State Ex Rel. Marron v. Compere.

• Decision Date: 29 May 1940
• Docket Number: No. 4525.,4525.
• Citation: 103 P.2d 273,44 N.M. 414
• Parties: STATE ex rel. MARRON, Dist. Atty.,v.COMPERE.
• Court: New Mexico Supreme Court

44 N.M. 414

103 P.2d 273

STATE ex rel. MARRON, Dist. Atty.,

v.COMPERE.

No. 4525.

Supreme Court of New Mexico.

May 29, 1940.Rehearing Denied June 20, 1940.

Appeal from District Court, Bernalillo County; George W. Hay, Judge.

Proceeding by the State, on the relation of Owen B. Marron, district attorney, to enjoin W. Gano Compere from engaging in the practice of medicine. From a judgment dismissing the complaint, plaintiff appeals.

Reversed and cause remanded with directions.

A demurrer to the complaint admits the truth of what is alleged.

Owen B. Marron, Dist. Atty., and Donald B. Moses, Asst. Dist. Atty., both of Albuquerque, for appellant.

Rodey & Dickason, of Albuquerque, for appellee.

SADLER, Justice.

We are asked to decide whether the trial court properly sustained a demurrer to the plaintiff's complaint seeking to enjoin defendant from engaging in the practice of medicine. The plaintiff stood upon the ruling and suffered dismissal of its complaint from which judgment it prosecutes this appeal. The suit is one by the state on the relation of Owen B. Marron, as district attorney of the second judicial district.

Allegations of the complaint as amended, material to the test invoked by the demurrer, are that defendant, on or about June 1, 1933, opened an office in Bernalillo County, New Mexico, and at all times since said date has advertised and held himself out as competent to treat the sick and afflicted; to investigate and diagnose physical and mental ailments and diseases for compensation; and that he has never at any time presented himself before the State Board of Medical Examiners for an examination as to his moral and professional qualifications, character and ability, in that behalf, and has never been licensed to practice medicine as required by law.

Additional material allegations in the language of the complaint are as follows:

“That said defendant for the use of many persons on diverse occasions has suggested, recommended, prescribed and directed drugs, medicines, appliances and other agencies, material and not material, for the cure, relief and palliation of ailments and diseases of the mind and body of said persons, and that he has offered to investigate and diagnose physical or mental ailments of such persons and that he has charged and received therefor compensation from such persons. ***

“That the defendant is unskillful and uninformed in the practice of medicine, and does not possess the moral and professional qualifications required therefor; and that because he is so uninformed and unskillful and without moral character and professional ability, the treatment by him of persons suffering from physical and mental ailments and diseases endangers their lives, health and welfare; and that his said actions endanger the health of the public and constitute a public and continuing nuisance. ***

“That by reason of the foregoing facts and conditions, and persistent practice of medicine by the defendant, he has become a public nuisance, detrimental to the public welfare, and dangerous to the public health.

“That defendant threatens to continue the practices aforesaid in the future.

“That there are at this time diverse persons whom the defendant is treating for various illnesses and sicknesses and that immediate and irreparable damage will be caused to such persons and the general public unless the defendant is temporarily restrained from treating the said persons pending the hearing of an order to show cause why a preliminary injunction should not be issued herein, and it is further alleged that as this action is being instigated by the State of New Mexico there is good cause for waiving the issuance of security usually required before issuance of temporary restraining orders.

“That the remedy at law is inadequate, and if the defendant is not restrained from holding himself out to the public as being competent to treat the sick or afflicted and to diagnose physical or mental ailments or diseases, and to suggest, recommend, prescribe or direct the use of drugs, medicines, appliances or other remedies, material or not material, for the cure, relief and palliation of ailments and diseases, and from diagnosing physical or mental ailments or diseases, and from treating the sick and afflicted, and prescribing for their use drugs, medicines, appliances and other remedies, material or not material, for the cure, relief or palliation of diseases, his conduct, as aforesaid, will result in an irreparable injury to the health of the public.”

The defendant's demurrer to plaintiff's amended complaint, challenging its sufficiency as stating a cause of action and which was sustained by the trial court, is set forth in five separate paragraphs, as follows:

“(a) That it appears upon the face of said complaint that the same lacks equity, in that the plaintiff has an adequate remedy at law by a prosecution under N.M.S. A. (1929) § 110-110.

“(b) That it appears upon the face of the complaint that the same lacks equity, in that this proceeding is designed to obtain injunctive relief, without statutory authority, against the mere violation of a penal statute.

“(c) That it appears upon the face of the complaint that the same lacks equity since the purpose of this proceeding is to deprive the demurrant of his right to jury trial and to deprive the demurrant of due process of law and the equal protection of the laws as guaranteed by the 14th Amendment of the Constitution of the United States and by Article 2, sections 4, 12, 14 and 18 of the Constitution of the State of New Mexico.

“(d) That it appears from the face of this complaint that no facts are therein alleged sufficient to show that the demurrant's conduct constitutes a nuisance, and that there is no ground for legal or equitable relief in this proceeding.

“(e) That it appears from the face of this complaint that the sole grounds upon which the defendant's conduct is alleged to be a nuisance is that the same is allegedly unlicensed and unlawful and subject to criminal prosecution. That these facts have been specifically held insufficient to constitute a ground for equitable relief in a proceeding of this present kind.”

The defendant insists the trial court's action is fully sustained by the decision of this court in State v. Johnson, 26 N.M. 20, 188 P. 1109, 1110. If so, we may make quick disposition of the appeal by so stating and direct an affirmance with that case as a precedent. The effect of the decision on the one at bar is therefore a matter of initial concern.

The suit was one by the State to enjoin defendant from practicing osteopathy and medicine without a license. All that was charged in a complaint of two counts (the first relating to osteopathy and the second to medicine) was that defendant was practicing without a license, “and that such practice constitutes a nuisance, and is dangerous, detrimental, and injurious to the health of the inhabitants of the county of Bernalillo and state of New Mexico”. The defendant demurred upon the ground the complaint failed to state a cause of action. This court approved the trial court's action in sustaining the demurrer. We said: “Our Code provides that complaints must contain ‘a statement of the facts constituting the cause of action, in ordinary and concise language.’ Section 4104, Codification 1915. Examining the complaint, we find but one fact stated, viz. the practice of osteopathy or medicine without a license. The allegations that such practice is a nuisance, or is detrimental, dangerous, and injurious to the public health, are merely conclusions of the pleader. Practicing osteopathy or medicine without a license is not a nuisance per se.”

[1] The case is not decisive. We do not recede from the position there taken in holding the complaint before us not subject to the same objection which controlled the decision in the Johnson case. If the State had here alleged no more than the practice of medicine without a license and had merely pleaded the conclusion that this was dangerous and a nuisance, we should feel impelled to render a like decision as in that case. But the State alleges much more. While it is true that it does allege the defendant is unlicensed, it also sets forth that he “is unskillful and uninformed in the practice of medicine, and does not possess the moral and professional qualifications required” for such practice; that because he is uninformed upon the subject of medicine and because of his lack of skill and his want of moral and professional qualifications, in prescribing drugs and treating physical and mental ailments of the people, he endangers the health and lives of the public; and that he threatens to continue his acts. The demurrer admits the truth of what is alleged. The argument that the allegations of the complaint amount to no more than that because defendant is unlicensed he is uninformed and unskillful and so forth, thereby placing the case in a class with the Johnson decision, must fail. Here there are sufficient allegations of ultimate facts, absent in the Johnson case, to let the complaint by the demurrer, unless for other reasons set forth in the latter, the demurrer should have been sustained. We shall now examine it to see if such be the case.

Briefly summarized, defendant's position is that the complaint is fatally defective because (a) the penal provisions (1929 Comp., § 110-110) of the Medical Practice Act afford an adequate remedy; (b) an injunction would violate defendant's constitutional guaranty of a jury trial; and, finally (c) that even though he does all the thing alleged, such conduct does not constitute a public nuisance.

[2][3] There can be no doubt but that the state has authority to punish one who engages in the practice of medicine without a license. Section 110-110, supra. The penalty is a fine not to exceed $100 or imprisonment in the county jail not to exceed ninety days, or both, within the discretion of the court. Is this...