State v. Hiller

• Decision Date: 17 November 1915
• Docket Number: No. 16708.,16708.
• Citation: 180 S.W. 538,266 Mo. 242
• Parties: STATE ex rel. CONWAY v. HILLER et al., State Board of Health.
• Court: Missouri Supreme Court

180 S.W. 538

266 Mo. 242

STATE ex rel. CONWAY v. HILLER et al., State Board of Health.

No. 16708.

Supreme Court of Missouri.

November 17, 1915.

Rehearing Denied December 8, 1915.

In Banc. Appeal from Circuit Court, Cole County; John M. Williams, Judge. Application by the State, on the relation of A. M. Conway, for a writ of certiorari, directed to F. B. Hiller and others, constituting the State Board of Health. From a judgment dismissing the writ, relator appeals. Affirmed.

Appellant Conway filed in this court an abstract of record, and the Attorney General has filed a counter abstract of record. It appears from appellant's abstract that on April 27, 1910, Emmett McDonnell and two other citizens of Boone county, Mo., filed complaint before the State Board of Health against said Conway, who was a physician, authorized to practice medicine in said county, charging him with unprofessional and dishonorable conduct. The petition to said board specified the grounds on which they sought to have the license of said Conway revoked and will be referred to hereafter. A copy of this complaint was served on Dr. Conway, and a hearing was had before the State Board of Health in Jefferson City, Mo., on May 24, 1910. Dr. Conway appeared before the aforesaid board, and objected to the hearing for the alleged reason that said board of health was without authority or jurisdiction to hear or determine the charges made against him.

A number of witnesses were introduced by the complainants and examined on the part of the prosecution. Their evidence tended to sustain the specifications that Dr. Conway had written a large number of whisky prescriptions which called for no other ingredients than whisky, and which were used as a beverage instead of medicine. He had charged 25 cents apiece for each prescription. No evidence was offered in behalf of Dr. Conway, and said board, after the hearing aforesaid, annulled and held for naught, for a period of ten years, Dr. Conway's right, permit, and license, to practice medicine in the state of Missouri.

At the July term, 1910, Dr. Conway, as relator, filed in the circuit court of Cole county, Mo., a petition for a writ of certiorari, against the members of the State Board of Health, and set out in said petition the original complaint and all other proceedings alleged to have taken place before said board leading up to his conviction on the 27th of July, 1910.

A writ of certiorari was issued by the Cole circuit court, directed to the members of the State Board of Health, commanding them to have before the circuit court of said county, on the 3d of August, 1910, the complaint and charges in the matter aforesaid, together with all the records and proceedings of said board, and a complete transcript of all the evidence pertaining to the revocation of said Conway's license to practice medicine in Missouri, etc. This writ was duly sewed upon the members of said board, and they accordingly made return to said circuit court of all their proceedings, including petition, all papers filed with them, and all the evidence taken by them, together with their findings and orders. Thereupon the Attorney General filed a motion in circuit court to quash the writ of certiorari, for the reasons alleged therein. Said motion to quash was sustained by the circuit court, and the finding of the State Board of Health in revoking the license of Dr. Conway to practice medicine and surgery in the state of Missouri was sustained. The writ of certiorari was dismissed and for naught held. A general judgment was rendered in favor of the State Board of Health and all costs incurred in said proceeding taxed against relator Conway.

On the same day of rendition of judgment, appellant's abstract recites that he filed a motion for a new trial, and that the same was overruled. It likewise recites that an affidavit for appeal was filed and an appeal granted relator to the Supreme Court of Missouri. It also recites that the court granted relator leave to prepare and file his bill of exceptions before or during the first day of the July term. Said abstract contains the following:

"Within the time allowed by the court, relator presented his bill of exceptions, which was duly signed, sealed, and, by order of record, filed in this case and made a part of the record thereof."

