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District Court of Appeal, Second District, Division 2, California.


Civ. 16668.

Decided: July 08, 1949

French & Indovina, F. Walter French, Frank J. Indovina, Santa Monica, and Walter N. Anderson, Manhattan Beach, for appellant. Fred N. Howser, Attorney General, J. Albert Hutchinson, Deputy Attorney General, for respondent.

Appellant, licensed as a drugless practitioner, was convicted by respondent board of unprofessional conduct (1) in that, as charged in count 7 of the accusation, he used the prefix ‘Dr.’ and the suffix ‘M.D.’ contrary to sections 2142, 2396 and 2409 of the Business and Professions Code, and (2) in that, as charged in count 9, he injected into the blood vessels of one Michael F. Toros human blood for the treatment of a physical condition, inv violation of sections 2138 and 2141 of said code. Pursuant to such conviction his license was revoked. His petition to the superior court for a writ of mandate to compel the board to rescind its order of revocation having been denied he brings the matter here by appeal.1

Appellant contends that the motion or resolution revoking his license as a drugless practitioner is void for the reason that it was not passed and adopted by a vote of the number of members of respondent board required by law.

Respondent is one of the agencies to which the provisions of the Government Code relating to administrative procedure is applicable. Government Code, sec. 11501(a). Respondent board consists of ten members. Business and Professions Code, sec. 2100. The hearing upon the charges against appellant began at a meeting of the board held in August, 1947, at which nine members were present and heard the evidence. The trial was adjourned to March, 1948, for further hearing. Between the August and March meetings five members of the board had retired and had replaced by five new members. Two members disqualified themselves and took no part in the proceedings. The remaining eight voted to revoke appellant's license. The affirmative vote of seven is necessary to carry a motion or resolution. Business and Professions Code, sec. 2119. The five new members did not hear the evidence taken at the meeting held in August, 1947. Appellant's contention that the motion to revoke his license is void, since only four members voting therefor had heard the evidence at the first meeting, must be sustained as to count 7.

‘Where a contested case is heard before an agency itself, no member thereof who did not hear the evidence shall vote on the decision.’ Government Code, sec. 11517(a). If a contested case is heard by a hearing officer alone he shall prepare a proposed decision which the agency may adopt in its entirety or may reduce the proposed penalty. Sec. 11517(b). If the proposed decision is not adopted the agency itself may decide the case on the record with or without taking additional evidence, or may refer the case to a hearing officer to take additional evidence, but ‘If additional oral evidence is introduced before the agency itself no agency member may vote unless he heard the additional oral evidence.’ Sec. 11517(c). The agency may order a reconsideration and may hear additional evidence. ‘If oral evidence is introduced before the agency itself, no agency member may vote unless he heard the evidence.’ Sec. 11521(b).

It is manifest that by these provisions the Legislature intended that those who judge must hear, and to abolish an abuse that had existed in administrative hearings prior to the adoption of the Administrative Procedure Act, Government Code, sec. 11500 et seq., in 1945, to wit, that members who had not attended a hearing voted in passing judgment on a licensee. The legislative object was accomplished in clear and unmistakable language by requiring in every case that when oral evidence is offered a member is not permitted to vote unless he has heard all the evidence. A hearing is an element of due process.

Respondent contends that the objection now made by appellant was waived at the hearing. At the adjourned meeting in March the prosecuting officer before the board stated ‘I want the record to show the members of the board not present at the last meeting have read the transcript of the board hearing which is on file and has been submitted to them for that purpose.’ Appellant's counsel stated he would like to know ‘from the members of the board those members who have read and considered that transcript.’ No response was made by any member of the board. The hearing officer stated ‘The objection Mr. Anderson has made is a little premature. The matter is not now ready for submission. * * * At the proper time that objection may be considered.’ This colloquy did not constitute a waiver of appellant's right guaranteed him by statute. It was not necessary that his objection should have been made at that time or at any other time during the hearing. The obligation rested on the board to conduct its proceedings in the manner required by law. If members voted to revoke appellant's license who had not heard the evidence, appellant had a right to rely on the error when the case reached the courts for review. Reading the evidence is not permitted by the statute to be substituted for hearing the witnesses.

Respondent claims that evidence concerning count 7 was supplied to the five new members by showing them exhibits consisting of photographs of appellant's office door and his letterheads and billheads having thereon the prefix ‘Dr.’ and the suffix ‘M.D.’ attached to his name. No oral evidence was given in the presence of the five new members in any manner connecting the exhibits with appellant. The photographs, letterheads and billheads were submitted to and examined by the new members of the board without any explanation whatsoever.

As to count 9 the situation is different. An amendment to the accusation consisting of this count was filed with respondent board on February 13, 1948. On the same day a copy of the amendment, together with the statutory notice of the pendency of the charge and the time and place of hearing, were served on appellant and in addition a notice of intention to add that charge and to join it with the pending charges. All statutory steps were taken as if count 9 had been a new, original and independent case, as well as a notice of intention to amend the original accusation. Five days before the hearing petitioner filed a demurrer and answer to count 9. The hearing proceeded and all eight members heard all the evidence in connection with that count. There was no irregularity in the procedure.

