Donovan v. State

• Decision Date: 14 January 1926
• Docket Number: 3 Div. 735
• Citation: 215 Ala. 55,109 So. 290
• Parties: DONOVAN v. STATE ex rel. BIGGS, Solicitor.
• Court: Alabama Supreme Court

109 So. 290

215 Ala. 55

DONOVAN v. STATE ex rel. BIGGS, Solicitor.

3 Div. 735

Supreme Court of Alabama

January 14, 1926

Rehearing Granted June 24, 1926

Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.

Quo warranto by the State of Alabama, on the relation of Leonard S. Biggs, Solicitor, against W.J. Donovan. From a judgment finding him guilty of practicing without a license respondent appeals. Reversed and remanded on rehearing.

Hybart Hare & Dickey, of Evergreen, for appellant.

Harwell G. Davis, Atty. Gen., Robt. G. Tate, Asst. Atty. Gen., and Leonard S. Biggs, of Monroeville, for appellee.

BOULDIN J.

An action in the nature of quo warranto may be brought against any person who unlawfully usurps or intrudes into any profession requiring a license or certificate or other legal authorization in this state. Code, § 9932.

Such action, brought by direction of the judge of the circuit court, proceeds in the name of the state upon the relation of the solicitor in his official capacity. It is not required that the solicitor be made a party personally nor that security for costs be given as in cases of information filed by a private person. Code, §§ 9933, 9938.

It is contemplated that the judge shall have advance information leading him to believe the charge can be proven and the proceeding is for the public good. His order, reciting such belief, and directing the action brought against such person to prohibit him from practicing the profession, etc., does not disclose any bias or interest on the part of the judge disqualifying him to preside at the trial, or to hear the case, if no jury is demanded; nor does the order show any prejudgment of the fact that respondent is engaged in such unlawful practice of a profession.

An information alleging "that relator gives the court further to understand and be informed, and does aver that W.J. Donovan, in said county of Conecuh, Ala., and since the 18th day of August, 1924, has intruded into the profession of treating or offering to treat diseases of human beings (a profession requiring a certificate from the state board of medical examiners of the state of Alabama), without having obtained a certificate or qualification from the state board of medical examiners of the state of Alabama, as required by law, and is still unlawfully treating or offering to treat diseases of human beings in Conecuh county, Ala.," is a sufficient charge of intruding into a profession. Code, § 5191; Ex parte Wideman, 213 Ala. 170, 104 So. 440; Belding v. State (Ala.Sup.) 107 So. 853.

The prayer, "that process may issue as provided by law requiring and commanding the said W.J. Donovan to show by what authority he is practicing said profession, in Conecuh county, Ala.," and "that said W.J. Donovan be excluded from said profession and prohibited from practicing the same in Conecuh county Ala., until he has complied with the law," is sufficient; and it is sufficient...