State Ex Rel. Hurwitz v. North

*612 GRAVES, C. J. Relator herein was a practicing licensed physician of'Joplin, Missouri. Dates are not material to the real issues in the case, but it appears that on March 13, 1923, Roy Goyne, Prosecuting Attorney of Jasper County, Missouri, filed a complaint with the State Board of Health, in which it is charged: ‘‘ That the said Leon Hurwitz has been and is guilty of unprofessional and dishonorable conduct, in this, to-wit, that he,1 the said Leon Hurwitz, on or about the 1st day of May, 1922, in the city of Joplin, State of Missouri, unlawfully produced a criminal abortion upon one Almeda Stewart, a pregnant woman, he, the said Leon Hurwitz, being then and there not intending necessary’ medical or surgical treatment, and not being then and there engaged in an act necessary to preserve the life of the said Almeda Stewart, or that of an unborn child; and not then and there intending any injury other than the destruction of the pregnancy.” The complaint cbncluded with a prayer that the said board make inquiry as to the matters and things alleged and revoke the license of the said Leon Hurwitz. Due notice was given Dr. Hurwitz, and a time fixed for a hearing of the charges. • Hurwitz through his able counsel, first challenged, by motion to quash and dismiss the proceedings, the right of the board to proceed with the hearing for divers reasons set out in such mo *613 tion. The pertinent portions of such motion will be left to the opinion. It suffices for this statement to say that the motion was denied by the board. After the foregoing, counsel for Dr. Hurwitz filed a motion asking for the issuance of a subpoena for named witnesses, and a subpoenas duces tecum for other, witnesses and documents. This motion was overruled by the board. These subpoenas had been declined by the secretary of the board some time prior to this written motion. Next there was interposed an application for a continuance of the hearing owing to the absence of a named witness. The continuance was refused. Oral request was then made to continue the hearing over until after the April term of the Jasper County Circuit Court, because there was then and there pending against him a criminal charge of abortion, as charged in the complaint before the State Board of Health, and a hearing before the board at the time would be prejudicial to the relator. This request was denied. Thereupon the State Board of Health heard the evidence, having the same taken in short-hand, transcribed and preserved as required by law. Upon the conclusion of the hearing the record shows: “Motion made by Dr. R. S. Yitt, and seconded by Dr. T. H. Wilcoxen, that the license to practice medicine and surgery in the State of Missouri of Dr. Leon Hurwitz be revoked for a period of fifteen years, and it is thereby so ordered.' Motion carried. The Board then adjourned.” Dr. Hurwitz, the relator herein, then applied for and obtained from the Circuit Court of Jasper County a writ of certiorari directed to the State Board of Health, and said board made due return to such writ by certifying to such court a full transcript of all the proceedings in the case, including the evidence taken. In the Circuit Court relator moved to quash the record for the following reasons: *614 “Now at this day comes the above named relator to qnash the order of judgment of the Missouri State Board of Health revoking’ the license of relator to practice medicine and surgery for a term of fifteen years, and to quash the record and proceedings had before said Board of Health, and returned to this court in obedience to the writ of certiorari issued in the above cause, in the matter of the application of complaint of Roy Coyne, Prosecuting Attorney of Jasper County, Missouri, to revoke the license theretofore issued to relator by said Board of Health to practice medicine and surgery in the'State of Missouri, for the following reasons, viz: “1. Because said Roy Coyne was not authorized oi' empowered by law to file said complaint or application, and said Board of Health was therefore without jurisdiction to hear and determine said complaint or application. “2. Because Section 7336, Revised Statutes 1919, under which said proceedings were had and prosecuted, is null and void, for the following reasons, viz.: “(a) Because said section does not authorize or empower said Missouri State Board of Health to issue subpoenas or other compulsory process for witnesses, papers and documents necessary to the defense of one being tried by said Board of Health for revocation of his license to practice medicine and surgery. “(b) Because said section is in conflict with Section 30 of Article 2 of the Constitution ,of Missouri, and with the Fourteenth Amendment to the Constitution of the United States, in that said section authorizes and empowers said Missouri State Board of Health to revoke and cancel licenses issued by it to practice medicine and surgery in this State without due process of law, in that said statute, nor any other statute, provides for the issuance of compulsory process, upon the application and at the request of the party being tried and whose license it is sought to have revoked, for the attendance of witnesses and for the production of books, papers and docu *615 mexits material and necessary to the defense of the person being tried. “3. Because said State Board of Health refused, upon the application and request of relator duly made to the secretary of said Missouri State Board of Health therefor, to issue subpoenas for Dr. A. W. Benton of Neosho, Newton County, Missouri, and for Dr. U. G. Hoshaw and Dr. A. Benson Clark, both of Joplin, Missouri, who were competent and material witnesses for relator upon the trial of the charge