The State ex rel. Spriggs v. Robinson
| Decision Date | 09 December 1913 |
| Citation | 161 S.W. 1169,253 Mo. 271 |
| Parties | THE STATE ex rel. M. LUTHER SPRIGGS v. E. F. ROBINSON et al., Comprising State Board of Health |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. G. C. Hitchcock Judge.
Reversed.
W. T Nardin, Howard Gray and McReynolds & Halliburton for relator.
(1) The court erred in holding that the evidence tended to prove that the relator was willing to commit a criminal abortion on the person of Susie Davis for one hundred dollars or any other sum. There is absolutely no evidence to show what medical conclusions might be drawn from the letters to the physician. In all of the cases of this character which have been passed on by the courts, the rule has been laid down that the complainants must allege and prove that the offense which is the basis of the complaint, is one which is in violation of the statute. Board v. Eisen, 123 P. 52; McComer v. Board of Health, 65 A. 263, 8 L.R.A.(N.S.) 58; State ex rel. v. Kellogg, 36 P. 957. (2) The rule of common law was that a man could not be convicted of an offense which he had been tempted or lured to commit. That rule has been adopted in this State with this modification that where the conspirator inducing the commission of the crime was a party to that commission, there could be no conviction. That rule is firmly established in the jurisprudence of this State and applies fairly to the facts in this case because all of the poison in the correspondence is to be found in the letters written by the post office inspector. Without those letters the letters of the relator mean nothing. Letters of the inspector show persistent and determined effort on his part to induce the violation of the statute for which he was seeking to punish the relator. State v. Hays, 105 Mo. 76; State v. Waghalter, 177 Mo. 676; Wilcox v. People, 67 P. 343; Connor v. People, 33 P. 159; Speiden v. State, 3 Tex. Ct. App. 156, 30 Am. Rep. 126; United States v. Matthews, 35 F. 890; United States v. Adams, 59 F. 674; State v. Jansen, 22 Kan. 498. The Federal courts, apparently in a desire to assist their postoffice inspectors, have announced a different doctrine with reference to decoy letters, assigning as a reason that the act of the inspector is prompted not so much by a desire to induce the crime as to ascertain whether the defendant is engaged in an unlawful business. Grim v. United States, 156 U.S. 610. In other words, the Federal statute was leveled at a certain class of business which was being prosecuted largely through the mail and the purpose of the law was to give the Federal authorities control of the use of the mails. With this in view consider for a moment the situation in this case. The record here shows a trap, instigated by competitors, to catch a skillful and capable surgeon, a man whose reputation was up to that time untarnished, and who undoubtedly was not engaged in prosecuting any business through the mails and certainly not that of which he is here accused. More than that, the record shows that the very crime which it was sought to induce him to commit was not, in the very nature of things, susceptible of commission. There was no such person as Susie Davis. She is a mere figment in the inspector's imagination. Her condition was born of his information of what it would take to create a condition necessary for a criminal operation. Where the crime cannot be committed there is no offense under the law. Tarver v. State, 43 Ala. 354; State v. Clarissa, 11 Ala. 57; Sipple v. State, 46 N.J.L. 197; Commonwealth v. Parker, 9 Metc. 263; State v. Cooper, 2 Yab. 53; Smith v. State, 33 Me. 48. (3) The relator contends that Sec. 8317, R.S. 1909, has expressly defined the words "unprofessional and dishonorable conduct" and having defined them it does not lie within the power or authority of the State Board of Health to extend or enlarge that definition. The latter part of the clause does not undertake to broaden the definition of "unprofessional or dishonorable conduct." Those two terms are expressly defined by the Legislature. What the statute does, is simply to say that there may be other acts for which a license may be revoked. Such a statute is highly penal and should be strictly construed. The right to practice is a valuable property right and cannot be taken away from a citizen without due process of law. Hewitt v. Examiners, 84 P. 39; State ex rel. v. McElhinney, 241 Mo. 592; Cummings v. Missouri, 4 Wall, 277; Comm'rs v. Jones, 10 Bush. (Ky.) 731; In re Dorsey, 7 Port. (Ala.) 293; Baker v. People, 3 Con. (N.Y.) 686. (4) The relator contends that there can be no general grant of authority to revoke licenses for unprofessional and dishonorable conduct without defining these terms or for "other acts which are not included in the specifications of the statute" because such an authority is too vague, indefinite, and uncertain to give those effected any information as to what was lawful or unlawful under the terms of the act. Matthews v. Murphy, 54 L.R.A. 415; Ex parte McNulty, 77 Cal. 164; Hewitt v. Examiners, 84 P. 39; Kennedy v. State Board, 108 N.W. 730; Czarra v. Board, 25 App. D. C. 443; Ex parte Jackson, 45 Ark. 164; State ex rel. v. Purl, 228 Mo. 1. (5) The definition appearing in the statute could only be extended by the well-known rule of ejusdem generis. Black on Interpretation of Laws (Hornbook Series), sec. 63, p. 141; Endlich on Interpretation of Statutes, secs. 405 to 411, p. 567; State ex rel. v. Purl, 228 Mo. 1; State ex rel. v. Berryman, 142 Mo.App. 373; St. Louis v. Kaime, 180 Mo. 309; Ruschenberg v. Railroad, 161 Mo. 70; State v. Butler, 178 Mo. 272; 1 Dillon on Mun. Corps. (4 Ed.), secs. 392, 393.
