State ex rel. Schneider v. Bourke

Citation89 S.W.2d 31,338 Mo. 86
Decision Date18 December 1935
Docket Number32216
PartiesState of Missouri at the Relation of Lewis C. Schneider v. T. S. Bourke et al., successors to Francis M. McCallum et al., as the State Board of Health, Appellants
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed.

Roy McKittrick, Attorney General, and Harry G. Waltner Jr., Assistant Attorney General, for appellants.

(1) The petition herein does not state a cause of action because there was an appropriate remedy at law to review the alleged arbitrary action of the appellants in revoking the license of respondent and because there is no authority in law for the reissuance of a license once revoked. Sec. 9120, R. S. 1929; Art. I, Chap. 53, R. S. 1929. Because the board was not bound by the dismissal of the Federal indictment against respondent. In re Richards, 63 S.W.2d 672. The insufficiency of the alternative writ and the petition may be challenged for the first time on appeal. State ex rel Crow v. Carothers, 204 Mo.App. 214. Because the alternative writ and the petition are insufficient in that they state conclusions rather than facts. 38 C. J. 863; State ex rel. Gazzalo v. Hudson, 13 Mo.App. 61; State ex rel. Cusack Co. v. Shinnick, 232 S.W. 1053. The deficiencies of the alternative writ and the petition are not cured because appellants have the right to set up deficiencies in their answer. State ex rel. Glen v. Smith, 129 Mo.App. 49. Because the alternative writ is bad in that it omits alleging all necessary facts. Sec. 9113, R. S. 1929; State ex rel. Douglas v. Reynolds, 209 S.W. 100; Hambleton v. Dexter, 89 Mo. 188. (2) Mandamus will not lie. (a) Because there is an appropriate remedy at law available. Sec. 9120, R. S. 1929; State ex rel. Lentine v. State Board of Health, 65 S.W.2d 943; 38 C. J. 558; State ex rel. Clark v. Smith, 104 Mo. 661. Rule not changed by expiration of time limit for application for legal remedy. State ex rel. v. McKee, 150 Mo. 233. Under petition, legal remedy still available. State ex rel. Kerr v. Landwehr, 32 S.W.2d 83. Facts asserted authorize statutory review, therefore, writ should be denied. State ex rel. Rainwater v. Ross, 245 Mo. 36. (b) Because mandamus will not be substituted for statutory review. 38 C. J. 570; State ex rel. Realty Co. v. Homer, 150 Mo.App. 325. (c) Because there is no authority in law authorizing the reissuance of license. Sec. 9120, R. S. 1929; State ex rel. v. Hudson, 226 Mo. 239. (3) The appellants acted reasonably and fairly within the scope of their jurisdiction. State ex rel. Horton v. Clark, 9 S.W.2d 635; State ex rel. Conway v. Hiller, 266 Mo. 242; Horton v. Clark, 316 Mo. 770. (4) The writ should have been denied because of the conduct of respondent as evidenced by the pleading and proof. 38 C. J. 574; State ex rel. Hathaway v. State Board of Health, 103 Mo. 22. (5) The respondent failed to show a clear legal right to the relief sought and therefore the writ should not issue. State ex rel. Thomas v. Williams, 99 Mo. 291. The court should consider all matters respecting the advisability of the issuance of the writ. State ex rel. Wagner v. Fields, 263 S.W. 853.

Thomas B. Ray for respondent.

(1) Boards of health are not judicial bodies but act in an administrative and ministerial capacity and mandamus will lie to compel the undoing of things wrongfully done, when such things preclude the rights, to which one is under the law entitled. State ex rel. McCleary v. Adcock, 105 S.W. 270; State ex rel. McAnally v. Goodier, 93 S.W. 928; State ex rel. Roberts v. Wilson, 297 S.W. 419; State ex rel. Hultz v. Bowman, 294 S.W. 107. (2) Relator, the respondent here, showed a clear legal right to the relief prayed for. State ex rel. Spriggs v. Robinson, 161 S.W. 1169; State ex rel. Johnson v. Clark, 232 S.W. 1031. (3) There is authority in law for the courts to quash and for naught hold, the action of appellants in revoking a physician's license to practice medicine. State ex rel. Spriggs v. Robinson, 161 S.W. 1169; State ex rel. Johnson v. Clark, 232 S.W. 1031.

OPINION

Collet, J.

The State Board of Health and the members thereof appealed from the judgment of the Circuit Court of Jackson County making permanent its preliminary rule of mandamus requiring that board to issue to respondent Louis C. Schneider, a license to practice medicine. A history of the case and the facts necessary for the determination of this appeal follow:

On January 2, 1929, the State Board of Health granted respondent a license to practice medicine in Missouri. Almost immediately thereafter the board was informed that respondent was under indictment in the Federal Court charged with unlawfully dispensing narcotics. The newly issued license was either voluntarily surrendered or taken from respondent by the secretary of the board. It is immaterial in which manner the board obtained possession of the license. On March 19, 1929, respondent was served with a notice stating that he was charged with dealing illegally in narcotic drugs and directing him to appear before the Board of Health April 17, 1929, to answer the charge. The indictment against respondent was dismissed March 26, 1929. On April 17, 1929, the board held its hearing at which evidence was offered in support and in defense of the charge. This hearing resulted in the revocation of respondent's license by the Board of Health. No application was made for the statutory review of the board's action provided for by Section 9120, Revised Statutes 1929. Respondent thereafter made numerous personal applications and requests to secure the return of the license. Failing in that effort he instituted this action in the Circuit Court of Jackson County on October 21, 1931. It is unnecessary to describe the petition further than to say that it charged appellants with taking respondent's license from him because of the pendency of the Federal charge and unlawfully refused to return it upon the dismissal of those charges, and sought a rule in mandamus requiring the Board of Health to issue the license. The preliminary rule was issued which was, after a trial, made absolute and a final judgment entered commanding appellants to issue the license. From that judgment appellants appeal. Various assignments of error are made, only one of which it is necessary to consider.

