State ex rel. La Prade v. Smith

• Decision Date: 19 February 1934
• Docket Number: Civil 3360
• Parties: THE STATE OF ARIZONA ex Rel. ARTHUR T. LA PRADE, Attorney General, Appellant, v. A. T. SMITH, Appellee
• Court: Arizona Supreme Court

29 P.2d 718

43 Ariz. 131

THE STATE OF ARIZONA ex Rel. ARTHUR T. LA PRADE, Attorney General, Appellant, v. A. T. SMITH, Appellee

Civil No. 3360

Supreme Court of Arizona

February 19, 1934

APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Judgment reversed and cause remanded with directions that a permanent injunction issue.

Mr Arthur T. La Prade, Attorney General, Mr. J. R. McDougall Assistant Attorney General, and James Forest, Special Counsel, for Appellant.

Mr Thomas J. Croaff, for Appellee.

OPINION

ROSS, C. J.

This is a complaint by the state, on the relation of the Attorney General, for an injunction against A. T. Smith to enjoin and restrain him from practicing medicine and surgery without first having obtained a license to do so. The trial court was of the opinion that the facts stated in the complaint were not sufficient to authorize the interposition of equity and for that reason sustained defendant's demurrer and entered judgment of dismissal. The state has appealed and assigns the court's ruling as error.

It is alleged in the complaint that defendant, Smith, is now, and has been since June, 1928, engaged in the practice of medicine and surgery for compensation in Yuma county; that during all that time he has daily, and often many times daily, prescribed and administered medicine and performed operations for the cure of ills and sickness of the people of the state of Arizona, maintaining an office at his residence in Yuma, Yuma county, for that purpose; that he has failed, refused, and neglected to submit himself to the board of medical examiners of the state and to demonstrate to said board his moral and professional fitness and ability to practice medicine and surgery, or to submit himself to the tests of an examination as provided by law; that he has during all of said time represented himself to be qualified to prescribe medicine and to perform surgical operations; that he is unskillful and uninformed in the practice of medicine and surgery and does not possess the moral and professional qualifications prescribed therefor; that, by reason thereof and his continuous and persistent practice, he has become a public nuisance, detrimental to the public welfare and dangerous to the public health, and contrary to and against the public policy of the state; that the constituted authorities are powerless to deal with the defendant in the criminal courts; that he has been twice tried in the criminal courts for practicing medicine and surgery without a license or certificate authorizing him to practice and acquitted; that he has publicly stated he would disregard any criminal prosecutions filed against him and was certain of acquittal; that criminal prosecutions are inadequate, even if a conviction could be had, because of the smallness of the fine that may be imposed; that, because he is uninformed and unskillful and without moral character and professional ability, he is endangering the health of the public, defeating the public policy, and is therefore a public and continuing nuisance, and, if not restrained, his practices will result in irreparable injury to the health of the public.

The demurrer questions the jurisdiction of the court, the capacity of the Attorney General to prosecute the suit, and the sufficiency of the facts to make out a case for injunction. The facts pleaded are admitted to be true by the demurrer, and they show conclusively that the defendant is violating the provisions of the statute requiring every physician and surgeon desiring to practice his profession in this state to first obtain a certificate from the state board of medical examiners authorizing him to do so. Sections 2555 and 2556, Rev. Code 1928. And under section 2560 he is guilty of a misdemeanor.

The matter of the regulation of the practice of medicine and surgery by the state is one of great public interest. It is regulatory and has for its purpose the protection of the public health -- something that affects all people and in which they are all interested. The enforcement of such regulatory provisions, for the obvious reason that they concern the whole people, is especially committed to governmental agencies, and the Attorney General as the legal adviser of the state we think may very properly institute and prosecute a suit against those who fail or refuse to comply with such regulations.

"On the theory that equity will afford protection by enjoining crime when rights and interests are injuriously affected thereby, there is support for the rule that the state may restrain a criminal act when its interests or the interests of those entitled to its protection are thus affected. . . . Also, in case of public nuisances, an exception to the general rule seems to be well recognized, it being held that though such a nuisance is indictable, yet a court of equity may, at the instance of the properly constituted public authority, issue an injunction, as giving a more effectual and complete relief than can be afforded in a court of law." 14 R.C.L. 379, § 80.

The difficult question, and the one upon which the courts seem to be seriously divided, is whether the court can or should employ its equity powers to prevent a person from committing a crime for which the legislature has prescribed a punishment and thereby deprive the defendant of his constitutional right to a trial by jury. The general rule is that the courts will not enjoin one from committing a crime. Bisbee v. Arizona Ins. Agency, 14 Ariz. 313, 127 P. 722. It has been thought that, the legislature having denounced certain things or conduct as criminal and fixed the punishment therefor, the proper tribunal for the trial of a violation thereof is the criminal court under regular criminal procedure. Injunctive relief is not intended as a substitute for nor as an aid to the criminal process. Fundamentally it is used to prevent the invasion, injury, or destruction of property or property rights. In affording relief in such cases it may incidentally enjoin the commission of a crime, but, if so, this is aside from its purpose and is no objection or hindrance to its use.

But there are some exceptions to this rule. It is generally held that an injunction will be granted to restrain acts amounting to a public nuisance if they affect the civil or property rights or privileges of the public or the public health, whether such acts be denounced as crimes or not. 20 R.C.L. 475, § 89; 32 C.J. 279, § 442. The state bases its right to an injunction on the allegation that the acts of the defendant, because of his lack of training and education, are a public nuisance affecting the public health, and the further fact that juries refuse to convict, and the smallness of the fine that may be imposed if a conviction should be had. That such is the situation is admitted by the demurrer, and it only remains to determine if injunctive relief under the circumstances is authorized. It is said:

"As a public nuisance concerns the public generally, it is the duty of the government to take measures to abate or enjoin it. Hence it follows that the government can obtain an injunction to restrain a public nuisance, without showing any property right in itself.The duty of protecting the property rights of all its citizens is sufficient to warrant issuing the injunction. Therefore, wherever a public nuisance is shown equity must enjoin it at the suit of the government." 5 Pom. Eq. Jur., 3d ed., 796, § 479. See, also, 2 Story's...