State ex rel. Baepler v. State Board of Health

• Decision Date: 29 August 1932
• Docket Number: No. 31169.,31169.
• Citation: 52 S.W.2d 743
• Parties: STATE EX REL. HUGO L. BAEPLER v. STATE BOARD OF HEALTH OF MISSOURI ET AL., Appellants.
• Court: Missouri Supreme Court

52 S.W.2d 743

STATE EX REL. HUGO L. BAEPLER v. STATE BOARD OF HEALTH OF MISSOURI ET AL., Appellants.

No. 31169.

Supreme Court of Missouri, Division 2.

August 29, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.

AFFIRMED.

Stratton Shartel, Attorney-General, for appellants; A.B. Lovan of counsel.

Curlee, Nortoni & Teasdale, J. Henry Caruthers and Oliver T. Remmers for respondent.

(1) The circuit court has superintending control over the State Board of Health, and may issue its writ of certiorari to said Board without regard to Section 9120, R.S. 1929 (formerly Sec. 7336). Art. VI, Sec. 23, Const. Mo.; Horton v. Clark, 316 Mo. 770; State v. Landwehr, 32 S.W. (2d) 83. (2) The rule of stare decisis, et non quieta movere, applies in this case with all its force. The identical question, that of jurisdiction of the Board of Health, of this relator, has been before this court and decided against the Board. State v. Landwehr, 32 S.W. (2d) 83. (3) The writ of certiorari may always be applied for within a reasonable time. What constitutes a reasonable time is a question of judicial discretion. Generally, lapse of time will not preclude granting the writ where the delay has resulted in no detriment, as in this case. 11 C.J. 146, sec. 133; State v. Landwehr, supra.

HENWOOD, J.

The State Board of Health, sitting in the city of St. Louis, revoked the license of Hugo L. Baepler to practice medicine and surgery in this State, and on the application of Baepler, as relator below, the Circuit Court of the City of St. Louis issued a writ of certiorari whereby the State Board of Health and the members thereof, as respondents below, were directed to certify to that court a complete transcript of the record of the board relating to the revocation of said license. Upon a review of said record, the circuit court found that it does not show any notice to Baepler of the hearing at which his license was revoked, and, for that reason, quashed said record and restored said license. The case is here on an appeal from that judgment.

The record of the board's proceedings shows that, on February 1, 1921, the State Board of Health granted to Baepler a license to practice medicine and surgery in this State; that, on February 13, 1925, he was served with a notice to appear before the board on March 19, 1925, at the office of the Health Commissioner of St. Louis, and answer a complaint that he had obtained his license by fraudulent statements and representations; that "the trial" on said complaint "was called" on April 1, 1925; that Baepler did not appear at "the trial," either in person or by an attorney; and that his license was revoked by order of the board on April 3, 1925. But, said record fails to show notice to Baepler that "the trial" on said complaint would be called on April 1, 1925, or on any day other than March 19, 1925.

In his application for a writ of certiorari, Baepler says he had no notice that the board would hear the complaint against him on April 1, 1925, or on any day other than March 19, 1925, when his attorney appeared; that he first learned of the board's order revoking his license on July 3, 1929; that immediately thereafter he petitioned the board to reinstate his license; and that, on July 24, 1929, the board denied his petition for reinstatement of his license. The record of the circuit court shows that he filed his application for a writ of certiorari on August 14, 1929.

I. Appellants contend that the circuit court was without authority to issue a writ of certiorari or to review and determine the merits of the proceedings of the State Board of Health, because Baepler did not apply for such writ within ninety days after the revocation of his license, as provided by Section 9120, Revised Statutes 1929 (Sec. 7336, R.S. 1919).

We ruled against this contention in State ex rel. Kerr et al. v. Landwehr, 32 S.W. (2d) 83, wherein the State Board of Health sought to prohibit the circuit court from exercising jurisdiction in this cause. The record now before us discloses no reason why our ruling on this contention in the prohibition proceeding should not be adhered to on this appeal; nor will we attempt now to improve upon what was said then in an opinion by DAVIS, C., which follows:

"I. Section 7336, Revised Statutes 1919, provides that, upon the revocation of physician's license, the writ of certiorari shall issue upon the petition of the person whose license shall be revoked to the circuit court or clerk in vacation at any time within ninety days after such revocation.

"Ergo, relator takes the position that the writ of prohibition lies because the circuit court (respondent) under the statute was without jurisdiction to issue the writ of certiorari for the reason that the application for it was made more than ninety days after the state board of health revoked the license of Dr. Baepler to practice medicine and surgery.

"Respondent takes the position that the issuance of a writ of certiorari, under Section 23, Article 6, of the Constitution, is within the sound discretion of the circuit court, where the determination sought to be reviewed was made without jurisdiction and has not been carried into effect, and the delay has resulted in no detriment.

"While it is the general rule that certiorari must be applied for within a reasonable time, and that generally a reasonable time is governed by analogy to the limitation on writs of error and appeals (11 C.J. 146), we think it is evident from the record that the delay, in applying to the circuit court for a writ of certiorari, has not resulted in detriment to any one. We need not determine that, the state board of health having full and adequate jurisdiction over a defendant, the writ of certiorari must be applied for within ninety days. The primary question to be determined is whether relator acquired jurisdiction...