Hall v. Bledsoe

• Citation: 189 S.W. 1041,126 Ark. 125
• Decision Date: 06 November 1916
• Docket Number: 238,44
• Parties: HALL v. BLEDSOE
• Court: Supreme Court of Arkansas

189 S.W. 1041

126 Ark. 125

HALL v. BLEDSOE

No. 238, 44

Supreme Court of Arkansas

November 6, 1916

Appeal from Pulaski Circuit Court; Second Division; Guy Fulk, Judge reversed and dismissed.

Judgment reversed and writ of certiorari dismissed.

Wallace Davis, Attorney General, and Hamilton Moses, Assistant, for appellants.

1. The demurrer should have been sustained. The circuit court was without jurisdiction, because:

A. The action of the board was administrative and not quasi judicial, and therefore not reviewable. 19 Am. St. 88, 94; 62 Ark. 186; 70 Id. 589; 61 Id. 605; 73 Id. 606; 109 Id. 100.

B. The board is created the tribunal to decide as to the necessity of removal of the Superintendent and its finding is not reviewable. 109 Ark. 250; 96 Id. 424; 61 Id. 497.

C. This is, in effect, a suit against the State. 70 Ark. 568; 114 U.S. 270; 117 Id. 52; 123 Id. 443; 172 U.S 516; 105 F. 459; 107 U.S. 711; 91 Ark. 535; 98 Id 528; 102 Id. 471-492; 106 Id. 177; 108 Id. 60.

2. The motion to require appellee to strike portions of the petition should have been sustained. 59 Ark. 629; 182 S.W. 820.

3. The court had no power to try the case de novo. 5 Rul. C. L., §§ 5, 11, 14. Certiorari does not lie to correct errors or irregularities, and cannot be used as a substitute for appeal; it only lies to correct the lower tribunal when it proceeds illegally or exceeds its jurisdiction. 73 Ark. 606; 69 Id. 587; 61 Id. 605; 62 Id. 196; 39 Am. St. 595; 69 N.Y. 408; 10 Mich. 9; 35 Ark. 99; 85 Id. 85. It does not lie to review questions of fact to be determined by the evidence outside the record. 11 L. R. A. (N. S.) 940; 20 Id. 1175; 24 Id. 447.

4. The forms of law were complied with; due notice was given; a fair hearing had, and the testimony sustains the findings of the Board. 84 Ark. 540, 551.

John M. Moore, Walter H. Pemberton and Cockrill & Armistead, for appellee.

1. There is an entire failure of any substantial testimony to sustain any charge. No official misconduct, inattention, neglect or inefficiency was shown, nor other adequate cause for removal. 23 A. and E. Ency. 442; 106 Ark. 253; 67 Id. 156; 90 Id. 1; 72 N.Y. 445; 79 Id. 582; 55 N.W. 118; 79 N.W. 369.

2. The findings of facts by the board are reviewable and must be supported by the proof to stand. Certiorari is the proper remedy. Act March 18, 1899; Kirby's Digest, §§ 1315-1316; 35 Ark. 99; 43 Id. 341; 14 Ark. 337; 52 Id. 213. Here there was no appeal as in judicial proceedings. 21 Ark. 264; 44 Id. 267; 61 Ark. 605. The common law scope of the writ has been enlarged by our statutes. 6 Cyc. 738; 103 Wisc. 460; 6 Cyc. 826-7; 30 Ark. 148; 33 Id. 117; 56 Id. 85; 14 N.Y.S. 345; 23 N.E. 1061; 9 S.E. 863; 40 P. 264. The finding of the board is not conclusive and the court had power to quash the order of removal upon a finding that it was not sustained by the evidence; second, that evidence de hors the record was admissible and that the evidence did not sustain the finding.

3. The action of the board was quasi judicial. 84 Ark. 540; 62 Id. 186; 70 Id. 588; 109 Id. 100-105. Hence reviewable on certiorari.

4. This is not a suit against the State. 70 Ark. 588; 133 N.W. 857; 109 Ark. 100; 91 Id. 538; 36 Cyc. 916; 203 U.S. 335.

5. The compromise agreement was a condonation and estopped the board from renewing the charges. 14 Cyc. 430.

6. The notice was insufficient. 142 N.W. 632; 176 U.S. 398.

MCCULLOCH, C. J. HUMPHREYS, J., concurs. HART, J., dissenting. Mr. Justice WOOD concurs in this dissent.

OPINION

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 hearing 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 bylaws; 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, Sec. 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, No. 108. 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...