Findlay v. Board of Sup'rs of Mohave County, 5328

• Decision Date: 23 April 1951
• Docket Number: No. 5328,5328
• Parties: , 24 A.L.R.2d 841 FINDLAY et al. v. BOARD OF SUP'RS OF COUNTY OF MOHAVE et al.
• Court: Arizona Supreme Court

Page 526

230 P.2d 526

72 Ariz. 58, 24 A.L.R.2d 841

FINDLAY et al. v. BOARD OF SUP'RS OF COUNTY OF MOHAVE et al.

No. 5328.

Supreme Court of Arizona.

April 23, 1951.

Charles P. Elmer, of Kingman, Favour & Quail, of Prescott, for appellants. T. J. Byrne, of Prescott, of Counsel.

Carl D. Hammond, of Kingman, Morgan & Locklear, of Phoenix, for appellees.

STANFORD, Justice.

This is an appeal from an order of the superior court quashing a writ of certiorari and dissolving the stay that had theretofore been ordered at the time the writ was issued. There was also made an order dismissing the petition upon which the writ had been granted.

The appellants (petitioners below) are four of the five practicing physicians in Mohave County. Located at Kingman, the county seat, is a county hospital known as the Mohave General Hospital, authorized, directed and maintained under the provisions of Chapter 17, Arts. III and IV, A.C.A.1939, relating to the powers of the board of supervisors in maintaining favorable health conditions. Incidentally, this was the only hospital in the county and widely used by the the residents of the north westerly corner of the state. As a county hospital, it was completely under the control of the board of supervisors of Mohave County, who had provided a general manager therefor. On February 19, 1949, the respondent members of the board of supervisors passed a certain resolution or rule pertaining to the use of the facilities of the hospital by any doctor. This resolution, known as Resolution 111, is as follows: 'Resolved, That if any doctor using Mohave General Hospital facilities is requested by another doctor, using such facilities, to assist him professionally and that doctor refuses or fails to give such assistance, then such doctor shall not be allowed to use said hospital facilities thereafter, except only for his patients in the hospital at that time.'

On February 26, 1949, petitioner Barnes was notified by respondent Coppa, manager of the hospital, that he would no longer be allowed the use of the hospital, with the exception of the patients which he was then treating in the hospital. He was later notified that authority for this action had been obtained from the respondent board and was the result of an alleged violation of Resolution 111, supra.

In August of 1949, the three remaining petitioners received similar notifications and were also prohibited from further use of the hospital facilities. No charges were preferred and no hearing was given petitioners prior to the notifications. A statement was added at the bottom of each notice that petitioners could request a hearing if they so desired.

On August 31, 1949, petitioners filed their petition for writ of certiorari in the superior court of Mohave County, the Honorable J. W. Faulkner presiding. It was thereupon ordered that the writ issue and the respondents were commanded to certify and return the complete transcript of the record and proceedings held regarding the above-mentioned notifications which petitioners had received. All proceedings, subsequent to the issue of the writ were heard and determined by the Honorable H. L. Russell.

There was also incorporated in the writ a stay requiring the parties in the meantime to desist from further proceedings in the matter to be reviewed. The purpose of the writ was to secure a review of the actions of the board of supervisors. The petition for the writ alleged: (1) that the board had exceeded its jurisdiction in finding the respondents guilty of violating the resolution without notice and without trial; (2) that the board had exceeded its jurisdiction in denying the use of the hospital facilities to respondents; and (3) that the board had exceeded its jurisdiction in the adoption of the resolution for the reason that the resolution was unconstitutional and void in that it was unjust, unreasonable and exceeded the discretionary powers of the board.

After the writ was issued, respondents filed their motion to quash, which was thereupon denied by the court. They then filed their response to the petition which contained a partial record of the proceedings before the board and also denied certain material contained in the petition for certiorari, further alleging that petitioners had requested no hearing after the notification of violation of Resolution 111 and termination of their use of hospital facilities. For further response, respondents also set out details concerning the alleged violation which were not contained in the record of proceedings of the board. In this regard, we note particularly that the only matter contained in the certified record, pertaining to the alleged violations, as a copy of the minutes of the said board, which states merely that Resolution 111 had been violated, no particulars being set forth. It is stated in the return that there was no transcript made of such proceedings.

