State Ex Rel. State Bd. v. Gardner

• Decision Date: 15 June 1931
• Docket Number: No. 594.,594.
• Citation: 159 S.E. 8
• Parties: STATE ex rel. STATE BOARD OF MEDICAL EXAMINERS. v. GARDNER.
• Court: North Carolina Supreme Court

(201 N.C. 123)

159 S.E. 8

STATE ex rel. STATE BOARD

OF MEDICAL EXAMINERS.

v.GARDNER.

No. 594.

Supreme Court of North Carolina.

June 15, 1931.

Appeal from Superior Court, Buncombe County; McElroy, Judge.

Proceeding by the State, on the relation of the Board of Medical Examiners of the State, against Garrett D. Gardner, to revoke a license to practice medicine and surgery. An order of the board revoking the license was set aside on appeal to the superior court, and both parties appeal.

Error in plaintiff's appeal; new trial in respondent's appeal.

This is a proceeding authorized by statute (C. S. Supp. 1924, § 6618) for the revocation of a license, issued to respondent by the board of medical examiners of the state of North Carolina, to practice medicine and surgery in this state. O. S. Supp. 1924, § 6613 or O. S. § 6617.

An order to show cause why the license should not be revoked was duly served on respondent.

At the hearing, pursuant to said order, upon its finding that respondent had been guilty of unprofessional conduct, as a physician and surgeon, in that he had violated the provisions of the act of Congress, known as the Harrison Narcotic Act (26 USCA § 211, and § 691 et seq.), as shown by the record of his conviction in the United States District Court for the Western District of North Carolina, Asheville Division, on an indictment pending in said court, it was ordered by the board of medical examiners of the state of North Carolina that license No. 1926 issued to respondent by said board on June 16, 1908, be and the same was revoked.

From this order, respondent appealed to the superior court of Buncombe county, as authorized by statute. C. S. Supp. 1924, 6618. Upon the trial of said appeal, an issue was submitted to the jury, subject to the exception of the respondent, as follows:

"Was the respondent, Garrett D. Gardner, convicted in the United States District Court for the Western District of North Carolina, Asheville Division, on a bill of indictment-charging him with a violation of the provisions of the Harrison Narcotic Act, as set forth in the judgment of the Board of Medical Examiners of the State of North Carolina?"

Respondent excepted to the refusal of the court to submit to the jury an issue tendered by him, as foil, ws:

"Was the defendant guilty of the offense charged in said bill of indictment?"

At the trial, the court admitted as evidence a certified copy of the bill of indictment and of the proceedings thereon in the United States District Court for the Western District oi North Carolina, Asheville Division, showing the conviction of the respondent on said indictment, charging respondent with the unlawful possession and sale of 823 grains of morphine hydrochloride, and the judgment of said court that respondent be confined in the Federal Prison at Atlanta, Ga., for the term of one year and a day. Respondent objected to the admission of this evidence and excepted to the overruling of his objection by the court.

The issue submitted to the jury was answered, "Yes."

Upon the return of the verdict, the respondent moved for judgment, non obstante veredicto, reversing the order of the board of medical examiners of the state of North Carolina, and reinstating license No. 1926 heretofore issued by said board to respondent to practice medicine and surgery in this state. This motion was allowed, and plaintiff excepted.

From judgment that the order of the board of medical examiners of the state of North Carolina in this proceeding be revoked, set aside, and vacated, and that license No. 1926, heretofore issued by said board to respondent to practice medicine and surgery in this state, be reinstated, the plaintiff appealed to the Supreme Court.

The respondent also appealed to the Supreme Court for the purpose of preserving his right to have his exceptions taken at the trial reviewed and passed upon by said court.

Alfred S. Barnard, of Asheville, for plaintiff.

Don C. Young, Anderson & Howell, and Carter & Carter, all of Asheville, for respondent.

CONNOR, J.

It is provided by statute in this state that if any person shall practice medicine or surgery therein without being duly licensed so to do, as provided by law, he shall not be allowed to maintain an action to collect any fee for his services, and upon his conviction, he shall be fined not less than $50, nor more than $100, or imprisoned at the discretion of the court for each and every offense. C. S. Supp. 1924, | 6622.

The board of medical examiners of the state of North Carolina, provided for by statute (C. S. Supp. 1924, § 6606), is authorized and in proper cases is required to examine all applicants for license to practice medicine and surgery in this state (C. S. Supp. 1924, § 6613). Each applicant for such license must be not less than twenty-one years of age, and of good moral character. C. S. Supp. 1924, § G615. The subjects on which applicants for such license shall be examined by said board are prescribed by statute. "If on such examination the applicant is found competent, the board shall grant him a license authorizing him to practice medicine or surgery or any of the branches thereof." C. S. Supp. 1924, § 6613.

It is further provided by statute that the board of medical examiners shall have power to rescind or revoke any license granted by the said board. The statute is as follows: C. S. Supp. 1924, § 6618: "The board shall have the power to rescind any license granted by it when upon satisfactory proof it shall appear that any physician thus licensed has been guilty of grossly immoral conduct, or who has been guilty of producing or attempting to produce criminal abortion, or who by false or fraudulent representation has obtained or attempted to obtain practice in his profession, or who is habitually addicted to the use of morphine, cocaine, or other narcotic drugs, or who has by false or fraudulent representation of his professional skill obtained or attempted to obtain money or anything of value, or who has advertised or held himself out professionally under a name other than his own, or who shall advertise or profess publicly to treat human ailments under a system or school of treatment or practice other than that for which he holds a license, or who is guilty of any willful violation of the rules and regulations of the state board of medical examiners, or who is guilty of any fraud or deceit by which he was admitted to practice, or who has been guilty of any other unprofessional or dishonorable conduct. For any of the above reasons the board of medical examiners may refuse to issue a license to an...