No bill of exceptions is set out in the record, nor is there anything contained therein, which indicates that any of the other printed matters, in the abstract of record, were incorporated in or made a part of said bill of exceptions. None of the proceedings or evidence set out anywhere in the record is said to be contained in said bill of exceptions. There is nothing in the abstract of record indicating that any matters of exception are contained in the bill of exceptions. The record proper purports to contain the motion for a new trial, and an alleged exception to the overruling of same, but none of these matters appear in the alleged bill of exceptions. The abstract filed by appellant sets out an incomplete synopsis of the testimony heard by said board, but no part of same appears in the bill of exceptions, nor is it called for therein. The counter abstract of respondents contains substantially the testimony as given before the board, and said testimony sustains in the main the charges and specifications contained in the complaint before said board.

We here state a brief synopsis of the specifications contained in said complaint: Said McDonnell, Stevens, and Goldsberry, citizens of Columbia, Mo., charged that one A. M. Conway had been for many years a practicing physician, located in Columbia, Mo., and that he became a registered physician on the 17th day of August, 1874, under the acts of said year at page 111; that on said date he registered as such physician, with the clerk of the county court of Boone county, Mo. For their complaint, they charge that said Conway was then, and for a long time past had been, guilty of unprofessional and dishonorable conduct in the following particulars, to wit:

(1) That soon after the adoption of the Local Option Law in the city of Columbia, Mo., which occurred on the 5th day of February, 1908, the defendant secured an office in the Orear Building in said city. That prior to said time the defendant had no practice and had been making his living by peddling teas, coffees, and spices. That, within a very short time after opening an office as aforesaid, the stairway and hall of said building were frequented by negroes, inebriates, loafers, objectionable and offensive persons going to and from defendant's office in quest of and obtaining prescriptions for whisky. That his office was more or less crowded with such applicants for whisky prescriptions at all hours of the day and until late at night, and at times on Sunday. That, by reason of the noise and offensiveness of the aforesaid conditions, other tenants occupying the second and third floors of said building complained to the owner thereof, and protested against further occupancy of said building by this defendant, and threatened to abandon their leases if defendant was permitted to remain, whereupon the owner terminated defendant's tenancy and procured his removal from said building. That this defendant then obtained permission from the private owner to open an office in the old city police court room in a building until a short time prior thereto occupied by the city of Columbia for police headquarters, jail, and water and light office. That after some time defendant moved his office to the ground floor of said building in a room located on a side street and abutting on an alley next to a livery stable, a place wholly unfit and unsuited in every respect to a legitimate medical practice and within surroundings exceedingly well adapted to writing illegal whisky prescriptions. That defendant continues now to maintain such office and has no apparent medical practice other than the writing of whisky prescriptions.

(2) That during a portion of the year 1909 the defendant made his home with a relative, one F. M. Lowery, and occupied an upstairs room as a bedchamber. That defendant placed, or had placed, against the side of the house, a ladder extending up to the window of defendant's room. That a great many persons were seen and known to have climbed up said ladder to defendant's window and procured whisky prescriptions from him. This practice became so annoying to the said F. M. Lowery that he drove defendant from his home.

(3) That until recently there has been located in the city of Columbia a drug store known as "The West End Pharmacy." That said drug store was formerly owned and operated by Oscar Barrett, but that in the month of January, 1910, said Oscar Barrett was prosecuted for violations of the Local Option Law and his store closed by the authorities. That said store was soon thereafter, within a few days, reopened under the management of one Ollie Tyson, who continued to conduct the business from the 1st day of February, 1910, until the 14th day of March, 1910, when said store was again closed by the authorities for like violations, and the said Ollie Tyson, under an arrangement with the authorities, turned over all prescriptions filled by him in said store from the 1st day of February, 1910, until the 14th day of March, 1910. That during said month of February, 1910, there were filled at said store 561 prescriptions, of which number 544 were written by the defendant and filled by said store and were for one pint of whisky each without any other ingredient. That from the 1st day of March, 1910, to the 14th day of March, 1910, said store filled 242 prescriptions, of which 234 were written by this defendant and were for one pint of whisky each without any other ingredient. That while said store was running unmolested by the authorities the defendant was known to frequent said store, and had made as many as seven or eight trips a day thereto. That defendant...