Hall v. Bledsoe

• Decision Date: 06 November 1916
• Docket Number: (Nos. 238, 44.)
• Citation: 189 S.W. 1041
• Parties: HALL et al. v. BLEDSOE.
• Court: Arkansas Supreme Court

Page 1041

189 S.W. 1041

HALL et al. v. BLEDSOE.

(Nos. 238, 44.)

Supreme Court of Arkansas.

November 6, 1916.

Dissenting Opinion December 11, 1916.

Appeal from Circuit Court, Pulaski County; Guy Fulk, Judge.

Certiorari by Dr. E. P. Bledsoe against W. H. Hall and others. From judgment for petitioner, respondents appeal. Reversed, and writ dismissed.

Wallace Davis, Atty. Gen., and Hamilton Moses, Asst. Atty. Gen., for appellants. John M. Moore, W. H. Pemberton, and Cockrill & Armistead, all of Little Rock, for appellee.

McCULLOCH, C. J.

The appellants in this case constitute the board of control for the charitable institutions of the state, and Dr. E. P. Bledsoe, the appellee, is the superintendent of the institution known as the State Hospital for Nervous Diseases. The board of control, pursuant to statutory authority, preferred charges against Dr. Bledsoe, and, after notice given and a hearing, an order was made removing him from said office. Dr. Bledsoe then applied to one of the judges of the Pulaski circuit court for a writ of certiorari to bring the proceedings of the board of control before that court for review, and on the bearing before the circuit court a judgment was rendered quashing the order of the board, and an appeal has been duly prosecuted to this court. On the hearing of the cause before the circuit court the record as made before the board of control, including all of the oral testimony adduced, was considered, and also appellee was permitted to introduce additional testimony, oral and documentary.

The statutes of the state originally provided that the charitable institutions should be under the supervision of a board of trustees appointed biennially by the Governor. The office of superintending physician was created and the duties of the office prescribed in part as follows:

"The superintending physician shall have the power to appoint and remove all subordinate officers and persons allowed by the board of trustees. He shall, at the time of the reception of each patient, enter in a book kept for that purpose the name, age, sex, residence, office and occupation of the person, by whom and by whose authority each insane person is brought to the asylum, and have all the orders, warrants, requests, certificates, and other papers accompanying such insane person, carefully filed and forthwith copied in said book; he shall also have general superintendence of the buildings, grounds and farms, with their furniture, fixtures and stock, and the direction and control of all persons therein, subject to the by-laws and regulations of the trustees; he shall daily ascertain the condition of the patients, and prescribe their treatment, in the manner prescribed in the said by-laws; and he shall also be required to see that all the rules and regulations for the discipline and good government of the institution are properly obeyed and enforced." Kirby's Digest, § 4186.

The General Assembly of 1915 created the board of control, to consist of three members to be appointed by the Governor, instead of the board of trustees, as originally provided. Acts 1915, p. 403. The new statute referred to does not enlarge nor otherwise change the duties and powers of the superintendent, but merely changes the management from that of the old board of trustees to the new board of control. Section 7 of the new statute reads as follows:

"The board of control shall have full authority to adopt such rules and regulations for the conduct of its business, and of the affairs of the institutions under its control, as it may deem proper; it may meet at such times and places for the conduct of its business as may seem fit, but must meet at least once each month."

Section 8 of that statute contains the following provision:

"The board may at any time remove the secretary, or the superintendent, or steward of any of the institutions, for inattention, neglect, misconduct or inefficiency in the discharge of his duties, or for other adequate cause; but in case of such removal, it shall state specifically and distinctly the ground therefor."

The substance of the charges against Dr. Bledsoe which we deem it worth while in the discussion to mention is that he was guilty of inattention and neglect and inefficiency in failing to devote his entire time to the discharge of the duties of the office, and in absenting himself frequently from the institution at times when his presence was required, that he failed to visit and inspect the wards in the institution and to personally familiarize himself with the conditions existing there, and that he failed to hold staff meetings for the purpose of consulting concerning the treatment of patients. There were other charges embraced in the specifications which we do not deem it important to mention. The fact that some of the charges are unsustained does not affect the merits of the controversy with respect to the other charges.