Appellants contend that respondent had an adequate remedy by certiorari to review the action of the Board of Health revoking the license and that therefore mandamus will not lie. That position is well taken. This court in State ex rel. v. McKee, 150 Mo. 233, l. c. 243, 51 S.W. 421, said:

"Furthermore, the writ of mandamus cannot be made to perform or to usurp the functions of an appeal or writ of error. Where the matter is reviewable by appeal or writ of error, and where the party may obtain redress in the ordinary course of judicial proceedings, mandamus will be refused."

Again in State ex rel. v. Ross, 245 Mo. l. c. 44, 149 S.W. 451, this court en banc said:

"Is relator entitled to relief by writ of mandamus, under the facts of this record? We are of the opinion that he is not. Mandamus is an extraordinary writ and will be granted only when the relator, as alleged in the petition in this case, is without 'other legal remedy.' This principle of law is well established, and the decisions of this court are in full accord with it. As said by this court in the case of State ex rel. v. McAuliffe, 48 Mo. l. c. 114: 'The principle is unquestioned, laid down by the text-writers and established by the adjudged cases, that mandamus will only lie where the relator has a specific right and the law has provided no other specific remedy.' [See, also, State ex rel. v. Engelmann, 86 Mo. l. c. 561; State ex rel. v. Smith, 104 Mo. 661; 2 Spelling on Extraordinary Remedies, 1374; 26 Cyc. 175; 19 Am. & Eng. Ency. Law (2 Ed.) 745.]"

In the case of State ex rel. v. Homer, 150 Mo.App. 325, l. c. 329, 130 S.W. 510, is found the following statement of the rule:

"The proceeding by mandamus is an extraordinary remedy and, therefore, never allowed when another adequate remedy at law in simpler form may be pursued to the end of rectifying the identical grievance complained of. [19 Am. & Eng. Ency. Law (2 Ed.) 245.] On this principle the rule universally obtains that where a complete remedy may be had by means of appeal, writ of error or certiorari, mandamus will not lie. [19 Am. & Eng. Encv. Law (2 Ed.) 745, 750; Williams v. Judge...

To continue reading

Request your trial
7 cases
  • State ex rel. Southern Ry. Co. v. Mayfield
    • United States
    • Missouri Supreme Court
    • October 10, 1949
    ... ... Schneider v. Bourke, 338 Mo. 86, 89 S.W.2d 31; ... State ex rel. McDermott Realty Co. v. McElhinney, ... Judge, 246 Mo. 44, 151 S.W. 457; State ex rel ... ...
  • State ex rel. Horton v. Bourke
    • United States
    • Missouri Supreme Court
    • June 14, 1939
    ... ...          (1) ... Mandamus will not lie in this case. Sec. 9120, R. S. 1929; ... State ex rel. Horton v. Clark, 320 Mo. 1190, 9 ... S.W.2d 635; State ex rel. Lentine v. State Board of ... Health, 334 Mo. 220, 65 S.W.2d 943; 38 C. J. 568; ... State ex rel. Schneider v. Bourke, 338 Mo. 86, 89 ... S.W.2d 31; State v. Edwards, 260 S.W. 445; 38 C. J., ... p. 575; State ex rel. Kramer v. Schwartz, 82 S.W.2d ... 63, 333 Mo. 932; Laws 1901, p. 209, sec. 7; Russell v ... Dibble, 132 Wash. 51, 231 P. 18; 95 A. L. R. 1424; ... State ex rel. Onion v. Supreme Temple ... ...
  • Barth v. Clay Tp.
    • United States
    • Missouri Supreme Court
    • July 2, 1945
    ... ... plaintiff's petition fails to state facts sufficient to ... constitute any cause of action or for the relief ... 23, and p. 169, sec. 197; ... Pike v. Megoun, 44 Mo. 491; State ex rel. Funk ... v. Turner, 17 S.W.2d 986. (2) Plaintiff has not alleged ... or ... 1047, 15 S.W.2d 788, 63 A.L.R. 512; State ex rel ... Snyder v. Bourke, 338 Mo. 86, 89 S.W.2d 31. (8) Acts of ... officers involving the ... ...
  • State ex rel. State Highway Com'n v. Curtis
    • United States
    • Missouri Supreme Court
    • June 13, 1949
    ... ... extraordinary writ of mandamus. State ex rel. v ... Terte, 176 S.W.2d 25, 351 Mo. 1089; State ex rel ... Horton v. Bourke, 129 S.W.2d 866, 344 Mo. 826; State ... ex rel. Schneider v. Bourke, 89 S.W.2d 31, 338 Mo. 86; ... 55 C.J.S. 123, No. 71; State ex rel. Tate v ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT