Younge v. State Bd. of Registration for Healing Arts

• Decision Date: 14 July 1969
• Docket Number: No. 1,No. 54160,54160,1
• Citation: 451 S.W.2d 346
• Parties: Walter A. YOUNGE, M.D., Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING, ARTS, Respondent
• Court: Missouri Supreme Court

Page 346

451 S.W.2d 346

Walter A. YOUNGE, M.D., Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING, ARTS, Respondent.

No. 54160.

Supreme Court of Missouri, Division No. 1.

July 14, 1969.

Certiorari Denied Feb. 24, 1970. See 90 S.Ct. 910.

Morris, A. Shenker, Cordell Siegel, Murry L. Randall, St. Louis, for plaintiff-appellant.

John C. Danforth, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., St. Louis, for respondent.

EAGER, Special Commissioner.

This is an appeal from an order of the Circuit Court affirming, on petition for review, an order of the State Board of Registration for the Healing Arts revoking appellant's license to practice the healing arts. We note here, however, that the Board's order gave him leave to apply for reinstatement after a period of six months. We shall reserve a statement of the facts for our consideration of appellant's point on the supposed insufficiency of the evidence. We state here, however, enough of the circumstances for a consideration of his first two points.

A complaint was filed on April 21, 1966 by the Respondent Board charging that appellant on February 11, 1966, performed an unlawful abortion on one Margaret Ann Pyles in violation of § 334.100, subd. 1(3) ¹; it asked that service be had, a hearing held, and that the Administrative Hearing Commission transmit its findings of fact and conclusions of law (Sec §§ 161.252--161.342, 1967 Cum.Supp.). The appellant answered denying the allegations. Thereafter, appellant having been indicted in the City of St. Louis for the criminal offense of abortion, was acquitted after trial by a jury. Following that acquittal he moved to dismiss the present complaint on the grounds of res adjudicata and collateral estoppel. The motion was overruled by the Hearing Commissioner after consideration of memorandum briefs.

The petition for review filed in the circuit court on November 17, 1967, asserts that the findings, conclusions, decision and order are erroneous, because: (1) they are in violation of the double jeopardy provisions of both the state and federal constitutions (citing appropriate articles and sections) and of due process; (2) that appellant's acquittal in the criminal case was a bar to the present proceeding under the principle of res adjudicata and collateral estoppel; and (3) that the findings were not supported by competent and substantial evidence upon the whole record. The same three points are now raised in appellant's brief here and we shall not need to restate them as such. Upon the filing of the petition the circuit court stayed the order of revocation. When it later affirmed, that order was vacated. When the appeal was lodged here we entered an order again staying the revocation until the further order of this court.

Respondent Board has also filed a motion for the transfer of the case to the St. Louis Court of Appeals on the ground that the supposed constitutional question or questions are not substantial, but merely colorable. We hold first that the state is not a party and that we do not have jurisdiction on that ground. Gaddy v. State Board of Registration, Mo., 394 S.W.2d 284. We must still determine, however, whether there is substance to the contention of double jeopardy. Respondent says there is none, because the present proceedings are administrative and do not constitute a criminal case within the constitutional prohibitions. Noting that we have been required to spend at least two days in examing the authorities before deciding the question, we find that the contention of constitutional construction is not merely colorable, and that we have jurisdiction. The motion to transfer is overruled. We have concluded, however, that the appellant has not by the present proceedings been put 'again in jeopardy' for the same offense (Art. 1, § 19 Const. Mo., V.A.M.S.) nor has he been 'twice put in jeopardy' for the same offense. (5th Am. U.S. Const.) It will be impossible to discuss all of the cases cited. Appellant has cited 51 cases and 4 miscellaneous authorities on this point alone. While perhaps we are only obligated by Rule 83.05 to examine the first three, we have chosen to examine most of the others. We see no justification for such a multitudinous citation of authorities, and we do not feel that the practice is within the spirit of our rules.

