State ex rel. Beckman v. Estes

• Decision Date: 07 December 1897
• Citation: 34 Or. 196,51 P. 77
• Parties: STATE ex rel. BECKMAN et al. v. ESTES.
• Court: Oregon Supreme Court

51 P. 77

34 Or. 196

STATE ex rel. BECKMAN et al. v. ESTES.

Supreme Court of Oregon

December 7, 1897

Appeal from circuit court, Clatsop county; T.A. McBride, Judge.

Complaint by the state, on the relation of Oswald H. Beckman and others, before the board of medical examiners, against O.B Estes, a physician, for unprofessional conduct. Defendant appealed to the circuit court, where the action of the board was overruled, and the board appeals. On motion to dismiss. Overruled.

C.M. Idleman, Atty. Gen., and C.W. Fulton, for appellant.

H.A Smith, for respondent.

WOLVERTON J.

Complaint was filed with the board of medical examiners, entitled "State of Oregon, on Relation of Oswald H. Beckman, E Jansen, M.M. Walker, and Jay Tuttle, Plaintiffs, vs. O.B. Estes, Defendant," charging the defendant with dishonorable and unprofessional conduct as a practicing physician. All the members of the board seem to have signed the complaint, and were complainants in the proceeding. The board revoked the license of the defendant, who appealed to the circuit court, and there procured a reversal of its decision. A notice of appeal from the judgment of the circuit court to this court by the board of examiners and the state of Oregon, signed by Fulton Bros., attorneys for said board, and the district attorney, for the state, was served upon the defendant, and the appeal perfected. The defendant moves to dismiss the appeal because: First, the board of examiners is not a party to the action, and as such has no authority to take an appeal; second, no action was ever taken by said board, authorizing the appeal, and the same was taken and prosecuted without its authority (this objection is based upon affidavits tending to show that Messrs. Fulton Bros. were not directed and authorized, by resolution or direct action of the board, to prosecute the appeal in its behalf); and, third, there is no authority of law for the state to become a party to such action or proceeding. The act authorizing the organization of the board of medical examiners (Sess.Laws 1895, p. 61) empowers it, among other things, to revoke the license of practicing physicians for unprofessional or dishonorable conduct. In case of a revocation, the licentiate is given the right of appeal to the circuit court in and for the county in which the hearing was had. Either party may appeal from the judgment of the circuit court to the supreme court, in like manner as in civil actions, within 60 days after the rendition thereof. Then follow these provisions: "If such judgment shall be in favor of the party appealing from the decision of said board, and in case said examining board does not appeal from judgment within sixty (60) days, then and in that case said board shall, at the end of sixty (60) days, and immediately upon the expiration thereof, issue to such successful party the usual license to practice medicine and surgery in this state, and in addition thereto shall reinstate upon the records of said board the name of such successful applicant in case of the revocation of his license by such board. In case of such appeal to the supreme court by said board, no such license shall be issued or reinstatement be required until the final determination of said cause, as hereinafter provided. In case the final decision of the supreme court be against said medical examining board, then and in that case said court shall make such order in the premises as may be necessary, and said board shall act accordingly."

1. It is difficult to determine from this crude piece of legislation just what procedure is meant to be established for taking and perfecting an appeal from the circuit to the supreme court when the judgment is in favor of the accused practitioner. The language of the act, that "either party may appeal," would seem to allude more especially to the parties to the proceeding, and not to the tribunal charged with the function of determining the cause as between them. But the further provision above quoted is a plain...