The discussion of counsel in their respective briefs has taken a very wide range, and many questions which we think are well settled are debated with great zeal.

In the first place, it appears clear to us that this is not, as contended by counsel for appellants, a suit against the state. It is merely a review of the proceedings of a tribunal created by the state to perform certain functions; the one exercised in this instance being quasi judicial. The rights of the state are in no wise drawn into the controversy; for the proceeding merely raises the question of regularity and correctness of the action of the board in removing Dr. Bledsoe from the office which he held. The state is not sued, either directly or indirectly. That feature of the discussion may therefore be dismissed without further comment.

Again, it is very plainly settled, we think, that the writ of certiorari is available for the purpose of giving the circuit court, a court of general original jurisdiction, the opportunity to review the decision of the board in removing an officer pursuant to the terms of the statute. Pine Bluff Water & Light Co. v. City of Pine Bluff, 62 Ark. 196, 35 S. W. 227; State ex rel. v. Railroad Commission, 109 Ark. 100, 158 S. W. 1076.

"The test therefore is," we said in the case last cited, "whether the act sought to be reviewed is done in a judicial or quasi judicial capacity, and not merely in a legislative, executive, or administrative capacity."

It being seen that the board, in hearing the charges against the superintendent of the hospital, and in removing him, acted in a quasi judicial capacity, it follows that a writ of certiorari may run for the purpose of bringing up the proceedings for review.

In Burgett v. Apperson, 52 Ark. 213, 12 S. W. 559, this court said:

"The writ is granted in two classes of cases: First, where it is shown that the inferior tribunal has exceeded its jurisdiction; and, second, where it appears that it has proceeded illegally and no appeal will lie, or that the right has been unavoidably lost."

More serious questions arise concerning the scope of the inquiry of the court in reviewing the proceedings of the board. At common law the scope of the remedy was merely to review for errors of law, and the inquiry on the hearing was confined to the record made before the tribunal whose proceedings were sought to be reviewed. Harris on Certiorari, § 59; Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206; Morrill v. Morrill, 20 Or. 96, 25 Pac. 362, 11 L. R. A. 155, 23 Am. St. Rep. 95; Stevens v. County Commissioners, 97 Me. 121, 53 Atl. 985; note to the case of Wulzen v. Board of Supervisors, 40 Am. St. Rep. 35.

The rule is stated in the note referred to above as follows:

"No questions can be presented for review upon certiorari other than those which arise on the record, save and except that the court may sometimes hear evidence in support of the record for the purpose of showing that substantial justice has been done, or that for some reason the discretion which the court has to deny relief by this writ ought to be exercised and the petitioner left to such other means of redress as he may have, but it is clear, in the absence of statutory authority, that the record cannot be contradicted by extrinsic evidence, and that the petitioner's cause must be determined on the record alone. * * * If the evidence received has not been preserved in such a manner as to constitute a part of the record in the lower court, it must be excluded from consideration in the superior court, though the judge or some other officer has certified to it, and thus attempted to make it a part of the return to the writ. In the great majority of cases in which redress is sought by this writ it is directed to inferior courts or tribunals exercising a limited or summary jurisdiction having no record. In such cases perhaps the most usual practice is to require such court or tribunal, by its clerk or otherwise, to certify the proceedings taken before it and its action thereon, as well as to furnish copies of such petitions and other papers as have been presented to it and made a basis of its right to act, together with a statement of its rulings upon any point in which it is claimed to have acted erroneously to the prejudice of the applicant."

In Ruling Case Law, vol. 5, p. 260, we find this statement:

"In many jurisdictions the doctrine is asserted that the office of a certiorari at common law is only to bring up for review questions of jurisdiction, power, and authority on the part of the inferior tribunal, and that the superior court is confined to the simple consideration whether the inferior tribunal had jurisdiction, and whether the proceeding and order was within that jurisdiction, and that, if the superior court finds that the inferior tribunal has not exceeded its jurisdiction, it must not go further and inquire whether the order or judgment complained of was right upon the merits. This statement of the law is doubtless sufficiently accurate when...