State ex rel. Warnick v. Wilson

• Decision Date: 08 March 1947
• Docket Number: 36712.
• Parties: STATE ex rel. WARNICK, County Atty., et al. v. WILSON.
• Court: Kansas Supreme Court

178 P.2d 277

162 Kan. 507

STATE ex rel. WARNICK, County Atty., et al. v. WILSON.

No. 36712.

Supreme Court of Kansas

March 8, 1947

Appeal from District Court, Sedgwick County; Isaac N. Williams Judge.

Proceeding by the State, on the relation of Patrick J. Warnick, County Attorney of Sedwick County, Kansas, and the Kansas State Board of Medical Registration and Examination against Quintos W. Wilson, wherein the defendant was enjoined from practicing medicine and surgery. From a judgment for contempt of court in violating such injunction, the defendant appeals.

Judgment affirmed.

Syllabus by the Court.

1. The word 'thereupon' as used in G.S.1935, 20-1204, which pertains to proceedings in indirect contempts of court, does not necessitate that the accusation be filed immediately upon the appearance of a defendant. The substantial rights of a defendant in such a case were not prejudiced when the accusation was filed five days after the defendant first appeared in court following citation.

2. When a defendant is enjoined from practicing medicine and surgery and is accused of indirect contempt because of the alleged violation of the injunction, the state is not required to negative in the filed accusation a possible defense thereto or to introduce evidence in anticipation of a defense which is not alleged in the answer filed by the defendant.

Howard T. Fleeson, of Wichita (Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Manford Holly, and Dale M. Stucky, all of Wichita on the brief), for appellant.

Blake A. Williamson, of Kansas City (A. B. Mitchell, Atty. Gen., Patrick J. Warnick, County Atty., Carl I. Winsor, Harlin E. Bond and Rupert Teall, all of Wichita, on the brief), for appellees.

BURCH Justice.

The appeal in this case is from a judgment fixing a fine and punishment for indirect contempt arising by reason of the alleged violation of an injunction which prohibited the accused from practicing medicine and surgery. The indirect contempt proceedings were brought pursuant to G.S. 1935, 20-1204.

