Kemp v. Board of Medical Supervisors

46 App. D.C. 173, 1917 U.S. App. LEXIS 2525
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 6, 1917
DocketNo. 2976
StatusPublished
Cited by8 cases

This text of 46 App. D.C. 173 (Kemp v. Board of Medical Supervisors) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kemp v. Board of Medical Supervisors, 46 App. D.C. 173, 1917 U.S. App. LEXIS 2525 (D.C. Cir. 1917).

Opinion

Mr. Justice Van Orsdel.

delivered the opinion of the Court:

It is contended by counsel for appellant that the act of Congress, “in the particular involved, is unconstitutional and void, for that it makes the Board of Medical Supervisors both accuser and judge of the licentiate affected.” It is within the police power of the State, for the protection of the life and health of the citizen, to prescribe general requirements which all persons must meet who seek to enter the medical profession. When the requirements are not unreasonable, and the procedure prescribed for the granting of licenses is uniform in its application, it will be upheld as constitutional. Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231. On the same principle is the legislature vested with power to specify uniform grounds of procedure for revoking licenses. “It is too well settled to require discussion at this day that the police power of the States extends to the regulation of certain trades and callings, particularly those which closely concern the public health. There is perhaps no profession more properly open to such regulation than that which embraces the practitioners of medicine. Dealing, as its followers do, with the lives and health of the people, and requiring for its successful practice general education and technical skill, as well as good character, it is obviously one of those vocations where the power of the State may he exerted to see that only properly qualified persons shall undertake its responsible and difficult duties.” Watson v. Maryland, 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644. Of the present act, this court, in the case of Czarra v. Medical Supers. 25 App. D. C. 443, said: “That Congress had the power to regulate the practice of medicine and surgery in the District of Columbia, and to prescribe the reasonable qualifications required by this act, as well as to create a special tribunal, and invest it with the power to revoke the licenses of practitioners for sufficient cause, there can be no doubt.”

The procedure provided in the present case is not to be conducted-by a court, but is in the nature of an investigation by an administrative board. There is nothing in the act to prevent [179]*179anyone from lodging witli the board a proper complaint, upon which the board would have legal power to proceed. The complaint in this instance was not formulated by the board, as it is contended the statute requires, but it was filed by the executive committee of the Medical Society of the District- of Columbia. The statute places the power of removal in the board of supervisors, states the several grounds which may form the basis for the revocation of a license, any one of which constitutes a separate cause of action, and requires that the accused shall be furnished with a copy of the complaint and be given a hearing. So far as the act is concerned,—and, indeed, so far as public policy would seem to dictate,-—the complaint may originate from any source which the board may deem reliable. There is nothing in the act which even intimates either that -the board is forbidden to formulate the complaint, or that it alone can make the complaint.

The bar of limitations is invoked on three separate grounds. First, it is urged that, as more than two years elapsed between the affirmance of the conviction by this court, when the board could have acted, and the institution of the present action, the board is estopped because the act provides that the “board may at any time within two years from the refusal or revocation of a license, or the cancelation of registration under this section, by a vote of four members, issue, without examination, a new license to the person so affected, restoring to him or her all the rights and privileges of which he or she has been deprived by said board.” The difficulty with this contention is that the limitation for reinstatement begins to run from the date of the revocation of the license, and not from the date when the cause of actions accrues. This is too plain to need elaboration.

The bar of limitations is invoked in the second place under sec. 1265, D. C. Code [31 Stat. at L. 1389, chap. 854], which provides, among other things, that actions to enforce a statutory penalty or forfeiture can ony be maintained within one year after the cause of action accrues. More than one year elapsed between the date when the judgment of conviction was entered upon the mandate of this court affirming the original judgment [180]*180and the filing of the complaint in the present action. Conceding for the pvirpose of argument only, but not deciding, the doubtful proposition that statutes of limitations have any application whatever to proceedings of this sort, is this a proceeding to enforce a penalty or forfeiture ? We think not. The terms “penalty” and “forfeiture” are generally used synonymously. Taylor v. The Marcella, 1 Woods, 302, Fed. Cas. No. 13,797; Butler v. Butler, 62 S. C. 165, 40 S. E. 138; Crawley v. Com. 123 Pa. 275, 16 Atl. 416. In the legal sense they relate to a statutory forfeiture of money payable as a punishment for a violation of a statute. San Luis Obispo County v. Hendricks, 71 Cal. 242, 11 Pac. 682; Lancaster v. Richardson, 4 Lans. 136; United States v. Four Hundred and Twenty Dollars, 162 Fed. 803, 805.

The revocation of the license is in the nature of a remedial measure for the protection of the public, and not a penalty or forfeiture. v The statute does not provide ipso facto that a physician convicted of a crime involving moral turpitude shall thereby forfeit his right to continue in the practice of his profession. It merely makes that a cause of action for revocation of his license, and provides a tribunal and a remedy for the protection of society from being imposed upon by persons of immoral character practising medicine. Instead of a statutory forfeiture, the whole matter is in the discretion and judgment of the board. If the board had refused to revoke appellant’s license, the public would have been without remedy. The action is to revoke a license, and not to enforce a penalty or forfeiture. State v. Schaeffer, 129 Wis. 459, 109 N. W. 522.

That the proceeding for the revocation of a license is not to enforce a forfeiture or penalty may be implied from the fact that the revocation is not in the nature of the imposition of an additional punishment for the past offense of which appellant was convicted. “That the form in which this legislation is cast suggests the idea of the imposition of an additional punishment for past offenses is not conclusive. We must, look at the s\ibstance, and not the form, and the statute should he regarded as though it in terms declared that one who had violated the crim[181]*181inal laws of the Stale should be deemed of such bad character as to be unfit to practise medicine, and that the record of a trial and conviction should be conclusive evidence of such violation. * The State is not seeking to further punish a criminal, but only to protect its citizens from physicians of bad character. The vital matter is not the conviction, but the violation of law. The former is merely the prescribed evidence of the latter.” Hawker v. New York, 170 U. S. 189, 42 L. ed. 1002, 18 Sup. Ct. Rep. 573.

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Bluebook (online)
46 App. D.C. 173, 1917 U.S. App. LEXIS 2525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kemp-v-board-of-medical-supervisors-cadc-1917.