Tonis v. Bd. of Regents of Univ. of New York

• Decision Date: 18 April 1946
• Citation: 67 N.E.2d 245,295 N.Y. 286
• Parties: TONIS v. BOARD OF REGENTS OF UNIVERSITY OF STATE OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

295 N.Y. 286

67 N.E.2d 245

TONIS

v.BOARD OF REGENTS OF UNIVERSITY OF STATE OF NEW YORK.

Court of Appeals of New York.

April 18, 1946.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding in the matter of the application of Nicholas A. Tonis for an order of certiorari pursuant to Civil Practice Act, art. 78, s 1283 et seq., to review a determination of the Board of Regents of the University of the State of New York revoking petitioner's license to practice in the State of New York and canceling of record his registration as a physician. The proceeding was transferred to the Appellate Division of the Supreme Court by an order of the Supreme Court at Special Term, entered in Albany County. From an order, 270 App.Div. 50, 58 N.Y.S.2d 766, of the Appellate Division of the Supreme Court entered November 17, 1945, confirming the determination of the Board of Regents, Nicholas A. Tonis appeals.

Order reversed, determination of Board of Regents annulled, and matter remitted to Board of Regents. Emanuel Wexler, Harry A. Gordon, and Irving Gordon, all of New York City, for appellant.

Nathaniel L. Goldstein, Atty. Gen. (Henry S. Manley, Orrin G. Judd, Wendell P. Brown, and Edward L. Ryan, all of Albany, of counsel), for respondent.

CONWAY, Judge.

This is an appeal from an order of the Appellate Division, Third Department, confirming the determination of respondent Board of Regents pursuant to which an order was made revoking petitioner's license to practice medicine in this State and canceling of record his registration as a physician.The revocation of license was upon the ground that petitioner had been convicted of a felony.

The relevant provisions of the Education Law, Consol.Laws, c. 16, ss 1264, subd. 1; 1251, provide, in part, as follows:

‘s 1264. Revocation of certificates; annulment of registrations. 1. Whenever any practitioner of medicine shall be convicted of a felony, as defined in section twelve hundred and fifty-one of this article, the registration of the person so convicted may be annulled and his license revoked by the department. * * *’

‘s 1251. Qualifications. * * * The conviction of felony shall be the conviction of the offense which if committed within the state of New York would constitute a felony under the laws thereof. * * *’ (Emphasis supplied.)

On December 5, 1944, petitioner, who was admitted to practice in 1920, pleaded guilty in the United States District Court, Southern District of New York, to two counts of an indictment charging him with two violations of Internal Revenue Code, section 2554, 26 U.S.C.A. Int.Rev.Code, s 2554, in that on two occasions (one count for each occasion) he ‘unlawfully, wilfully and knowingly did sell to John Port a quantity of a certain nacotic durg, to wit, approximately twenty one-quarter grain tablets, each tablet containing a quantity of morphine sulphate, a derivative and preparatiom of opium, * * * not in pursuance of a written order of the said John Port to the said defendant on a form issued in blank for that purpose by or under the authority of the Secretary of the Treasuy, * * *.’ The certificate of conviction was entitled ‘Sec. 2554 IR Code Unlawful sales of morphine sulphate,’ and merely stated that defendant was sentenced to imprisonment for one year and one day, which sentence was suspended, that defendant was fined $500 and that the other counts were dismissed.

What petitioner actually did was not to sell the morphine (in the ordinary sense of the word ‘sell’) but to prescribe it for an addict, not in the course of his practice, and the prescription was filled by a druggist who acted in good faith without knowledge of the unlawful issuance of the prescription. After the Federal conviction, petitioner received a letter from the Assistant Commissioner of Education advising him that his license was subject to revocation by reason of a conviction of a felony, and giving him the opportunity to have a hearing. Petitioner then moved in the Federal court for an amendment of the certificate of conviction so as to show the true facts upon which the conviction was based. His motion was granted by the District Court Judge who wrote: ‘I feel in the interest of justice that the application should be granted. The true fact is that what we actually call a sale was not made. It is a sale by reason of a legal conclusion. In other words, the defendant took a part in an act which was part of a whole transaction which eventually resulted in a sale.’ The certificate was amended so as to read: ‘(The sales charged in the Indictment in counts 1 & 2 consisted of the following as a matter of fact: that on two different occasions defendant, a licensed physician, did, for a consideration, issue an order of prescription for morphine sulphate not in the regular course of his practice but to an addict for a prohibited use, although the prescription was filled by a druggist who acted in good faith without knowledge that the prescription was unlawfully used.)’ The title of the amended certificate remained ‘Unlawful sales of morphine sulphate’ and the sentence was unchanged.

It is petitioner's contention that his acts in prescribing the drug were not offenses ‘which if committed within the state of New York would constitute a felony under the laws thereof.’ Education Law, s 125s, supra. The issue is of course not whether petitioner shall escape disciplinary action but whether his license may be automatically revoked without a hearing before the Medical Grievance Committee.

It seems clear to us that, while we may feel that petitioner's acts here were as morally reprehensible as if he had actually sold the drug (in the ordinary meaning of ‘sold’), he could not have been convicted of a felony under the laws of this State. The Attorney-General, indeed, concedes that, while it is agreed that a sale to an addict is a felony, ‘mere illegal prescribing without more is only a misdemeanor under State law,’ and states the question presented to us as follows: ‘The present case is the issuance of a narcotic prescription to an addict, with the intent and the result that there is a sale to the addict, although the doctor does not himself fill the prescription but it is filled by a druggist acting innocently and not in collusion with the doctor. Is that a felony? In other words, would the acts described constitute a ‘sale’ under the State law?‘

A brief summary of the history of the statutes involved is as follows: In 1927 a new article was added to the Public Health Law, Consol.Laws, c. 45, by Laws of 1927, chapter 672. Section 423 of that article provided as follows:

‘s 423. Acts prohibited. It shall be unlawful for any person to possess, have under his control, sell, distribute, administer, dispense, or perscribe any habit forming drug except as provided in this article.’ (Emphasis supplied.)

Under section 421, three of the prohibited acts were defined as follows:

‘8. ‘Sale’ includes barter, exchange or giving away, or offering therefor and each such transaction made by any person whether as principal, proprietor, agent, servant or employee.

‘9. ‘Dispense’ includes distribute, leave with, give away, dispose of, and deliver to a person or to his agent to be delivered to him.

‘10. ‘Administer’ means only administration by a person authorized to administer habit forming drugs.'

The word ‘prescribe’ was not defined.

All violations of the article were misdemeanors under section 443.

Then in 1929, by Laws of 1929, chapter 377, section 443 was amended so as to read:

‘s 443. Penalties. A violation of any provision of this article shall be punishable as provided in the penal law.’ A new section (s 1751) was added to the Penal Law, Consol.Laws, c. 40, by Laws of 1929, chapter 377, section 2, which made certain of the prohibited acts felonies instead of misdemeanors. It provided: ‘s 1751. Violations of public health law with respect to habit forming drugs. Any person who shall peddle, sell, barter, or exchange any habit forming drug, in violation of article twenty-two of the public health law, shall be guilty of a felony, punishable by imprisonment for a term not exceeding ten years.

‘Any person who shall violate any provision of such article, other than as above specified, shall be guilty of a misdemeanor, punishable * * *.’ (Emphasis supplied.)

It is clear that ‘prescribe’ was not made a...