DARE v. BOARD OF MEDICAL EXAMINERS OF STATE OF CALIFORNIA ET AL

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District Court of Appeal, First District, Division 1, California.

DARE v. BOARD OF MEDICAL EXAMINERS OF STATE OF CALIFORNIA ET AL.

Civ. 11776.

Decided: July 09, 1942

Harry G. Henderson and M. Jas. McGranaghan, both of San Francisco, for appellant. Earl Warren, Atty. Gen., and Thomas I. Coakley and J. Albert Hutchinson, Deputy Attys. Gen., for respondents.

The record discloses that petitioner is duly licensed as a drugless practitioner by the State Board of Medical Examiners; that, by complaint duly filed, he was charged by the board with two violations of the Business and Professions Code; that, after a hearing, the board found petitioner guilty of the two offenses charged and ordered his license revoked, but also provided that, if petitioner would sign a stipulation that he would use no kind of advertising excepting the words “drugless practitioner” on his professional card, he should have his license restored and be placed on five years' probation; that, thereafter, by petition for writ of mandate, petitioner sought to have his license restored; that the trial court denied the petition. It is from the judgment denying the petition for mandate that this appeal is taken.

At the commencement of the trial of the mandamus proceeding, the judge suggested that the transcript of all proceedings had before the administrative board should first be introduced into evidence. Petitioner refused to produce such transcript, contending that under the rule announced in Drummey v. State Bd. of Funeral Directors, 13 Cal.2d 75, 87 P.2d 848, and by the appellate court in the then recent case of Laisne v. California State Board of Optometry, 101 P.2d 787, hearing granted by Supreme Court, see 19 Cal.2d 831, 123 P.2d 457, he was entitled to a trial de novo without reference to the evidence produced before the board. The trial court took the position that the introduction of the transcript was a jurisdictional prerequisite to hearing any evidence in the mandate proceeding; that the only evidence that could be introduced by the petitioner in such proceeding, other than the transcript of proceedings had before the board, was after–discovered evidence, or evidence improperly excluded by the administrative board. The trial court ruled that, unless petitioner first produced the board's transcript, no other evidence could be introduced.

Petitioner urges that, when a licensee has had his license revoked by an administrative board exercising state–wide functions, and seeks by mandamus to have it restored, he is entitled to a trial de novo in the literal sense, and that the record produced before the administrative board is incompetent for any purpose. The respondents urge that on the trial of the mandate proceeding the record of the board's proceedings must be introduced as a condition precedent to the further exercise of jurisdiction, and that the only additional evidence that may be introduced is subsequently discovered evidence, or evidence improperly excluded by the board. Under the petitioner's theory the mandamus trial would be comparable to the trial of a criminal case on “appeal” to the superior court after conviction in the justice's court. Under respondents' theory, such trial would be so limited that it would approach the limitations of a trial on a writ of certiorari, except that respondents admit that in the mandamus proceeding the trial judge must exercise an independent judgment on the facts. In our opinion neither contention is entirely sound.

The question as to the exact scope of the hearing that will be afforded to a licensee after he has been deprived of his license by an administrative board exercising state–wide functions when such licensee seeks to be restored to his license by writ of mandate, has not, as yet, been finally determined by the courts of this state, although some related problems have been discussed in a series of cases decided in recent years. The first of these cases is Standard Oil Co. v. State Board of Equal., 6 Cal.2d 557, 59 P.2d 119. That case involved the constitutionality of a statute providing that a taxpayer dissatisfied with the determination of the State Board of Equalization in certain tax matters could proceed directly in the Supreme Court by certiorari to secure a review of the board's determination. The court held that the statute was unconstitutional, for the reason that administrative boards exercising state–wide powers do not, and constitutionally cannot, exercise judicial or quasi judicial powers. It was held, therefore, that the writ of certiorari, which can be used only to review judicial action, could not be used properly to review administrative determinations. This decision was predicated partially on the earlier cases of Tulare Water Co. v. State Water Comm., 187 Cal. 533, 202 P. 874, and Dept. of Public Works v. Superior Court, 197 Cal. 215, 239 P. 1076.

