Brein v. Connecticut Eclectic Examining Board , 103 Conn. 65 ( 1925 )

Under our law no person, not holding a certificate of registration issued by the State board of health, may practice the profession of medicine and surgery in this State. General Statutes, § 2854. It has been the policy of the General Assembly to leave the examination and approval of applicants for such certificates to committees of the several State medical societies representing different schools of practice, subject to the conditions prescribed in §§ 2855, 2856 and 2857 of the General Statutes; and to authorize the State board of health to issue a certificate of registration upon due notice from one of such examining committees that the applicant has satisfactorily passed the required examination, and is otherwise qualified. No independent investigation of the merits of the applicant is required either by the State board of health or any other State authority. Such a policy throws a heavy burden of responsibility on the examining committees of the several State medical societies, for while some of these societies at least, have their grievance committees for the discipline and possible expulsion of offending members, such committees are not clothed with statutory authority to require the attendance of witnesses, as are the grievance committees of the county bar associations, nor are members of the medical profession officers of the courts and as such directly under their disciplinary jurisdiction, as practicing lawyers are. Perhaps the most fundamentally essential requisite for admission to a profession whose practitioners are necessarily brought into a close fiduciary relation to their patients, is that the applicant should be of good moral character, and no more conclusive evidence of utter unfitness to practice medicine can be imagined, than proof that the applicant has procured by fraud the certificate of registration, which admits him to practice.

It is quite true that the issuance of the certificate confers upon its possessor a special privilege whose value cannot be measured in money alone, and of which he cannot justly be deprived without due notice and full opportunity to be heard.

On the other hand, since the examining committee of each school of medicine is charged by law with the sole responsibility of approving the fitness of applicants to practice according to its tenets, the subsequent unanimous withdrawal of such approval is an act of great significance. And when the reason given for such withdrawal is that the approval of the applicant's fitness by the committee was procured by fraud, the action of the committee is equivalent to an authoritative declaration that its original approval, which is the statutory condition precedent for the issuance of the certificate, was never truly and in reality given; and that the statutory precautions for the public health and welfare have been evaded. The situation thus developed is one so imminently dangerous to the public health and welfare that the General Assembly has authorized the board of health to summarily revoke the certificate. General Statutes, § 2859. But the revocation is provisional and not final, for § 2860 of the General Statutes provides for an appeal to the Superior Court, where the matter may be re-examinedde novo, "which court may grant the proper relief."

We are unable to perceive that any constitutional rights of this appellant have been violated by this method of procedure. He has elected to appeal from the doings of the State board of health to the Superior Court, where he has had his day in court and has been found guilty of procuring his certificate of registration by fraud. That finding is not attacked on this appeal. Therefore the appellant's claims that he has been deprived of his certificate of registration without notice, hearing, and judgment on the merits, are really limited to a criticism of the order in which the several steps were taken which have resulted in the final adjudication of the Superior Court. His grievance is that he was not given opportunity for a preliminary hearing by the eclectic examining board, before that board requested the board of health to revoke his certificate. In that connection the claim is made that although the statute does not authorize, much less require, that board to give any notice or to hold any preliminary hearing before requesting the board of health to revoke a certificate of registration, such provisions must be read into the statute by construction. We think not. As already pointed out, the eclectic examining board is not equipped with authority to compel the attendance of witnesses, and cannot effectually conduct a legal inquisition. In requesting the board of health to revoke a certificate of registration on the ground that it was procured by fraud, it acts as a sponsor turned accuser; and the statute does not require it to do more. So the State board of health revokes the certificate on the written request of all the members of the board, and in so doing it acts as the authorized agent of the law, whose purpose and effect is primarily to safeguard the public health and welfare without the delay incidental to a preliminary hearing, and secondarily, to enable the issue of fact, if any, to be brought to the speediest possible determination in a court having final jurisdiction over issues of fact. We are of opinion that the procedure followed in this case was in strict accord with our statutes, and in that particular the appellant has not been deprived of due process of law.

