Carey v. Sampson

• Decision Date: 08 November 1912
• Citation: 150 Ky. 460,150 S.W. 531
• Parties: CAREY v. SAMPSON, Judge.
• Court: Kentucky Court of Appeals

150 S.W. 531

150 Ky. 460

CAREY v. SAMPSON, Judge.

Court of Appeals of Kentucky.

November 8, 1912

Prohibition by M. C. Carey against Flem D. Sampson, Judge of the Whitley Circuit Court. Writ denied.

J. N Sharp and Sharp, Gatliff & Smith, all of Williamsburg, for plaintiff.

James Garnett, Atty. Gen., Charles H. Morris, Asst. Atty. Gen., and J. B. Snyder, of Williamsburg, for respondent.

MILLER J.

At the October term of the Whitley circuit court, the plaintiff, M C. Carey, was indicted by the grand jury for practicing medicine without having first procured a license therefor and without having registered, as required by section 2612 of the Kentucky Statutes. He entered his appearance, made his plea of "not guilty," waived a jury, and proceeded with the trial before the respondent, Flem D. Sampson, judge of said court. After hearing the evidence and argument of counsel, the judge took the case under advisement; and, having subsequently announced to plaintiff's counsel that he would find the defendant guilty as charged in the indictment and would fine him, Carey filed his petition in this court, asking that a writ of prohibition issue against said judge to prevent him from entering a judgment finding him guilty. The petition alleges, and the demurrer admits, that Carey has been engaged in business in Whitley county, Ky. as an optician, in fitting glasses to the eye; that he made tests merely for the purpose of writing prescriptions to E. & J. Sweigart, of Cincinnati, Ohio, so that they could grind and prepare glasses for Carey's customers; that he did not treat the eye, nor apply any medicine, and did not perform any surgical operation; and, in fact, did not do anything but test eyes for the purpose of enabling him to write prescriptions for glasses. He further alleges that he cannot pass an examination and be registered, because there is no law authorizing him to do so; that if he be found guilty, and his fine fixed at the maximum sum of $50 prescribed by the statute, there will be no appeal from said judgment to this court, and he will be without any adequate remedy by appeal, or otherwise, to protect his right to do business as an optician. The petition nowhere alleges that the court was acting without its jurisdiction, or in bad faith. The prayer for relief is based wholly and entirely upon the idea that, since there is no appeal to this court from a judgment imposing a fine of $50, plaintiff has no adequate remedy. This claim, of course, is based upon the theory that one must have an appeal in order to be adequately protected.

Subsection 5 of section 2615 of the Kentucky Statutes provides a fine of $50 against any person who shall practice medicine without having registered as a physician in the way pointed out by the statute; while section 2618 of the Statutes further defines the offense by saying that any one who opens an office for such purposes, or announces to the public in any way a readiness to treat the sick or afflicted, shall be deemed to be engaged in the practice of medicine, within the meaning of the statute. Plaintiff insists that he does not practice medicine; that the statute does not cover his case so as to permit him to be examined and registered; and that he is therefore in the unusual position of being unable to comply with the law, and at the same time of being fined for not complying with it. But, as above pointed out, the prayer for relief is not rested upon the ground that the court is about to act without its jurisdiction, but upon the idea that the absence of the right to appeal deprives him of an adequate remedy to protect his right to practice his profession.

In determining whether there is an adequate remedy, each case must be adjudged upon its merits. In Rush v. Denhardt, 138 Ky. 245, 127 S.W. 787, Ann. Cas. 1912A, 1199, this court said: "If we should once lay down the rule that application by original proceeding might be made to us to stay the hand of the inferior jurisdictions whenever, in the opinion of counsel, the ruling was prejudicial, although it might not leave the complainant without adequate remedy, we would have much of our time occupied in the settlement of questions that could be brought before us in the regular way by appeal. Inferior courts would be obstructed in the hearing and disposal of cases, and much confusion and uncertainty would follow. Schobarg v. Manson, 110 Ky. 483, 61 S.W. 999, 22 Ky. Law Rep. 1892; Galbraith v. Williams, 106 Ky. 431, 50 S.W. 686, 21 Ky. Law Rep. 79."

In that case a county judge had made a public statement, in writing to the effect that he would revoke the license of every saloon keeper in Warren county; whereupon the defendants, in a proceeding to cancel their licenses, filed the statutory affidavit requiring the county judge to vacate the bench. In those cases the statute allowed the saloon keeper an appeal from the judgment of the county court against him, but further provided that his license should stand revoked pending the appeal; and, in view of that fact, this court said: "Having granted the right of appeal, it seems manifest that the Legislature...