The Standard Oil Company decision, supra, was followed by Whitten v. California State Board, etc., 8 Cal.2d 444, 65 P.2d 1296, 115 A.L.R. 1, in which it was held that the writ of prohibition could not be used to restrain administrative action, even though it was alleged that such board was acting in excess of its powers. The decision was predicated on the same premise as the Standard Oil Company case, supra, that is, that such boards do not exercise judicial or quasi judicial powers, and that the writ of prohibition can be used only to restrain a threatened improper exercise of judicial power. See, also, Cullinan v. Superior Court, 24 Cal.App.2d 468, 75 P.2d 518, 77 P.2d 471.

In Drummey v. State Bd. of Funeral Directors, supra, the court determined that the remedy available to one aggrieved by an administrative ruling depriving him of his license was the writ of mandate. It was also held that in such proceeding the trial court must exercise an independent judgment on the facts. In McDonough v. Goodcell, 13 Cal.2d 741, 91 P.2d 1035, 123 A.L.R. 1205, it was held that where one was denied a license by an administrative board, mandate was the proper remedy to secure a “review” of the determination, but that in such proceeding the question was whether the board had abused its discretion, and, since there was substantial evidence to support the board, no abuse of discretion had been shown.

In the two cases last cited, the parties had stipulated that the court from which mandate was sought could decide the case on the record produced before the board. No additional evidence was sought to be introduced before the court, and no question was presented as to the admissibility of the record produced before the board.

The next problem presented to the Supreme Court in this field was whether the court in the mandamus proceeding may take evidence in addition to that produced before the administrative board. That problem was directly presented in the Laisne case, supra. By a divided court, the Supreme Court held that the petitioner in the mandamus proceeding is entitled to a trial de novo in which the trial court must exercise an independent judgment on the facts, and that in such proceeding the petitioner is not limited to the record made before the board, that is, he may introduce in the mandamus proceeding, evidence in addition to that produced before the board. This court, as an intermediate appellate court, is bound by the majority rule laid down in that case.

The majority opinion in the Laisne case stands squarely for the proposition that the petitioner in the mandate proceeding in that case should have been permitted to introduce evidence other than the record of the proceedings before the board. The trial court was reversed because it refused to permit the introduction of such additional evidence. It will be noted that none of the cases above discussed directly passed on the question as to whether the introduction of the board's record is indispensable in the mandamus proceeding. In fact, none of the cases heretofore decided has expressly determined whether, in the absence of stipulation, the board's record is legal, competent evidence so as to be admissible in the mandamus proceeding over the objections of one of the litigants.

The solution of the problem as to the exact scope of the trial in the mandamus proceeding, really depends upon the answer to two questions. First, is the board's record legal, competent evidence on such trial so as to be admissible at all over objection of either litigant? Second, if the board's record is legal, competent evidence and so admissible, is it indispensable evidence so as to justify the trial court in refusing to proceed unless the petitioner produces it?

The answer to both questions revolves about the proper meaning of the term “trial de novo” as that term was used in the Drummey and Laisne cases, supra. So far as the first question is concerned––i. e., whether the board's record is legal, competent evidence on the trial of the mandamus proceeding, and, therefore, admissible over objection––we have no doubt that such record is admissible.

If the phrase “trial de novo,” as used in the above mentioned cases, should be interpreted in its literal sense it would mean that the board's record would be admissible only for purposes of impeachment, and would not be admissible on the merits. A reading of the Drummey case, and the opinion of the majority of the court in the Laisne case, demonstrates, however, that the phrase in question was not used in that literal sense in referring to the “review” of administrative determinations. Thus, in the Laisne case, the court stated that the appellant there contended “that he had the right to require the trial court in the mandamus proceeding to conduct what would be in substance and effect a trial de novo, in the course of which the parties would not be limited to the record made before the board.” 19 Cal.2d at page 833, 123 P.2d at page 459. Italics added. The court also stated that the trial court compelled the petitioner to submit his case “solely” upon the record and proceedings before the board. In discussing the Drummey case the court said at page 834 of 19 Cal.2d, at page 459 of 123 P.2d: “* * * it was held that the court must consider all material evidence and was not confined to the record of the proceedings before the board. If the court were so confined, it would not be exercising an independent judgment on all the facts material to the issue.”

