State Bd. of Medical Examiners v. Brown

• Decision Date: 04 April 1921
• Docket Number: 9701.
• Citation: 198 P. 274,70 Colo. 116
• Parties: STATE BOARD OF MEDICAL EXAMINERS v. BROWN.
• Court: Colorado Supreme Court

198 P. 274

70 Colo. 116

STATE BOARD OF MEDICAL EXAMINERS v. BROWN.

No. 9701.

Supreme Court of Colorado

April 4, 1921

Rehearing Denied June 6, 1921.

Department 1.

Error to District Court, City and County of Denver; Clarence J Morley, Judge.

Certiorari by D. A. Brown to review the act of the State Board of Medical Examiners in refusing petitioner's application for a medical license. From a judgment in favor of the petitioner and an order directing the Board to issue him a license, the Board brings error.

Reversed and remanded, with directions to dismiss writ.

Victor E. Keyes, Atty. Gen. (Charles H. Haines, of Denver, of counsel), for plaintiff in error.

Carle Whitehead and Albert L. Vogl, both of Denver, for defendant in error.

TELLER J.

The defendant in error applied to the plaintiff in error, under section 32 of chapter 94 of the Laws of 1917, for a license 'to practice chiropractic.' The application was refused. He then took the matter to the district court on certiorari where the court required the board to send with the record certain letters which had been introduced in evidence on the hearing before the board. The district court entered judgment in favor of the petitioner and ordered the board to issue him a license as prayed in his petition. Plaintiff in error contends that the court erred in reversing the action of the board, and in ordering it to issue a license.

It appears from the record that the district court assumed to determine the right of the petitioner to a license, despite the fact that the matter was under consideration on a writ of certiorari. It is stated in the brief for plaintiff in error though not shown by the record, that the court held the petitioner entitled to a license, because the allegations of the petition as to his qualifications were not denied. In this there was error for two reasons: First, the petition requires no answer; it has served its purpose when the writ issued, and its allegations are not taken as tendering an issue. Morefield v. Koehn, 53 Colo. 367, 127 P. 234. Second, the review extends only to a determination, from the record alone, of the question 'whether the inferior tribunal regularly pursued its authority, and thereupon pronounced judgment accordingly.' County Court v. People, 55 Colo. 258, 133 P. 752. We have several times held that a cause heard on certiorari could not be considered on its merits. People v. District Court, 22 Colo. 422, 45 P. 402; Hallett v. Board of County Commissioners, 27 Colo. 86, 59 P. 733; Chenoweth v. State Board, 57 Colo. 74, 141 P. 132, 51 L.R.A. (N. S.) 958, Ann.Cas. 1915D, 1188; Thompson v. State Board, 59 Colo. 549, 151 P. 436; State Board v. Noble, 65 Colo. 410, 177 P. 141; State Board v. Boulls, 195 P. 325 (No. 9700, recently decided).

Such holdings are only applying the provisions of the Code.

Section 331, Code Civ. Proc., contains the following provision:

'The writ shall be granted in all cases where an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction or greatly abused the discretion of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.'

Section 337 is as follows:

'The review upon the writ shall not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.'

The last-mentioned section indicates what is meant in the other section by 'abuse of discretion.' It is a failure by the tribunal regularly to pursue its authority. This does not include the commission of errors of law, or mistakes in the finding of facts. People v. Court of Appeals, 34 Colo. 291, 82 P. 483.

In Whitney v. B. of D., 14 Cal. 480, cited with approval in City Council v. Hanley, 19 Colo.App. 390, 75 P. 600, of the writ it is said:

'It brings up no issue of law or fact not involved in the question of jurisdiction. Under no circumstances, can the review be extended to the merits. Upon every question, except the mere question of power, the action of the inferior tribunal is final and conclusive.'

Defendant in error contends that under section 11 of the act in question he was entitled to a 30 days' notice of an adverse finding, and an opportunity to present additional evidence. He alleges that failure to give him such notice constitutes, on the part of the board, an abuse of its discretion. Said section, after setting out the grounds upon which a license may be refused or revoked,...