Van Heukelom v. Nevada State Bd. of Chiropractic Examiners, 3616

• Decision Date: 30 November 1950
• Docket Number: No. 3616,3616
• Citation: 224 P.2d 313,67 Nev. 649
• Parties: VAN HEUKELOM v. NEVADA STATE BOARD OF CHIROPRACTIC EXAMINERS et al.
• Court: Nevada Supreme Court

Page 313

224 P.2d 313

67 Nev. 649

VAN HEUKELOM v. NEVADA STATE BOARD OF CHIROPRACTIC EXAMINERS et al.

No. 3616.

Supreme Court of Nevada.

Nov. 30, 1950.

McCarran & Wedge, of Reno, for petitioner.

Harry E. Claiborne, of Reno, for respondents.

BADT, Justice.

This is an original petition for a writ of prohibition prohibiting the respondent Board from proceeding with a hearing looking toward the revocation of petitioner's license to practice chiropractic. The proceedings were initiated by the respondent Board against petitioner under the provisions of § 1090, N.C.L.1929, which reads as follows:

'Upon complaint of the board, after twenty days notice of time and place of trial has been given to any licensee, if it shall be found that he practices anything other than chiropractic to cure or relieve disease or to remove the cause thereof without having a separate license therefor, or, if it be found that he or she no longer possesses a good moral character or is addicted to the use of narcotic drugs or in any way is guilty of deception or fraud in the practice of chiropractic, his license shall be revoked.

'If the accused is aggrieved by the action of the board, he may appeal to the district court on the merits.'

Under this section the Board, under date of March 13, 1950, issued and served upon petitioner an 'order to show cause' ordering him to appear before said Board on April 15, 1950 and show cause why the license issued to him to practice chiropractic in Nevada should not be revoked, upon three stated grounds. The first was that petitioner was 'guilty of deception and fraud' because his application for permission to take the examination was not sworn to and because at the time of filing his application he had not yet graduated from a chiropractic school. Both of these elements are required by preceding sections of the act. The second ground was that he was 'guilty of deception and fraud' because at the time of the issuance of his purported license on May 12, 1949, the term of office of two members of the three member Board had expired, which fact was known to petitioner. The third ground was that he was 'guilty of deception and fraud' because he was practicing under authority of a purported license fraudulently issued to him under the signature of the president, when as a matter of fact the said purported president was deceased on the date under which the said license was issued.

It will be at once noted that the three grounds upon which the order to show cause is based all have to do with the petitioner's actions in obtaining his license, and do not purport to substantiate or support the statutory ground of petitioner's being 'in any way * * * guilty of deception or fraud in the practice of chiropractic.' Respondents met this situation in two ways. It is said, first, that if the petitioner obtained his license by fraud, he has no valid license and by purporting to practice as a licensed chiropractic he is guilty of fraud and deceit 'in the practice of chiropractic'. Secondly, it is said that even without statutory authorization the Board has inherent power to revoke a license fraudulently obtained from it.

Assuming, without deciding, that respondents are correct in both of these propositions, we must then look again to the allegations of the order to show cause, even to the extent that the same are amplified and explained in the answer to the petition and in respondents' brief, to see whether fraud in the obtaining of the license is charged. The words 'fraud and deceit' must be given their common and traditional meaning. They involve intentional misrepresentation or concealment of fact. Tompkins v. Board of Regents, 1949, 299 N.Y 469, 87 N.E.2d 517. Such fraud and deceit in the filing of petitioner's application to take the examination would necessarily mean such misrepresentation of fact, such purpose and intention to deceive the Board of Chiropractic Examiners as to involve a moral delinquency or a bad or corrupt purpose. Mississippi State Board of Dental Examiners v. Mandell, 198 Miss. 49, 21 So.2d 405.

The failure to verify the application as required by statute was of itself patently not a fraud. It involved no misrepresentation or concealment. It was obvious from the face of the application. The Board could undoubtedly have rejected the application for its failure of verification or could have returned it so that the verification could be supplied. The applicant signed the form of verification but the notarial certificate that followed was not executed. It is not claimed that any of the statements contained therein are not true. The required statutory content of the application is largely formal, including name, age, sex, residence, name and location of school from which the applicant graduated, date of graduation, and extent of study. Data as to studies and graduation appear from a separate certificate of the school or college, which certificate forms a part of the application. In the instant case it is shown by the certificate of the Palmer School of Chiropractic that the applicant 'entered this institution on the 24th day of October, 1947; (2) and will be graduated the 25th day of May, 1949.' The last italicized words were interlined in the printed form. Thus petitioner's application to take the examination clearly indicated that at the time he had not yet graduated but would be graduated several months thereafter. Correspondence, annexed as exhibits to respondents' answer, show that this situation was called to the attention of the Board by the chiropractic school. It is quite true, as asserted by respondents, that the fact that petitioner had not yet been graduated (a condition to his eligibility to take the examination, as is likewise the requirement that he have primary education equivalent to a high school education, under the provisions of § 1083, N.C.L.) was necessarily known to petitioner. However, he made no concealment of that fact. On the contrary his application, including the school's certificate as a part thereof, called attention to it. Patently there was no fraud or concealment growing out of this item. (Counsel for petitioner assured the court that petitioner had made no attempt to practice chiropractic in Nevada, despite his license, until after he obtained his certificate of graduation from the chiropractic school.) It should be noted too that at the time of the school's certificate it is recited that the applicant had completed 2950 hours of sixty minutes each in the listed subjects required as against the minimum 2400 hours required by the statute itself. It further appears from the school's certificate that the minimum statutory hours for each of the listed subjects had either been met or exceeded. Under the statute the examination given by the Board and the grading of the answers are 'solely for the purpose of determining whether the applicant is reasonably qualified to practice chiropractic.'

It is contended by respondents that petitioner's purported license is a nullity, because at the time of its date one member of the three members was deceased and because at its date the term of two of the members had expired. Of the three member Board, it is alleged by respondents that Dr. Grant's term of office expired April 22, 1949, and that Dr. Heath died April 16, 1949. Dr. Grant, the secretary, apparently dated and mailed to petitioner on May 12, 1949 the license theretofore signed by all members of the Board, and certainly signed by Dr. Heath prior to his...