The remaining question is whether the statutory procedure is so inherently unreasonable or inappropriate to the end in view as to involve the deprivation of some constitutionally guaranteed right. As to the right to a hearing the accepted rule is that one hearing before judgment, if conducted in accordance with the fundamentals of judicial procedure, satisfies the constitutional requirement. Manners v. Waterbury,86 Conn. 573, 578, 86 A. 14; Thomson v. New Haven,100 Conn. 604, 606, 124 A. 247; Pittsburgh, C., C. St. L. Ry. Co. v. Backus, 154 U.S. 421,14 Sup. Ct. 1114; King v. Portland, 184 U.S. 61, 22 Sup. Ct. 290;Southern Ry. Co. v. Durham, 266 U.S. 178,45 Sup. Ct. 51.

Neither the eclectic examining board nor the State board of health had power to render a judgment. Their acts were administrative, resembling, though not having the finality of, the destruction of peach trees infected with the "yellows." State v. Main, 69 Conn. 123,137, 37 A. 80.

The receipt of the notice of revocation by the board of health conferred an immediate right of appeal, which being pursued gave the appellant the hearing before judgment to which he was entitled. Indeed, it is enough that it gave him the opportunity to be heard.Reetz v. Michigan, 188 U.S. 505, 509, 23 Sup. Ct. 390.

In this connection we note that while the appellant's petition to the Superior Court alleges the receipt of a notice that his certificate of registration had been revoked and to return such certificate to the office of the State department of health, it is nowhere distinctly alleged that the appellant was in fact deprived of the privilege of practicing medicine pending the determination of his appeal to the Superior Court; and upon the argument before us it was stated as a fact by counsel for the appellant that he had been permitted to continue the practice of medicine notwithstanding the receipt of such notices. That being so, it seems that he was not even temporarily deprived of the special privilege of practicing medicine until the judgment of the Superior Court. But if he has been deprived temporarily of that privilege without notice and hearing pending the determination by the Superior Court of his appeal, we are of opinion that the public interest involved and the nature of the charge against him fully justified the procedure authorized by the statutes. No better demonstration that these statutes are a reasonable exercise of the police power over the subject-matter, and no clearer proof that they are appropriate to the end in view is needed, than to read the undisputed findings of the State Referee printed in the statement of facts.

The foregoing covers all the reasons of appeal except the second, which alleges that the court erred in ruling that the petitioner's certificate of registration was revoked by the State board of health, "upon the written request of all the members of" the eclectic examining board, as required by § 2859 of the General Statutes.

The finding on this point is that the request was signed by four members of the board, a vacancy caused by the death of the fifth member not then having been filled.

This assignment of error is not well taken. The board, being charged with legal duties and responsibilities, must continue to exist and function though a temporary vacancy occurs. It was the duty of the president of the Connecticut Eclectic Medical Society to nominate a person to fill the vacancy in question. General Statutes, § 2856. Obviously, his neglect to do so, cannot nullify the operation of § 2859. The rule is that all bodies charged with the performance of public duties continue to function though a vacancy exists.

The brief filed by the amici curiae takes as its premises the constitutional independence of the executive, legislative and judicial departments, and the fact that the issuing or revoking of physicians' licenses belongs to the executive department; and reaches the conclusion that the Superior Court cannot try a case of revocation de novo, because that would be in effect assuming the executive duty of revoking a license. This we think is a non sequitur.

It is true that "where the action of an administrative body involves only a purely administrative matter, the court, on a statutory appeal from such a body, has before it only the question, if properly raised, whether the body has acted illegally or has exceeded or abused its powers." Modeste v. Public Utilities Commission,97 Conn. 453, 459, 117 A. 494.

But in determining whether such a body has acted illegally the court must of course have jurisdiction to determine the issues of fact necessarily involved. The Superior Court did not undertake to try a case of revocationde novo. It has not assumed to revoke appellant's license, but merely to inquire de novo into the alleged fact that the appellant procured his license by fraud; and upon finding that issue in the affirmative, to adjudge that the eclectic examining board and State board of health did not act illegally or exceed their limited jurisdiction, in revoking appellant's license.

There is no error.

In this opinion the other judges concurred.