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In Warnshuis v. State Board of Registration in Medicine, 285 Mich. 699, the Court had under consideration a statutory provision authorizing the defendant board to refuse to issue or continue a certificate of registration or license to any person guilty of "grossly unprofessional and dishonest conduct.
Summary of this case from Salway v. Secretary of StateOpinion
Submitted June 16, 1938. (Calendar No. 39,073.)
Writ denied October 3, 1938.
Petition by Gerrit J. Warnshuis for a writ of prohibition to restrain the Michigan State Board of Registration in Medicine from proceeding with a hearing to determine right of petitioner to continue practice of medicine. Submitted June 16, 1938. (Calendar No. 39,073.) Writ denied October 3, 1938.
Goodenough, Voorhies, Long Ryan, for plaintiff.
Raymond W. Starr, Attorney General, Edmund E. Shepherd and Milton G. Schancupp, Assistants Attorney General, for defendant.
Plaintiff prays for a writ of prohibition to restrain the respondent board from proceeding with a statutory hearing to determine whether or not his license to practice medicine should be revoked or suspended. The facts are not in dispute. It appears that plaintiff is a resident of the city of Detroit and a duly licensed physician and surgeon associated with the Koch Cancer Clinic. On or about May 1, 1936, petitioner caused to be written, printed and circulated a pamphlet, the first page of which reads as follows:
"Can Tuberculosis be Cured? Gerrit John Warnshuis, M. D. First Edition."
And on the flyleaf the following appears:
Can Tuberculosis be Cured? A Study of Two Hundred and Seventeen Cases Treated with Koch Synthetic Anti-Toxin by Gerrit John Warnshuis, M. D.
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KOCH CANCER CLINIC 8181 E. Jefferson Detroit, Mich."
On page seven of the pamphlet appears the following:
"The Koch antitoxin makes it possible to bring about a complete recovery from tuberculosis, not only in mild forms of disease, but in far advanced cases that would otherwise be given up as hopeless."
On May 19, 1936, the respondent issued and served upon petitioner a notice to appear before the Michigan State board of registration in medicine at its meeting to be held June 10, 1936, to show cause why his license to practice medicine, surgery and midwifery should not be revoked or suspended for violation of that part of Act No. 237, Pub. Acts 1899, as amended (2 Comp. Laws 1929, § 6739 [Stat. Ann. § 14.533]), which reads as follows:
"Sixth. The board of registration of medicine may refuse to issue or continue a certificate of registration or license provided for in this section, to any person guilty of grossly unprofessional and dishonest conduct. The words 'unprofessional and dishonest conduct,' as used in this act, are hereby declared to mean: * * *
(d) All advertising of medical business in which grossly improbable statements are made."
On June 2, 1936, petitioner filed a petition for writ of prohibition and on June 11, 1936, an order to show cause was entered by this court. In the answer filed by respondent to the order to show cause, it is shown that on June 11, 1936, the board conducted a partial hearing on the complaint against petitioner. It is the claim of petitioner that the portion of 2 Comp. Laws 1929, § 6739, authorizing the revocation or suspension of a medical license because of advertising containing grossly improbable statements is unconstitutional and void; and that because of this fact the respondent board is about to exercise a discretion which has not lawfully been given to it while it is contended by respondent that a writ of prohibition should not issue to restrain the medical board from action pursuant to statutory authority; and that the delegation of authority to the medical board to determine what constitutes grossly improbable statements is proper.
There seems to be no dispute over the fact that a person does not have an absolute right to a writ of prohibition and that such a writ will not issue to restrain the action of an inferior court which has jurisdiction if the issue can be determined upon appeal. People, ex rel. Campau, v. Wayne Circuit Court, 11 Mich. 393 (83 Am. Dec. 754). Nor can we assume that an administrative board will act contrary to law. Sullivan v. Michigan State Board of Dentistry, 268 Mich. 427. The rule governing the issuance of such a writ is well stated in Nichols v. Judge of Superior Court of Grand Rapids, 130 Mich. 187. It is said:
"The writ of prohibition is the appropriate remedy only where the court is acting entirely without jurisdiction or in clear excess of its jurisdiction. It is not applicable where the party has a complete and adequate remedy in some other and more ordinary form. * * * The principle is thus stated:
" 'The broad governing principle is that a prohibition lies where a subordinate tribunal has no jurisdiction at all to deal with the cause or matter before it, or where, in the progress of a cause within its jurisdiction, some point arises for decision which the inferior court is incompetent to determine. But a prohibition will not lie where the inferior court has jurisdiction to deal with the cause and with all matters necessarily arising therein, however erroneous its decision may be upon any point.' Heard's Shortt, Extraordinary Remedies (1st Am. Ed.), p. 436."
See, also, Port Huron Savings Bank v. St. Clair Circuit Judge, 147 Mich. 551; Triangle Land Co. v. Auditor General, 172 Mich. 289; Behrendt v. Board of State Canvassers, 269 Mich. 247.
Under the above authorities the issuance of the writ largely depends upon the unconstitutionality of the statute under which the registration board is acting. It is urged by plaintiff that the offense of placing statements in advertising of a grossly improbable nature is described in so vague and indefinite a manner that it is impossible for any physician to determine in advance whether any material contained in advertising is grossly improbable and leaves the determination of the offending nature of the act to the varying opinions and views of the board.
In Dilliard v. State Board of Medical Examiners, 69 Col. 575 ( 196 P. 866), it was held that the phrase "immoral, unprofessional or dishonorable conduct" as used in a statute as being conduct for which a board might revoke a license was sufficiently certain and definite. In Hughes v. State Board of Medical Examiners, 162 Ga. 246 ( 134 S.E. 42), the statute provided for revocation of licenses when the holder had been convicted of a crime "involving moral turpitude" and it was held that the phrase "moral turpitude" was sufficiently definite as it has a fixed and definite meaning capable of being ascertained. In People, ex rel. State Board of Health, v. Apfelbaum, 251 Ill. 18 ( 95 N.E. 995), a statute was held not to be indefinite in making "unprofessional" or "dishonorable" conduct the basis for revocation of physicians' licenses.
See, also, State, ex rel. Lentine, v. State Board of Health, 334 Mo. 220 ( 65 S.W. [2d] 943).
In the note in 5 A.L.R. 94, it is said:
"The rule obtaining in the majority of the jurisdictions which have passed on the question is that a statute providing that the license of a physician, surgeon, or dentist may be revoked by the officers or board by which such licenses are granted, is not rendered uncertain or otherwise invalid because the grounds for revocation are therein stated in general terms."
See, also, Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608 ( 55 Sup. Ct. 570).
In our opinion the terms used in the statute have a definite and well-recognized meaning. It would be quite impossible for the legislature to enumerate all of the specific statements which might be grossly improbable. The determination of what constituted "grossly improbable statements" can best be left to those who have the education and experience, such as the medical board. Such delegation of power is properly vested in the State board of registration in medicine.
The writ of prohibition is denied.
WIEST, C.J., and BUSHNELL, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred. BUTZEL, J., did not sit.