State Medical Board of Arkansas Medical Society v. McCrary
Decision Date | 27 June 1910 |
Citation | 130 S.W. 544,95 Ark. 511 |
Parties | STATE MEDICAL BOARD OF THE ARKANSAS MEDICAL SOCIETY v. MCCRARY |
Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; John E Martineau, Chancellor reversed.
STATEMENT BY THE COURT.
A. S McCrary was duly notified to appear before the State Board of the Arkansas Medical Society in the hall of the House of Representatives, in the State House, in the city of Little Rock, Arkansas, on November 10, 1909, and show cause why his certificate to practice medicine in said State should not be revoked under subdivision (d) of sec. 8 of act 219 of the Arkansas General Assembly, approved May 6, 1909. It is as follows:
On November 10, 1909, Dr. McCrary filed a complaint against said board and the members thereof to enjoin them from acting on the complaint filed against him before said board. With his petition he filed the following exhibits:
First. The notice served on him to appear before the State Medical Board and show cause why his license to practice medicine in the State of Arkansas should not be revoked.
Second. The complaint filed against him before said board. It charged that he had violated subdivision (d) of the above quoted act "by publicly advertising special ability to treat or cure chronic and incurable diseases," in violation of the terms thereof.
Third. A verbatim copy of his advertisement, stating his success and ability to cure certain ailments.
It is not necessary to set out his advertisement; for it seems to be conceded that, if the act in question is constitutional and is not void for uncertainty, the advertisement falls within its prohibition.
The board demurred to the complaint. The court overruled the demurrer on the ground that subdivision (d), which authorized the board to revoke the license of a physician if he "publicly advertise special ability to treat or cure chronic and incurable diseases is too indefinite and uncertain for enforcement."
The board electing to stand on its demurrer and refusing to further plead, a decree was entered enjoining it and the members thereof from in any way interfering with the right of the plaintiff to practice medicine because of the advertisement charged in the complaint made against him.
To reverse that decree, this appeal is prosecuted.
Decree reversed.
Hal L. Norwood, Attorney General, for appellant; Coleman & Lewis of counsel.
The statute is a proper exercise of police power. 77 Ark. 506; 66 Kan. 710; 1 L. R. A. (N. S.) 811; 129 U.S. 114; 170 Id. 189; 119 N.W. 644; 41 L. R. A. 212. The act is sufficiently definite and certain. 54 L. R. A. 415; 125 Ill. 289; 110 Ill. 180; 4 B. & S. 582; L. R. 23 Q. B. Div. 400; 103 Mo. 22; 32 Minn. 391; Id. 227; 195 Mo. 551; 22 R. I. 538. The act does not deprive appellee of his rights without due process of law. 1 L. R. A. (N. S.) 811; 54 L. R. A. 415.
B. D. Brickhouse, Jr., and W. T. Tucker, for appellee.
The Legislature has no right to invest the board with judicial power, or to create a court not authorized by the Constitution. Art. 4, §§ 1 and 2, Const. 1874; Id. art. 7, § 1; 12 Pet. 718; 3 Ark. 299; Id. 352; 7 Ark. 400; 165 Ill. 538; 99 U.S. 761; 73 N.Y.S. 306; 77 Ala. 422; Petitioner's right to practice medicine is a property right. 2 Ala. 31; 7 How. (Miss.) 127; 22 N.Y. 67; 1 Mo. 772; 4 Wall. 333; 54 L. R. A. 838; 90 Pa. 477; 95 Pa. 220. And cannot be taken from him without the judgment of a court of competent jurisdiction. 24 Ark. 162; 10 Ark. 156; 4 Wall. 333; Id. 277; 63 S.W. 787. The language of the act is not sufficiently definite and certain. 45 Ark. 381; 63 S.W. 787; 77 Cal. 165; 148 Cal. 590; 25 D. C. App. Cas. 444.
OPINIONHART, J., (after stating the facts).
The constutionality of the above quoted statute is attacked by appellee. He contends that his license to practice medicine is a property right, the revocation of which is an exercise of judicial power, which can not be vested in any adminstrative board, but only in the courts; and that to assume to invest this power in the board is to deprive him of his property without due process of law in violation of sec. 8 of art. 2 of our Constitution.
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