It should be here noted that the court does not say that the record of proceedings before the board is not admissible, or admissible only pursuant to stipulation. It merely says that the court is not “limited” or “confined” to the record of proceedings before the board.

The majority opinion in the Laisne case further states at page 835 of 19 Cal.2d, at page 460 of 123 P.2d: “If, in the instant case, the superior court in the mandate proceedings were limited to the evidence presented before the board, or if the findings of fact by the board were conclusive on the court, then the board would be exercising the complete judicial power reserved to the enumerated courts.” The court also states at page 843 of 19 Cal.2d, at page 464 of 123 P.2d: “On the authority of the Drummey case the only type of review that would afford appellant his full constitutional rights would be a complete trial de novo as outlined in the decision in that case.” (Italics added.) It would seem that the concluding phrase is of special importance in indicating that the record of proceedings before the board is admissible, without the consent of the parties.

It is true that the court also states at page 844 of 19 Cal.2d, at page 464 of 123 P.2d that the person whose license has been revoked “has the right to a trial de novo in a superior court” and that “the petitioner must be given a trial de novo on the issues involved.” 19 Cal.2d page 845, 123 P.2d page 465. That language, if read alone, might imply that the “trial de novo ” referred to is a complete and new trial in the literal sense. But that language does not stand alone. It is qualified by the language above quoted. To hold that because petitioner, in such proceeding, is entitled to a trial de novo means that the proceeding before the superior court must go forward as if no action had ever been had before the board, except for the findings, etc., of that board, would be to fly directly in the face of language in the Drummey case, which the court quotes with approval in the Laisne case. Immediately following the statement in the Laisne case that the petitioner is entitled to a complete trial de novo, the court quotes the following language from the Drummey case, with the added comment as shown: “ ‘The findings of the board come before the court with a strong presumption of their correctness, and the burden rests on the complaining party to convince the court that the board's decision is contrary to the weight of the evidence.’ Undoubtedly, the court in this reference to the ‘evidence’ contemplated not only the record of the proceedings before the board, but such additional evidence as either party desired to introduce before the trial court.” 19 Cal.2d at page 843, 123 P.2d at page 464. Italics added.

As we read the Drummey and Laisne cases, supra, both of them affirmatively recognized that the transcript of the proceedings before the board is legal, competent evidence, and is admissible in the mandate proceeding. The numerous statements that the petitioner is not to be “limited” or “confined” to the record before the board, and the statement appearing in both cases that the findings of the board come before the court with a “strong presumption” of their correctness can be explained only on the theory that the Supreme Court did not mean that the trial de novo to which the person dissatisfied with the board's ruling is entitled is to be a complete new trial without reference to what occurred before the board. How can the trial court give any intelligent weight to the “strong presumption” referred to unless it knows the evidence upon which the findings were based?

The Drummey case also stated, 13 Cal.2d at page 85, 87 P.2d at page 854: “This does not mean that the preliminary work performed by the administrative board in sifting the evidence and in making its findings is wasted effort”; and again at page 86 of 13 Cal.2d, at page 854 of 87 P.2d: “Obviously, considerable weight should be given to the findings of experienced administrative bodies made after a full and formal hearing, especially in cases involving technical and scientific evidence.” Unless the transcript of proceedings is admissible at the request of either party, how can any benefit be secured by the trial court from the “sifting the evidence” by the board? How can the trial court secure the benefit of the technical and scientific skill of the board unless the evidence is part of the record?

The rule that permits the complete record before the board to be introduced in the trial court by stipulation, or at the request of either party, is not only supported by the clear implications of the opinions in the Drummey and Laisne cases, supra, but is supported by several practical considerations. If the record cannot be introduced over objection, the determination by the board, where the licensee is deprived of his license, would be so much wasted effort. The courts would be deprived of the expert and technical knowledge possessed by such boards. A rule excluding the record of proceedings had before the board, except upon consent of all concerned, would stultify every state–wide board. There would be no justification at all for proceedings before such administrative boards consuming both time and money, if the record is not admissible in the mandate proceeding. There would be no reason for the licensee to introduce any evidence in his defense before the board. The only practical effect of a board hearing would be to disclose the board's case without requiring the accused licensee to divulge his case.