The first question presented is whether the word 'thereupon' in the above-cited statute requires that when a defendant is cited to show cause why he should not be accused and tried for contempt it is necessary, at the time the defendant appears in court in obedience to the citation, to file immediately and without any delay, a formal accusation against him. The second question presented is, when one is enjoined from engaging in the practice of medicine and surgery, may he be punished for contempt without accusation and proof being made by the state that he unlawfully performed surgery by reason of his having failed to obtain, subsequent to the issuance of the injunction, a license to practice medicine and surgery before he performed a surgical operation? In other words, was the burden upon the state to plead and prove that the accused was practicing unlawfully because he had not obtained a license before he violated the injunction? The petition in the original action, which was brought to enjoin the defendant from the unlawful practice of medicine and surgery, alleged that the defendant was not and never had been licensed to practice medicine and surgery in Kansas; that on three occasions he had performed surgical operations for a fee and had dispensed medicine and drugs to patients, and that unless he was enjoined he would continue to practice medicine and surgery in violation of the laws of Kansas. After some preliminaries the defendant appeared and consented to a decree of injunction which ordered that the defendant should be permanently enjoined from practicing in the state medicine and surgery and drug therapy from and after February 1, 1945. On November 27, 1945 a motion was filed by Patrick J. Warnick as county attorney of Sedgwick County, Kansas, which recited the injunction decree and that in violation thereof the defendant, on September 14, 1945, had performed a surgical operation on a certain party named therein. The motion requested that a citation be issued directing the defendant to appear on a day certain and to show cause why he should not be proceeded against and punished for contempt. The court made an order citing the defendant to appear in court on December 3, 1945 to 'show cause if any you may have, why you should not be accused, and placed upon trial, and punished for contempt of Court.' The defendant appeared at the time commanded by the citation but made no showing at such time as to why he should not be accused. As a consequence the court entered an order providing therein that the plaintiffs file written accusations against the defendant within five days and that the defendant file his pleadings to said accusations within twenty days after the filing of the accusations. Within five days thereafter an accusation was filed formally charging the defendant with contempt of court arising by reason of his performing the surgical operation hereinbefore referred to. Twenty days after the accusation was filed the defendant filed a motion to strike it from the files. One of the reasons given in support of the motion to quash was 'That said accusation was not filed on the occasion and at the time required by G.S. 20-1204 and is therefore of no force or effect.' Another reason asserted in support of such motion was that the accusation did not state facts sufficient to charge the defendant with any contempt of court. All other contentions raised by the motion to quash and by other motions filed in the case have been abandoned in this appeal except in so far as they may be germane to the two questions presented by the appeal. On May 6th the defendant filed an answer to the accusation of contempt, in which he denied generally and specifically every material allegation in the accusation except that the injunction had been issued. The answer alleged many other grounds of defense but it did not allege that the defendant, subsequent to the issuance of the injunction and prior to September 14, 1945, had obtained a license to practice medicine and surgery in the state. Trial on the issues thus joined by the pleadings occurred on June 18, 1946. In connection therewith the defendant objected to further proceedings upon all of the grounds set forth in the motions, including those specifically set forth herein. The defendant's objections were overruled and evidence was introduced which established that the defendant had performed the surgical operation on September 14th as charged in the accusation. No evidence was introduced, however, which proved that the defendant had not obtained a license to practice medicine and surgery before he performed the alleged unlawful operation. The defendant offered no evidence but at the conclusion of the evidence offered by the state filed a motion for discharge predicated upon the contention that the state had failed 'to prove that the defendant * * * is engaged in the unlawful practice of medicine or has engaged in the unlawful practice of medicine since the entry of the decree * * *.' The trial court overruled the motion and entered judgment and sentence which provided 'That the defendant pay a fine of $200.00 to the clerk of this court for the benefit of the common school fund of this county and that he be committed to the county jail of Sedgwick County, Kansas, for a period of sixty days, and that he pay the costs of the prosecution and that he stand committed until such fine and costs shall be paid.' The judgment and sentence were stayed for a period of ten days to permit the defendant to file a stay bond in the amount of $500 pending the defendant's appeal to this court. Notice of appeal and filing of the bond followed.

Before giving consideration to the questions presented, we digress to observe that this court is not concerned in this appeal with any questions pertaining to the propriety of the issuance of the original injunction. Questions relative to the merits of any controversies which may exist among different schools of medicine likewise are not involved in the consideration of this case.

1. Does the word 'thereupon' as used in the statute (G.S. 1935, 20-1204) mean 'immediately'? The statute reads: 'That upon the return of an officer on process or an affidavit duly filed showing any person guilty of indirect contempt, a writ of attachment or other lawful process may issue, and such person be arrested and brought before the court or judge in chambers; and thereupon a written accusation setting forth succinctly and clearly the facts alleged to constitute such contempt shall be filed, and the accused required to answer the same, by an order which shall fix the time therefor and also the time and place for hearing the matter; and the court or the judge in chambers shall, on proper showing, extend the time so as to give the accused a reasonable opportunity to purge himself of such contempt. * * *' (Emphasis supplied.)

Attorneys for the defendant cite many of our cases holding, in substance, that the word 'thereupon' has a meaning which is equivalent to 'immediately' or 'without delay or lapse of time.' To such effect they cite Dewey v. Linscott, 20 Kan. 684, 687, Hill v Wand, 47 Kan. 340, 27 P. 988, 27 Am.St.Rep. 288; Morrison v. Wells, 48 Kan. 494, 29 P. 601; Humbarger v. Humbarger, 72 Kan. 412, 83 P. 1095, 115 Am.St.Rep. 204; Hallam v. Huffman, 5 Kan.App. 303, 48 P. 602. In some of the cited cases it was well recognized, however, that the word 'thereupon' has at least two meanings. Its meaning is not always limited to the equivalent to 'immediately' but the word often refers to the next step of procedure following the performance of conditions precedent. It has been defined as meaning 'upon this, or that.' It is used for the purpose of referring to a cause or condition...