Czarra v. Board of Medical Supervisors
24 App. D.C. 251
D.C. Cir.
1904
Check Treatment
Mr. Justice Anderson,

of the Supreme Court of the District of Columbia, who sat with the Court in the hearing of the case in the absence of Mr. Chief Justice Alvey, delivered the opinion:

The appellant asks for a reversal of the board’s action, and assigns as error the following:

1. The said board of medical supervisors were without author*256ity to pass the resolution revoking the license of the appellant, because so much of the act of Congress of June 3, 1896, as purports to confer upon said board authority to revoke the license of a licentiate for “unprofessional or dishonorable conduct” is unconstitutional and void for uncertainty.

2. That the complaint filed against the appellant does -not state facts sufficient to cause him to answer.

3. That the said board of medical supervisors erred in revoking the license of the appellant, for the reason that the evidence adduced at the hearing was not sufficient to warrant the board in revoking the license of the appellant.

Under the view we take of this case, we do not deem it necessary or proper to consider the appellant’s first and third objections. It is sufficient for the right disposition of this case, as it seems to us, to pass upon the single question of the alleged insufficiency of the complaint filed against the appellant.

A careful reading of the complaint filed against the appellant fails to disclose that he is anywhere charged with anything for which he could be held to answer under any possible interpretation of the act in question. In its final analysis, the complaint simply charges—

(1) That the appellant was “arrested and charged in the police court of the District of Columbia with distributing obscene literature.”

(2) That “when the case against him was called in the said court he forfeited the collateral of $50, which he had put up for his appearance.”

(3) That the appellant, in conversation with the complainant (Proctor), admitted “that he had distributed the circular for which he was arrested and forfeited collateral.”

(4) “All of which is conduct of an unprofessional and dishonorable character.”

The language of this complaint may be searched in vain to find any charge of unprofessional or dishonorable conduct against the appellant, unless it could be said that by being charged in the police court with distributing obscene literature, depositing collateral, and thereafter forfeiting such collateral, *257the appellant was guilty of unprofessional or dishonorable conduct. It is not even charged that the circular which is alleged to have been distributed was distributed within the District of Columbia, nor that the appellant ever distributed it at all. He is simply charged with having made the admission that he had distributed the circular referred to; and surely such admission does not constitute “unprofessional or dishonorable conduct” within the meaning of the statute. The alleged distribution should have been charged as a fact, if such was relied upon as the ground of complaint, and not the mere admission of such distribution. It is not conceivable that any man can be held to answer a charge so grave in its character and so far-reaching in its influence upon his standing and reputation as a physician, and yet so vague and indefinite as this.

As was said by the court in People use of State Bd. of Health v. McCoy, 125 Ill. 295, 17 N. E. 786: “The right of the citizen to practise his profession, for which he has expended time and money to qualify himself, is too important to be taken away from him without some reasonable cause.”

The language of the court in State ex rel. Baldwin v. Kellogg, 14 Mont. 432, 36 Pac. 957, may also be quoted in this connection: “We are of opinion that, before such a tribunal, pleadings should not be too strictly construed, nor should a too close observance of the science of pleading be required. But it cannot for one moment be doubted that the complaint must set forth facts which constitute an offense. * * * If the judgment is against him he is deprived of the right to practise his profession, to which, perhaps, he has devoted a life of learning and labor. In a situation of this gravity, a defendant has the right, within the spirit of the Constitution, To demand the nature and cause of the accusation’ (Const. art. 3, § 16) ; that is to say, a defendant must be notified of what he is charged, and he must be charged with something.”

Even if the complaint in this case could be reasonably construed as charging the appellant with the distribution of “obscene literature,” yet it wholly fails to so identify such literature as to give him notice of the charge which he was to meet or to en*258able tbe board to determine whether or not it had jurisdiction over the ease, and whether the charge was sufficient in law to support a finding as prayed for.

As was said by the Supreme Court of the United States in Ball v. United States, 140 U. S. 136, 35 L. ed. 384, 11 Sup. Ct. Rep. 761: “The accused is entitled to be informed of the nature and cause of the accusation against him, and jurisdiction should not be exercised when there is doubt as to the authority to exercise it.”

And in the earlier case of United States v. Hess, 124 U. S. 487, 31 L. ed. 518, 8 Sup. Ct. Rep. 571, the Supreme Court said: “The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for jn’otection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. Eor this facts are to be stated, not conclusions of law alone.”

While it is, of course, unnecessary (and, in fact, not permissible) to insert into a complaint either a writing of great length, or matter of any kind which, because of its extreme obscenity, would pollute the public records, it is always essential to allege the reason justifying the omission, and, in addition, to describe it so fully as to identify it. United States v. Bennett, 16 Blatchf. 338, Fed. Cas. No. 14,571; Com. v. Holmes, 17 Mass. 336; Com. v. McCance, 164 Mass. 162, 29 L. R. A. 61, 41 N. E. 133; McNair v. People, 89 Ill. 441; Strohm v. People, 60 Ill. App. 128; People v. Danihy, 63 Hun, 579, 18 N. Y. Supp. 467; State v. Freeman, 63 Vt. 496, 22 Atl. 621.

In Com. v. McCance, 164 Mass. 162, 29 L. R. A. 61, 41 N. E. 133, the defendant was charged with selling a book containing, among other things, “obscene language,” and the court held that, although it was not necessary to set out the book in full, the complaint would have to be quashed because of its failure to identify with any reasonable certainty the “obscene language” relied upon.

*259In Com. v. Holmes, 17 Mass. 336 (a leading case), an indictment charged the printing of a “certain lewd, wicked, scandalous, infamous, and obscene printed book entitled [‘Memoirs of a Woman of Pleasure’], which said printed book is so lewd, wicked, and obscene that the same would be offensive to the court here, and improper to be placed upon the records thereof,” and the court held the indictment, giving as it did, an excuse for not setting out the matter at large, and also an identification of the book by its title, sufficient, saying: “It can never be required that an obscene book or picture should be displayed upon the records of the court, which must be done if the description in these counts is insufficient. This would be to require that the public itself should give permanency and notoriety to indecency in order to punish it.”

In the case now before the court, however, there is no identification whatever in the complaint itself of the “obscene literature,” relied upon, and, since this objection has not been waived by the appellant, but, on the contrary, was expressly brought to the attention of the board at the hearing below (p. 6 of record), the appellant ought to have the benefit thereof.

While we base our opinion in this case on the insufficiency of the complaint filed against the appellant, it is proper to note that this was not the principal question that was dwelt upon in argument. In fact, almost the whole burden of the argument was devoted to the question of the alleged invalidity of the statute for the violation of which the appellant was tried. Without expressing any opinion on this point in a case so radically defective as the present, and in which the expression of an opinion by us might possibly be characterized as obiter dictum, we desire to call the attention of the authorities to the fact that grave doubt is entertained as to the power df Congress to delegate to the board of medical supervisors, or to any other similar body, the authority to determine what shall constitute “unprofessional or dishonorable conduct” in a medical practitioner so far as to render such a practitioner guilty of a criminal offense if he attempts to continue in the practice of his profession after having been adjudged guilty of such conduct by a board of medical supervi*260sors. Certainly it would seem more appropriate that Congress itself in its enactments should specifically define what shall constitute “unprofessional or dishonorable conduct” for the purpose of this legislation, than leave so vital a subject to the possible caprice of any board of supervisors.

For the reasons stated, the decision of the Board of Medical Supervisors must be reversed, with costs; and it is so ordered.