It may be somewhat anomalous to say that the petitioner is entitled to a trial de novo in the superior court and to also hold that the record compiled before the board is admissible, but such anomaly is inherent in the peculiar nature of the mandamus proceeding sanctioned by the decisions of the Supreme Court above mentioned. As we read the above cases the important holding therein was not that a trial de novo must be had, but that in the mandate proceeding constitutional provisions require that the trial judge exercise an independent judgment on the facts. Such independent judgment can be exercised whether the transcript is admissible or not. The holding of the majority of the court in the Laisne case, supra, that petitioner in the mandate proceeding may introduce evidence in addition or cumulative, or identical to that produced before the board, affords the petitioner all the protection required by law. We, therefore, conclude that the board's record is legal, competent evidence in the mandamus proceeding which may be introduced at the request of either litigant.

This holding, however, does not determine that such transcript is indispensable evidence which must be introduced by the petitioner before the trial court has jurisdiction to proceed. We are of the opinion that, like other competent evidence, its production depends upon the desires of the litigants. If produced by either it must be admitted, but if neither produces it, the trial court has no power to compel its production, or to refuse to proceed unless introduced.

To hold that the introduction of such transcript is an indispensable prerequisite to the jurisdiction of the lower court to try the mandamus proceeding, and that the only evidence that can be introduced other than the transcript is after–discovered or improperly excluded evidence, would be to convert the mandamus proceeding into a modified certiorari proceeding. Such determination would be directly contrary to the holding of the majority of the court in the Laisne case, supra. According to that opinion, the petitioner in the mandate proceeding may introduce in that trial any competent evidence even though it may be identical to, cumulative of, or in addition to, that produced before the board. It is clear, therefore, that the trial court was in error in holding that before it would, or could, proceed the transcript must be introduced.

Petitioner urges that, even though no evidence was introduced, the allegations of the petition for mandate and the answer and return thereto, demonstrate, as a matter of law, that no offense warranting discipline was committed by him, and that it appears from such pleadings, as a matter of law, that the board was without legal right to revoke his license. In view of the fact that the judgment must be reversed for reasons already stated, these points should be passed on for the guidance of the trial court on the retrial.

The petition for writ of mandate avers, and the answer and return thereto admits, that the complaint filed before the board was in two counts; that count one charged that petitioner used the prefix “Dr.” in a window sign in connection with his name without otherwise indicating the type of certificate possessed by him; that petitioner did not hold a physician's and surgeon's certificate; that count two charged that petitioner used the letters “N.D.” as a suffix to his name in a window sign, which indicated that he was entitled to practice naturopathy; that at the time he was not licensed to practice naturopathy.

Count one is based on section 2409 of the Business and Professions Code, St.1937, p. 1229, as added by St.1939, p. 1682, which provides as follows: “Unless a person licensed and authorized under this chapter or any preceding medical practice act to use the title ‘doctor’ or the letters or prefix ‘Dr.,’ holds a physician's and surgeon's certificate, the use of this title or these letters or prefix without further indicating the type of certificate he holds, constitutes unprofessional conduct within the meaning of this chapter.” This section was added to the Code in 1939. Petitioner urges that the section is unconstitutional class legislation. This contention is predicated on the following facts: Chapter 5 of division II of the Business and Professions Code, which chapter is entitled “Medicine,” authorizes the Board of Medical Examiners to issue four types of certificates: (a) Physician's and surgeon's certificates; (b) drugless practitioner's certificates; (c) certificates to practice chiropody; (d) certificate to practice midwifery. § 2135, Bus. & Prof. Code, St. 1937, p. 1258. Other licenses, such as those to practice dentistry, optometry, etc., are issued under other chapters of the Code by other boards, or under special statutes by a special board. Petitioner urges, therefore, that, by section 2409 of the Business and Professions Code, supra, of all the licensed persons who use the title “Doctor” or “Dr.,” only drugless practitioners and chiropodists (and midwives) are required to indicate the type of certificate held. This, according to appellant, constitutes an unconstitutional classification.

