#### STATE on Relation of the BOARD OF MEDICAL EXAMINERS OF THE STATE OF NORTH CAROLINA v. GARRETT D. GARDNER.

(Filed 15 June, 1931.)

1. Physicians and Surgeons A d — Board of Medical Examiners may revoke license for unprofessional conduct in violating Narcotic Act.

■Where the State Board of Medical Examiners has revoked the license of a physician on the ground that he had been guilty of unprofessional conduct in that he had violated the Harrison Narcotic Act, a Federal statute: *Held,*while the board does not have the power to revoke a license on the sole ground that the holder thereof has been convicted of the violation of a criminal statute in force in the State or in the United States, C. S., 6618, and while C. S., 6683, does not empower the board to revoke a license on the ground of its violation, its provision for the revocation of licenses upon its violation being a part of the punishment prescribed therein, the board has the power to revoke a license upon a finding that the holder thereof was guilty of unprofessional conduct in that he had violated the provisions of the act.

2. Physicians and Surgeons A e — Respondent is entitled to trial de novo upon appeal to Superior Court from order revoking license.

Where upon appeal from the order of the board of medical examiners revoking the license of a physician upon the ground that he had been guilty of unprofessional conduct in that he had violated the Harrison Narcotic Act, the physician denies that he had been guilty of unprofessional conduct and denies that he had violated the statute: *Held,*he is entitled to trial *de novo*by jury of the controverted facts, upon the question of his guilt or innocence of the offense charged, and the submission of the sole issue as to whether he had been convicted in the Federal Court of violating the act is error entitling him to a new trial. C. S., 6618.

Appeals by botb plaintiff and defendant from *McElroy,*Jat January Term, 1931, of BuNcombe. Error in appeal of plaintiff; new trial in appeal of defendant.

*124Tbis is a proceeding authorized by statute (C. S., 6618), for the revocation of a license, issued to respondent by the Board of Medical Examiners of the State of North Carolina, to practice medicine and surgery in this State. 0. S., 6613 or C. S., 6617.

An order to show cause why the license should not be revoked was duly served on respondent.

At the hearing, pursuant to said order, upon its finding that respondent had been guilty of unprofessional conduct, as a physician and surgeon, in that he had violated the provisions of the act of Congress, known as The Harrison Narcotic Act, as shown by the record of his conviction in the United States District Court for the Western District of North Carolina, Asheville Division, on an indictment pending in said Court, it was ordered by the Board of Medical Examiners of the State of North Carolina that license No. 1926 issued to respondent by said board on 16 June, 1908, be and the same was revoked.

From this order respondent appealed to the Superior Court of Buncombe County, as authorized by statute, C. S., 6618. Upon the trial of said appeal, an issue was submitted to the jury, subject to the exception of the respondent, as follows:

“Was the respondent, Garrett D. Gardner, convicted in the United States District Court for the Western District of North Carolina, Ashe-ville Division, on a bill of indictment charging him with a violation of the provisions of The Harrison Narcotic Act, as set forth in the judgment of the Board of Medical Examiners of the State of North Carolina ?”

Respondent excepted to the refusal of the court to submit to the jury an issue tendered by him, as follows:

“Was the defendant guilty of the offense charged in said bill of indictment ?”

At the trial the court admitted as evidence a certified copy of the bill of indictment and of the proceedings thereon in the United States District Court for the Western District of North Carolina, Asheville Division, showing the conviction of the respondent on said indictment, charging respondent with the unlawful possession and sale of 823 grains of morphine hydrochloride, and the judgment of said court that respondent be confined in the Federal Prison at Atlanta, Ga., for the term of one year and a day. Respondent objected to the admission of this evidence and excepted to' the overruling of his objection by the court.

The issue submitted to the jury was answered, “Yes.”

Upon the return of the verdict, the respondent moved for judgment, *non obstante veredicto',*reversing the order of the Board of Medical Examiners of the State of North Carolina, and reinstating license No. 1926 heretofore issued by said board to respondent to practice medicine *125and surgery in tbis State. Tbis motion was allowed, and plaintiff excepted.

From judgment tbat tbe order of tbe Board of Medical Examiners of tbe State of North Carolina in tbis proceeding be revoked, set aside and vacated, and tbat license No. 1926, heretofore issued by said board to respondent to practice medicine and surgery in tbis State be reinstated, tbe plaintiff appealed to tbe Supreme Court.