The evidence sustained the allegations in count 9. Appellant performed a blood transfusion on Michael F. Toros by injecting human blood into the latter's blood vessels for the purpose of resisting disease. The transfusion was accomplished by surgical means—by the penetration of the tissue of a human being, an act which a drugless practitioner is forbidden to perform. Business and Professions Code, sec. 2138. Toros died shortly thereafter.

Appellant attempts to escape the consequences of his illegal and unauthorized act by contending that the transfusion was done under the direction of a licensed osteopathic physician and surgeon, Dr. Couturier. The latter testified that Toros had been his patient; that he considered blood transfusion desirable; that in order that Toros should not lose any time from his work it was arranged that the transfusion should be made on a week-end; that he directed appellant to give 250 cubic centimeters of whole blood with the usual proceeding of typing and cross-matching; that he believed appellant's status to be a laboratory technologist and did not know that appellant held a license as a drugless practitioner. Appellant testified that he performed the blood transfusion as Dr. Couturier had directed. At the time of the operation Dr. Couturier was at Lake Arrowhead, some 80 miles from Los Angeles where it was performed by appellant. Dr. Couturier may have directed that the operation be performed but it was not done under his supervision. He further testified that he believed the blood transfusion would raise the general body resistance of Toros and would have a therapeutic value in the treatment of his case; that blood was introduced into the body by piercing the skin and the wall of a vein. In appellant's testimony he expressly adopted the evidence given by Dr. Couturier. The evidence is conclusive that appellant's penetration of the tissue of Toros' body in making the blood transfusion was an act which he as a drugless practitioner was expressly forbidden to perform. Business and Professions Code, sec. 2138. Respondent board was therefore justified in revoking his license.

Appellant maintains that his penetration of the human tissue in making the blood transfusion was not a forbidden surgical operation and compares his act with the drawing of blood by hospital technicians for the purpose of making blood tests. He also makes the absurd comparison of the penetration of the skin by tattooing. Such acts are so different from the injection of a half pint of blood into the system that they need not be further considered, and are mentioned only for the purpose of illustrating the tenuousness of appellant's defense to the charge made against him.

King v. Board of Medical Examiners, 65 Cal.App.2d 644, 151 P.2d 282, is not comparable to the instant proceeding. In that case a drugless practitioner, during a lecture, punctured a person's ear lobe and drew a drop of blood for comparison with a hemoglobin chart, for which no charge was made—an act entirely different from the introduction of blood into a person's system for therapeutic purposes.

The evidence further showed (appellant admitted) that he also recommended and delivered liniment (constituents unknown) and aspirin to Toros. ‘The term ‘drug’ includes all medicines for internal or external use. Pen.Code, sec. 383. * * * The use of a substance determines its classification. If a substance is used for medicinal purposes, it is a drug.' Downing v. California State Board of Pharmacy, 85 Cal.App.2d 30, 33–34, 192 P.2d 39, 41, and cases cited. Aspirin, acetylsalicylic acid, is a drug and is used for medicinal purposes. People v. Garcia, 1 Cal.App.2d Supp. 761, 766, 32 P.2d 445. The liniment was given and used to relieve pain and under the definition was also a drug.

Appellant contends that the board committed error in permitting the reading of evidence of witnesses given in a hearing with reference to appellant's license as a laboratory technologist before the State Board of Health relating to his medical and surgical treatment of Toros—the same subject as that before respondent board. This contention is invalid for several reasons. The reading of such evidence did not deprive appellant of the right of cross-examination since he cross-examined the witnesses at length at the hearing before the Board of Health. He introduced the evidence given by himself and his witnesses at such hearing. Portions of the record were received and read by stipulation. Such evidence is admissible under the express terms of the statute. Government Code, sec. 11513(c). Respondent did not abuse its discretion in admitting such evidence.

Finally appellant contends that the penalty of revocation of his license, as distinguished from suspension, is too severe and is disproportionate to the violation. Disciplinary action is lodged with respondent board, Business and Professions Code, sec. 2372, and even in cases in which the penalty imposed may seem to the court to be out of proportion to the offense of which the practitioner has been found guilty, the action of the board is final and the court cannot substitute its discretion for that of the board. Fuller v. Board of Medical Examiners, 14 Cal.App.2d 734, 742, 59 P.2d 171.

Judgment affirmed.


1.  In respondent's brief there appears the statement that after the hearing before respondent board the State Board of Health revoked appellant's license as a clinical laboratory technologist. There is a further statement that since the trial in the superior court appellant was convicted in the municipal court of the city of Los Angeles of violations of sections 2141 and 2142 of the Business and Professions Code. If these statements be true they are not matters for discussion on this appeal, since the dates on which the occurrences are stated to have taken place are subsequent to the hearing before respondent board and to the trial in the superior court. Therefore no reference thereto could or would appear in the record before the board or before the court. Counsel for respondent is apparently not aware of some of the fundamentals governing appeals: (1) A reviewing court takes into consideration only such matters as are contained in the record on appeal; (2) unauthenticated statements in the briefs, not supported by the record, are improper and have no influence on the court; (3) Cannon 22 adopted by the American Bar Association in 1908 provides ‘The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness. It is not candid or fair for the lawyer * * * in argument to assert as a fact that which has not been proved, * * *. A lawyer should not * * * address to the Judge arguments upon any point not properly calling for determination by him.’ The appeal will be decided upon its merits without reference to such extraneous matters.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.

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