The court, after taking matter under advisement, issued its order dismissing the petition for writ of certiorari, quashing the writ theretofore issued and granting respondents their costs, which order was supported by the court's written findings of fact and conclusions of law, filed in pursuance of petitioners' request.

In the lower court, and here, respondents questioned the use of the writ of certiorari to challenge the constitutionality of the resolution. Their position in this behalf was, and is, that the writ of certiorari may not be used to review the actions of inferior tribunals, boards or officers in the exercise of legislative, executive or ministerial functions. We have heretofore ruled that the writ is confined to a review of judicial action, and then only to determine whether the inferior tribunal, board or officer has exceeded its jurisdiction or acted without jurisdiction. Faulkner v. Board of Supervisors, 17 Ariz. 139, 149 P. 382. In State ex rel. Andrews v. Superior Court, 39 Ariz. 242, 5 P.2d 192, it was held that certiorari issues only to test jurisdiction and not to determine whether it was erroneously exercised. The inferior court must have jurisdiction of the subject matter, person and power to render the particular judgment which was given in order that the judgment be proof against attack by certiorari. Wall v. Superior Court of Yavapai County, 53 Ariz. 344, 89 P.2d 624. In numerous other cases we have held that certiorari raises only the question of jurisdiction and not the erroneous exercise thereof. If the resolution in question is so unreasonable and so unjust as to be unconstitutional, then the board, in attempting to enforce it was without jurisdiction. The rights of these petitioners were materially and substantially affected by it as were the rights of their patients and of the residents of Mohave County that had necessity for the use of the hospital's facilities and who might be admitted as paying patients. The principle of law laid down in the case of Mill v. Brown, 31 Utah 473, 88 P. 609, 611, is fittingly applicable in the instant case. The court in that case said: '* * * If the law be unconstitutional, then the acts of the respondent which affect the rights of the applicant have no support, and are, therefore, void and of no force or effect. This inquiry goes directly to the power--jurisdiction--of respondent to act, not to his qualification to do so, and hence can be inquired into in this proceeding. We cannot assent to the doctrine that a citizen affected by a law may not, at any time and in any judicial proceeding, attack that law as being unconstitutional and therefore void. An unconstitutional law by which it is sought to affect the rights of the citizen is of no force or effect and would not bind any one. Norton v. Shelby County, 118 U.S. 425-442, 6 S.Ct. 1121, 30 L.Ed. 178. Any act, therefore, of the respondent affecting the applicant's rights, if such act is based upon an unconstitutional law, is both without and beyond jurisdiction, and therefore void. The first objection cannot be sustained.'

The board, in defending their actions, are relying upon their powers as conferred by law, pointing out that by the provisions of section 17-309, A.C.A.1939:

'The board of supervisors, under such limitations and restrictions as are prescribed by law, may:

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'5. Provide for the care and maintenance of the indigent, sick and the dependent poor of the county; erect and maintain homes and hospitals therefor; provide in their discretion a farm in connection with the county hospital, and make regulations for working the same;

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'17. Adopt provisions for the preservation of the health of their respective counties as necessary, and provide for the expenses thereof;

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'22. Do and perform all other acts and things necessary to the full discharge of the duties as the legislative authority of the county government; but a supervisor shall not vote upon any measure in which he, or any member of his family, or partner, may be pecuniarily interested;

'23. Make and enforce all local, police, sanitary and other regulations not in conflict with general laws;

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They also direct attention to section 17-404, A.C.A.1939, which in part provides that: 'Except in emergency cases when immediate hospitalization or medical care is necessary for the preservation of life or limb no person shall be provided hospitalization or medical care hereunder without first filing with the board of supervisors * * * (indigent oath) * * *. The board of supervisors may admit into such hospital for hospital care, medical or surgical attention, any person other than an indigent who will pay, in part or in whole, for such hospital care, medical or surgical attention, under rules and regulations prescribed by said board. The admission of a paying patient shall not be to the inconvenience of any indigent patient.'

In considering the reasonableness of the resolution under consideration we have taken into consideration the Code sections...