Tbe respondent also appealed to tbe Supreme Court for tbe purpose of preserving bis right to have bis exceptions taken at tbe trial reviewed and passed upon by said Court.

*Alfred 8. Barnard for plaintiff.*

*Don 0. Young, Anderson & Howell ,a,nd Oarier & Garter for respondent.*

CoNNOR, J.

It is provided by statute in tbis State tbat if any person shall practice medicine or surgery therein without being duly licensed so to do, as provided by law, be shall not be allowed to maintain an action to collect any fee for services, and upon bis conviction, be shall be fined not less than $50, nor more than $100, or imprisoned at tbe discretion of tbe court for each and every offense. O. S., 6622.

Tbe Board of Medical Examiners of tbe State of North Carolina, provided for by statute (C. S., 6606) is authorized and in proper cases is required to examine all applicants for license tO' practice medicine and surgery in tbis State. O. S., 6613. Each applicant for such license must be not less than twenty-one years of age, and of good moral character. C. S., 6615. Tbe subjects on which applicants for such license shall be examined by said board are prescribed by statute. “If on such examination tbe applicant is found competent, tbe board shall grant him a license authorizing him to practice medicine or surgery, or any of tbe branches thereof.” O. S., 6613.

It is further provided by statute tbat tbe Board of Medical Examiners shall have power to rescind or revoke any license granted by tbe said board. Tbe statute is as follows:

“C. S., 6618. Tbe board shall have tbe power to rescind any license granted by it when upon satisfactory proof it shall appear tbat any physician thus licensed has been guilty of grossly immoral conduct, or who has been guilty of producing or attempting tO' produce criminal abortion, or who by false or fraudulent representation has obtained or attempted to obtain practice in bis profession, -or who' is habitually addicted to tbe use of morphine, cocaine, or other narcotic drugs, or who has by false or fraudulent representations of bis professional skill obtained or attempted to obtain money or anything of value, or who has advertised or held himself out professionally under a name other than bis own, or who shall advertise or profess publicly to treat human ail*126ments under a system or school of treatment or practice other than that for which he holds a license, or who is guilty of any wilful violation of the rules and regulations of the State Board of Medical Examiners, or who is guilty of any fraud or deceit by which he was admitted to practice or who has been guilty of any other unprofessional or dishonorable conduct. For any of the above reasons, the Board of Medical Examiners may refuse to issue a license to an applicant; provided, that no license or certificate shall be revoked until the holder thereof, after due notice being given, shall have a hearing before the State Board of Medical . Examiners; *provided further,*that the holder of a license so revoked shall have the right to appeal to the courts; and if the action of the Board of Examiners be reversed, he shall be allowed to retain his license; *provided further,*that the Board of Medical Examiners, in its discretion, may restore said license upon due notice being given and hearing had, and satisfactory evidence produced of proper reformation of the licentiate, before restoration.”

It should be noted that the Board of Medical Examiners has no power, under this statute, to rescind or revoke a license to practice medicine or surgery, issued by said board, on the sole ground that the holder of the license has been convicted in a court, State or Federal, of a violation of a criminal statute in force in said State or in the United States. In that respect, this statute differs from the statute, now in force, authorizing the disbarment of an attorney at law. C. S., 205. The latter statute was amended after the decision of this Court, in *In re Ebbs,*150 N. C., 44, 63 S. E., 190. In that case it was held that under the statute then in force relative to the disbarment of an attorney at law, the courts of this State had no power to disbar an attorney at law, on the ground that he had been convicted of forgery, in violation of a Federal statute, in a District Court of the United States. It was suggested in the opinion of the Court that the General Assembly, if it saw fit so to do, might amend the statute, and thus provide for the disbarment of an attorney at law, licensed to practice his profession in this State, upon his conviction in a Federal Court, of a violation of a Federal statute, where such conviction showed that he was unfit to be trusted in the performance of the duties of his profession. The statute was subsequently amended, doubtless in consequence of this suggestion. Chapter 134, Public Laws 1927.

