11 Mont. 429 | Mont. | 1892
The indictment alleges that the appellant Schultz, “on or about the fifteenth day of September, A. D. 1890, at the county of Silver Bow, in the State of Montana, wilfully, falsely, and unlawfully did assume upon himself to execute, exercise, and occupy the art, faculty, and science of a physician and surgeon, and then and there unlawfully did practice medicine, and did give, administer, apply, and prescribe medicine to one J. P. Jones (whose full Christian name is to the grand jury unknown), and to divers other persons (whose names are to the said grand jury unknown) afflicted with various infirmities and diseases, he, the said Carl J. Schultz, not having a certificate from the board of medical examiners of the State of Montana, or any member thereof, admitting, allowing, and qualifying him to then and there practice medicine, or any other legal right or authority so to do, contrary to the statute in such case made and provided.” The jury returned a verdict of guilty, and judgment was entered thereon.
It appeared during the trial that the board oí medical examiners issued October 4, 1889, to said Schultz, a certificate to practice medicine and surgery. The following proceedings were had April 1, 1890, by the board: “In the matter of Dr. Carl J. Schultz, of Butte, it appearing that he has violated his word of honor to abstain from former unprofessional conduct, in that he publicly advertised to cure or treat disease, injury, or deformity in such manner as to deceive the public, his certificate is declared revoked, and the secretary instructed to notify him of this action by the board.” The secretary of the board after-wards sent to Schultz this letter: —
“Great Falls, April 9, 1890.
“Dr. Carl J. Schultz, Butte, Montana — Dear Sir: I am instructed by the board of medical examiners of Montana to say that, it appearing from evidence before them that you have
“Very respectfully, your obedient servant,
“Ernest Crutcher, Secretary.”
At a regular session of the board, which was held prior to these proceedings, this resolution was adopted: “Resolved, that it is the sense of this board that advertising in any newspaper or journal, promising to cure any particular injury or disease of the body of any kind, for any sum of money, or any other consideration, is unprofessional conduct, and shall be sufficient cause for the revocation of any certificate granted.” No notice of any charge of unprofessional or dishonorable conduct was ever given to Schultz by any officer of the medical board or otherwise. The court below instructed the jury that this fact was immaterial, and that the action of the board in that matter was valid, and could not be questioned by them. The court also refused to allow the defendant to prove that he had appealed from the decision of the board in revoking' his certificate, and that the appeal was then pending in the District Court of the proper county.
The statute relating to this subject provides that the board may “ revoke a certificate for unprofessional, dishonorable, or immoral conduct;” and that, in all cases of revocation, “the applicant, if he or she feels aggrieved, may appeal to the District Court of the county where such applicant may have applied for a certificate.” It was assumed by the court below that the board possessed the power, under these clauses, of revoking the certificate of appellant without a notice of any charge preferred against him, or a hearing thereon. All the rulings conform to this view of the law, which is clearly erroneous, and subverts the most precious rights of the citizen. The principles which govern the disbarment of attorneys are analogous.
In Ex parte Heyfron, 7 How. (Miss.) 127, the court held that it is error to strike an attorney from the roll without giving him notice of the proceedings, and said: “It is a cardinal principle in the administration of justice that no man can be condemned or divested of his rights until he has had the opportunity of being heard.” This case was approved in People v.
The case of People v. McCoy, 125 Ill. 289, is on all fours with that at bar, and the court construed a similar statute. We quote from the opinion of Mr. Justice Scott: “Treating the record of the board, in the matter of revoking the certificate that had been issued to defendant, as having the force of a proceeding in its nature judicial on the part of the board in a case Avhere it had jurisdiction of the subject-matter to be investigated, yet the present record is fatally defective, for the reason it is made to appear defendant had no notice of the proceedings proposed to be taken against him. The prosecution put defendant on the stand, and made him their own Avitness, and he distinctly stated, at their instance, that the notice found in the record was never in fact served upon him. The affidavit of service is not sufficient to overcome his testimony in that respect. It is contrary to the analogies of the laAV that a proceeding, in its nature judicial, should be obligatory and conclusive upon a person not a party thereto; otherwise a party might be deprived of important rights, with no opportunity to defend against wrongful accusations. Whether the right to practice law or medicine is property, in the technical sense, it is a valuable franchise, and one of which a person ought not to be deprived, without being offered an opportunity, by timely notice, to defend it.” The case of State v. State Medical Ex. Board, 32 Minn. 324; 50 Am. Rep. 575, is to the same effect. The court by Mr. Justice Dickinson said: “ It is so opposed to the principles of the common law that any fact affecting the rights of an individual shall be investigated and determined ex parte, and without opportunity being afforded to the party to be affected thereby to be heard (4 Blackst. Com. 282, 283; State v. Bryce, 7 Ohio, pt. 2, p. 82; Murdock v. Phillips' Academy, 12 Pick. 244), that this act shall not be construed as contemplating such a proceeding, unless that purpose is expressed in the plainest terms. While the act does not prescribe the manner in which the proceedings for the determination of the matters referred to
We are satisfied that the legislative assembly did not intend to clothe the medical board of the State with the arbitrary power to revoke the certificate of a physician, without a reasonable notice of the charge against him, and the time and place of the trial thereof. The statute, by its mere silence prescribing the procedure, cannot be so construed. The decision of the board in this matter is not final, and upon an appeal the courts may declare null and void its proceedings. No prosecution of this character can be maintained under these circumstances, and the appellant should have been allowed to prove that he had appealed from the decision of the board in revoking his certificate, and that the appeal was pending in the appropriate tribunal. The court below should have instructed the jury that the certificate which had been issued to the appellant had not been revoked, and was in full force.
It is ordered and adjudged that the judgment be reversed, and that the cause be remanded, with directions to grant the motion for a new trial.
Reversed.