State Ex Rel. Sbordy v. Rowlett

• Decision Date: 30 May 1939
• Citation: 138 Fla. 330,190 So. 59
• Parties: STATE ex rel. SBORDY v. ROWLETT et al.
• Court: Florida Supreme Court

190 So. 59

138 Fla. 330

STATE ex rel. SBORDY v. ROWLETT et al.

Florida Supreme Court

May 30, 1939

Rehearing Denied July 11, 1939.

Original proceeding by the State, on the relation of Henry V. Sbordy for a writ of prohibition restraining William M. Rowlett and others, constituting the State Board of Medical Examiners from revoking relator's license to practice medicine.

Writ of prohibition absolute awarded.

BUFORD J., dissenting.

COUNSEL

W. G. Ramseur, of St. Petersburg, for relator.

Erle B. Askew and Askew, Kiernan & Milam, all of St. Petersburg, and J. W. Prunty, of Miami, for respondents.

OPINION

CHAPMAN Justice.

This is a case of original jurisdiction. On April 26, 1938, the State Board of Medical Examiners issued a summons directed to Henry V. Sbordy (also known as Enrico V. Sbordi), of St. Petersburg, Florida, commanding that he show cause on June 13, 1938, why an order should not be entered revoking a license granted on April 6, 1915, by the Board of Eclectic Medical Examiners authorizing him to practice medicine in the State of Florida. The power to revoke, suspend or annul a license of a practitioner is vested in the Board of Medical Examiners and the grounds and procedure therefor are fully established. See Section 3415, C.G.L.

The summons, supra, issued on a complaint filed with the Board of Medical Examiners by Alvin J. Wood charged that Enrico v. Sbordi, on March 30, 1925, by means of fraud obtained a forged Certificate purportedly issued by the Board of Eclectic Medical Examiners are is now unlawfully engaged in the practice of medicine in the State of Florida. The facts constituting fraud are, viz.: the Certificate was procured by Sbordi through one Muench, a former Secretary of the Board of Eclectic Medical Examiners, who was indicted, tried, convicted, and sentenced to serve a term of years in the Federal Penitentiary, and his conviction was based upon the charge of forging Certificates in the name of the Board; that Muench obtained a blank Certificate signed by Ham S. Hampton, M. D., a former President of the Board, and filled in said blank license so signed by writing the figure '8' in the proper place designated and ante-dating the same as of April 6, 1915, and then inserting therein the name of Enrico V. Sbordi. The said Muench obtained a license which had been duly issued to a licensed medical doctor as Certificate No. 8 and which was not issued to the said Sbordi, and the name of the medical doctor was erased from said Certificate and the name of Enrico V. Sbordi inserted therein, and the same was by the said Muench delivered to Enrico V. Sbordi, who paid him therefor the sum of $2,000, and that the said Enrico V. Sbordi has never passed any examination or otherwise qualified himself to practice medicine in the State of Florida, and the certificate No. 8 purportedly issued by the Board of Eclectic Examiners to Enrico V. Sbordi was unlawfully issued through the said Muench, and the Certificate under which Enrico V. Sbordi is now engaged in the practice of medicine in Florida was obtained by fraud and is a forgery.

On petition for a writ of prohibition in this Court on the part of Henry V. Sbordy directed to and against rthe Board of Medical Examiners it is contended that the Board of Medical Examiners cannot, as a matter of law, proceed to hear such evidence as shall be offered by the respective parties under the petition and answer of the defendant thereto and make and enter such an order as the facts will justify as authorized by Section 3415, C.G.L., because: (a) On April 25, 1925, petitioner was tried on the charge of unlawfully practicing medicine without first having obtained and recorded a Certificate of Qualification from some authorized Board of Medical Examiners and was by a jury acquitted of the charge; (b) on May 15, 1925, the petitioner was indicted by a grand jury of Pinellas County, Florida, for uttering and publishing a forged Certificate of Qualification or License to pursue the practice of medicine in the State of Florida and that the petitioner well knew the certificate to be false, forged and counterfeited; that the petitioner was placed on trial before a jury and the jury failed to agree upon a verdict and on motion of the State Attorney an order of nolle prose on the indictment was entered by the trial court;

(c) "1. That Enrico v. Sbordi, also known as Enrico V. Sbordy, also known as Henry V. Sbordy, of the County of Pinellas and State of Florida, in the State aforesaid, was guilty of fraud in the practice of medicine or fraud or deceit in his admission to the practice of medicine, in that the said Enrico V. Sbordi about referred to appears to hold Certificate No. 8 of the Board of Eclectic Examiners, dated April 6, 1915, which said Certificate is fraudulent and improper, which fact is and has been well known to the said Enrico Sbordy, and which said fraudulent and improper certificate has been relied upon by the said Enrico V. Sbordi as authority to practice medicine in the State of Florida.

