
    Shearer, Appellant, v. State Medical Board of Ohio, Appellee.
    (No. 4412
    Decided June 14, 1950.)
    
      Mr. Herbert 8. Duffy, attorney general, and Mr. Joseph F. Ford, for appellee.
    
      Mr. Waymoh B. McLesJcey, for appellant.
   Hornbeck, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming the action of the appellee, State Medical Board of Ohio, in suspending for one year the certificate of appellant, Shearer, to practice osteopathic medicine and surgery.

Twelve errors are assigned. The numbered headings in the assignments of error are not conformed to in the brief of the appellant which sqts up the questions presented under seven headings, as follows:

1. Was William Henning “an illegal practitioner of medicine” in Connection with the alleged treatment of Dwight Williams ?

2. If so, did the appellant have any “professional connection with” Henning?

■ 3. If not, did appellant lend his name to Henning?

4. Was the conduct of Dr. J. H. J. Upham as a member of the board prejudicial to the appellant?

5. Was appellant given a fair hearing by the board within the meaning of Article I, Section 16 of the Ohio Constitution, and the Fourteenth Amendment to the Constitution of the United States?

6. Did the Common Pleas Court err as to the basis of its decision?

7. Was the fact that the appellant was not served with a certified copy of the order of suspension prejudicial?

We will not discuss categorically the questions propounded in appellant’s brief.

The charge may be divided into two parts:

1. That on or about June 7,1946, Ernest F. Shearer, D. 0., induced one Dwight B. Williams, a patient of Dr. Benedict’s to go to William Henning for treatment and that on June 7, 1946, and at various times thereafter, William Henning prescribed and treated Dwight B. Williams, for which treatments he wTas paid.

2. That other patients of Dr. Benedict were induced by Ernest F. Shearer, D. 0., to go to "William Henning for treatments.

Number 1 is completely covered and supported by the testimony of Williams. Number 2 is supported only by hearsay testimony which was not objected to and, therefore, has some probative value. Number 1 alone, in our judgment, is sufficient to constitute a violation of Section 1275, General Code.

It is asserted that it does not appear in the occurrence, the subject matter of the charge against the appellant, that he had any professional connection with or lent his name to Henning, an illegal practitioner. It was amply proven that Henning was an illegal practitioner; that, assuming the truthfulness of Williams’ testimony, he had connection with Shearer that was professional in its character and was upon the advice of Shearer taken to Henning for professional diagnosis and treatment; and that, pursuant to this connection, Dr. Henning did treat and administer medicine to Williams. This, if established by the requisite degree of proof, in our judgment, meets the intendment of the language of Section 1275, General Code, “having professional connection with” an illegal practitioner of medicine.

It appears that during the hearing Dr. J. II. J. Up-ham, a member of the State Medical Board, passed one or two notes to Mr. Ford, counsel for the plaintiff. One note only was found. It is made part of the record and reads:

“Did not Shearer testify that Mrs. Holmes worked "exclusively for him?”

We cannot say that this act on the part of a member .of the board indicated prejudice against appellant. It does not appear that the note-was passed secretly. There is nothing in the question which indicates any animus or feeling on the part of the writer. The information sought was germane to the factual matters to be determined. The writer could himself have made the inquiry of the witness. There would have been no impropriety if he had orally requested either counsel to propound the question. In all the action was neither erroneous nor prejudicial.

It is urged that because of the composition of the board, mostly medical doctors, it was impossible for the appellant, an osteopath, to have a fair trial and that the hearing before this board as constituted was a denial of the due course of law provision of the Bill of Rights of the Ohio Constitution and the ‘ ‘ due process” clause of the Fourteenth Amendment to the federal Constitution. Academically there is some logic in this argument, but we shall not hold at this late date that the medical act is unconstitutional. It has been tested as to its constitutionality. Shaw v. State, 101 Ohio St., 507, 130 N. E., 939; Nesmith v. State, 101 Ohio St., 158, 160, 128 N. E., 57; Williams v. Scudder, 102 Ohio St., 305, 131 N. E., 481.

It is claimed also that the order of the board is invalid because no certified copy thereof accompanied the notice of suspension contained in the letter from the board to Dr. Shearer. In view of the obvious fact that Dr. Shearer had full and complete notice of the action of the.board and was enabled to avail himself of all remedies set up by law to test the validity of its action, it is our judgment that, this failure to send the certified copy of the order of suspension did not invalidate the order of the board.

