State v. Robinson

• Court: Missouri Supreme Court
• Writing for the Court: Brown
• Citation: State v. Robinson, 161 S.W. 1169, 253 Mo. 271 (Mo. 1913)
• Decision Date: 06 December 1913
• Parties: STATE ex rel. SPRIGGS v. ROBINSON et al., State Board of Health.

161 S.W. 1169

253 Mo. 271

STATE ex rel. SPRIGGS v. ROBINSON et al., State Board of Health.

Supreme Court of Missouri, Division No. 2.

December 6, 1913.

1. PHYSICIANS AND SURGEONS (§ 11)—RIGHT TO PRACTICE—NATURE.

The right of a licensed physician to practice is not a mere shadowy privilege which may be revoked regardless of whether the possessor has violated the laws of the state, but is a valuable privilege and perhaps a property right, which is protected at least by such safeguards as the Legislature has thrown around it.

2. PHYSICIANS AND SURGEONS (§ 11)—REVOCATION OF AUTHORITY TO PRACTICE—STATUTORY PROVISIONS.

Rev. St. 1909, § 8317, authorizing the State Board of Health to refuse to license to practice medicine and surgery persons guilty of unprofessional or dishonorable conduct and to revoke licenses for like causes, and specifying certain acts which shall be deemed unprofessional and dishonorable conduct, but providing that these specifications are not intended to exclude all other acts for which licenses may be revoked, so far as it authorizes the revocation of licenses, is highly penal and must be so construed.

3. STATUTES (§ 241)—CONSTRUCTION—PENAL STATUTES.

A penal statute is construed with a degree of strictness commensurate with the severity of the penalty it imposes, and where the penalty is onerous no one can be held to have violated its provisions unless his acts come within both the letter and the spirit of the law.

4. STATUTES (§§ 174, 175)—CONSTRUCTION — RATIONAL CONSTRUCTION.

All laws must receive a rational and not an arbitrary construction.

5. PHYSICIANS AND SURGEONS (§ 11)—PROCEEDINGS TO REVOKE LICENSES—EVIDENCE.

Under Rev. St. 1909, § 8317, authorizing the State Board of Health to revoke licenses to practice medicine and surgery for producing criminal abortions, an advertisement by a physician, stating that his practice was limited to "diseases of women and surgery," and the testimony of a witness, that several physicians had told him that such physician had the reputation of being a criminal abortionist, would not sustain a suspension from practice.

6. EVIDENCE (§ 317)—HEARSAY EVIDENCE— STATEMENTS OF THIRD PERSONS.

In a proceeding to suspend a physician for producing abortions, the testimony of a witness, that physicians had told him that defendant had the reputation of being a criminal abortionist, was hearsay evidence and should not have been admitted or considered.

7. PHYSICIANS AND SURGEONS (§ 11)—SUSPENSION FROM PRACTICE—GROUNDS.

Under Rev. St. 1909, § 8317, authorizing the State Board of Health to revoke licenses

to practice medicine and surgery for unprofessional or dishonorable conduct, and providing that habitual drunkenness, drug habit, excessive use of narcotics, producing criminal abortions, or soliciting patronage by agents shall be deemed unprofessional and dishonorable conduct, but that these specifications do not exclude all other "acts" for which licenses may be revoked, a willingness or offer to produce an abortion does not justify suspension of the right to practice, in view of the fact that the grounds specified all grow out of intentional affirmative acts, while the general specification which follows refers only to "acts."

8. STATUTES (§ 194)—CONSTRUCTION—GENERAL AND SPECIFIC WORDS.

Where a law specifically designates several matters or things which shall be governed by its provisions, and then by general language undertakes to include other acts and things not specifically named, it must be so construed as to apply only to things or acts of the same general nature as those definitely set out.

9. PHYSICIANS AND SURGEONS (§ 11)—SUSPENSION FROM PRACTICE—GROUNDS.

Under Rev. St. 1909, § 8317, authorizing the State Board of Health to refuse to license to practice medicine and surgery persons guilty of unprofessional or dishonorable conduct and to revoke licenses for like causes, and specifying certain acts which shall be deemed unprofessional and dishonorable conduct, but providing that these specifications are not intended to exclude all other acts for which licenses may be revoked, the board is not authorized to determine what shall constitute dishonorable and unprofessional conduct, in view of Const. art. 4, § 1, vesting the power to make laws in the General Assembly, and article 3, prohibiting executive officers from performing legislative functions.