against relator in the application of said Roy Coyne, and because said Board of Health, upon the application and request of relator as aforesaid, refused to issue subpoena duces tecum for J. M. Jackson, commanding him to have and produce a certain prescription, numbered 15,760, and filled by the Jackson Drug Company, Joplin, Missouri, said Jackson being the proprietor of said dr.ug store company. “4. Because said Board of Health committed error in overruling the two motions filed by relator with said Board of Health to quash and dismiss the complaint or application filed by said Roy Coyne, praying the revocation of the license issued to relator by said Board of Health to practice medicine and surgery in this State, which said motions are contained in the record certified to this court, at pages 3, 4, 5 and 6 of said record. “5. Because said Board of Health committed error in overruling the application of relator herein for a continuance of the hearing of the application or complaint of said Roy Coyne filed by him with said Board of Health praying the revocation of the license theretofore issued to relator by said Board of Health authorizing relator to practice medicine and surgery in this State. “6. Because said Board of Health erred in overruling the oral request of relator to postpone the hearing of the complaint or application of said Roy Coyne for the revocation of relator’s license to practice medicine and surgery, as shown by the record certified' and returned to this court, at pages 9 and 10 thereof. *616 “7. Because said Board of Health erred in admitting upon the trial of said complaint or application so filed by said Roy Coyne as aforesaid certain incompetent, immaterial and irrelevant evidence. “8. Because the record so made at the hearing or trial of said application of complainant of said Roy Coyne, as aforesaid, and filed herein, shows that the complaint failed to prove that a criminal abortion had been committed upon Almeda Stewart, the person named in the complaint or application of said Coyne. “9. Because the order or'judgment of said Board of Health revoking’ the license of relator is wholly unsupported by the evidence, and is against the law of the case. “10. Because the record shows upon its face that relator was not afforded a fair and impartial trial of said complaint or application, and that he was deprived of his license to practice medicine and surgery without'due process of law. ' “11. Because Section 7336, Revised Statutes 1919, is too vague and indefinite to be enforced and does not provide the means or machinery for revoking licenses thereunder.” We have set this motion out in full for the reason that it covers the several questions raised by the motions throughout the hearing before the State Board of Health. The motion to quash the record was overruled by the circuit court and the finding of the board sustained. From such judgment the relator appealed. This outlines the case. I. The first attack made by relator upon the record of the State Board of Health is that the complaint purports to be filed by the prosecuting attorney, and that there is no authority in law for that officer to file such. The statute does not say by whom such complaints may be made. It contains no limitations in this regard. In State ex rel. v. Goodier, 195 Mo. l. c. 555, the charges were filed by named persons, citizens of the county. The *617 same is true in State ex rel. v. State Board of Health, 266 Mo. l. c. 250. In State ex rel. v. Robinson, 253 Mo. l. c. 281, the complainants were three physicians, who described themselves as the “Board of Censors of Jasper County Medical Society.” In State ex rel. Johnson v. State Board of Health, 288 Mo. l. c. 663, the complaint was by H. J. Westhues, Prosecuting Attorney of Cole County, and in that respect is identical with the case at bar. In none of these cases, however, is the question discussed. Nor are we cited to a case wherein such question is discussed. It is no doubt true that there was a criminal prosecution against Johnson, and the prosecuting officer knowing the facts preferred the charges before the State Board of Health. It does not follow from this that he was proceeding as the prosecuting attorney. He had the right of any other citizen to prefer charges, and the words “Prosecuting Attorney of Cole County” could have been eliminated as mere surplusage, or as a mere description of the person, and there would be left charges by a citizen. So in the case at bar. It may be true that the statute fixed the duties of a prosecuting attorney and they do not cover a complaint of this kind, in his official capacity. The complaint in this case does not appear to be upon his oath of office as prosecuting attorney, except by the language following the name, which can be considered either as surplusage, or as a mere description of the person. We feel that the complaint and charges as made were (so far as this contention is concerned) sufficient to properly invoke the jurisdiction of the State Board of Health. The statute is certainly broad enough to permit any citizen to prefer the charges, and a person is not deprived of citizenship by occupying the office of prosecuting attorney. *618 *617 II. The second contention of learned counsel for relator is, that the State Board of Health had the power *618 to issue process for witnesses and books and papers, and tbat such board abused its discretion, and wronged the relator in refusing to issue the subpoenas that he requested. No claim is made that there is express statutory authority to that end, but it is urged that there is an implied power within the terms of the statute. In State ex rel. v. Goodier, 195 Mo. l. c. 559 (decided in October, 1905) it was expressly ruled that there