Board of Medical Examiners of Md. v. Steward, 129

• Decision Date: 21 April 1955
• Docket Number: No. 129,129
• Parties: BOARD OF MEDICAL EXAMINERS OF the State of MARYLAND, v. Napoleon B. STEWARD, M.D.
• Court: Maryland Court of Appeals

Page 108

207 Md. 108

113 A.2d 426

BOARD OF MEDICAL EXAMINERS OF the State of MARYLAND, v. Napoleon B. STEWARD, M.D.

No. 129.

Court of Appeals of Maryland.

April 21, 1955.

Ambrose T. Hartman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., on the brief), for appellant.

J. Cookman Boyd, Jr., Baltimore (Henry M. Decker, Jr., Baltimore, Lansdale G. Sasscer and Hal C. B. Clagett, Upper Marlboro, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, and HENDERSON, JJ.

HENDERSON, Judge.

The appeal in this case is from an order of the Circuit Court for Prince George's County granting a motion to dismiss a reservation of points for decision by the court in Banc under Art. IV, § 22 of the Maryland Constitution. The court in Banc held that the Board of Medical Examiners had no right to reserve points for its determination and dismissed the appeal to it. The appellee had filed in this Court a motion to dismiss the appeal, and a brief contending, in the alternative, that the order be affirmed.

The appellee, a medical practitioner, was cited by the Board, on charges based upon his conviction in the Federal court for evading income taxes, and his license was revoked. He appealed to the Circuit Court for Prince George's County, where the order was reversed, on the ground that the Board was improperly constituted, and the case was remanded. On appeal to this Court the appeal was dismissed on the ground that there was no right of appeal under the statute, Code 1951, Art. 43, § 144. Board of Medical Examiners v. Steward, 203 Md. 574, 102 A.2d 248. On remand, the Board again considered the matter and revoked his license. He appealed to the Circuit Court where the order was reversed by Judge Marbury on the merits. There was a seasonable motion to reserve points for consideration by the three Judges of the Seventh Judicial Circuit. A motion to dismiss was granted by those three Judges.

It was decided on the previous appeal that there is no right of appeal to this Court by either party. The only right of appeal from the Board's decision is to the Circuit Court, of the city or county where the person resides whose license had been revoked, 'the judge or judges of which said court shall fully hear and determine all matters connected with the action of said board from which appeal is taken, and the decision of said court shall be final; * * *.' Code 1951, Art. 43, § 144. We recognized, however, that there was an exception to the general rule as to appeals from an appellate tribunal exercising special statutory authority, in cases where the jurisdiction of the tribunal is attacked. Board of Medical Examiners v. Steward, supra; Johnson v. Board of Zoning Appeals, 196 Md. 400, 76 A.2d 736. The appellant argues that the three-judge court, in deciding that it had no jurisdiction to hear the points reserved, refused to act within its jurisdiction and that this should be treated in the same way as if it had acted in excess of its jurisdiction. It contends that the refusal to act opens the door to an appeal within the exception noted.

We think the argument is unsound. The court in Banc had jurisdiction over the subject matter and the parties, and it had the power to decide the question of its own jurisdiction. Taylor v. Robert Ramsay Co., 139 Md. 113, 124, 144 A. 830, and cases cited. See also Stanley v. Safe Deposit & Trust Co., 87 Md. 450, 454, 40 A. 53, and 1 Freeman, Judgments (5th ed.) § 350. As was said in Hendrick v. State, 115 Md. 552, 560, 81 A. 18, 21: 'If the lower court had the right to decide what it did decide, then no question can be made in this court on the ground of want of jurisdiction, and whether it rightly decided what it did decide can only be reviewed...