*1 568 are awards the commission fact; and the
findings of fact of the findings neither Here, likewise silent. of the commission sufficient. referee nor the awards "It of the commission duty We have held that is the of fact so sufficiently findings detailed make sup the order or award is can determine whether courts Commission, Prouse v. Industrial ported by facts.” In North Park Coal Co. 625; 69 194 Pac. Colo. 326; Hayden Commission, dustrial P. 500, 10 (2d) al., Commission et Corp. Bros. v. Industrial P. (2d) reversed and the court is district judg- aside its cause remanded with directions set Industrial causе to the ment and remand this herein, including action, for such Commission Colorado with comply herein, necessary, if taking testimony the law herein. Campbell Adams and Justice
Mr. Chief Mr. concur.
No. 13,029. Examiners. of Medical Board v. State (11 555) P. [2d] 25, 1932. April Decided *2 Philip Mr. Hornbein, Mr. E-. Clieeord Heald, Mr. Joseph E. plaintiff error. Newman, Attorney
Mr. L. G-eneral, Mr. Ireland, Clarence II. in error. for defendant Haines, Charles En Banc.
Mr. Adams delivered opinion Chief court. upon notice and examiners, board оf medical state The Sapero
hearing, the license of Kalman C. revoked practice court took the case the district medicine. He upheld the medical board. on and that court certiorari, Sapero brings writ of error. for review on the case here charge against undisputed. Dr. The facts alleged dishonorable con- was publication He has advertisements. of certain duct years thirty-five practiced upwаrds medicine for *3 professional question character or moral skill, no misrepresentation his any He visits involved. kind is parts to time and adver- from time of the state various newspapers. comings three Evidence of in local tises his produced; it is was these advertisements th.e pub- charge against ground he their him; admits of the con- or dishonorable lication, but denies published Lamar on was duct. The first advertisement September 3, April on Florencе 1930; the second in February Sterling 1931, all on third in 1930, and the in of Colorado. state publication objec- the most
The first is elaborate and testimony Sapero’s uncontradicted to the tionable, but is thirty-five advertising effect that he had been for over shortly years; hearing previous informal before that at a present promised that he would action, he the board large and has not more, not use the advertisement understanding so; that was at the last meеt- done his ing that he board, revoked, before his license was permitted with a form of ad- to continue short would be promises, vertising; announcements his his that since two inches, liave not been over which he said, was the bring people. he to least could do his visits before the unnecessary quote It is the first advertisement. The last two read as follows: Sapero coming again Sterling,
“Dr. K. day C. one only, Thursday, April at9, Graham Hotel. He treats successfully eye, diseases ear, and nose throat, also goitre. catarrh, deafness, tonsils, adenoids and scientifically Glasses fitted with or without chart. Dr. visiting regularly past has been here for the ’’ years.—Adv. your opportunity
“Now is to consult Dr. Kalman C. Sapero, specialist, the well known Denver who has been visiting years. again Florence for more than 30 He will Friday, September be in Florence at the Florence successfully eye, Hotel. He treats diseases еar, nose throat, also catarrh, deafness, tonsils, adenoids goitre. scientifically.” fitted Glasses says concluding- Counsel for the medical board on the ‘‘ page ought his brief: action of the board to be ground judicial sustained on the its decision was not legislative, quasi judicial, administrative, ministerial power to make [our italics] decision had been final constitutionally Assembly. by committed to it the General question Even if the conclusion of the board on this was erroneous it is not review certiorari.” We propositions. shall consider these
Unfortunately, the merits of the cause, even to the prima whether a facie case was made, have entirely been by arguments almost overshadowed of of *4 learned counsel for the medical board on the rights the official pro- of duties the board and other questions. propositions cedural His are of such a serious candidly theory uрon nature, and so show the which Sapero compelled was convicted that we to discuss although important questions by them, all raised the adversely board have been decided before conten- its previous tions in of court. our decisions this Without questions again have been volition-these foreground. thrust into the question They go of whether to the the medi- greatly jurisdiction or cal its abused board has exceeded its discretion. 1921, L. contains C. numerous Section physician’s