was no power to issue subpoenas possessed by the board. Many sessions of the Legislature have come and gone since that ruling, and the lawmakers have been satisfied with, our construction of the then existing statute. [Sec. 8514, E. S. 1899.] This old statute authorized the board to “refuse certificates to individuals guilty of unprofessional or dishonorable conduct, and they (the board) may revoke certificates for like causes; after giving the accused an opportunity to be heard.” Under that statute we ruled that no process could be issued by the board. The Legislature might have authorized the use of process, as has been done with some other bodies (other than courts), but it did not. When the statute was reduced to its present form (Sec. 7336) it would have been an easy matter to have written into it a clause authorizing compulsory process for witnesses, but the Legislature did not do so. Instead it provided for the taking and reading of depositions upon such hearings. It is unreasonable to believe that in view of our ruling in Goodier’s Case, the lawmakers would have failed to make provision for compulsory process, had the intent been to grant the power to issue such process. The provision for, depositions in such hearings rather exclude the idea of compulsory process for witnesses. We do not believe that the statute confers the power, even by implication, for the issuance of compulsory process, either for witnesses or for books and papers, and we so rule. It was fully within the power of the lawmakers to give authority for these hearings, and to prescribe just how the facts were to be obtained therefor. ■ *619 III. The relator next urges that if we give the statute the construction just given it in the foregoing paragraph, then the statute violates the due process clauses of both the State and Federal constitutions, in that it authorizes the taking of his license (a valuable right) without a hearing or trial before a tribunal of competent jurisdiction. The license to both a lawyer and a physician have been denominated valuable rights, of which they cannot be deprived without due process of law. [State ex rel. v. McElhinney, 241 Mo. 592; State ex rel. v. Robinson. 253 Mo. 271.] It was no doubt in view of these rulings, that the present Section 7336, Revised Statutes 1919, was enacted. Here we have first a hearing before the State Board of Health, and then a right of review in the courts, so that no physician can now be shorn of his license without a court review if he so desires. We shall not discuss the mooted question as to whether or not the license is a privilege or a property right. It suffices to say that this court has denominated it to be a valuable right of which the possessor cannot be deprived except by due process of law. The question then is, does this .Section 7336, supra, afford the physician due process of law? It has been contended that the statute did not authorize the taking of depositions. This contention Court in Bane overruled in the case of State ex rel. Farber v. Shot, 304 Mo. '523, decided at this term. That case rules that either party can take and make proof by way of depositions. That situation must be considered in determining the effectiveness of the statute as a statute giving to the parties due process of law. That case ruled that the statute permitted the taking of evidence by deposition of all witnesses who would not voluntarily appear at the hearing. The statute therefore guarantees a hearing by way of depositions, at the least. This hearing is before a board in the first instance, but a court review is provided for, and these cases have, under the *620 scheme of this statute, run the gamut from the State Board of Health to this court. This case exemplifies this fact. If the hearing fulfills the requirements of due process, then no constitutional inhibitions have been countered. Due process of law requires a hearing, after due notice of such hearing has been given the party. The proceedings need not be “according to the course of the common law.” [Hennig v. Staed, 138 Mo. l. c. 435.] The law in question provides for a hearing upon evidence, after due notice, and for a judgment after such hearing. Not only so, but it provides for a court review of the whole proceeding, and this relator had such hearing in the circuit court, and is now in this court upon appeal. By “due process” we do not always mean a court hearing. “But neither proceedings according to common law, nor judicial proceedings in a formal court for the trial of actions, are essential to due process.” [McG-ehee’s Due Process of Law, p. 52;. 6 R. C. L. p. 459, sec. 454.] There must, however, be a hearing after due notice, an opportunity to defend the right involved, before a legally constituted body for determining such right of the citizen. The statute under consideration not only grants all these things, but to make the matter doubly sure, it provides for a court review. The most commonly approved definition of due process is that given by Webster in the course of his argument in the Dartmouth College Case, 4 Wheat. (U. S.) 418, wherein he said: “By the law of the land is most clearly intended the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land.” Our court has often quoted with approval this statement, and announced it as a definition, applying it *621 to varying facts and cases. [Clark v. Mitchell, 64 Mo. l. c. 578; Hunt v. Searcy, 167 Mo. l. c. 179; Barber Asphalt Pav. Co. v. Ridge, 169 Mo. l. c. 384; Wilcox v. Phillips, 260 Mo. l. c. 679.] The foregoing cases discuss from different angles the doctrine of due process, both under the State and Federal constitutions, and barring the question of requiring the evidence by deposition, rather than the enforced