172 P. 625 | Cal. Ct. App. | 1918
This is an appeal from the judgment of the superior court rendered upon hearing of a writ of review and which judgment affirmed the proceedings and determination of the board of medical examiners of the state, under and by which the certificate and license authorizing petitioner to practice medicine and surgery was revoked. *474
In the court below, by his petition, appellant set up a very complete record of the evidence and proceedings had before the respondent board. Respondents, not questioning the correctness of the record as there pleaded, objected to the legal sufficiency of the facts shown. The board further filed in the superior court affidavits to meet one allegation made in the petition of appellant. By that allegation it was asserted by petitioner to be the fact that one of the members of the board absented himself during the hearing, and that therefore no quorum was present at all times while the evidence was being taken. The charge made and upon which the order revoking the license and certificate of petitioner was based was that petitioner had been guilty of unprofessional conduct as defined by the State Medical Act. (Stats. 1915, p. 184; Deering's Gen. Laws, 1915, p. 877.) In section 12 of that act it is provided that the certificate of a physician may be revoked or suspended. It is first required that there shall be filed with the secretary of the board a sworn complaint charging the holder of the certificate with "having been guilty of unprofessional conduct." It is then provided that the secretary shall issue a citation requiring the certificate holder to appear at the next session of the board of medical examiners, which shall occur at least thirty days after the filing of the complaint. It is further provided that after issue has been joined by answer, the board shall proceed to determine the matter and may hear such "proper" evidence as may be adduced before it. In the same section the things which shall constitute unprofessional conduct authorizing suspension or revocation of the certificate are specifically set forth. Appellant was charged under the first subdivision, which reads as follows: "The procuring or aiding or abetting or attempting or agreeing or offering to procure a criminal abortion." The complaint made, in its charging part, was as follows: "That on or about June 19, 1916, the said R. S. Lanterman did, in the county of Los Angeles, state of California, procure, aid and abet, and attempt, agree and offer to procure a criminal abortion upon a pregnant woman, to wit, Elizabeth Johnson."
The first point made by appellant is that the trial court erred in refusing to take testimony upon the alleged issue as to whether one member of the board had absented himself during the taking of evidence. As before noted, the record *475
of the proceedings had and testimony taken was made a part of the petition of the petitioner, and as to the correctness of that record or its completeness respondents made no issue. The office of the writ of certiorari is to determine only as to whether the inferior board or court has acted in excess of jurisdiction, and the investigation of the trial court will go no further than to inspect the record as it appears written, and to determine from that whether there has been action taken unwarranted by the powers given to the board or court whose proceedings are under review. The writ may not be used to take the place of an appeal or to add to or modify a record with respect to any jurisdictional fact determined therein. (In reGrove Street,
The point is suggested, too, that the act under which petitioner was prosecuted is unconstitutional. The particular *476
ground of this objection is that powers are conferred which belong strictly under the constitution to the judicial department. Acts of the nature here under consideration have been repeatedly sustained as a proper exercise of the legislative grant. Various boards performing legislative and ministerial functions have the incidental and necessary power, sometimes referred to as quasi judicial, to determine facts and enter their judgment thereon; such as boards of supervisors, boards of equalization, boards of police commissioners, and many others unnecessary to name. Referring specially to medical acts, it is said in Hewitt v. Board of Medical Examiners,
The principal contention made, however, is that the complaint filed before the board of medical examiners was insufficient in its statement of facts to sustain the determination based thereon. The charge, as we have already quoted it, was phrased exactly in the language of that portion of the act defining the particular unprofessional conduct of which it was charged petitioner had been guilty. Counsel for appellant argue that because the statute refers to a "criminal abortion," and that because in order to determine what a criminal abortion is, one must look to the Penal Code, the charge would be insufficiently laid unless the acts defined *477
in the Penal Code as constituting the crime of abortion are set forth. Appellant was not charged with a crime, nor was he subject, upon the adverse determination made, to any penalty except the revocation of his license to practice medicine and surgery. The contention of counsel would be entitled to more serious consideration were we considering here a criminal offense with its attendant penalties, as the same is understood under any of the penal laws of the state. Where an indictment or information is drawn under the Penal Code, it must, of course, comply with the provisions of section 950 of that code, in that it must contain "a statement of the acts constituting the offense, in ordinary and concise language, . . ." No similar provision appears in the medical act. It must be said, we think, that the language of the statute is sufficiently explicit to advise a person charged thereunder of the particular kind of unprofessional conduct which it is proposed to prove against him; and that, we think, is all that need be said upon the question. The case cited by appellant, where the supreme court of Oregon held a complaint before the medical board to be insufficient because not alleging sufficient facts (Board of Medical Examiners v. Eisen,
The last contention which we shall notice is that there was no legal or sufficient evidence authorizing the medical board to make the order complained of. The force of this objection rests chiefly upon the assertion that all the material testimony *478
furnished against the appellant was that given by accomplices. The action not being criminal in its nature, it is again apparent that the statutory mandate that a person may not be convicted upon the uncorroborated testimony of an accomplice has no application here. We feel satisfied that any witness whose testimony as to competent facts was convincing to the board engaged in the hearing of the charge would be legally sufficient. It is said in Tinn v. United States DistrictAttorney,
The judgment appealed from is affirmed.
Conrey, P. J., and Works, J., pro tem., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 7, 1918.