State v. Schaeffer

• Decision Date: 07 November 1906
• Citation: 109 N.W. 522,129 Wis. 459
• Parties: STATE v. SCHAEFFER.
• Court: Wisconsin Supreme Court

129 Wis. 459

109 N.W. 522

STATE

v.SCHAEFFER.

Supreme Court of Wisconsin.

Nov. 7, 1906.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action for the revocation of a physician's license by the state of Wisconsin against Frank X. Schaeffer. From an order overruling defendant's demurrer, he appeals. Affirmed.John Toohey, for appellant.

A. C. Umbreit, for respondent Wisconsin Board of Medical Examiners.

F. E. McGovern, Dist. Atty., for respondent Milwaukee County.

CASSODAY, C. J.

This is an action commenced December 21, 1905, to revoke and annul the certificate of registration issued to the defendant by the Wisconsin board of medical examiners September 25, 1899, pursuant to chapter 87, p. 122, of the Laws of 1899. The action was instituted by the district attorney upon a verified complaint in writing, being made to him December 18, 1905, by the secretary of said board, charging the defendant with having procured such certificate by fraud and perjury and through error, as prescribed by chapter 422, p. 726, of the Laws of 1905. The complaint alleges, among other things, in effect, that the defendant is and had been for more than five years prior to the commencement of this action a resident and practicing physician and surgeon in the county by reason and virtue of such certificate; that the defendant procured such certificate by exhibiting to the members of the board a document or paper purporting to be a diploma from the “Collegium Medicinae Independentiæ” of Chicago, thereby representing that he was entitled to practice medicine and surgery, and that such diploma was issued by a reputable, bona fide medical college, whereas, in truth and in fact, the same was a corporation chartered in 1896 and conducted for pecuniary considerations only, without regard to the qualification or fitness of the applicant to practice medicine, and conferred degrees upon persons wholly unfit and incompetent to engage in such practice; that the charter of said corporation was revoked by the judgment of a court in Chicago, February 1, 1899, and such judgment was affirmed by the Supreme Court of Illinois, October 10, 1899; that in his application for such certificate prior to September 25, 1899, the defendant falsely stated and represented, in effect, that he was for three years at the medical department of the University of Prague and a graduate thereof and held a diploma therefrom, and that he was for half a year at the Chicago institution mentioned, and a graduate thereof and held a diploma therefrom; that such statements were false and untrue, and in making the same the defendant was guilty of willful and corrupt perjury for the purpose of deceiving said board and thereby obtained said certificate of registration; that said board was misled and deceived by the fraud, perjury, and misrepresentation so committed by the defendant and thereby induced to issue such certificate, September 25, 1899, at which time the defendant was not a reputable resident physician or surgeon of good moral character, who had prior to July 1, 1897, been in actual practice of medicine or surgery in this state, as mentioned, in the statutes cited, and that no such certificate would have been issued except for such fraud, perjury, and misrepresentation; that such certificate was issued through error and mistake on the part of said board and under the belief of the board that the defendant was at the time a reputable resident physician or surgeon of good moral character who had been on July 1, 1897, in the actual practice of medicine or surgery in this state, and that he held a bona fide diploma from a reputable medical college; that by reason of such error and mistake said certificate was issued by said board. The defendant demurred to such complaint. This is an appeal from an order overruling such demurrer.

Chapter 422, p. 726, of the Laws of 1905, among other things, declares that: “The circuit courts of this state are hereby vested with jurisdiction and power to revoke and annul any license or certificate of registration which has been heretofore or which may be hereafter issued to any person to practice medicine or surgery, or osteopathy in this state, who is guilty of immoral, dishonorable or unprofessional conduct, after the passage of this act or who has procured such license or certificate of registration by fraud or perjury, or where the same was obtained through error.” That act went into effect June 23, 1905, and this action was commenced six months afterwards. Counsel for the defendant contends that the act is not retroactive, and therefore that the complaint does not state a cause of action. This is based upon the claim that “the words ‘after the passage of this act,’ ” in the portion of the act above quoted, “qualify the entire clause,” so quoted. And so it is claimed that, “not only must the dishonorable and unprofessional conduct,” therein mentioned, “occur after the passage” of the act, “but also that the fraud, perjury or error, for which it is sought to annul the certificate, must also have occurred after the passage of the act.” In other words, the claim is that the circuit court had no jurisdiction or power to revoke or annul the certificate in question, although obtained by fraud, perjury, and misrepresentation, as alleged, for the simple reason that it was issued prior to the passage of the act in question.

We should be slow to hold that the circuit court has no jurisdiction or power to set aside a certificate of registration thus obtained, even in the absence of the act in question. But...