State v. Clark

• Decision Date: 02 October 1928
• Docket Number: No. 2873a.,2873a.
• Citation: 9 S.W.2d 635
• Parties: STATE ex rel. HORTON v. CLARK et al.
• Court: Missouri Supreme Court

9 S.W.2d 635

STATE ex rel. HORTON v. CLARK et al.

No. 2873a.

Supreme Court of Missouri, in Banc.

October 2, 1928.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Certiorari by the State, on the relation of Ray Beaman Horton, against Dr. W. A. Clark and others, composing the State Board of Health. Judgment for relator, and respondents appeal. Reversed.

See, also, 293 S. W. 362.

North T. Gentry, Atty. Gen., A. B. Lovan, Asst. Atty. Gen. (J. Henry Caruthers, of St. Louis, of counsel), for appellants.

Fred W. Coon and C. S. Walden, both of Kansas City, for respondent.

ATWOOD, J.

This is an appeal from a judgment of the circuit court of the city of St. Louis quashing the proceedings of the state board of health, brought there for review by writ of certiorari in the matter of a complaint filed against relator, Ray Beaman Horton, and ordering said board to restore his licence to practice medicine and surgery in the state of Missouri.

Respondent insists that no appeal lies to the Supreme Court from said judgment of the circuit court of the city of St. Louis. While we have held that the state board of health is not a court or judicial body (State ex rel. v. Goodier, 195 Mo. 551, 93 S. W. 928) yet, when relator availed himself, of the right of review given by section 7336, R. S. 1919, and filed his petition in the circuit court of the city of St. Louis for a writ of certiorari against the members of the state board of health, that proceeding was a "case" within the meaning of section 12, art. 6, of the Constitution, and, as respondents are state officers within the meaning of said section, an appeal from the decision of the trial court in the certiorari proceeding properly goes to the Supreme Court. Section 5, Amendment of 1884 to article 6 of the Constitution; State ex rel. v. Springer, 134 Mo. 212, loc. cit. 221, 35 S. W. 589; State ex rel. v. Nortoni, 201 Mo. loc. cit. 26, 98 S. W. 554, quoting from State ex rel. Blakemore v. Rombauer, 101 Mo. 499, 14 S. W. 726; Farber v. Shot, 304 Mo. 523, loc. cit. 528, 533, 263 S. W. 804.

Preliminary to further consideration of this appeal, we shall here briefly summarize the proceedings prior thereto. The original complaint was filed with the state board of health June 9, 1925, Horton was duly notified, and a hearing was set for September 17, 1925. Thereupon the said Horton filed a petition for injunction against said state board of health in the circuit court of Cole county, Mo. A temporary restraining order was issued, which was thereafter dissolved, and judgment was finally rendered in said court in favor of the state board of health. Petitioner appealed therefrom to the Supreme Court of this state, where the judgment was affirmed. Horton v. Clark et al., 316 Mo. 770, 293 S. W. 362. Thereafter, on March 22, 1927, the following amended complaint was filed against the said Horton in the office of the secretary of the state board of health of Missouri:

"State of Missouri, County of Cole—ss.:

"Before the State Board of Health of the State of Missouri.

"Comes now the undersigned, Ross Hopkins, and for his amended complaint alleges and charges that one Ray Beaman Horton has been for some time and is now engaged in the practice of medicine and surgery in the state of Missouri, by virtue of a license or certificate granted to him by the Missouri state board of health under date of October 18, 1922; that said license or certificate so granted was secured by false and fraudulent statements and representations made by said Ray Beaman Horton to the Missouri state board of health, in that said Ray Beaman Horton falsely stated under oath in his application to the state board of health for a license to practice medicine and surgery in this state, dated August 29, 1922, among other things, as follows, to wit:

"`9. Preliminary education: My preliminary qualifications are as follows:

"`Graduation from the Purdy High School, Purdy, Missouri. May 24th, 1916.'

"That said Ray Beaman Horton, in said application for a license to practice medicine, falsely and fraudulently submitted to said board of health a certificate of preliminary education; that such certificate of preliminary education is in words and figures as follows:

"`Certificate of Preliminary Education.

"`This certificate to be made out, signed, and sworn to by the executive officer of the institution which conferred upon the applicant his preliminary education. If examination was passed before a county school commissioner, that officer shall name the branches in which applicant was examined, the grades made in each branch, and the date on which the examination was conducted, which must have been prior to the beginning of the study of medicine.