John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondents
(1) That relator was induced by a United States post office inspector or other persons to agree to perform a criminal abortion will not excuse him in a proceeding to revoke his license for unprofessional or dishonorable conduct. State v. Hayes, 105 Mo. 76; State v. Waghalter, 177 Mo. 676; Spurgeon v. Rhodes, 167 Ind. 9; 1 Bishop's New Crim. Law, secs. 258-262; State v Oliphant, 128 Mo.App. 264. (2) Sec. 8317, R.S. 1909, includes acts other than those specifically named in the statute as unprofessional and dishonorable conduct. See authorities cited under point 3; Meffert v. Packer, 1 L.R.A.(N.S.) (Kan.) 814, 195 U.S. 625; State ex rel. v. Goodier, 195 Mo. 556; Spurgeon v. Rhodes, 167 Ind. 11; People v. Apfelbaum, 251 Ill. 22; Wolf v. State Bd. Med. Ex., 109 Minn. 360; State v. Board, 32 Minn. 324; State v. Board, 34 Minn. 387; Board of Health v. McCoy, 125 Ill. 289; Board of Health v. Roy, 48 A. 802; Morse v. Board Med. Ex., 122 S.W. 446; Berry v. State, 135 S.W. 632; In re Smith, 10 Wend. 449; State ex rel. v. Hathaway, 103 Mo. 29. (3) Section 8317, is not invalid or unconstitutional in granting power to the State Board of Health to revoke a license to practice medicine for unprofessional or dishonorable conduct. People v. Apfelbaum, 251 Ill. 22; Berry v. State, 135 S.W. 1; Oil Co. v. State, 48 Tex. Civ. App. 179; Morse v. Board of Med. Ex., 122 S.W. 448. (4) A license is not a contract. State v. Gazlay, 5 Ohio 22; Cohen v. Wright, 22 Cal. 317; Ex parte Yale, 24 Cal. 242; Lanquille v. State, 4 Tex.App. 320; Simmons v. State, 12 Mo. 279; State ex rel. v. McIntosh, 205 Mo. 636. (5) Section 8317 is not void for uncertainty and unconstitutional, because it authorizes the State Board of Health to revoke a license to practice medicine for unprofessional or dishonorable conduct, and leaving it to the board to determine what shall constitute such conduct, separate and apart from the specific acts mentioned in the statute. People v. Apfelbaum, 251 Ill. 22; Berry v. State, 135 S.W. 631; Morse v. Bd. Med. Ex., 122 S.W. 448; Spurgeon v. Rhodes, 167 Ind. 11; Wolf v. Bd. Med. Ex., 109 Minn. 360; Oil Co. v. State, 48 Tex. Civ. App. 179. (6) The Board of Health may revoke a license for the same cause that it might refuse a license. The right to practice medicine is a privilege granted by the sovereign. It is not a vested right free from regulation. State ex rel. v. Burroughs, 41 L.R.A. (Ind.) 217; Reetz v. Michigan, 188 U.S. 505; Hawker v. New York, 170 U.S. 189; Dent v. West Virginia, 129 U.S. 114; Meffert v. Packer, 1 L.R.A.(N.S.) 815, 195 U.S. 625; Bradwell v. Illinois, 16 Wall. 130; In re Lockwood, 154 U.S. 116; In re Smith, 10 Wend. 449; People v. Hulda, 52 Hun, 65; Traer v. Bd. Med. Ex., 106 Iowa 559; State ex rel. v. Goodier, 195 Mo. 558; State ex rel. v. McIntosh, 205 Mo. 637; Sec. 8317, R.S. 1909. (7) Statutes enumerating grounds for the revocation of physicians' licenses are not ex post facto laws; and therefore such licenses may be revoked for acts that were not grounds for revocation at the time they were committed, but were afterwards made so by statute. Meffert v. Bd. Med. Ex., 1 L.R.A.(N.S.) 818, 195 U.S. 625; Board of Health v. Roy, 22 R. I. 538; State v. Schaffer, 129 Wis. 465. (8) An agreement to commit an abortion is, in common judgment, unprofessional and dishonorable conduct, and, therefore, cause for the revocation of relator's license to practice medicine. Spurgeon v. Rhodes, 167 Ind. 8. (9) The Board of Health may revoke a license for the same cause that it may refuse a license. Sec. 8317, R.S. 1909; State ex rel. v. Goodier, 195 Mo. 560; Meffert v. Bd. Med. Ex., 1 L.R.A.(N.S.) 816, 195 U.S. 625; People v. Apfelbaum, 251 Ill. 25. (10) The findings of a medical board in a proceeding to revoke a physician's license are conclusive upon the courts. 30 Cyc. 1557; Meffert v. Bd. Med. Ex., 1 L.R.A.(N.S.) 816, 195 U.S. 625; Munk v. Frink, 116 N. W. (Neb.) 528. (11) The practice in revocation proceedings before a medical board being more...
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