"2. That Enrico v. Sbordi, also known as Enrico V. Sbordy, also known as Henry V. Sbordy, of the County of Pinellas and State of Florida, in the State aforesaid, was guilty of fraud in the practice of medicine, or fraud or deceit in his admission to the practice of medicine, in that the said Enrico V. Sbordi, above referred to has never been and in not now a graduate of a legally incorporated medical college maintaining a standard satisfactory to the State Board of Medical Examiners of Florida, and the said Enrico V. Sbordi has represented on numerous occasions while engaged in the practice of medicine in the aforesaid State that he was a graduate, and the said Enrico V. Sbordi does now represent while engaging in the practice of medicine in the aforesaid State that he is such a graduate."

(d) The right of the petitioner to practice medicine in the State of Florida was sustained by an order of the Circuit Court, Sixth Circuit in and for Pinellas County, Florida, when a quo warranto proceeding was instituted to test the right of the petitioner to practice medicine under the Certificate, supra, and the court entered an order dismissing the suit and held that the Board of Medical Examiners of Florida had the exclusive jurisdiction to determine the point at issue.

It is contended that the acquittal by a jury of the petitioner in Pinellas County of the charge of unlawfully practicing medicine without having first obtained and recorded a Certificate of Qualification is in contemplation of law res adjudicata and estops the Board of Medical Examiners from proceeding on the charges preferred by Alvin J. Wood. The law is well settled that in order to make a matter res adjudicata the following must exist, viz.: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of the persons and the parties to the action; (4) identity of the quality in the person for or against whom the claim is made. See Brundage v. O'Berry, 101 Fla. 320, 134 So. 520; Gray v. Gray, 91 Fla. 103, 107 So. 261; Coral Realty Co. v. Peacock Holding Co., 103 Fla. 916, 138 So. 622; Yulee v. Canova, 11 Fla. 9, 56; Virginia-Carolina Chemical Co. v. Fisher, 58 Fla. 377, 50 So. 504.

The record shows that the petitioner was tried and acquitted on the charge of unlawfully practicing medicine without first having obtained and recorded a Certificate of Qualification from some Board of Medical Examiners. The issue was between the State of Florida and the defendant Sbordy and the issue before the Board of Medical Examiners is to cancel or revoke a forged Certificate to practice medicine obtained by fraud. Likewise this reasoning disposes of the indictment charging the petitioner with uttering and publishing as true a false and forged Certificate of Qualification or License to practice medicine.

In many jurisdictions an action or proceeding to revoke a license is considered a civil rather than a criminal proceeding. It has been held that a trial and acquittal of a physician in a criminal court on the identical charges exhibited against him by a medical board is not a bar to an inquiry provided for by statute for the purpose of depriving a physician of the right to practice his profession. See 48 Corpus Juris p. 1101, par. 73. The question here is whether or not the petitioner obtained a license to practice medicine in Florida by means of fraud. If fraud or forgery was committed by the petitioner in obtaining the license under which he practices his profession, then the Board of Medical Examiners by statute has the power to hear the evidence and determine this issue. If fraud and forgery are established on the part of the petitioner in obtaining the license here involved, such facts become material to his right or privilege to continue in the practice of medicine. If fraud or forgery cannot be established the same will redound to the petitioner's benefit. There is no merit to this contention. See 21 R.C.L. pages 361, 362, par. 9.

It is next contended by counsel for the petitioner that because of the fact that certain charges were filed with the Board of Medical Examiners by O. O. Feaster on May 3, 1935, and that this Court in the case of State ex rel. Sbordy v. Rowlett et al., 125 Fla. 562, 170 So. 311, 313, issued a writ of prohibition inhibiting and restraining the Board of Medical Examiners from proceeding to try relator on the charges that Certificate No. 8 was false, fraudulent and forged and the rule enunciated supra precludes a further inquiry into the charges that the Certificate was false, fraudulent and forged, as made by Alvin J. Wood.

The law is settled in Florida that charges filed with the Board of Medical Examiners constituting grounds for revoking a license to...