"`This is to certify that Ray Beaman Horton graduated from the Purdy High School at Purdy, Mo., May 24, 1916, and received the following grades:

"`1912-13.

"`Algebra one 85%—English one 93%—Latin 92%—Ancient History 90%.

"`1913-14.

"`Geometry one 91%—English two 94%— Latin two 89%—Med. and Mod. History 91%.

"`1914-15.

"`Agriculture 86%—Algebra two 89%—English three 92%—English History 84%.

"`1915-16.

"`Physics 88%—Geometry two 92%—English four 89%—American History 90%.

                       "`[Signed] Jesse W. McCraw
                                         Pres. Board of Ed
                

"`Executive Officer of School or College, or County School Commissioner.

"`State of Missouri, County of Barry—ss.:

"`Subscribed and sworn to before me this 26th day of August, 1922.

"`[Seal.] A. J. Clevenger, Notary Public.

"`My commission expires Jan. 6, 1925.'

"That the said Ray Beaman Horton further stated in his said application for a license to practice medicine that he attended the St. Louis College of Physicians and Surgeons from October 5, 1918, to May 15, 1919; from October 1, 1919, to June 2, 1920; from October 10, 1920, to May 2, 1921; and the Kansas City College of Medicine and Surgery from September, 1921, to May, 1922.

"Whereas in truth and in fact the said Ray Beaman Horton did not graduate from the Purdy High School, Purdy, Missouri; and said certificate of preliminary education, so exhibited to the state board of health, was falsely concocted to show that said Ray Beaman Horton was a graduate from said Purdy High School, when in truth he was not such graduate; and whereas in truth and in fact the said Ray Beaman Horton did not continuously and regularly attend the St. Louis College of Physicians and Surgeons from October 5, 1918, to May 15, 1919, nor from October 1, 1919, to June 2, 1920, as aforesaid—all of which the said Ray Beaman Horton then there well knew.

                                     "`Ross Hopkins, M. D
                "`March 22, 1927
                

"`Filed March 22d, '27. State Board of Health, James Stewart, Sec'ty."

On April 23, 1927, the said Horton was duly notified of the filing of this amended complaint, served with a copy thereof, and notified to appear before said board for a hearing thereon May 25, 1927. Pursuant to said notice the said Horton appeared in person and by counsel before said board of health, a hearing upon said amended complaint was had, and on May 27, 1927, the said state board of health revoked his license to practice medicine and surgery in the state of Missouri. Thereafter, on June 11, 1927, relator filed his petition in the circuit court of the city of St. Louis as aforesaid. The writ was issued, and respondents filed return tendering a true and correct copy of the record of the proceedings and all the evidence had before the state board of health in said matter. Relator thereupon filed motion to quash the proceedings of the state board of health in said matter, which motion was by the court sustained and said board was ordered to restore relator's license to practice medicine in the state of Missouri. From the judgment rendered respondents duly appealed.

Authority for the issuance of a writ of certiorari against the members of the state board of health thus appears in section 7336, R. S. 1919:

"Any person whose license has been or shall be revoked by the board shall have the right to have the proceedings of said board revoking his license and all the evidence therein reviewed, on a writ of certiorari, by the circuit court of the county in which said board held its session when said license was revoked. Said writ shall issue upon the petition of the person whose license shall have been revoked to said court or to the clerk thereof in vacation at any time within ninety days after such revocation, and shall command the said board and the secretary thereof to certify to said court the record and proceedings of said board, and a complete transcript thereof, and of all the evidence therein pertaining to the revocation of said license. The petitioner for the writ of certiorari shall set forth the rights of the petitioner and the injuries complained of by him and shall be verified by him."

A common-law writ of certiorari only brings up the record, and can only reach defects or errors in the proceedings of the tribunal to which it is issued which appear upon the face of the record and go to the jurisdiction of that tribunal. The evidence is no part of the record, and it is not the office of such writ to bring up the evidence for review. Hannibal & St. Joe R. Co. v. State Board of Equalization, 64 Mo. 294, loc. cit. 308. However, the writ of certiorari contemplated by above section 7336 is somewhat broader than the common-law writ, for it specifically provides that:

The writ "shall command the said board and the secretary thereof to certify to said court the record and proceedings of said board, and a complete transcript thereof, and of all the evidence therein pertaining to the revocation of said license."

The broad scope of this statutory proceeding is further indicated by the provision that:

"Any person whose license has been or shall be revoked by the board shall have the right to have the proceedings of said board revoking his license and all the evidence therein reviewed, on a...