It is. assigned that the Common Pleas Court erred as to the basis of its decision in the finding that the ap-pellee “has not been guilty of an abuse of discretion or acted arbitrarily or capriciously. ’ ’

The judgment entry in the Common Pleas Court reads, in part:

‘ ‘ The court on consideration thereof, and being fully advised in the premises, finds that the action taken by the State Medical Board is in conformity with the law and the said appellee has not been guilty of an abuse of discretion or acted arbitrarily or capriciously. ’ ’

In the written opinion of the common pleas judge he used this language:

“We have no right to disturb the conclusions and findings reached by the board unless such findings and conclusions disclose that the board was guilty of an abuse of discretion, i. e. that the board upon the record before it acted arbitrarily and capriciously. We are unable to say that the board in its finding was guilty of an abuse of discretion or that its action was unreasonable and oppressive.”

Under the provisions of the controlling statutes (Sections 154-67 to 154-71, inclusive, General Code), together with the Supreme Court’s interpretation of Section 154-73, General" Code, in the case of Farrand v. State Medical Board, 151 Ohio St., 222, 85 N. E. (2d), 113, where the appeal from the State Medical Board’s decision was perfected to the Common Pleas Court, that court was required to follow the rules of civil procedure by weighing the evidence and placing upon the State Medical Board the burden of proving the charges by a preponderance of the evidence: Hence, one of the questions before the Common Pleas Court was whether the action of the State Medical Board was against the manifest weight of the evidence. There is a difference between action which is an abuse of discretion and action which is against the weight of the evidence.

Judge Zimmerman in the opinion and the court in the syllabus recognize this differentiation in Steiner v. Custer, 137 Ohio St., 448, 31 N. E. (2d), 855, the second paragraph of the syllabus of which reads, as follows:

“The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court. ’ ’

The test by the reviewing court to be applied to the order of the board was whether the order was against the manifest weight of the evidence. Inadvertently, no doubt, the trial judge failed to test the order by the correct principle of law.

We have observed in some of our opinions that certain acts of administrative boards are to be tested as upon abuse of discretion, and as recently as March 10, 1950, in the case of Strohm v. Board of Liquor Control (unreported), Franklin county, No. 4333, we said that “the department did not abuse its discretion in rejecting the application on the ground of location of the business.”

The Strohm case involved -an action of the Board of Liquor Control in rejecting the application of the appellant for renewal of certain liquor permits. There was no dispute as to the fact upon which the board predicated its ruling. Our observation in that situation was correct. So, in the instant case, if the board, upon the application of the preponderance of the evidence rule, properly found either charge against the defendant to have been proven then, in the exercise of its discretion, it could determine what punitive measures should be taken under the applicable law.

We have purposely expressed no opinion on the question of whether the board acted against the weight of the evidence in making its finding that the charges against the appellant were proven. That prerogative in the first instance should be exercised by the Common Pleas Court on the appeal to it. The judgment will be reversed and the cause remanded to the Common Pleas Court for determination of that one question. We have passed on all other errors assigned. The judgment entry should provide that no assignment of error is established except No. 6, and that the Common Pleas Court erred as to the basis of its affirmance, viz., that the board did not abuse its discretion in finding the charges against the defendant to be proven.

Some observation is made in appellant’s brief of the dissent in this court in State v. Henning, 83 Ohio App., 445, 78 N. E. (2d), 588. It will be observed that State v. Henning was a criminal prosecution and, also, that the charges here against the defendant are more specific than in the Henning charge. Some observation is also made as to Farrand v. State Medical Board, supra. The courts inferior to the Supreme Court will, of course, accept the adjudication in this case but we are satisfied that amplification will be required when an appeal reaches the Supreme Court, in which the Common Pleas Court of Franklin County has granted a request for the admission of additional evidence, and it has been received. How shall such evidence be considered inasmuch as the board did not have that evidence before it and, therefore, had no opportunity to pass judgment upon it? Is there any other manner, in which the Common Pleas Court can consider and determine the newly discovered evidence except as upon de novo hearing? If not, then we have the anomoly of the court reviewing some of the testimony as upon questions of law and some as upon questions of fact. Section 154-73, General Code, is a hybrid in the law and difficult to classify, without qualification, under either of the recognized types of appeal.

Judgment accordingly.

Miller, P. J., concurs.

Wiseman, J., concurs in the judgment.  