaining to the revocation of said license." The statute then requires that the "petition for the writ of certiorari shall set forth the rights of the petitioner and the injuries complained of by him." We shall therefore confine our review to the matters of which relator complains by his petition to the circuit court and which were necessarily passed upon by that court in arriving at its judgment sustaining the proceedings of the Board of Health. Omitting wholly formal and preliminary allegations the petition follows:

"Relator states that on or about the 11th day of June, 1930, he was duly qualified, registered and licensed physician under the laws of Missouri.

"Relator further states that on or about the ____ day of May, 1930, the State Board of Health of Missouri caused to be issued and served upon relator notice of a purported complaint, which notice is in words and figures as follows (caption, signature, etc., omitted):

"You are hereby notified that there is a complaint against you charging you with the violation of Section 7336 of the Revised Statutes of Missouri, 1919, in that you being a regular licensed practicing physician in the city of St. Louis, Missouri, have been guilty of unprofessional and dishonorable conduct and that you are of bad moral character in this namely, that you on or about the 3rd day of March, 1930, violated the Criminal Statute of the State of Illinois, relating to the unlawful sale of diplomas for the practice of

65 S.W.2d 945

medicine; and that you on or about said date entered a plea of guilty to said charge in the criminal court of Cook County, Illinois. On account of such complaint the State Board of Health will consider whether or not your license as a practicing physician in Missouri ought to be revoked.

"Wherefore, you are hereby notified to appear before the State Board of Health at the Jefferson Hotel in St. Louis, Missouri, on the 11th day of June, 1930, at nine o'clock A.M. to answer said complaint... .

"Relator further states that pursuant to said notice he, together with counsel, appeared at the time and place designated therein, and after hearing all the evidence and arguments of counsel representing both parties, The State Board of Health of Missouri revoked permanently the license of relator to practice medicine and surgery in Missouri.

"Relator further states that said purported ground of revocation, to-wit: `Unprofessional and dishonorable conduct,' does not state facts sufficient to constitute a cause of action against relator, for the reason that the statute (Sec. 9120, R.S. Mo. 1929) defines `unprofessional and...

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25 practice notes
  • Gaddy v. State Bd. of Registration for Healing Arts, No. 8481
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Noviembre 1965
    ...in safeguarding the public health should receive a liberal construction'; in State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943, the court approved the quoted statement from Horton, supra, added that, '[l]ooking to the policy and object of our Medical Practice Act as......
  • Heller, Matter of
    • United States
    • United States State Supreme Court (New Jersey)
    • 20 Enero 1977
    ...conduct of a disqualifying nature. (436 P.2d at 833 (emphasis added)). In State ex rel. Lentine v. State Bd. of Health, 334 Mo. 220, 65 S.W.2d 943 (Sup.Ct.1933), a doctor's license was revoked for having participated in a scheme to sell medical licenses. Relying upon a Missouri statute simi......
  • Polk, Matter of, No. 141816
    • United States
    • United States State Supreme Court (New Jersey)
    • 30 Julio 1982
    ...acts which would constitute unprofessional conduct;" and further cited State ex rel. Lentine v. State Bd. of Health, 334 Mo. 220, 65 S.W.2d 943, 949 (Sup.Ct.1933), as authority holding that since it would be impracticable for the Legislature to catalogue and specify every act or course of c......
  • Cohn v. Department of Professional Regulation, No. 84-1217
    • United States
    • Florida District Court of Appeals
    • 22 Octubre 1985
    ...even assuming insufficient for criminal prosecution, but see Weeks.); State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943 (1933); In re Hawkins, 17 N.C.App. 378, 194 S.E.2d 540, 550-51 (1973), cert. denied, 283 N.C. 393, 196 S.E.2d 275 (1973), cert. denied, 414 U.S. 1......
  • Request a trial to view additional results
25 cases
  • Gaddy v. State Bd. of Registration for Healing Arts, No. 8481
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Noviembre 1965
    ...in safeguarding the public health should receive a liberal construction'; in State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943, the court approved the quoted statement from Horton, supra, added that, '[l]ooking to the policy and object of our Medical Practice Act as......
  • Heller, Matter of
    • United States
    • United States State Supreme Court (New Jersey)
    • 20 Enero 1977
    ...conduct of a disqualifying nature. (436 P.2d at 833 (emphasis added)). In State ex rel. Lentine v. State Bd. of Health, 334 Mo. 220, 65 S.W.2d 943 (Sup.Ct.1933), a doctor's license was revoked for having participated in a scheme to sell medical licenses. Relying upon a Missouri statute simi......
  • Polk, Matter of, No. 141816
    • United States
    • United States State Supreme Court (New Jersey)
    • 30 Julio 1982
    ...acts which would constitute unprofessional conduct;" and further cited State ex rel. Lentine v. State Bd. of Health, 334 Mo. 220, 65 S.W.2d 943, 949 (Sup.Ct.1933), as authority holding that since it would be impracticable for the Legislature to catalogue and specify every act or course of c......
  • Cohn v. Department of Professional Regulation, No. 84-1217
    • United States
    • Florida District Court of Appeals
    • 22 Octubre 1985
    ...even assuming insufficient for criminal prosecution, but see Weeks.); State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943 (1933); In re Hawkins, 17 N.C.App. 378, 194 S.E.2d 540, 550-51 (1973), cert. denied, 283 N.C. 393, 196 S.E.2d 275 (1973), cert. denied, 414 U.S. 1......
  • Request a trial to view additional results

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