State ex rel. Campo v. Osborn

• Decision Date: 03 January 1940
• Citation: 10 A.2d 687,126 Conn. 214
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. CAMPO v. OSBORN.

10 A.2d 687

126 Conn. 214

STATE ex rel. CAMPO v. OSBORN.

Supreme Court of Errors of Connecticut.

January 3, 1940

Appeal from Superior Court, Fairfield County; Arthur F. Ells, Judge.

Action by the State, on the relation of Anthony R. Campo, against Stanley H. Osborn for a writ of mandamus requiring the defendant to allow the relator to practice medicine, wherein the issues were tried to the court. From a judgment granting defendant's motion to quash the alternative writ and denying the plaintiff's motion for a peremptory writ of mandamus, the plaintiff appeals.

No error.

W. F D. Kilpatrick, of Bridgeport, for appellant.

Harry L. Brooks, Asst. Atty. Gen., and Francis A. Pallotti, Atty Gen., for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

AVERY Judge.

On August 11, 1938, the Superior court issued an alternative writ of mandamus for the plaintiff, Anthony R. Campo requiring the defendant, commissioner of health, to forthwith ‘ allow the relator to practice medicine, surgery and obstetrics * * * under the laws of this state’ and ‘ to deliver to [the relator] his certificate of registration to practice * * * in Connecticut, and thereby comply with Section 2855 of the General Statutes, Revision of 1918’ or ‘ signify cause to the contrary to the Superior Court.’ To this writ the defendant filed a motion to quash upon the grounds (1) that the plaintiff was guilty of laches; (2) that he did not come into court with clean hands; and (3) that the application was predicated upon the same facts and presented the same questions of law as had theretofore been presented for the consideration of the Superior Court and the Supreme Court of Errors, where decisions had been rendered adverse to the claims of the plaintiff. The plaintiff then moved for a peremptory writ of mandamus, to which the defendant filed an answer and the parties were heard by the court upon the defendant's motion to quash and the plaintiff's motion for a peremptory writ. The court granted the defendant's motion to quash, and denied the plaintiff's motion for a peremptory writ of mandamus and entered judgment accordingly, and the plaintiff has appealed. The motion to quash largely consisted of affirmative allegations of fact. Such a motion is equivalent to a demurrer, is to be determined upon the facts alleged in the alternative writ, and affirmative facts should not be stated in it. State ex rel. Foote v. Bartholomew, 103 Conn. 607, 611, 132 A. 30. It was, however, treated upon the trial and before us as being in effect a return which stands in the place of an answer in ordinary pleadings. Alcorn, State's Attorney, ex rel. Standard Oil Co. v. New Britain, 111 Conn. 214, 218, 149 A. 677. We shall, therefore, treat the motion as the parties have done, as serving the function of an answer.

The facts of the case are these: The plaintiff graduated from the St. Louis College of Physicians and Surgeons with the degree of doctor of medicine on June 2, 1921. In the same year, he was examined by the Connecticut electic medical examining board and, through the corruption of the secretary of the board, collusion on the part of others, and false swearing upon his own part, he was certified by the board as having passed the examination and as qualified to practice; and in December of that year a certificate of registration to practice was issued to him and he continued to practice thereafter until some time in 1927. In 1923, in consequence of a ruling by the attorney general, the plaintiff was required to take a second medical examination before the board of July 26th and 27th, and was again certified to the commissioner of health by the Connecticut eclectic medical examining board as qualified to practice medicine, surgery and obstetrics in Connecticut. The plaintiff has since paid the fee required for a certificate of registration but the commissioner of health has refused to issue the same.

In January, 1924, the plaintiff's license to practice medicine was revoked by the state department of health. From this action the plaintiff took an appeal to the Superior Court and from an adverse decision in that court appealed unsuccessfully to this court. Campo v. State Department of Health, 108 Conn. 82, 142 A. 476. The reason for the revocation of his license was because it had been procured by fraud. Graduates of the St. Louis College of Physicians and Surgeons passed examinations and obtained certificates to practice in this state through fraud and collusion with the secretary...