Warnshuis v. State Bd. of Registration in Med.

• Court: Michigan Supreme Court
• Writing for the Court: SHARPE
• Citation: Warnshuis v. State Bd. of Registration in Med., 285 Mich. 699, 281 N.W. 410 (Mich. 1938)
• Decision Date: 03 October 1938
• Docket Number: Motion No. 426.
• Parties: WARNSHUIS v. STATE BOARD OF REGISTRATION IN MEDICINE.

285 Mich. 699

281 N.W. 410

WARNSHUIS

v.STATE BOARD OF REGISTRATION IN MEDICINE.

Motion No. 426.

Supreme Court of Michigan.

Oct. 3, 1938.

Original application for writ of prohibition by Gerrit J. Warnshuis against the State Board of Registration in Medicine, to restrain the respondent from proceeding with a statutory hearing to determine whether or not the plaintiff's license to practice medicine should be revoked or suspended.

Writ denied.

Argued before the Entire Bench, except BUTZEL, J.

Goodenough, Voorhies, Long & Ryan, of Detroit, for plaintiff.

David H. Crowley, Atty. Gen., and Edmund E. Shepherd and Milton G. Schancupp, Asst. Attys. Gen., for defendant.

SHARPE, Justice.

Plaintiff prays for a writ of prohibition to restrain the respondent board from proceeding with a statutory hearing to determine whether or not his license to practice medicine should be revoked or suspended. The facts are not in dispute. It appears that plaintiff is a resident of the city of Detroit and a duly licensed physician and surgeon associated with the Koch Cancer Clinic. On or about May 1, 1936, petitioner caused to be written, printed and circulated a pamphlet, the first page of which reads as follows:

‘Can Tuberculosis be Cured?

‘Gerrit John Warnshuis, M. D.

‘First Edition.’

And on the flyleaf the following appears:

‘Can Tuberculosis be Cured?

‘A Study of Two Hundred and Seventeen Cases Treated with Koch Synthetic Anti-Toxin by Gerrit John Warnshuis, M. D.

‘Koch Cancer Clinic

‘8181 E. Jefferson

‘Detroit, Mich.’

On page seven of the pamphlet appears the following: ‘The Koch antitoxin makes it possible to bring about a complete recovery from tuberculosis, not only in mild forms of disease, but in far advanced cases that would otherwise be given up as hope less.’

On May 19, 1936, the respondent issued and served upon petitioner a notice to appear before the Michigan State Board of Registration in Medicine at its meeting to be held June 10, 1936, to show cause why his license to practice medicine, surgery and midwifery should not be revoked or suspended for violation of that part of Act No. 237, Pub.Acts 1899, as amended (2 Comp.Laws 1929, § 6739), which reads as follows:

‘Sixth. The board of registration of medicine may refuse to issue or continue a certificate of registration or license provided for in this section, to any person guilty of grossly unprofessional and dishonest conduct. The words ‘unprofessional and dishonest conduct,’ as used in this act, are hereby declared to mean:

* * *

‘(d) All advertising of medical business in which grossly improbable statements are made * * *.’

On June 2, 1936, petitioner filed a petition for writ of prohibition and on June 11, 1936, an order to show cause was entered by this court. In the answer filed by respondent to the order to show cause, it is shown that on June 11, 1936, the board conducted a partial hearing on the complaint against petitioner. It is the claim of petitioner that the portion of 2 Comp.Laws 1929, § 6739, authorizing the revocation or suspension of a medical license because of advertising containing grossly improbable statements is unconstitutional and void; and that because of this fact the respondent board is about to exercise a discretion which has not lawfully been given to it while it is contended by respondent that a writ of prohibition should not issue to restrain the medical board from action pursuant to statutory authority; and that the delegation of authority to the medical board to determine what constitutes grossly improbable statements is proper.

There seems to be no dispute over the fact that a person does not have an absolute right to a writ of prohibition and that such a writ will not issue to restrain the action of an inferior court which has jurisdiction if the issue can be determined upon appeal. People v. Wayne County Circuit Court, 11 Mich. 393, 394,83 Am.Dec. 754. Nor can we assume that an administrative board will act contrary to law. Sullivan v. Michigan State Board of Dentistry, 268 Mich. 427, 256 N.W. 471. The rule governing the issuance of such a writ is well stated in Nichols v. Judge of Superior Court, 130 Mich. 187, 89 N.W. 691, it is said:

‘The writ of prohibition is the appropriate remedy only where the court is acting entirely without jurisdiction or in clear excess of its jurisdiction. It is not applicable where the party has a complete and adequate remedy in some other and more ordinary form. * * * The principle is thus stated:

“The broad governing principle is that a prohibition lies where a subordinate tribunal has no jurisdiction at all to deal with the cause or matter before it, or where, in the progress of a cause within its jurisdiction, some point arises for decision which the inferior court is incompetent to determine. But a...