Hanson v. State Board of Registration , 253 Mich. 601 ( 1931 )


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  • Plaintiff and appellant, claiming his license to practice medicine was irregularly and illegally revoked, brings certiorari against the Michigan State board of registration in medicine, to review its action in so revoking it. He claims respondent board is illegally constituted; that no specific charges were made against him, nor served upon him, and no legal evidence was introduced against him, and the proceedings for revoking his license were irregular, illegal, and void. The respondents return that petitioner and his attorney were given ample opportunity to present to the board such statements, evidence, and witnesses as to why he was not guilty of the violations as charged, and it claims this was sufficient. When petitioner was licensed to practice medicine, there was conferred upon him something akin to a franchise, which was valuable, and in the nature of property, which could not be taken from him without due process of law.

    In Mathews v. Hedlund, 82 Neb. 825, 830 (119 N.W. 17) it is said:

    "It is urged that one cannot have a property right in a license to practice medicine; that it is within the police power to name the conditions upon which such a permit shall issue and may be enjoyed, and that the holder thereof takes the privilege with the condition annexed that his license may be revoked at any time by the power that gave it. There is much force in the argument, and many authorities may be cited to sustain it, but we are of opinion that after a license has been issued the right *Page 611 thereunder to practice medicine is a valuable right, and one that may not be taken away without good cause; that, if such license is canceled by a board of health, it must be upon proper charges, with opportunity to appear and defend by the introducing of evidence and the cross-examination of those witnesses who testify against the physician at the hearing.Munk v. Frink, 75 Neb. 172 (106 N.W. 425); Hewitt v. StateBoard of Medical Examiners, 148 Cal. 590 (84 P. 39, 3 L.R.A. [N. S.] 896, 113 Am. St. Rep. 315, 7 Ann. Cas. 750); Smith v. State Board of Medical Examiners, 140 Iowa, 66 (117 N.W. 1116). The hearing in the instant case did not involve the determination of the learning or professional skill of the defendant, but whether he had performed a criminal operation upon the person of a patient. Under the circumstances of this case the revocation of defendant's license, as reasoned by Mr. Commissioner Ames in Munk v. Frink, supra, was analogous to a forfeiture, and involved the exercise of judicial orquasi-judicial power, within the meaning of section 580 of the code. Board of Aldermen v. Darrow, 13 Colo. 460 (22 P. 784, 16 Am. St. Rep. 215); State, ex rel. Hart, v. Common Council ofCity of Duluth, 53 Minn. 238 (55 N.W. 118, 39 Am. St. Rep. 595); People, ex rel. Kasschau, v. Board of PoliceCommissioners, 155 N.Y. 40 (49 N.E. 257); People, ex rel.Smith, v. Hoffman, 166 N.Y. 462 (60 N.E. 187, 54 L.R.A. 597);College of Physicians Surgeons v. Guilbert, 100 Iowa, 213 (69 N.W. 453).'

    In Dullam v. Willson, 53 Mich. 392 (51 Am. Rep. 128), the question of the governor's right to remove officers under the constitutional authority conferred upon him, by amendment of the Constitution of 1850, was involved. It is said:

    "He is not authorized to exercise the power at his pleasure or caprice. It is only when the causes *Page 612 named exist that the power conferred can be exercised. It follows as a necessary consequence that the fact must be determined before the removal can be made. It is also clear that the fact must be determined by some tribunal invested with judicial power, for a determination whether specified causes exist is the exercise of judicial functions. Judicial determination of facts must rest upon and be preceded by notice, proof and hearing."

    This case has been followed by subsequent decisions of the court. Not only was the petitioner entitled to a specific statement of the charges made against him, but such charges must have been supported by evidence. No evidence was introduced against him. The burden was upon respondent to introduce evidence to show petitioner was not entitled to practice. An order revoking his license cannot legally be based upon hearsay, rumor, the ex parte affidavits of disgruntled patients, nor can it be made to gratify jealousy, humor, or caprice. Petitioner was not given the opportunity to cross-examine witnesses against him.

    "The benefit of cross-examination is an essential condition to the reception of direct testimony." Heath v. Waters,40 Mich. 457.

    The testimony of any witness which the petitioner did not have a right to cross-examine was not evidence but a mereex parte statement. The rule is thus stated in 48 C. J. p. 1103:

    "In a proceeding before a board to revoke a license or certificate of a physician or dentist, the holder of the license or certificate must be given an opportunity to introduce evidence and cross-examine the witnesses who testify against him; and a statute governing the proceedings is unconstitutional as denying due process of law where it does *Page 613 not make any provision whereby the attendance of witnesses can be required or their testimony procured."

    Both the State and the United States Constitutions provide that no one may be deprived of life, liberty, or property without due process of law. In this case, no written complaint was filed against the petitioner; no specific charges were made against him; he was not furnished with the copy of the charges which he was to answer; no opportunity for filing a written answer to a verified complaint was given him; no testimony was introduced against him; he was not given the right to cross-examine the witnesses against him. The procedure was irregular, illegal, and void. Plaintiff is entitled to the relief prayed.

    Wrest and McDONALD, JJ., concurred with POTTER, J.

Document Info

Citation Numbers: 235 N.W. 225, 253 Mich. 601

Judges: NORTH, J.

Filed Date: 1/23/1931

Precedential Status: Precedential

Modified Date: 1/12/2023