grounds of a license, for the revocation being, among’ or dishon- “immoral, them specifies vari- The statute also above orable conduct.” advertising reprehensible a character ous kinds particularly inhibited, it is not claimed that which are any publications come within the lat- against complaint al- is limited to The ter class. leged “unprofessional conduct,” based or dishonorable solely upon mentioned. the advertisements the medical board statute, the In addition by delegated powers, legislative to it that has claims the it delegate legislature general assembly, cannot but the place where powers, medical act in the we find no its it has been even completeness attempted. the delegation strongest proofs no one of the statute is power Insur 165; B. L. Travelers was intended. 6 O. Commission, 495, 498, ance v. Industrial Co. Pac. 465. Colorado
Section article 5 Constitution legislative power “The of the state shall be vested reads: general assembly consisting’ of senate and in the house * * ’ by representatives, people V both to be elected (8th Cooley’s Ed.) page In Constitutional Limitations ‘‘ truthfully settled is said: One maxims power upon constitutional law that conferred is, legislature delegated by to make cannot be that de- laws partment body authority. other Where power authority, sovereign the State located the has by agency there remain; it must constitutional alone the laws must be made until the constitution itself changed.” As i’emarlced Travelers Insurance Co. v. supra, “people Industrial Commission, have, con- great stitutional enactment, limited the exercise *5 573 directly specifically power them and chosen to those ’’ thereto. authorized duty If said that it is the of the had interpret put board to the medical it into act, execu subject tion, we certiorari, should have had no diffi culty agreeing general assembly may with him. The delegate power may not gate power to make a but it law; dele things
to determine some fact or a state of
upon
prescribed, depends.
which the law, as
Colorado
Railway
and Southern
Co. v. State Railroad Commission,
3. As a side
medical act,
history
interesting
was made
Chenoweth v. State
Examiners,
74,
Board Medical
141
Pac. (N. S.)
January
51 L. R.A.
decided at the
term, 1914.
pointed
page
opinion,
out,
We there
at
of our
that the
(section
existing-statute
1908)
then
R. S.
did not
ground
or dishonorable
make
conduct a
*6
physician’s
general
of revocation of a
license. The 1915
assembly, apparently
suggestion,
mindful of
rem
previous
among
things by
edied defects in
other
acts,
unprofessional
adding
words, “immоral,
the
or dishon
repeated
orable conduct.” The same
were
words
an
page
other
L.
amendment,
1917,
359,
11,
S.
section
identi
regard
cal with
4536.
the
section
We do
words
quoted
they
repeat
uncertain;
as
or
have
indefinite
been
edly
by
legislature
the
care,
considered
with
same or similar words have been often made the bases
complaints
pro
of
or informations for the revocation of
jurisdictions.
fessional licenses in this state and other
Spears,
State Board Medical Examiners v.
of
588, 247 Pac.
54
563, A. L. R. 1498 and notes;
v.
Dillard
State Board Medical Examiners,
Examiners v. Miller, 90 Colo.
8 P.
699; State
v. Purl, 228
1, 128
Mo.
Aiton
196;
S.
W.
Board Medi
Examiners,
cal
not reinforcеd and needed posed legislation reinforcement being* of the board. But this true, would from the fact that counsel it not seem for the board supplement profes- the statute with seeks canons of legislation, betrays or medical that it a ethics fear sional Sapero’s not control 4536, L.,C. does news- that section why attempt augment paper Otherwise, articles? Another fact is notable. The statute? canons upon professional еxaminers medical ad- appear vertising do not in the record. So that if even professional a mere were involved, ethics we say they proof The burden of cannot were breached. Sapero. medical on Counsel board has a chapter in his brief “The entitled, short Evils of Medical ’’ Advertising*, he no thereunder, cites authorities none elsewhere in his brief where the facts are like those says here. for the Nevertheless,, boаrd this: * * “* the court to think that con- we do not wish we conclusion, tend that Doctor other as *7 physician who advertises is either unskillful individual merely general or We state fact.” We dishonorable. sig’ht generalities. lose of the issues cannot, however, any, particular if of these character, The dishonorable publications by Sapero (a question meagerly pre- so board) gravest a matter of sented the medical is im- portance. upоn argued of It is behalf the medical board any capable determining