We have a statute providing that the license of a physician who has been convicted of a violation of the statutes of this State, relative to the prescription, sale or possession of cocaine, alpha or beta cocaine, novo-caine, opium, morphine, heroin, their salts or compounds, shall be revoked. Such revocation, however, is part of the punishment prescribed by the statute for its violation, which is made a misdemeanor, and is included in the judgment of the court, in which the physician is tried *127and convicted. C. S., 6683. This statute confers no power on tbe Board of Medical Examiners to revoke tbe license of a physician who bas been convicted of its violation. Tbe board is established, by statute, not for tbe purpose of enforcing tbe criminal laws of this State, but for tbe sole purpose of regulating tbe practice of medicine and surgery therein. C. S., 6606. Such regulation is for tbe purpose of maintaining a high standard of professional character and conduct among physicians and surgeons practicing in this State, as well as for tbe protection of tbe public.

In tbe instant case, tbe order of tbe Board of Medical Examiners, revoking tbe license of tbe respondent to practice bis profession in this State, was made on its finding that respondent bad been guilty of unprofessional conduct, as a physician and surgeon, in that be bad violated tbe provisions of tbe Harrison Narcotic Act, a Federal statute, as shown by tbe record of bis conviction in tbe United States District Court for tbe Western District of North Carolina, Asheville Division. This was a sufficient finding, under tbe express language of tbe statute, to support tbe order of tbe board, revoking tbe license of tbe respondent to practice medicine and surgery in this State. Tbe finding was that tbe respondent bad been guilty of unprofessional conduct, as specified by tbe board, which “consists of seven regularly graduated physicians.” C. S., 6606. Tbe power to determine whether or not tbe conduct of tbe respondent was unprofessional, is conferred, primarily, on tbe Board of Medical Examiners.

Tbe conviction of a physician and surgeon duly licensed to practice bis profession in this State, of tbe violation of a statute, whether Federal or State, is not sufficient alone for tbe revocation of bis license by tbe Board of Medical Examiners. Where, however, tbe Board of Medical Examiners finds that tbe violation of such statute, under all tbe facts and circumstances shown by tbe evidence at tbe bearing by said board, constitutes unprofessional conduct, said board bas tbe power, under tbe statute, to revoke tbe license. This is true, in tbe instant case, although tbe validity of tbe Harrison Narcotic Act was sustained by tbe Supreme Court of tbe United States, for tbe reason that it is a Revenue Act. In *United States v. Jin Fuey Moy,*60 L. Ed., 1061, *Justice Holmes*says: “It may be assumed that tbe statute bas a moral end as well as revenue in view, but we are of opinion that tbe District Court, in treating those ends as to- be reached only through a revenue measure, and within tbe limits of a revenue measure, was right.”

Tbe respondent in tbe instant case denied that be bad been guilty of unprofessional conduct; be also denied that be bad violated tbe provisions of tbe Harrison Narcotic Act. On bis appeal to tbe Superior Court of Buncombe County, be was entitled to a trial *de novo*by a jury of tbe controverted issue of fact. He was entitled to- have an issue *128involving bis guilt or innocence submitted to tbe jury, and tried according to tbe usual course and practice in tbe Superior Court. Tbis right is expressly conferred by tbe statute as interpreted and construed in *S. v. Carroll,*194 N. C., 37, 138 S. E., 339.

Tbe issue submitted to tbe jury at tbe trial in tbe Superior Court, and answered in tbe affirmative, was not determinative of tbe validity of tbe order made in tbis proceeding by tbe Board of Medical Examiners. Tbe order was not made upon tbe ground tbat respondent bad been convicted in tbe District Court of a violation of tbe Harrison Narcotic Act. It was made upon tbe finding by tbe board tbat respondent bad been guilty of unprofessional conduct. Tbe respondent by bis appeal challenges tbis finding, and was entitled to have an issue submitted to tbe jury involving tbis controverted fact. No judgment can be rendered in tbis proceeding by tbe Superior Court until an issue involving tbis controverted fact has been answered by tbe jury.

There was error in the judgment reversing, setting aside and vacating the order of tbe Board of Medical Examiners in tbis proceeding.

Tbe respondent is entitled to a new trial, at which an appropriate issue involving bis guilt or innocence of tbe charge tbat be has been guilty of unprofessional conduct, as specified by tbe Board of Medical Examiners, should be submitted to tbe jury.

The burden will be on tbe relator to show by competent evidence tbat tbe respondent has been guilty of unprofessional conduct, in tbat be violated tbe provisions of tbe Harrison Narcotic Act, under facts and circumstances tbat show him to be unworthy of a license to practice medicine and surgery in tbis State.

Error in plaintiff’s appeal.

New trial in respondent’s appeal.