attendance of witnesses, there is nothing in the law denying due process. The question of evidence by deposition we consider later. IV. Does this Section 7336, Eeviáed Statutes 1919, do violence to the due-process clause of the constitutions (State and Federal) because it provides for the evidence to be submitted by deposition, rather than by the personal attendance of witnesses'? The gen-eral rule is that the State Legislature has the right to prescribe rules of evidence and rules of procedure. Such rules and laws must be reasonable, and give to the party an opportunity to make a defense, for if they preclude a full defense, they would violate due process. [McGehee on Due Process of Law, p. 80; 12 C. J. p. 1233.] More pointed is the ruling in I. C. Railroad Co. v. Paducah Brewery Co., 157 Ky. l. c. 364. In Kentucky there was a statute which allowed a railroad commission to hear evidence and make an award in matters of dispute, as to rates charged, and other things, between-the railroads and their customers. The statute also, provided that if the award made was not complied with by the railroad, it should be certified to the circuit court, when the defendant company should be brought in by notice, and the ease there heard upon the evidence taken before the commission. It was urged that this latter provision as to the evidence to be used violated the due-process clauses of the constitutions. The court at page 364, said: *622 •“Appellant further argues that Section 829 so construed violates the due-process and equal-protection clauses of the Fourteenth Amendment of the Constitution of the United States, because of the provision restricting the evidence to be introduced in the circuit court, to that produced before the commission. This was a wise provision of law, its purpose .being to prevent either party from trying half its case before the commission, and the other half in the circuit court, upon testimony not offered before the commission. It merely relates to and controls the practice in such cases. There is no denial of equal protection of the law. The carrier has the right to offer its evidence; and if the commis-' sion’s action is contrary to law, upon the competent evidence so offered, the courts will nullify said action. “In State of Washington v. Fairchild, 224 U. S. 510, the Supreme Court of the United States held that a statute of the State of Washington confining the evidence upon a judicial review of an order of the State Railroad Commission to that heard by the commission, was not violative of the Fourteenth Amendment. Appellant attempts to distinguish that case from the case at bar, because the order or award there in question was not an award for reparation; but we are unable to discover any distinction in the principle involved, i. e., the right of the State to control procedure in its courts, and to require the carrier to produce its evidence to the Commission by restraining the evidence to be heard by the court to that presented to the commission. “Appellant’s contention in this respect may also be answered in the opening words of the opinion by Mr. Justice White in L. & N. Railroad Co. v. Schmidt, 177 U. S. 230: “ ‘It is no longer open to contention that the due-process clause of the Fourteenth Amendment does not control mere forms of procedure in state courts, or regulate the procedure therein. All its requirements are complied with, provided in the proceedings which are claimed *623 not to have been due process of law, the person condemned has had sufficient notice, and adequate opportunity has been afforded him to defend.’ “The court, therefore, holds that Section 829 empowers the Railroad Commission to order restitution by a carrier to a shipper of the amount of money charged and collected by it from the shipper in excess of a reasonable rate thereafter fixed by the commission, subject only to the Statute of Limitations; that neither, as empowering the commission to make such an award, nor as to the methods of procedure therein prescribed, does said section violate the Constitution of the State of Kentucky; nor is it in contravention of the Constitution of the United States. ”. The cases cited sustain the views of the Kentucky court. Prom a full consideration of the law, we are of the opinion that the statute (Sec. 7336, supra) gives to physicians ample means of making a full defense to charges filed against them before the State Board of Health, and is not therefore violative of due process constitutional provisions. Y. The foregoing dispose of the only serious questions in this ease. There was ample evidence from which the State Board of Health could find that relator was guilty of the charges preferred. He was not entitled to subpoenas, and the board could not issue such. He could have introduced his evidence, if any he had, by way of deposition. In this way he could have had compulsory process for witnesses. The officer taking the depositions could compel attendance, and compel the giving of testimony. Relator made no effort to secure such evidence (if such he could procure) in the method given him by statute. He testified personally, and had the benefit of his own evidence, and could have had the benefit of other evidence if he. had taken depositions. His conduct showed no diligence in getting ready for the hear *624 ing, and no error was committed in refusing either application for continuance. As to the oral application for continuance, it should he added that there is no substantial reason for postponing a proceeding like this, until after the criminal prosecution is concluded. In our judgment the relator had a fair disposition of his case, and has reaped a just reward for his conduct. The judgment of the circuit court is affirmed. All concur.