State Ex Rel. Tullidge v. Hollingsworth

• Decision Date: 09 March 1933
• Citation: 146 So. 660,108 Fla. 607
• Parties: STATE et rel. TULLIDGE v. HOLLINGSWORTH et al., State Board of Medical Examiners.
• Court: Florida Supreme Court

146 So. 660

108 Fla. 607

STATE et rel. TULLIDGE v. HOLLINGSWORTH et al., State Board of Medical Examiners.

Florida Supreme Court, Division A.

March 9, 1933

Original proceeding by the State, on the relation of Edwin K Tullidge, for a writ of mandamus to B. G. Hollingsworth and others, as the State Board of Medical Examiners of Florida. On relator's motion for a peremptory writ.

Motion granted.

COUNSEL Wallace F. Perry, of Miami, for relator.

Waller & Pepper, of Tallahassee, for respondents.

OPINION

TERRELL Justice.

This is the second time this case has reached us for consideration. State ex rel. Tullidge v. Hollingsworth et al., 103 Fla. 801, 138 So. 372. In the latter case motion to quash the alternative writ was overruled, and respondents allowed to answer. The answer or return was duly filed, and the cause now comes on to be disposed of on motion for peremptory writ notwithstanding the return. The cause grew out of the action of the state board of medical examiners in canceling the certificate of the relator to practice medicine in Florida.

Section 3415, Comp. Gen. Laws of 1927, provides a full, complete, and adequate procedure for suspending or annulling the license of a practitioner of medicine for the reasons stated. In fine it requires that charges be preferred against the practitioner, and that the time and place of hearing them by the state board of medical examiners be determine and announced. It is also required that the accused be served with copy of the charges against him, together with the time and place of hearing at least ten days prior thereto, at which time and place he shall have the right to cross-examine the witnesses against him, to introduce witnesses in his defense, and to appear personally or by counsel. Upon satisfactory proof of the charges, the board may by a two-thirds vote suspend him from the practice of medicine and revoke his license. The accused may on certiorari have the action of the board reviewed by the circuit court of the circuit in which his license is recorded or he may demand a trial de novo in the circuit court and have his guilt or innocense determined according to the law applicable to the charge produced against him. Unless the guilt of the accused shall be made to appear beyond a reasonable doubt, the court shall render its decision in his favor and restore him to full right to practice medicine under the law. Appeal lies from the circuit court to the Supreme Court under like restrictions as those applicable to chancery appeals.

In this state of the law it cannot be controverted that section 3415 supra, requires that the accused be given reasonable opportunity to be heard before the board of medical examiners in his own defense, to confront the witnesses against him, to have witnesses in his own behalf, to be represented by counsel, and to have his cause reviewed by both the circuit court and the Supreme Court, if he can show ground for so doing.

The return discloses that charges were preferred against the accused, and that the time and place for hearing them was determined as the law directs, but otherwise the procedure followed was for from that required by the law as outlined herein. It is charged against the accused that he violated his oath in making application to the state board of medical examiners to be examined as to his qualifications to practice medicine, in that he swore that he had never been convicted of a crime involving moral turpitude. He was also charged with intemperance in the practice of medicine, but this charge appears to have been abandoned, so it becomes immaterial.

The return further discloses that the crime invoiving moral turpitude of which the accused was convicted related to a charge of 'scandalous conduct tending to the destruction of good morals,' preferred against him in 1917 when he was an assistant surgeon in the United States Naval Reserve Force. He was tried on this charge by a court-martial, was convicted, sentenced, and served a portion of a five-year sentence, and then released. To support its judgment predicated on this charge and sentence, the board had before it a transcript of the charge, the finding of the judge advocate, and the sentence of the court-martial together with certain testimony taken by the state attorney of the Eleventh judicial circuit of Florida in support of a criminal charge against the accused originating in Dade county, but having no relation whatever to the charge under review. On consideration of those proofs, the board at the time and place designated peremptorily struck the name of the accused from...