Arizona republican., 1910-06-05
Or. ATOMS CASE
IS OUT OF COURT
HIS PROCEEDING AGAINST MED
IcAL EXAMINERS.
Judment Sustaining Demurrer to His
Application for Review Entered.


F. A. Alton against the board in an
application for a writ of certiorari to
review the proceedings of the board
when the license was revoked more
than year ago.
Complaint OF unprofessional con-
duct had been made against DR. Alton
the specific charge being that he was
advertising a certain kind of wa
ter as cure for diseases which the
complainant said could not be cured.
His license was revoked on hearing
but the order was subsequently set
aside by the court on the ground Of
an irregularity of the procedure. Lat
er the matter was taken up again and
the license of the doctor was revoked.
A demurrer to the application was
sustained by the district court but the
judgment was not entered. An appeal
vas taken to the supreme court and
at the last meeting was dismissed. In
the meantime a complaint still pend
ing was filed against DR.. Atoms court
charging him with practicing medicine
without a license.
The following is the order of Judge
Kent yesterday for the entering of
Judgment sustaining the demurrer to
DR.. Atoms complaint:
This is an application for a writ of
certiorari to review the proceedings of
the board of medical examiners in re-
voking the license of the applicant to
practice medicine. A demurrer to the
application was sustained at a pre-
vious term of this court, but no order
on the demurrer was ever entered and
an appeal from the decision was taken
but was not reviewed by the supreme
court because of the failure to enter
judgment upon the sustaining of the
demurrer. By consent of counsel the
matter has been again presented for
my determination as to the correct
ness of the former ruling sustaining
the demurrer.
Statutes authorizing boards of med
ical examiners to revoke a physicians
certificate for grossly unprofessional
conduct or for immortality have been
held to be invalid and void for uncer-
tainty in California, Kentucky, and in
the District OF Columbia, the ground
of these decisions being that the
legislature cannot delegate to a board
of examiners authority for revoking
licenses without designating in the
statute the causes for which such Ii
censes may be revoked.
Ii is apparent that for the protec-
ton Of society this power to revoke
licenses of physicians for grossly i'm
moral or unprofessional conduct must
be lodged somewhere. 1t is also APP
parent that the specific acts which
shall constitute gross immortality or
grossly unprofessional conduct cannot
be in advance laid down by legislative
enactment Discretion must be vested
either in such a board or in the
courts 1t is held in Indiana, Kansas,
Minnesota. and New York that such
statutes authorizing a revocation Of
physicians license by such board is
valid as reasonable exercise Of the
police power. and that such acts %
such boards in the exercise of such
power are not judicial Montana has
q provision for an appeal to the dis
trict court from an order of such a
board revoking such a license. and the
enactment has been held to be consti-
tutional in that state. In England the
action of a medical council in striking
the name of a medical practitioner
from the register for cause after due
inquiry cannot be reviewed. nor will
mandamus lie to restore such name
erased for good cause.
In Meffert VS.. State Board of Med
zeal Registration. 66 Kas-. 10. a sim
liar act was held to be constitutional.
and the action of the board in revok-
ing a physicians license for grossly
immoral conduct was upheld as valid
exercise of the police power of the
state. and as not deprivation of
right inhibited by the constitution OF
the United States. This case was af-
firmcd by the supreme court of the
United States without an opinion. The
editor of the Lawyers Reports An
notated in commenting on the case
q, L. r. A n. S. SID says. THE
affirmance of this decision without
discussion by the federal supreme
court 095 L. S. 625,D must be taken
as sanctioning the application OF the
same reasoning as to the extent OF due
process of Law, to the revocation OF
license and to the initial granting OF
a license by the administrative board
or committee created by the legisla-
ture for those purposes; and also as
an assent to the opinion of the Kansas
court and to that of the Minnesota
supreme court GA Mimi. SS7.) that
there is no possible distinction be-
tween refusing TO grant a license and
revoking one already granted. Both
acts are an exercise of the police pow
er. The power exercised and the OBJ
jects of its exercise are in each case
Identical viz. TO exclude an incompe-
tent or unworthy person from the
practice OF medicine. Therefore the
same body which may be vested with
power to grant or refuse to grant
license may also be vested with the
power to revoke
The editor OF the American and
English Annotated Cases Volume Z,
p. 1881 commenting on California
case holding such .a>statute void. says,
1.-The weight of authority. however,
seems to be in favor of the validity of
such statutes. These statutes empow-
ering certain boards to revoke the Ii
censes of physicians who are guilty of
unprofessional and dishonorable con-
duct, or of immoral conduct or habits.
or intemperance. or of a felony. have
been held to be valid as a reasonable
exercise of the police power and not
in violation of any provision of the
constitution. The courts have gener-
ally held that the acts of such boards
in the exercise of this power are not
judicial"
90, tha 1nfnian that ba uraiQht