State v. Shot

• Decision Date: 23 May 1924
• Docket Number: No. 25301.,25301.
• Parties: STATE ex re. FARBER, v. SHOT et al.
• Court: Missouri Supreme Court

263 S.W. 804

304 Mo. 523

STATE ex re. FARBER, v. SHOT et al.

No. 25301.

Supreme Court of Missouri, in Banc.

May 23, 1924.

Rehearing Denied July 3, 1924.

Original action in prohibition by State of Missouri, on the relation of Dr. A. D. Farber, against Florence Shot and another. Dismissed as to latter, and writ denied as to named respondent.

Coffman & Jackson, of St. Louis, for relator.

Jesse W. Barrett, Atty. Gen., J. Henry Caruthers, Asst. Atty. Gen., and Bass & Bass, of St. Louis, for respondents.

GRAVES, C. J.

Original action in prohibition. John O. Fishwick filed before the state board of health written charges against Dr. A. D. Farber, the relator in the instant proceeding. It was asked by complainant that the state board of health examine into said charges, and, if found true, that such board revoke the license of the said Farber to practice medicine and surgery in the state, and in the city of St. Louis, where said physician was practicing. Said state board of health fixed a time to hear said charges in the city of St. Louis, and caused notice to be served upon Dr. Farber and with the notice a copy of the charges aforesaid. Dr. Farber moved the said board to dismiss the charges for several reasons, which, if material, will be noted later. This motion was overruled, and upon the day named in the notice the said board began the examination, but continued the hearing to a later date for the purpose of procuring evidence by way of depositions. Thereafter respondent, Shot, issued a notary's subpoena for one F. G. Blattner, in which she as a notary public required said Blattner to appear and "then and there testify, and the truth to say, in a certain cause now pending before the state board of health wherein John O. Fishwick is the complainant, in re Dr. A. D. Farber, on part of complainant."

It was to stop the taking of this testimony that our writ herein was sought, and by this court granted, to the end that the matter might be determined here. There are no disputed facts, and our determination will be upon mere questions of law.

I. The right of the notary to take the deposition in this case is attacked in a twofold manner: First, it is said that the charges made against Dr. Farber, even if true, would not authorize the state board of health to revoke his license. In other words, it is contended that the statute fixes the grounds upon which a license can be revoked, and the charges pending before the state board are not of the statutory character. This contention is that the pending charges are insufficient in law to invoke the action of the state board, and hence there is no legal action pending upon which evidence in deposition form could be taken. Secondly, it is contended that, although the charges are sufficient in law to invoke the jurisdiction of the state board, and to require such body to act and investigate, yet there is no power in said body to have and to issue process for witnesses, and hence no power in said body to have the evidence of witnesses taken by deposition, through process issued by a notary public. Of these questions in inverse order.

II. This is an action in prohibition, but respondents do not question the propriety of the writ of prohibition in the present situation. The writ was evidently invoked as against the notary public, because of rulings by this court to the effect that the state board of health is not a court or judicial body. State ex rel. v. Goodier et al., 195 Mo. 551, 93 S. W. 928; State v. Hathaway, 115 Mo. 36, 21 S. W. 1081.

We have ruled, however, that a notary public performs judicial functions. Burnett v. Prince, 272 Mo. loc. cit. 75 197 S. W. 241; Redmond v. Railroad, 225 Mo. loc. cit. 732, 126 S. W. 159; Ex Parte McKee, 18 Mo. 600. So that on this theory our writ as against the notary public is well enough, and especially so as it is not challenged. The Courts of Appeals have likewise ruled. Swink v. Anthony, 96 Mo. App. loc. cit. 424, 70 S. W. 272; Gharst v. St. Louis Transit Co., 115 Mo. App. loc. cit. 408, 91 S. W. 453.

III. The real question is that, inasmuch as the state board cannot issue a subpoena or other process for the involuntary witnesses desired in an investigation before It, a notary public has no power to take the evidence of such witnesses by compulsory process, and return such evidence to the state board. The state board of health does not claim (in this proceeding) that it had or has the right to issue a subpoena for witnesses or force the attendance of witnesses. Such board claims that it has been granted the power and right to investigate charges against a licensed physician, and has been given the right and power to hear such charges upon depositions taken before a notary public. This power and right said board claims by virtue of section 7336, R. S. 1919.

This section does provide for a hearing upon charges filed against a physician. The section provides that upon such hearing—

"the board may receive and consider depositions and oral statements and shall cause stenographic reports of the oral testimony to be taken and transcribed, which, together with all other papers pertaining thereto, shall be preserved for two years."

And in such section is found this further provision:

"Testimony may be taken by deposition, to be used in evidence on the trial of such charges before the board in the same manner and under the same rules and practice as is now provided for the taking of depositions in civil cases."

The section also provides that a physician whose license has been revoked may have the proceedings before the state board of health reviewed upon certiorari "by the circuit court of the county in which said board held its session when said license was revoked."

The ruling of a circuit court has been duly reviewed in this court, upon appeal by the aggrieved party in the circuit court. State ex rel. v. Clark, 288 Mo. 659, 232 S. W. 1031.

The granting and revoking of such licenses are proper subjects of regulation under the police power of the state. State v. Hathaway, 115 Mo. loc. cit. 46, 21 S. W. 1081.

In the exercise of that power the lawmakers had the right to vest in the state board of health the power to investigate and license physicians, and to investigate charges against a licensed physician, and in proper cases to revoke such license. This much does not seem to be denied. The section of statute here for review not only empowers this board to hear and determine the charges, but says that it may consider depositions in the course of such hearing. Not only so, but it specifically provides in the last portion thereof that testimony for the use of said board may be taken by deposition "under the same rules and practice as is now provided for the taking of depositions in civil cases."

Under this statute, if there is an investigation pending before the state board of health, then testimony for the purpose of the hearing "may be taken by deposition to be used in evidence," In the same manner as depositions are taken to be used in evidence in civil cases. It does not mean that there must be a cause pending in a court. It must be conceded that...