State v. Fray

• Decision Date: 08 March 1932
• Docket Number: No. 41274.,41274.
• Parties: STATE v. FRAY.
• Court: Iowa Supreme Court

214 Iowa 53

241 N.W. 663

STATE

v.FRAY.

No. 41274.

Supreme Court of Iowa.

March 8, 1932.

Appeal from District Court, Keokuk County; J. G. Patterson, Judge.

Suit in equity to enjoin the defendant from practising medicine in this State without a license. The suit was brought by the Attorney General in the name of the State under the express provisions of section 2519 of the Code. The defendant filed an equitable demurrer or motion to dismiss. The trial court overruled the motion. The defendant elected to stand thereon, and has appealed from the judgment entered against him.

Affirmed.

GRIMM and KINDIG, JJ., dissenting in part.Chas. C. Heninger and F. M. Beatty, both of Sigourney, for appellant.

John Fletcher, Atty. Gen., Gerald O. Blake, Asst. Atty. Gen., and Edwin Willcockson, of Sigourney, for the State.

EVANS, J.

The allegation that the defendant was practicing medicine without a license is admitted by the defendant. His defense is predicated purely on legal ground. The defendant devotes some argument to the broad proposition that equity has no criminal jurisdiction, and that in any event a court of equity will not award an injunction if the complainant has an adequate remedy at law. The complete answer to this line of argument is that this procedure is statutory and is authorized by the express terms of the statute. Unless, therefore, the statute be for some reason invalid, the right of the plaintiff to maintain the action is undebatable. The appellant recognizes the force of this argument and meets it by challenging the constitutionality of the statute. Such is the ultimate, and indeed the only, defense presented herein.

Section 2519 provides: “2519. Injunction against illegal practice. Any person engaging in any business or in the practice of any profession for which a license is required by this title without such license may be restrained by permanent injunction.”

The infirmity charged against it is that it is penal; that it provides a punishment for its violation; that this procedure is the equivalent of a prosecution thereunder; that the practical effect of this procedure is to deprive the defendant of a jury trial and thereby deprives him of due process of law. The following quotation from appellant's brief indicates concisely his general theory of defense:

“Title VIII of the 1927 Code, known as the ‘Practice Acts,’ contemplates that one who seeks to practice medicine, regardless of his qualifications so to do, must first obtain a license, and the practice of medicine without such license is by express statute, Code, § 2522, made punishable by both fine and imprisonment, therefore, the act of practicing medicine without such a license is criminal.

We assume that no argument will be required to convince this Court that the penalties prescribed by section 2522 could be imposed only in a Court of law, under the procedure known to such Court. If such be the fact, then how can the same act, criminal in character, be punishable in two different, distinct ways, and by two different, distinct methods of procedure? If sections 2519 and 2522 are to be reconciled, then a single act may result in a double procedure, one in the Criminal Court, to impose the penalty, one in the Equity Court, to restrain the commission of an act long since fully consummated. The fallacy of such a procedure becomes apparent.”

[1] As will presently be made to appear, the question thus raised by the appellant has been necessarily involved in many of our previous cases and has been taken for granted therein without challenge either by counsel or by ourselves. The justification for such an attitude in our own cases may be readily found in many decisions of other courts, wherein the question has been raised, argued, and settled. Many of these cases from other jurisdictions, are cited in the brief for the state. We shall content ourselves with two or three quotations from as many cases from other jurisdictions, which are cited in the brief of the appellee.

The case of Board of Medical Examiners v. Blair, 57 Utah, 516, 196 P. 221, 224, involved statutory procedure under a statute that was a fair equivalent of our statute, section 2519. We quote therefrom:

“Comp. Laws Utah 1917, § 4451, being one of the sections of the chapter creating the Board of Medical Examiners and defining what shall constitute the practice of medicine, makes the practice of medicine, surgery, or obstetrics within the state without a license a misdemeanor and provides a penalty therefor. It is therefore contended that one charged with a violation of that section is entitled to a trial by jury; that authorizing the court to enjoin the practice of medicine as set out in section 4449, supra, is an indirect way of enforcing a penal statute, and that therefore the defendant in this case was entitled to a jury trial; that jury trials are guaranteed to defendants in all criminal prosecutions by article 1, § 12, of the state Constitution. It is further insisted that the result or effect of a judgment enjoining the practice of medicine would lead to contempt proceedings if violated and would result, or might result, in the imprisonment of the defendant. It is also urged that courts will not enjoin the threatened commission of a crime, and that such proceedings are unknown to the common law.

It may be conceded that the power to enjoin the threatened commission of ordinary crimes has never been recognized by the courts. But we are here dealing with the right or power of the Legislature to enact and to provide means for the enforcement of regulations looking to the health of the community. If no other or worse results would or could follow the violation of the penal provisions of a statute than the arrest and punishment of any one violating such provisions, it might well be that the Legislature would not have the authority to provide a remedy by injunction. As indicated, the statute was enacted, not to provide a means of punishing those violating its provisions, but to protect the community from what, in the judgment of the Legislature, was or might be detrimental to the public health. The power of the court, while not often called into force, to prevent such an injury, has been repeatedly recognized in the decisions of the courts of this country.”

The case of New Orleans v. Liberty Shop, 157 La. 26, 101 So. 798, 800, 40 A. L. R. 1149, was a similar case. We quote from the opinion: “The criminality of the act, it is said, neither gives nor ousts jurisdiction in chancery. Especially are the foregoing principles applicable where a statute on which the suit is based contains a provision for its enforcement by injunction. In granting the injunction, the court acts solely for the purpose of protecting property rights from damage, and in no way interferes with the enforcement of the criminal laws. The remedy given is purely preventive; defendant is not punished for what he has done; this is left to the criminal courts. * * * Where an injunction is necessary for the protection of public rights, property, or welfare, the criminality of the act complained of does not bar the remedy by injunction.”

From the Kentucky State Board of Dental Examiners v. Payne, 213 Ky. 382, 281 S. W. 188, 190, we quote:

“Moreover, we are unable to see why the remedy would prevail in cases where purely property rights are involved and withheld in cases where health, and possibly life, is involved, since to hazard the latter is as much a nuisance as it is to imperil and impair the former, even if we were compelled to place the grounds of our decision upon the right of the commonwealth to abate a nuisance.

But we are not convinced that the right to maintain this action rests solely upon that ground. The statute involved here is not purely a criminal one. It was enacted, as we have seen, under the police power of the state and in furtherance of a wholesome public policy. The purpose was not to create a crime, but to provide for the public welfare. The criminal feature was only intended as a deterrent and a partial restraint, and was inserted for the purpose of admonishing the practitioner that he must comply with the salutary terms of the statute, and which compliance was the chief purpose in enacting the statute, the penal section being merely incidental and collateral thereto; hence the board, by the express terms of the statute, was given power to enforce its provisions. Manifestly the Legislature did not intend to limit the means of enforcement to the small and insignificant penalty provided in section 18 (section 2636-18) of the act. The board could make little progress towards enforcing the act, if it was confined to prosecutions to recover the small penalties. If an arrest was made and the highest penalty administered, the practice could be resumed, and, perhaps, many times the amount of the penalty could be collected from ignorant and confiding patrons until the second violation was discovered, if at all, and in the meantime the mischief intended to be prevented would continue unabated. We therefore conclude that the Legislature, in enacting the statute, intended to confer upon the board the right and the authority, as well as the duty, to see to it that no one practiced dentistry in the commonwealth, without first obtaining the required license, and that it was therefore granted the privilege of employing whatever legal process was necessary for that purpose; and in this respect the case is different from other cases wherein...