that it is more than one else of profession; standards medical hence should judge Sapero’s argument be the sole of conduct. This wholly point; any comparison, beside either favorable professions, or unfavorable, between the learned neither enlarges powers nor diminishes or of duties the medi power, cal board. The statute is the sole sourcе of its which it cannot transcend. Graeb v. State Board Medical of Exa miners, 55 Colo. 139 523, 1099; Pac. State Board supra. Dental Examiners v. Savelle, The board has of power in the first instance, decide what constitutes un professional power, conduct, but if it abuses that judgment. court will reverse its Dillard v. State Board supra. Medical proper Examiners, On certiorari, it is of say for the court to whether the evidence shows the de- guilty turpitude. fendants of moral White v. State Board Examiners, Medical 50, 51, 564; Pac. Dil- supra; lard v. State Board Medical Examiners, State supra; Board Dental Examiners v. Savelle, State supra. Board Dental Miller, Examiners v. Certiorari applicable has been held even to a constitutional admin- body (State Hoag, istrative Civil Service Commission v. 338), 293 Pac. whereas the medical statutory origin. board is 6. It is absurd to intimate that courts covet the powers only provisions of the medical board when not (section L.), of the medical act itself 4536, C. also provisions the Code of Civil Procedure and other of law impose upon duty reviewing the courts the the acts of jurisdiction equal such board. It does not to, have coordinate with, that of the if courts; the orders helpless judicial are defied, board it is without process. disparity powers This not of duties is judicial origin; certainly supposed it cannot be that the express provision laws, above or the of section 4536 re serving remedy of certiorari to review the acts of the “refusing* grant medical board in either ing or in revok practice product a license to medicine,” judicial legislation. which
That we said of the Public Utilities Commission People v. Swena, 88 Colo. 337, 339, 340, 296 Pac. applies equal with force to the state board of medical opinion: examiners. is said in the It above “The Public *8 * * * charged Utilities Commission is not a court. It is performance with the of certain executive and adminis- performance In the in- thereof, trative duties. and as it hears and thereto, evidence, facts, cidental ascertains judgment but this is exer- discretion, exercises the exercise, quasi merely judicial function, cise of not the judicial power meaning within the the Constitu- ’’ tion. assumption
7. The that the medical examiners qualifi- rig’ht should have the exclusive to determine the practicе im- of an individual medicine is an cation perform plied their own allotted offer, tasks, not responsibilities of the courts on but also to assume the delegate certiorari and writ of error. But courts canhot fifty judicial by Mr. Helm their duties. said As years ago Haverly Mining Howcutt, in Invincible v.Co. per- not 574, 575, of this court are members given mitted to and review a case “abdicate bench by proxy; they way, they might if review one case this might To rid themselves of the work a hundred.” Terpening Holton, same 306, 317, effect: v. persua- findings Pac. 189. The of the medical board are sive, but conclusive. An examination of the record fidelity findings with slavish adherence and without judicial to the law review. and facts would not be a physician’s 8. A license cannot be revoked merely violating professional or the rules of a ethics board of health; to be amount to a actionable, it must breach of law. State Board Dental Examinеrs supra, Savelle, cited; there Chenoweth v. State cases supra; Board Examiners, Medical Aiton v. Board supra. “unprofessional” Medical Examiners, The term is convertible with use “dishonorable,” the common of the word, and com considered as dishonorable (Id.) Comparing mon of mankind. law with reported attorney medicine, we know of no an case where disciplined by has been disbarred or the court that its approved by enlightened public action would not be an conscience.
Nothing an we have said is to be construed as either approval Sapero’s publications. disapproval professional advertising important is too far-reaching consequences lightly. in its to be determined ability We are confident of the to assist us, eyes fugitive but are on of a our issue. It consists publications being law, e., admitted, i. do they attempted legislation by board, violate, unduly рrosecution the statute? to this, As has been *9 not it to carelessness or charge reticent. do over- We either we are in- but to a mistaken belief that sight, vital or that no argu- terested convincing ment we were supposedly was needed because foreclosed or from from our own performing exercising and ac- formally ratify approve office to except to board, tions of the which we cannot propositions agree.
