It is the contention of the State Board of Medical Examiners and the Commissioner of Public Welfare that this is nеither a criminal prosecution nor a civil action in the common-law sense, but a special рroceeding under 0. S., 6618, to revoke a physician’s license to practice medicine, and that, оn appeal to the Superior Court, as allowed by the statute, the respondent is not entitled to a trial by jury. The appeal, therefore, presents for our decision solely a question of proсedure, nothing more.
The alleged prematurity of the appeal is pretermitted, as the point rаised has not heretofore been decided by us, and it would seem that an expression of opinion would be helpful at this time, a course pursued in a number of cases and permissible under our decisions.
Corp. Com. v. Mfg. Co,,
The initial step in the proceeding to revoke the license of respondent to practice medicine in this State was a petition filed by the Commissioner of Public Welfare with the State Board of Medical Examiners on 19 April, 1926, charging that “Doctor Robert S. Carroll has been guilty of 'grossly immoral conduct’ with patients аnd nurses in the Highland Hospital in the city of Asheville, of which he is the owner and medical director,” and asking that his liсense be revoked in accordance with the provisions of section 6618, volume three, of the Cоnsolidated Statutes. Thereafter, on 26 June, 1926, following a full hearing of the case, had *39 after due noticе given the respondent, the State Board of Medical Examiners entered an order revoking Dr. Carroll’s liсense to practice medicine in North Carolina. From this order the respondent appealed to the Superior Court of Buncombe County, under the following provision appearing in the above-mentioned statute: “Provided further, that the holder of a license so revoked shall have the right to appeal to the courts; and if action of the board of examiners be reversed, he shall he allowed to rеtain his license.”
At the threshold of the hearing in the Superior Court, the question arose as to how the mattеr should be tried, whether before the judge alone, upon the evidence taken before the board of medical examiners, or de novo before the judge and a jury. The court ruled that-the respondent was entitled to a trial de novo, and to have the issue of fact determined by a jury. This ruling is challenged by the appeal. Nothing mоre is presented for our consideration or decision.
Many cases from other jurisdictions are сited in support of the position taken by appellants, and the respondent has likewise called to our attention a number of authorities which seem to support his position. The apparent сonflict in the cases, however, becomes less real when it is remembered that the provisions of the several statutes, under which the actions or proceedings arose, are not all alike.
The authorities are unanimous in holding that the question of procedure, such as here presented, is one of statutory construction. If this be the correct view of the matter, and we think it is, then, to all intents and purposеs, it would seem that the question has practically been decided in favor of the Court’s ruling in
Blair v. Coakley,
We conclude that “the right to appeal to the courts,” given by C. S., 6618, when exercised, carries the whole proceeding to the Superior Court for trial efe
novo,
with the right to have the controverted issues of fact tried bеfore a jury in the usual and customary way.
Keaton v. Godfrey,
The trial court correctly ruled that the respondent was entitlеd to have the issue .of his guilt or innocence submitted to a jury, agreeable to the *40 usual course and рractice in tbe Superior Court; and bad a jury been empaneled, and a verdict directed in his favоr in the absence of evidence to support the charge preferred against him, with a judgment reversing the action of the board of examiners entered thereon, a very serious question would have аrisen as to whether the whole matter was not now res adjudicata. But as a different course was pursued in the court below- — a judgment of reversal being entered on a dismissal of the charge without the aid of a jury — we are constrained to remand the cause for further proceedings, not inconsistent with the conclusions announced herein.
Remanded.