State v. District Court of First Judicial District

• Decision Date: 17 May 1897
• Citation: 48 P. 1104,19 Mont. 501
• Parties: STATE ex rel. SERRES v. DISTRICT COURT OF FIRST JUDICIAL DISTRICT.
• Court: Montana Supreme Court

48 P. 1104

19 Mont. 501

STATE ex rel. SERRES v. DISTRICT COURT OF FIRST JUDICIAL DISTRICT.

Supreme Court of Montana

May 17, 1897

Application of state of Montana, on the relation of J. R. Serres, for mandamus against district court of the First judicial district of the state of Montana in and for the county of Lewis and Clarke. Writ awarded.

This is an application for a writ of mandamus. The petitioner alleges that he is a regular graduate of an accredited college of medicine; that he attended at least four courses of lectures at said college, of six months each; that on the first Tuesday of October, 1896, petitioner was an applicant to the board of medical examiners for a certificate entitling him to practice medicine and surgery in the state of Montana; that a meeting of said board was held in Helena on the day aforesaid; that at said meeting the petitioner presented his diploma from said medical college, evincing his graduation that said diploma was found by the said board of examiners to be genuine, and issued by a regular medical college, legally organized and in good standing that he thereupon submitted to an examination in the various branches prescribed by law and the said board of examiners, and filed with the said board his examination papers, written upon the questions by the said board propounded in the said various branches; that thereupon said board denied the petitioner's application for a certificate to practice medicine and surgery in the state of Montana upon the ground that said examination papers showed that the petitioner had not the requisite learning to entitle him to such certificate; that, after being notified by said board of its determination not to grant this petitioner such certificate, he within 30 days duly appealed from the decision of the said board of medical examiners to the district court of the First judicial district of the state of Montana in and for the county of Lewis and Clarke and that, after said appeal was duly taken to the district court, the said district court, on the motion of the county attorney of the said county and the attorney general of the state, dismissed the petitioner's appeal, upon the ground that the said court had no jurisdiction to try and determine the same. The petitioner asks for a writ of mandate in this proceeding, commanding the district court to reinstate his appeal and to proceed to the hearing and determination thereof. On the return of the writ, the attorney general, for the said district court, demurred to the petition for the reasons--First, that said petition does not state facts sufficient to entitle said petitioner to the relief prayed for; and, second, that said petition shows affirmatively that the action of the medical board in refusing to issue a certificate for the cause specified was final, and not subject to review by any appellate tribunal, and that said defendant (district court), in dismissing said petition acted correctly and within its jurisdiction, in that no appeal lay from the action of the board to said defendant

Buck J., dissenting.

T. J. Walsh, for relator.

C. B. Nolan, Atty. Gen., for defendant.

PEMBERTON, C.J. (after stating the facts).

The only question presented here is this: Does the statute allow an appeal to an applicant who has been refused a certificate by the medical board authorizing him to practice medicine and surgery in this state on the ground that the applicant's examination papers show that he has not the requisite learning to entitle him to such certificate? Counsel for the defendant, the attorney general, contends that the right of appeal exists only when the certificate is refused or revoked by the board for unprofessional, dishonorable, or immoral conduct, and that no appeal lies from the refusal of the board to issue a certificate on the ground of the incompetency of the applicant. That part of section 603, Pol Code, which provides for appeals from the action of the medical board is as follows: "In all cases of the refusal or revocation of a certificate to practice medicine by the said board, the person aggrieved thereby may appeal from the decision of the board to the district court of the county in which such revocation or refusal was made." Counsel for defendant contends that this provision only gives the right of appeal where the certificate is refused or revoked by the board for unprofessional, dishonorable, or immoral conduct, and that state v. District Court of First Judicial District, 13 Mont. 370, 34 P. 298, in which this court discussed the right of appeal from the action of the medical board, does not go to the extent of deciding that an appeal lies in cases like the one at bar. But, in examining our statute, we find no language that restricts the right of appeal to any particular class of cases. The terms of the statute are general, and give the right of appeal "in all cases of the refusal or revocation of a certificate to practice medicine by the said board." A number of the states have statutes like ours, but we are not referred to any decision of any of the states where the precise question here involved has been adjudicated and determined. The law provides that appeals in such cases shall be conducted like appeals from a decision of a board of county commissioners disallowing a claim. Pol. Code, § 603. Appeals from actions of boards of county commissioners are prosecuted and tried like appeals from a justice of the peace. Id. § 4289. Appeals from a justice court are tried de novo. It...