Petitioner's major premise––i. e., that drugless practitioners and chiropodists are the only persons engaged in the healing arts required to indicate the type of certificate held, is not in accordance with the fact. While such contention may be sound, so far as section 2409 of the Business and Professions Code is concerned, there are other sections dealing with the same subject matter which must be read together with the section in question. Section 3098 of that Code requires that optometrists must use the word “optometrist” in connection with the title “Doctor” or “Dr.” Section 2142 of the Business and Professions Code provides: “Any person, who uses in any sign or in an advertisement the word ‘doctor,’ the letters or prefix ‘Dr.,’ the letters ‘M. D.,’ or any other term or letters indicating or implying that he is a physician and surgeon, physician, surgeon, or practitioner under the terms of this or any other law, or that he is entitled to practice hereunder, or under any other law, without having at the time of so doing a valid, unrevoked certificate as provided in this chapter, is guilty of a misdemeanor.”

In addition, the Chiropractic Act, Stats. 1923, p. xx; Deering's Gen.Laws, 1937, Act 4811, provides that chiropractors shall not use the word “doctor” or the prefix “Dr.” without the words “chiropractor” or “D. C.” immediately following the name. (§ 15.)

While it is true that there are nonmedical uses of the title in question, such as doctors of divinity, doctors of jurisprudence, doctors of philosophy, and other holders of religious or academic degrees, with these uses of the title statutes dealing with the healing arts are not concerned. State v. Michaels, 226 Wis. 574, 277 N.W. 157. Section 2142, supra, would seem to apply to all persons other than physicians and surgeons who practice the healing arts on human beings.

The constitutionality of statutes requiring all practitioners, except physicians and surgeons, to indicate the type of certificate held in connection with the use of the title “Doctor” or “Dr.,” is not open to question. There is a reasonable ground for such distinction. In common parlance the term “doctor” is customarily used to refer to physicians and surgeons. The Legislature was justified in believing that the use of such title by others without descriptive designation would tend to indicate to the public that the user is a physician or surgeon. Cases from other states have upheld the constitutionality of legislation similar in character. State v. Michaels, supra; State v. Pollman, 51 Wash. 110, 98 P. 88; Green v. Rawlings, 290 Mich. 397, 287 N.W. 577; State v. Yegge, 19 S.D. 234, 103 N.W. 17, 69 L.R.A. 504, 9 Ann.Cas. 202.

Petitioner also urges that, from the facts shown by the pleadings, he has not violated section 2409 of the Business and Professions Code. In the petition for a writ of mandate he alleges that his conviction was based entirely on evidence that he had in his window a sign reading as follows:

“Excelsior Clinical Laboratory Dr. J. Franklin Dare”

Petitioner also alleges in his petition that he holds licenses as a chiropractor, issued by the Chiropractic Board, and as a clinical laboratory assistant, issued by the State Board of Health, in addition to his drugless practitioner's license issued by the Medical Board. The allegation that he holds these additional licenses is denied on information and belief, and it is also denied that the conviction on this count was based only on the use of the above sign. These disputed questions of fact, of course, cannot be passed upon at the present time. But, even if it be assumed that the conviction under count one rested entirely on the use of that sign, it is clear that petitioner has violated section 2409 of the Business and Professions Code. Neither chiropractors nor clinical laboratory assistants are permitted to use the title without designation. Such use violates section 2142 of the Code, supra, and, in the case of chiropractors, violates the law applicable to chiropractors, supra. The sign in question plainly indicates that appellant holds himself out as a physician and surgeon operating a clinical laboratory. It follows, therefore, that petitioner, a drugless practitioner, according to the admissions in his pleading has used the title “Dr.” in violation of section 2409 because he has not indicated that he holds a certificate as a drugless practitioner.

