State v. Schultz

• Citation: 28 P. 643,11 Mont. 429
• Parties: STATE v. SCHULTZ.
• Decision Date: 11 January 1892
• Court: United States State Supreme Court of Montana

28 P. 643

11 Mont. 429

STATE v. SCHULTZ.

Supreme Court of Montana

January 11, 1892

Appeal from district court, Silver Bow county; JOHN J. McHATTON Judge.

Indictment of Carl Schultz for practicing medicine without a certificate. Defendant appeals from a judgment of conviction. Reversed.

Geo Haldoon and Toole & Wallace, for appellant.

Henri J. Haskell, Atty. Gen., Geo. W. Stapleton, and John F Baldwin, Co. Atty., for the State.

BLAKE C.J.

The indictment alleges that the appellant Schultz, "on or about the 15th day of September, A. D. 1890, at the county of Silver Bow, in the state of Montana, willfully, falsely, and unlawfully did assume upon himself to execute, exercise, and occupy the art, faculty, and science of a physician and surgeon, and then and there unlawfully did practice medicine and did give, administer, apply, and prescribe medicine to one J. P. Jones, (whose full Christian name is to the grand jury unknown,) and to divers other persons (whose names are to the said grand jury unknown,) afflicted with various infirmities and diseases, he, the said Carl H. Schultz not having a certificate from the board of medical examiners of the state of Montana, or any member thereof, admitting, allowing, and qualifying him to then and there practice medicine, or any other legal right or authority so to do, contrary to the statute in such case made and provided." The jury returned a verdict of guilty, and judgment was entered thereon. It appeared during the trial that the board of medical examiners issued October 4, 1889, to said Schultz, a certificate to practice medicine and surgery. The following proceedings were had April 1, 1890, by the board: "In the matter of Dr. Carl J. Schultz, of Butte, it appearing that he has violated his word of honor to abstain from former unprofessional conduct; in that he publicly advertised to cure or treat disease, injury, or deformity in such manner as to deceive the public, his certificate is declared revoked, and the secretary instructed to notify him of this action by the board." The secretary of the board afterwards sent to Schultz this letter: "Great Falls, April the ninth, 1890. Dr. Carl J. Schultz, Butte, Montana--Dear Sir: I am instructed by the board of medical examiners of Montana to say that, it appearing from evidence before them that you have violated your pledge to abstain from unprofessional methods heretofore alleged against you, your certificate authorizing you to practice medicine and surgery in Montana is revoked. Very respectfully, your obedient servant, ERNEST CRUTCHER, Secretary." At a regular session of the board, which was held prior to these proceedings, this resolution was adopted: "Resolved, that it is the sense of this board that advertising in any newspaper or journal, promising to cure any particular injury or disease of the body of any kind, for any sum of money, or any other consideration, is unprofessional conduct, and shall be sufficient cause for the revocation of any certificate granted." No notice of any charge of unprofessional or dishonorable conduct was ever given to Schultz by any officer of the medical board or otherwise. The court below instructed the jury that this fact was immaterial, and that the action of the board in that matter was valid, and could not be questioned by them. The court also refused to allow the defendant to prove that he had appealed from the decision of the board in revoking his certificate, and that the appeal was then pending in the district court of the proper county.

The statute relating to this subject provides that the board may "revoke a certificate for unprofessional, dishonorable or immoral conduct;" and that, in all cases of revocation, "the applicant, if he or she feels aggrieved, may appeal to the district court of the county where such applicant may have applied for a certificate." It was assumed by the court below that the board possessed the power, under these clauses, of revoking the certificate of appellant without a notice of any charge preferred against him, or a hearing thereon. All the rulings conform to this view of the law, which is clearly erroneous, and subverts the most precious rights of the citizen. The principles which govern the disbarment of attorneys are analogous. In Ex parte Heyfron, 7 How. (Miss.) 127, the court held that it is error to strike an attorney from the roll without giving him notice of the proceedings, and said: "It is a cardinal principle in the administration of justice that no man can be condemned or divested of his rights until he has had the opportunity of being heard." This case was approved in People v. Turner, 1 Cal. 150; and the court, by Mr. Justice BENNETT, refers to the "power inherent in every court, which has the authority to admit attorneys to practice, of striking their names from the rolls, or, as the order expresses it, of...