10. PHYSICIANS AND SURGEONS (§ 11)—SUSPENSION FROM PRACTICE—GROUNDS.

Assuming that, under Rev. St. 1909, § 8317, authorizing the State Board of Health to revoke licenses to practice medicine and surgery for unprofessional or dishonorable conduct, specifying certain acts which shall be deemed unprofessional and dishonorable conduct, but providing that these specifications shall not exclude all other acts for which licenses may be revoked, the board may determine what shall constitute dishonorable and unprofessional conduct, it could not suspend a physician for offering to commit an abortion where it had made no law or rule prohibiting offers to commit abortions, in view of Const. art. 2, § 15, prohibiting the enactment of laws retrospective in their operation by the General Assembly.

Appeal from St. Louis Circuit Court; G. C. Hitchcock, Judge.

Proceeding by the State, on the relation of M. Luther Spriggs, against E. F. Robinson and others, comprising the State Board of Health. From a judgment sustaining the action of the Board in suspending relator from the practice of medicine and surgery, he appeals. Reversed, and action of the Board quashed.

Appeal from the judgment of the circuit court of St. Louis city sustaining the action of the State Board of Health in suspending the appellant from the practice of medicine and surgery in this state for a period of one year. The charge upon which appellant was suspended is that he was guilty of "unprofessional and dishonorable conduct," in that he offered, or was willing, to commit a criminal abortion. Prior to October 19, 1912, appellant was engaged in the practice of medicine and surgery at Joplin, Mo., and the evidence upon which he was suspended from practice is mostly documentary, and is as follows:

First. The following advertisement inserted by appellant in a newspaper at Joplin: "Dr. M. Luther Spriggs. Practice limited to diseases of women and surgery. Office and private hospital, 417 S. Cox avenue. Consultation hours, 9 to 12 a. m., 2 to 4 p. m. Home phone 411, Bell phone 517. Residence, The Connor." After this advertisement appeared, a post office inspector caused certain letters to be written and mailed to appellant from Galena, Mo., to which letters was affixed the name "Susie Davis." Said letters and the appellant's replies thereto are as follows:

"Galena, Mo., May 10th, 1912. Doctor M. Luther Spriggs—Dear Sir: I cut the enclosed from a Joplin Globe of last Sunday, and wish to write you, as I was about to go to Kansas City or somewhere away from here. I am not married and was indiscreet to allow my beau liberties which I should not have done. The worst of it is, I am caught, I fear, and in a family way. I missed just twice. I ought to be sick the 14th of this month but I don't know whether I will or not. I have taken all kinds of medicine without avail. I am scared every day of discovery and believe I am getting larger. Please let me know if you will take it away and how much it will cost. I ask no charity as I have some money and I know the young man the cause of the trouble will furnish more, if needed. We can pay you well between us. Please destroy this letter. Yours truly, Susie Davis, Galena, Mo."

"Joplin, Mo., May 11, 1912. Miss Davis: Replying to yours of the 10th inst., allow me to say that you should come here at the earliest possible moment. At that time we can go fully into all of the details. Very truly yours, M. Luther Spriggs."

"Galena, Missouri, May 21st, 1912. Doctor M. Luther Spriggs—Dear Sir: Replying to your letter in regard to my coming to Joplin for operation, I would ask what the approximate cost will be. I do not want to make the trip to Joplin without enough money to have the work done. I can get the money easier now than I can get it after I get there. I can leave here as soon as I hear from you. Yours truly, Susie Davis, Galena, Mo."

"Joplin, Mo., May 22, 1912. Dear Miss Davis: Will say in reply to yours of the 21st inst., that your bill with me will be approximately $125.00 and your living expenses will have to be met for something like a week or possibly ten days. It seems to me that $150.00 should be ample to take care of everything. Remember that it is important to act as promptly as possible. Very truly yours, M. Luther Spriggs."

"Galena, Missouri. Dr. M. Luther Spriggs —Dear Sir: Replying to your favor of the 22nd inst., I had no idea the price for relieving one in a family way was over $25.00 to $50.00. While I can get more than this, I much fear that I cannot raise the amount you mentioned, and unless you can do some better for me, I must make other arrangements. I can raise $100. Please write me without delay what you will do. Yours truly, Susie Davis, Galena, Mo. May 26th, 1912."

"Joplin, Mo., May 26, 1912. Dear Miss Davis: Replying to yours of to-day allow me to say that we do not ordinarily make any concessions in such matters. However, I am willing under the circumstances, to allow you the reduction you speak of, viz.: $100.00 professional fee. You will of course have to defray your living expenses for a week or ten days, which will be moderate, and I will be glad to assist you to make arrangements in this way that will be satisfactory. Hoping this will meet with your approval. Very truly yours, M. Luther Spriggs."

"Galena, Mo., May 30th, 1912. Dr. M. Luther Spriggs—Dear Sir: Replying to your letter of the 26th inst., I thank you for the concession you have made, but since my last letter, I have come unwell a little. Do you think I could be pregnant under the circumstances? I have missed a...