The petition for a writ of mandate alleges, and the answer and return admits, that the second count of the complaint filed with the board charged petitioner with using the letters “N.D.” as a suffix to his name in a window sign, which indicated that he was entitled to practice naturopathy, and that he was not so licensed. This count is based on section 2395 of the Business and Professions Code which provides: “The use by the holder of any certificate of any letter, letters, word, words, or term or terms either as prefix, affix or suffix indicating that he is entitled to practice a system or mode of treating the sick or afflicted for which he is not licensed in this State constitutes unprofessional conduct within the meaning of this chapter.” The petition for writ of mandate alleges that petitioner testified at the hearing before the board that he used the letters “N.D.” indicating the degree of Doctor of Naturopathy, which he had earned. The answer to the petition admits that he so testified.

Petitioner admittedly was licensed as a drugless practitioner. Section 2138 provides that: “The drugless practitioner's certificate authorizes the holder to treat diseases, injuries, deformities, or other physical or mental conditions without the use of drugs or what are known as medical preparations and without in any manner severing or penetrating any of the tissues of human beings except the severing of the umbilical cord.”

It seems quite clear to us that naturopathy is a form of drugless practice within the statutory definition above quoted. The exact nature of naturopathy was the subject of discussion in Millsap v. Alderson, 63 Cal.App. 518, 219 P. 469, which recognized naturopathy as a system or mode of treating the sick. It was held in that case that naturopathy is a system or mode of treating the sick taught in a college established in 1904 in Los Angeles by the Incorporated Association of Naturopaths of California. The Medical Practice Act of 1907, Stats. of 1907, p. 252, provided, in section 6, for three forms of certificates a certificate to practice medicine and surgery, a certificate to practice osteopathy, and a certificate to practice “any other system or mode of treating the sick or afflicted not referred to in this section.” An amendment of 1909, Stats. of 1909, p. 418, gave express recognition to naturopaths by providing that one who held a certificate issued by the board of examiners of the association of naturopaths of California, and who was practicing under the laws of the state prior to passage of the amendment, should be entitled to practice naturopathy, and that the board of medical examiners should endorse his certificate. The board contends, in the present proceeding, that only the class of naturopaths who were such before the amendment of 1909, and whose certificates were indorsed by the medical board, hold a certificate to practice naturopathy and may use the letters “N.D.” This analysis is clearly wrong. The Statute of 1907, in effect until 1913, provided for a form of certificate authorizing the holder to practice “any other system or mode of treating the sick or afflicted” not otherwise referred to (i. e., other than medicine and surgery and osteopathy). Apparently, certificates issued under this statute after 1909, and until 1913, specified the system or mode, as, for example, naturopathy. The act of 1913, Stats. of 1913, p. 722, Deering's Gen.Laws, 1937, Act 4807, provided for the two forms of certificates the physician's and surgeon's, and drugless practitioner's. According to petitioner herein, the report of the Board of Medical Examiners to the Governor concerning the proposed act of 1913 tabulated twenty–five drugless cults who would thereafter secure licenses under the drugless practitioner's provision. Thus it appears that the law has provided, and continues to provide, for a drugless practitioner's certificate, which must be held to include naturopathy and other drugless systems of treating the sick, to practice which only a drugless practitioner's license is required. It is quite apparent, therefore, that if petitioner possesses the degree of Doctor of Naturopathy, as he alleges, that by the use of the letters “N.D.” he has not violated the provisions of section 2395 of the Business and Professions Code. That is a question of fact which must be decided by the trial court.

In the petition for mandate it is alleged that the board found petitioner guilty on both counts, and, as to each count, ruled that petitioner's license should be revoked on condition that, if he would immediately sign a stipulation that he would use no kind of advertising excepting the words “drugless practitioner” on his professional card, he should have his license restored, and then be placed on five years' probation. These allegations are admitted by failure to deny them in the answer and return. It is obvious from what has been said in this opinion, that, under the admitted facts, petitioner has violated the provisions of section 2409 of the Business and Professions Code. As to whether he has violated section 2395 of that Code, that depends upon whether he possesses the degree of Doctor of Naturopathy. If he does, he has not violated the section. That must be determined by the trial court on the retrial.

Because the trial court erroneously refused to proceed unless the board's record was produced by petitioner, and for the other reasons stated, the judgment is reversed.

PETERS, Presiding Justice.

KNIGHT and WARD, JJ., concurred.