The State ex rel. Hurwitz v. North

Decision Date31 July 1924
Docket Number25165
Citation264 S.W. 678,304 Mo. 607
PartiesTHE STATE ex rel. LEON HURWITZ, Appellant, v. EMMETT P. NORTH et al
CourtMissouri Supreme Court

Motion for Rehearing Denied July 31, 1924.

Appeal from Jasper Circuit Court; Hon. S.W. Bates, Judge.

Affirmed.

Owen & Davis for appellant.

(1) The charge or complaint, under which relator was tried and convicted, was filed without authority of law, and the board was without jurisdiction, and the proceedings had thereunder are, therefore, void, because: (a) Sec. 7336, R. S. 1919 does not authorize prosecuting attorneys to file charges to revoke licenses granted to practice medicine and surgery. (b) The office of prosecuting attorney is a statutory office, and the general powers and duties of such officers are defined and prescribed by Sec. 736, R. S. 1919. (c) A proceeding had under Section 7336, to revoke a license, is not an "action" within the meaning of Section 736. 1 Words and Phrases, 129. (d) Prosecuting attorneys have no power to institute suits or actions in the name of and on behalf of the State, except in matters local to the county of which they are officers. State ex rel. v. Sullivan, 283 Mo. 546; State ex rel. v. Lamb, 237 Mo. 437; State ex rel. v. Williams, 221 Mo. 227. (2) The board had the power and authority to issue subpoenas and other compulsory process for witnesses and for the production of books, documents and papers; and it was error for said board to refuse the request of relator for a subpoena for Drs. Benton, Clark and Hoshaw and for a subpoena for James Jackson, commanding him to produce at the hearing of said charges a certain prescription described in the request. State ex rel. Reid v. Walbridge, 119 Mo. 383, 394; In re Sandford, 263 Mo. 665, 692; State ex rel v. Mason, 155 Mo. 486; Roberts v. Improvement Co., 126 Mo. 460; Bank of Seneca v. Morrison, 200 Mo.App. 177; Sutherland on Stat. Const., sec. 341; 36 Cyc. 1112. (3) If Section 7336 does not impliedly authorize and empower said board to issue subpoenas and other compulsory process for witnesses and for the production of books, documents and papers, then said section is in conflict with Section 30, Article 2, Constitution of Missouri, and the Fourteenth Amendment to the Constitution of the United States, in that it authorizes the suspension and revocation of licenses without affording the holder of the license with the necessary means of refuting and disproving the evidence offered in support of the prosecution. Wilber v Reed, 122 N.W. 53; State v. Taylor, 145 N.W. 425; State v. Guerringer, 265 Mo. 408; Garfield v. United States, 32 App. (D. C.) 153; United States ex rel. Turner v. Fisher, 222 U.S. 204; Garfield v. Goldsby, 211 U.S. 249. (4) The right to practice medicine and surgery, under a license issued by the proper authorities, is a valuable privilege, franchise or right, if not a property right in the technical sense, and is within the protection of the due process clause of the State and Federal constitutions. State ex rel. Spriggs v. Robinson, 253 Mo. 271, 284; State ex rel. Johnson v. Clark, 232 S.W. 1031; State ex rel. Shackelford v. McElhinney, 241 Mo. 606; Ekern v. McGovern, 46 L. R. A. (N. S.) 796; State v. Schultz, 28 P. 643.

Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondents.

