Russell v. Dibble

• Decision Date: 18 December 1924
• Docket Number: 18875.
• Court: Washington Supreme Court
• Parties: RUSSELL v. DIBBLE, Director of Licenses of State of Washington.

231 P. 18

132 Wash. 51

RUSSELL v. DIBBLE, Director of Licenses of State of Washington.

No. 18875.

Supreme Court of Washington

December 18, 1924

Department 1.

Appeal from Superior Court, King County; Griffiths, Judge.

Mandamus in the relation of Annie K. Russell, against Fred J. Dibble as Director of Licenses. Decree for relator, and defendant appeals. Reversed and remanded, with directions.

John H Dunbar and R. G. Sharpe, both of Olympia, for appellant.

Arthur H. Hutchinson, of Seattle, for respondent.

BRIDGES J.

On May 4, 1915, the respondent, being then a licensed physician and surgeon in this state, was convicted of the crime of abortion, and the judgment was affirmed by this court. State v. Russell, 90 Wash. 474, 156 P. 565. A short time after her conviction a complaint was filed with the board of state medical examiners, calling attention to the conviction and asking that her license be revoked. After a hearing before the board, and on September 13, 1915, an order was entered revoking the license; such action being in accordance with section 10015, Rem. Comp. Stat., which provides for revocation of license on 'conviction of any offense involving moral turpitude. * * *' Mrs. Russell appealed to the courts from this order, but the action of the board was upheld. About a year after the revocation of her license, the Governor of this state issued to her a pardon which went into effect on October 7, 1916. After the issuance of the pardon and during the year 1916, she petitioned the board to revive her license and reinstate her in the right to practice her profession; such request being based on the ground that the pardon had the legal effect of annulling the revocation. The board refused to reinstate her. Again, some two or three years ago, she made a similar application to the board, which met the same fate as the former. In June of this year she petitioned the superior court of King county for a writ of mandate ordering the director of licenses (who under the administrative code now performs the duties formerly imposed upon the board of state medical examiners) to either enter her name as a regularly licensed and practicing physician and surgeon, or to show cause why he should not do so. The petition for the mandate recited the facts as we have heretofore stated. The director of licenses demurred to the petition and, without waiving it, answered. The trial court overruled the demurrer and after a hearing on the merits entered a decree which ordered the board of medical examiners to 'forthwith correct their records and re-enter the name of Annie K. Russell as a regularly licensed and practicing physician of the state of Washington,' and that they be permanently enjoined and restrained from interfering with her in the practice of her profession. From this decree the director of licenses (who has been substituted in the stead of the board of medical examiners) has appealed.

We are at once met with the proposition advanced by the Attorney General that the respondent has no right to the writ of mandate because she had, and has, an adequate remedy by appeal.

We have so often held that a writ of mandate will not issue if there is a plain, speedy, and adequate remedy by appeal, that we deem it unnecessary to cite the cases on that question.

In 1909 the Legislature passed a comprehensive act with reference to the practice of medicine and surgery in this state. Section 10008 et seq., Rem. Comp. Stat. It provided that no person should practice medicine and surgery without first having a certificate issued by the board of state medical examiners. It undertook to cover the whole field with reference to the granting, suspending, and revoking of licenses. One section (10017, Rem. Comp. Stat.) provides that----

'In any case of the refusal or revocation of a license by said board under the provisions of this act, the applicant whose application shall be so refused, and the licentiate whose license shall be so revoked by said board, shall have the right to appeal from the decision so refusing or revoking such license within thirty days after the filing of such decision in the office of the secretary of said board, as hereinbefore in this chapter provided. * * *'

The section proceeds to set out the particular...