9. An committed offense under circum- extenuating call for a may leniency, major stances the exercise of and punishment may therefor amount great abuse case, discretion. Savelle the circumstances supra. Under mentioned in Dr. facts, our statement of Sapero having kept faith with the medical board from fur- desisting ther like publications the first one Lamar printed after it seems he had admonished, been and having understood thаt such was his think the punishment, charge we first should have been eliminated, requested by as for- counsel Sapero at hearing before the board. This disposition would seem to especially be after appropriate Sapero had thirty-five advertised for years by least, sufferance at none were of the reprehensible advertisements character are particularly such as condemned by section 4536 of the statute. shall nоt attempt We to determine whether the publications two last at (one and the Sterling other Florence) at are actionable under the since statute, it appears from the brief of ex- medical aminers they rely upon imaginary that legislation their own to sustain conviction. We suggest, how- ever, if it be assumed that such publications within the milder purview statute, a penalty should have had consideration under the circumstances. If such if advertisеments are repeated, is then charged with an offense under section L. 1921, C. else, it will be nothing enough time consider question of culpability. his We shall undertake change present theory prosecution.
10. The conclusion is inevitable that the state *10 jurisdiction of examiners exceeded board medical its greatly it discretion. If action abused its this that should theory of under the counsel for the be board, sustained statutory body powers oligarchical in upon it would vest every constitutional and еncroach the duties of de- partment usurp prerogatives of state. would It the of legislature, deprive oppor- the chief of the tunity executive an “legislation”
to veto of board, the the and render impotent wrong. courts to redress When the the medi- pause cal examiners and their to reflect, we are good judgment confident that their will own condemn the system proposed, possible inaugurate if it were even it.
11. The of statе board medical examiners of is com- manding dignity importance, membership and its physicians probity high consists chosen for their professional standing. These facts are an incentive to the cooperation repeatedly expressed courts; the we have our confidence in medical the and it examiners has not abated. Our will be tokens found in our numerous deci- guidance sions, where board, the medical under the of its eliminating eminеnt counsel, been has successful in un- worthy profession. members from medical Such ef- counterpart forts have a in similar contributions to the public grievance weal committee of the Colorado comparable Bar Association. Aid with writs of assist- disposal ance is ever at the such boards and commit- they, rightfully governed by but tees, as well as we, law and jus- established rules enacted in the interest public tice. We should alienate confidence without an ob- impugn servance of these standards. We do public motives members the board; these offi- conception acted cers under an honest, but mistaken, purely their duties; an matter, official and the fact agree that we are unable to with the medical examiners susceptible being'construed personal is not as a reflec- appellate procedure, tion. It is an incident of as myriads reported and fedеral courts decisions state ample witness. will bear briefs, have furnished us with able
Counsel controversy going and the law that to the merits disposi- they applicable in view of the thereto, deem necessary we to determine cause, tion of the any do find questions. additional is reversed and stated,
For the reasons court with directions the cause remanded to district board of medical exam- recommit the same to the state procеedings. with iners instructions dismiss Butler, Mr. concurs. specially *11 Campbell not participating. Mr. Justice concurring. Butler, Mr. to add to the but wish reasons decision,
I concur in the judgment assigned one for a that seems reversal important toi be overlooked. to me to too be physician right revoke the license of a exists legislation police by enacted under the virtue legislation power. must bear a fair re- To be such valid, safety, public morals or wеlfare and health, lation to the promote protect legislature or the same. The tend to police regulation, power, guise under the has no arbitrarily personal rights of an invade individual. provide physician’s It cannot for the revocation of a involving’ for license a mere breach ethics not moral turpitude conduct. The dishonorable advertisements published by Sapero entirely were harmless, and could injuriously public sаfety, affect the publication, health, morals or justify therefore, welfare. Their did not publication may revocation of his license. such While be many, physicians, unethical or even some, considered may ground even constitute exclusion from a society, justifies it medical physician’s no more of a revocation practice than
license to would a mere breach etiquette, of table do or the exhibition manners that society. usage polite not conform to prohibition advertising does not come within the Such attempted—and If the of the statute. statute does physician’s ground for the revocation of a —to make it a and void. license, it would be unconstitutional It is need support to cite more than one the cases less proposition. Board Chenoweth Medical Exam State 132. The iners, 57 141 Pac. revocation Sapero’s an abuse of the discretion. license was board’s principal opinion
For the stated in the and in reasons proper. this, the reversal
No. 13,068. Company
Federal Life Insurance v. Hall. (11 215) [2d] P. April
Decided