(1) The complaint is sufficient and valid. Anyone may make the complaint before the State Board of Health. The fact that it was made in this case by the prosecuting attorney is immaterial. Sec. 7336, R. S. 1919; State ex rel. Johnson v. State Board of Health, 288 Mo. 663; State ex rel. v. Goodier, 195 Mo. 554; State ex rel. v. Robinson, 253 Mo. 281; State ex rel. v. State Board of Health, 266 Mo. 250. (2) The State Board of Health has no power to issue subpoenas or other compulsory process. It was not error to refuse to issue subpoena on request of relator. Sec. 7336, R. S. 1919; State ex rel. v. Goodier, 195 Mo. 559. The board is not a judicial body and does not exercise judicial function in conducting an investigation or trial for the purpose of determining whether license to practice medicine and surgery should be revoked. State ex rel. v. Goodier, 195 Mo. 563; Smith v. State Board, 117 N.W. 1118. (3) Section 7336 authorizing the State Board of Health to revoke a license to practice medicine for unprofessional and dishonorable conduct, is not unconstitutional. (a) It does not violate Section 30, Article II, Constitution of Missouri, which declares: "That no person shall be deprived of life, liberty or property without due process of law." State v. Hovorka, 110 N. W. (Minn.) 870; Reetz v. Michigan, 188 U.S. 505; St. Louis v. Mo. Pac. Ry. Co., 211 S.W. 672; State ex rel. v. Purl, 228 Mo. 22; People v. Apfelbaum, 251 Ill. 26. (b) Said act is not violative of the Fourteenth Amendment. It does not abridge the privileges and immunities of a citizen of the United States, and does not deprive relator of liberty and property without due process of law, nor does it deny the relator the equal protection of the law. Meffert v. State Board, 66 Kan. 711; Spurgeon v. Rhodes, 167 Ind. 12; Reetz v. Michigan, 188 U.S. 505. (4) The Legislature has the power under the Constitution to pass all necessary laws to guard the morals, safety and health of the people, even if such laws in some degree operate as a restraint upon recognized constitutional rights. State v. Smith, 233 Mo. 266; State v. Fisher, 52 Mo. 174; Booth v. Illinois, 184 U.S. 428; Ex parte Lucas, 160 Mo. 232. (a) The right of a state to enact such laws proceeds from its inherent power to prescribe such rules as will protect the health and safety of the people. 30 Cyc. 1547; Driscoll v. Comm., 93 Ky. 393; State v. Vandersluis, 42 Minn. 130. (b) The only limit to the legislative power in prescribing conditions to the right to practice medicine is that they shall be reasonable. State v. Vandersluis, 42 Minn. 131. (5) Section 7336 provides a method for obtaining the testimony of such witnesses who may not attend voluntarily, namely, by deposition. Relator admits that he made no effort to secure the deposition of his absent witnesses. He was not, therefore, diligent in trying to procure his testimony. Sec. 7336, R. S. 1919; State v. Steele, 280 Mo. 71.

OPINION

Graves, C. J.

Relator herein was a practicing licensed physician of Joplin, Missouri. Dates are not material to the real issues in the case, but it appears that on March 13, 1923, Roy Goyne, Prosecuting Attorney of Jasper County, Missouri, filed a complaint with the State Board of Health, in which it is charged:

"That the said Leon Hurwitz has been and is guilty of unprofessional and dishonorable conduct, in this, towit, that he, the said Leon Hurwitz, on or about the 1st day of May, 1922, in the city of Joplin, State of Missouri, unlawfully produced a criminal abortion upon one Almeda Stewart, a pregnant woman, he, the said Leon Hurwitz, being then and there not intending necessary medical or surgical treatment, and not being then and there engaged in an act necessary to preserve the life of the said Almeda Stewart, or that of an unborn child; and not then and there intending any injury other than the destruction of the pregnancy."

The complaint concluded with a prayer that the said board make inquiry as to the matters and things alleged and revoke the license of the said Leon Hurwitz.

Due notice was given Dr. Hurwitz, and a time fixed for a hearing of the charges. Hurwitz through his able counsel, first challenged, by motion to quash and dismiss the proceedings, the right of the board to proceed with the hearing for divers reasons set out in such motion. The pertinent portions of such motion will be left to the opinion. It suffices for this statement to say that the motion was denied by the board.

After the foregoing, counsel for Dr. Hurwitz filed a motion asking for the issuance of a subpoena for named witnesses, and a subpoenas duces tecum for other witnesses and documents. This motion was overruled by the board. These subpoenas had been declined by the secretary of the board some time prior to this written motion.

Next there was interposed an application for a continuance of the hearing owing to the absence of a named witness. The continuance was refused. Oral request was then made to continue the hearing over until after the April term of the Jasper County Circuit Court, because there was then and there pending against him a criminal charge of abortion, as charged in the complaint before the State Board of Health, and a hearing before the board at the time would be prejudicial to the relator. This request was denied. Thereupon the State Board of Health heard the evidence, having the same taken in short-hand, transcribed and preserved as required by law. Upon the conclusion of the hearing the record shows:

"Motion made by Dr. R. S. Vitt, and seconded by Dr. T. H. Wilcoxen, that the license to practice medicine and surgery in the State of Missouri of Dr. Leon Hurwitz be revoked for a period of fifteen years, and it is thereby so ordered. Motion carried. The Board then adjourned."

Dr. Hurwitz, the relator herein, then applied for and obtained from the Circuit Court of Jasper County a writ of certiorari directed to the State Board of Health, and said board made due return to such writ by certifying to such court a full transcript of all the proceedings in the case, including the evidence taken.

In the Circuit Court relator moved to quash the record for the following reasons:

"Now at this day comes the above named relator to quash the order of judgment of the Missouri State Board of Health revoking the license of relator to practice medicine and surgery for a term of fifteen years, and to quash the record and proceedings had before said ...

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