12065 | S.C. | Sep 10, 1926
Lead Opinion
September 10, 1926. The opinion of the Court was delivered by The petitioner, H.L. Gregory, who is the respondent here, having been refused license to practice veterinary medicine and surgery by the State Board of Veterinary Examiners, made application to Hon. W.H. Townsend, Circuit Judge, for a mandamus, requiring that board to issue the license applied for by him. The board was required to show cause before Judge Townsend, and thereafter made a return to the petition. *57
In the petition, it was alleged that the petitioner had complied with the requirements of the act of the General Assembly of the year 1920, now found in Volume 3 of the Code of 1922, as Article 4, Sections 2472 to 2482, both inclusive. It appears that the petitioner is not a graduate of a recognized veterinary college, but he claims to come within the provisions of Section 2475 of the article mentioned, wherein it is provided that, within a certain time, practitioners of veterinary medicine and surgery, who are not graduates of recognized veterinary colleges, may, under certain circumstances, be licensed.
The State Board of Veterinary Examiners, in their return to the petition, set forth the following matters, briefly stated:
(1) A denial of the jurisdiction of the Court in the cause, for the reason that none of the respondents reside in Richland County, where the proceedings was instituted.
(2) That the petitioner had not complied with the requirements of the statutes for obtaining the license applied for, since he had not, within the time permitted by law, filed proof as to his practice of veterinary medicine and surgery for the required time by affidavits of five freeholders.
(3) That the license desired by the petitioner had also been refused on the ground of "gross immorality and gross malpractice," it being alleged that the petitioner, on November 18, 1920, subsequent to the enactment of the Statutes pertaining to the practice of veterinary medicine and surgery, had been convicted in the District Court of the United States for the Eastern District of South Carolina, for violations of the Harrison Narcotic Laws of the United States, by illegally dispensing narcotics while a veterinary surgeon, and, as a result of his said conviction, had served a sentence in the United States penitentiary at Atlanta, Ga.
It appears that all the facts are admitted by both the petitioner and the State Board of Veterinary Examiners.
After a hearing of the matter, his Honor, Judge Townsend, passed an order requiring the issuance to the petitioner *58 of the license sought by him. That order will be reported. The State Board of Veterinary Examiners has appealed therefrom to this Court.
For the reasons stated in his order, we think the Circuit Judge was correct in holding that he had jurisdiction in the matter, and the exception raising the question of jurisdiction is overruled.
The exception making the question that the petitioner had not complied with the requirements of the Statutes is sustained, under the authority of the case ofEx parte Tracy E. Oliver, 134 S.E., 657, in the original jurisdiction of this Court, the opinion in which was filed on June 1, 1925. The respondent here was granted leave to review and criticize that case, but the Court sees no reason to reverse the holdings made therein, and the case is hereby affirmed.
Another exception questions the holdings of the Circuit Judge that a license to the petitioner should not have been refused, because of "gross malpractice" alleged against him. In Section 2476 of Article 4 of the Statutes, there is this provision:
"The said board shall have the right to refuse to issue a license to any applicant upon the grounds of gross immorality or gross malpractice, and shall have like power, upon satisfactory cause shown, to revoke such license on said grounds after due hearing."
It is undisputed that on November 18, 1920, subsequent to the enactment of the Statutes relating to the practice of veterinary medicine and surgery, the petitioner, H.L. Gregory, was convicted in the District Court of the United States for the Eastern District of South Carolina, of violations of the Harrison Narcotic Law (U.S. Comp. St., Sections 6287g-6287q) an enactment of the Congress of the United States, in that he "unlawfully, knowingly, and willfully did sell, barter and give away, to divers persons * * * large *59 quantities of morphine sulphate * * * contrary to the form of the Statutes of the United States."
While it is true, as held by the Circuit Judge, that the Harrison Act is a police regulation, we disagree with him that the violation of that act does not constitute "gross malpractice." The use of opium as necessary for relief of pain has been known for many years, but it is also well recognized that the abuse of this powerful drug is attendant with great danger to the health, happiness, morals, and peace of the people. The purpose of the Harrison Act was to allow the use of the drug when needful, but to guard against its indiscriminate dispensation, and to prevent the evil effects which it produced. To carry out the idea of placing the drug within the reach of those lawfully entitled to have it administered to them, provisions are made in the law for its being prescribed and dispensed by physicians, dentists, and veterinary surgeons. It is well known that an unscrupulous physician, dentist, or veterinarian has great opportunities to circumvent the intention of the law, and that the traffic in opium is financially fruitful. While a veterinary surgeon may do great good with this powerful medicine in the relieving of dumb animals from their suffering, he may bring about great harm to human beings, and to the peace of the State, by dispensing and bartering the drug illegally. We do not know of any higher evidence which could have been offered to the State Board of Veterinary Examiners of the guilt of the petitioner of the charges brought against him than the verdict of a jury of his peers, which was approved by the District Judge of the United States Court.
The only legal question pertaining to this matter is whether or not the offenses charged against the petitioner, and of which he was convicted, were such as to establish that he was guilty of "gross malpractice." The term "malpractice" is defined in Corpus Juris, as follows:
"Any professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or *60 fiduciary duties; evil practice; illegal or immoral conduct; improper or immoral conduct; misbehavior; objectionable practice; practice contrary to established rules; practice contrary to rules; wrongdoing. Malpractice may be either willful, negligent, or ignorant." 38 C.J., 519.
We think the crime of which the petitioner was convicted showed that he had done "professional misconduct"; certainly it was "illegal conduct"; it was also "objectionable practice," and "practice contrary to established rules." The jury, who tried him, found that his acts were "willful." The exception, which complains of the finding of the Circuit Judge that the petitioner was not guilty of "gross malpractice," is sustained.
The judgment of this Court is that the order of his Honor, the Circuit Judge, be, and the same is, hereby reversed, and the petition of the petitioner, H.L. Gregory, is dismissed.
MR. CHIEF JUSTICE GARY, and MESSRS. ASSOCIATE JUSTICES WATTS and STABLER concur.
Addendum
I concur in the result upon the ground that the applicant did not comply with Statute. I am not disposed to hold that to the sentence of a year in prison and $1,000 fine there should be added the destruction of his vocation.