Appellant seemingly relies primarily upon his stated proposition that the double jeopardy clauses (and we need not distinguish here between the state and federal) bar a subsequent civil action seeking to impose 'punitive sanctions' after the defendant has been acquitted in a criminal trial. His leading authority seems to be the case of United States v. Chouteau, 102 U.S. 603, 26 L.Ed. 246. There a distiller had been indicted for illegal diversion of liquor without payment of the tax; he effected a compromise with the government, paid the agreed amount, and the indictments were dismissed. The statute, R.S.1878, § 3296, imposed a fine, impriosnment and a 'penalty of double the tax imposed * * *' for any violation. The government then sued him and his sureties statute, R.S.1878, § 3296, imposed a fine, imprisonment in the statutes (presumably the double tax) and he pleaded the compromise in bar. The court held that a recovery of the penalty was made a part of the 'punishment' for the offense and that it could have been enforced (like the fine and imprisonment) by a criminal prosecution, had the government so chosen; that this was demonstrated by the fact that anyone who 'aided or abetted' was likewise made liable for the penalty, though not otherwise interested in the property. So holding, the court further held that the compromise of the criminal cases covered all the penalties and all 'punishment' for the acts in question. We regard the case as not persuasive on our facts. The same is true (on rather similar facts) of United States v. La Franca, 282 U.S. 568, 51 S.Ct. 278, 75 L.Ed. 551, United States v. Glidden Co. (CA6) 78 F.2d 639, also cited. The cases of United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, and Murphy v. United States, 272 U.S. 630, 47 S.Ct. 218, 71 L.Ed. 446, also cited, seem to us to be more adverse to appellant's position than favorable. It is impossible, within any reasonable space, to discuss all such cases. The case of Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, held that a statute depriving one of citizenship, without notice or hearing, for leaving or remaining outside the United States for the purpose of evading military service, violated due process; the court spoke of the imposition as a 'punishment,' but we do not consider the case applicable on our facts. It did not concern double jeopardy.

In Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917, cited by respondent, it was held that an acquittal in an income tax evasion trial did not bar a subsequent suit for a 50% additional assessment imposed and assessed under the statute. The court noted the difference in the degrees of proof required in the criminal and civil cases, and also noted that the requirement of the additional assessment should be considered as remedial in nature, and not a punishment. The court discussed and gave illustrations of various 'remedial' sanctions, (including that of disbarment) and held generally that the constitutional guarantees of criminal prosecutions did not apply to actions or administrative proceedings of such nature. The opinion is a very effective answer to the federal cases cited by appellant, and we shall not elaborate upon them further.

Insofar as the Missouri authorities are concerned, appellant relies chiefly on State ex rel. Spriggs v. Robinson, 253 Mo. 271, 161 S.W. 1169, and State ex rel. Johnson v. Clark, 288 Mo. 659, 232 S.W. 1031. It was stated in Spriggs that the then-existing statute providing for the revocation of the licenses of physicians was penal in nature and was to be construed liberally in favor of the physician, because it deprived one of a 'valuable privilege.' In Johnson, supra, the statement in Spriggs was merely repeated with reference to the admissibility of certain evidence. Counsel would use these cases as authority to the effect that our present statute is penal, that revocation is therefore a punishment, and that this proceeding subjects appellant to a second trial for the same 'offense.' Insofar as Spriggs and Johnson held the statute to be penal, they have been overruled. Hughes v. State Board of Health, 348 Mo. 1236, 159 S.W.2d 277; Gaddy v. State Board of Registration, Mo.App., 397 S.W.2d 347; Bittiker v. State Board of Registration, Mo.App., 404 S.W.2d 402; State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943. In Hughes, the court directly held that (in this respect) the Spriggs case had been overruled, that the statute was one 'for the protection of the public in safeguarding public health,' and that it was not an imposition of punishment. Counsel for appellant seems to doubt the effect of these later decisions. If any doubt remains, and there should be none, we now hold that our revocation statute is not penal in nature and we reaffirm the later doctrine as just stated. In this view, it is wholly unnecessary to consider the many authorities cited from other states for our own policy is established. These revocation proceedings are not penal, they are not 'quasi-criminal,' they do not contemplate 'punitive' sanctions and the provisions against double jeopardy do not apply. The appellant is not being tried again for the same 'offense.' He is not, in fact, being tried for any offense.

Appellant next contends that the judgment of acquittal in the criminal case was res adjudicata or, in the alternative, that it constituted a collateral estoppel. The terms are used more or less interchangeably here and we shall consider the single principle. Before proceeding further we note the requirements as generally...