State v. Goodier

• Citation: 93 S.W. 928,195 Mo. 551
• Parties: STATE ex rel. McANALLY v. GOODIER et al.
• Decision Date: 30 March 1906
• Court: United States State Supreme Court of Missouri

93 S.W. 928

195 Mo. 551

STATE ex rel. McANALLY v. GOODIER et al.

Supreme Court of Missouri.

March 30, 1906.

1. PHYSICIANS AND SURGEONS—LICENSE TO PRACTICE—REVOCATION.

Act April 2, 1883 (Laws 1883, p. 115), relative to the practice of medicine and surgery, requires the issuance by the state board of health of certificates to persons who have graduated from a medical college or passed examination and are entitled to practice medicine, and declares that the board may refuse certificates to any individuals guilty of unprofessional or dishonorable conduct and may revoke certificates for like causes. Section 11 (page 116) of the act declares that its provisions shall not apply to persons who have been practicing medicine for five years before the passage of the act. A certificate was issued to a person who had been practicing medicine for five years before the act, who was not a graduate of a medical college and did not take the examination. Held, that the board of health had a right to revoke the certificate.

2. PROHIBITION—SCOPE OF REMEDY.

The writ of prohibition runs only to judicial tribunals.

3. SAME — ACTION OF STATE BOARD OF HEALTH.

Under Rev. St. 1899, § 8514, relative to the practice of medicine and surgery, declaring that the state board of health may refuse a license to practice medicine to any one guilty of unprofessional or dishonorable conduct and may revoke licenses for like causes after giving the accused an opportunity to be heard in his defense before the board, the action of the board in revoking a license is not a judicial action and cannot be regulated by the writ of prohibition.

In Banc. Proceeding for writ of prohibition by the state, on relation of S. M. McAnally, against R. H. Goodier and others, to prevent respondents, the state board of health, from revoking relator's license to practice as a physician. Writ denied.

Hensley & Revelle, for relator. The Attorney General and N. T. Gentry, for respondents.

VALLIANT, J.

Relator holds a certificate issued by the state board of health in 1883, which declares that he is legally authorized to practice medicine and surgery in this state. Charges of improper conduct have been preferred against him by a number of citizens of his county, and the state board of health has cited him to appear before it to answer the charges and show cause why his license or authority to practice medicine and surgery should not be revoked. After service of the citation on relator he wrote a letter to the secretary of the board wherein he gave the names and places of residence of a number of witnesses whom he desired to have summoned to testify in his behalf, and requested the secretary to issue subpœnas for them. According to the citation the board was to sit in Kansas City at the Midland Hotel December 20, 1905. The witnesses for whom the relator desired to have subpœnas issued resided in Bollinger county. The secretary of the oard replied to the letter, saying that he had no authority to issue subpœnas and no fund out of which to pay witnesses for their attendance; that so far as the action of the board was concerned the only witnesses that would come before it would come voluntarily and therefore relator would himself have to attend to the matter of procuring the attendance of his own witnesses. Relator says that after the receipt of the secretary's reply to his letter he tendered to the desired witnesses their legal fees for one day's attendance and their legal mileage, but that they declined to go without subpœnas; that he has a good defense against the charges, but cannot present it because he cannot procure the attendance of his witnesses. The prayer of his petition is that a writ may issue, directed to the respondents, composing the state board of health, prohibiting them from proceeding in the matter. The return filed by respondents admits substantially the facts stated, and says that in 1883 relator appeared before the board and applied for a license to practice medicine and the same was issued to him; that the respondents composing the board have authority under the law to investigate those charges, to ascertain if they be true or false, and if found to be true to revoke the license, or if to be false to acquit him, and this they purpose to do. In his reply to the return, the relator says, true it is he did obtain from the state board of health the license or certificate in question, but that it was not issued to him on his showing of a diploma or on an examination of him by the board, but on the fact that for a period of five years or more before the act of the General Assembly entitled "An act to regulate the practice of medicine and surgery in the state of Missouri," approved April 2, 1883 (Laws 1883, p. 115), he had been and then was a practicing physician in this state, and was by the terms of the act excepted from its requirements. The above stated facts are undisputed. The charges against relator, filed before the State Board of Health by the citizens of Marble Hill where he resides, were to the effect that he was then and for several years had been in the continuous and almost exclusive occupation of selling intoxicating liquors without a license and without a prescription in a drug store kept by him; that he sells liquors to be drunk on the premises; that he sells every day in the week, Sunday included, and that he sells to minors; that he conducts the business in open defiance of the law, and that it constitutes a public offense. It appears from a stipulation filed herein that relator has been practicing medicine in this state since 1867 and duly registered as such under the act of 1874, which required such registration. His affidavit on file says that he applied to the state board of health in 1883 for the license or certificate, which was issued to him, because he had been advised (he does not say by whom) that it was necessary to have such a certificate, not knowing then, as he has since learned and now asserts, that he was entitled to practice without such certificate.

Under the act of 1874 no one was to be allowed to practice medicine or surgery in this state unless he had been graduated from a medical college or university with the degree of doctor of medicine, and he was required to register his diploma in the county of his residence. But that act excepted from its requirements men who were already engaged in the practice. Acts 1874, p. 111. Under the act of April 2, 1883, it was required of one who shall practice medicine or surgery that he should be a graduate in medicine and exhibit his diploma for examination and verification to the state board of health, or, if he should not be a graduate, he should stand an examination before the state board of health touching his learning, qualification, and fitness to practice that profession. The act also required the state board of health to issue certificates to those measuring up to the requirements of the law; the board were to have two forms of certificates, one for those who were graduates of medical colleges, and the other for those found, on examination by the board, to possess the necessary qualifications. The holders of these certificates were required to have them registered in the county clerk's office of the county of their residence. The eighth section of that act (Laws 1883, p. 116), now section 8514, Rev. St. 1899, is: "The state board of health may refuse certificates to any individuals guilty of unprofessional or dishonorable conduct, and may revoke certificates for like causes, after giving the accused an opportunity to be heard in his defense before the board." In the eleventh section of the act (Laws 1883, p. 116), now section 8517, Rev. St. 1899, is this proviso: "The provisions of this article shall not apply to those persons who have been practicing medicine five years in this state." Under that proviso relator contends that the respondents who now compose the state board of health have no jurisdiction over him, no authority to try him on the charges mentioned. Under the act of 1883 the relator was not required to have a certificate from the state board of health to entitle him to practice medicine, because he had been practicing for a period more than five years before the law was enacted. That act prescribed but two forms of certificates, one for the graduate of a medical college, the other for the man found qualified by examination by the board. The relator came within the description of neither one nor the other. He belonged to a class expressly excepted from the operation of the statute. But he was not satisfied to stand on...