State v. District Court of First Judicial District
| Citation | 34 P. 298,13 Mont. 370 |
| Parties | STATE ex rel. KELLOGG v. DISTRICT COURT OF FIRST JUDICIAL DISTRICT. |
| Decision Date | 02 October 1893 |
| Court | United States State Supreme Court of Montana |
Proceeding by the state of Montana, on relation of Edwin S. Kellogg, for a writ of mandate directed to the district court of the first judicial district of the state of Montana, to compel such court to reinstate and entertain an appeal taken by relator from the state board of medical examiners in a proceeding to revoke his license to practice medicine and surgery. Writ granted.
B. P Carper and J. W. Kinsley, for relator.
H. N Blake and C. B. Nolan, for respondent.
Application is made herein for a writ of mandate, directed to the district court of the first judicial district, requiring it to entertain the appeal of relator from the action of the board of medical examiners of the state of Montana in revoking relator's license to practice medicine in this state. It appears that, pursuant to the provisions of the statute in that respect made and provided, (act to regulate the practice of medicine, etc.; Sess. Laws 1889, p. 175,) relator was proceded against before said board of medical examiners, upon certain charges alleged to constitute "unprofessional, dishonorable, and immoral conduct" in the practice of said profession, and, after hearing, said board found relator guilty, as charged, and thereupon revoked his license to practice medicine and surgery in this state. An appeal was duly prosecuted from the decision of said board to the district court of the first judicial district in and for Lewis and Clarke county, and, upon the docketing of said appeal, motion to dismiss the same was interposed by said board of medical examiners on the following grounds "(a) That the papers in said cause are not properly in court; (b) that there is no provision of law by which an appeal can be taken, in that the law purporting to permit an appeal is in contravention of the constitution of the state of Montana, and void; (c) that there is no procedure provided by law by which and through which a hearing on appeal can be had; (d) that the action of the medical board is final under the law, except in so far that its action may be reviewed by the district court, through the medium of summary process." Thereupon the court, after consideration sustained the motion, and dismissed said appeal, and the same grounds are urged in this proceeding as reasons for denial of the writ of mandate prayed for; therefore the only question involved in this consideration is whether or not such appeal would lie in favor of relator.
The act of the legislature, cited supra, after providing for the organization of said board of medical examiners, and prescribing its duties in respect to the examination of applicants desiring to practice medicine and surgery in this state, as to their qualifications to be licensed thereunto, and for the issuance of a certificate of license by said board to persons found duly qualified, further provides that This provision for appeal in such cases appears to have been held unconstitutional by the district court, in dismissing relator's appeal, as aforesaid.
The proposition is advanced that the district court cannot lawfully entertain appeal from the action of said board, as provided for, because the constitution provides that the district court "shall have appellate jurisdiction in all cases arising in justices' and other inferior courts, in their respective districts, as may be provided by law, and consistent with this constitution." Article 8, § 11. Respondent contends that the proper interpretation of this clause of the constitution is that the district courts can entertain appeals from justice's and inferior courts only; and such must be the construction put upon it to sustain the ruling of the court below. But the provision of the constitution under consideration is not in such prohibitory form, and we do not think that provision imports such intention. Even appeals which may be allowed from justices' and inferior courts are left by the constitution within the control of the legislature. The construction contended for by respondent would introduce a radical change in the system provided for the control of certain important public affairs, which has prevailed in this jurisdiction throughout the territorial regime, and which provisions are still contained in the body of the statute laws adopted by the constitution for state government; for that holding, logically followed out, would cut off the appeal to the district court, provided by statute, from the action of the board of county commissioners, in respect to the allowance or disallowance of claims against the county (Comp. St. div. 5, §§ 764, 765;) appeals from the award of road viewers in laying out highways, (Id. § 1821;) appeals from the award of the commissioners in proceedings where the power of eminent domain is exercised, (Code Civil Proc. §§ 607, 608;) and perhaps other appeals in similar cases. All such appeals from the action of the board to the district court of the proper district are provided for by statute in favor of the party aggrieved; and it is very doubtful that the legislature would have made provision for action of boards in such important affairs as those statutes contemplate if such action was final, as it would be, in many respects, without provision for appeal. It is well known that a review by a court through the medium of certiorari would, under the rules governing such writs, be inadequate to reach a complete consideration of the case on the merits, with power to render such judgment as the justice of the case might warrant, and, taking away the right of appeal in such cases, might lead to declaring those numerous statutes void in toto; on the ground that the legislature would not have invested such boards with the large powers committed to them if their action had been understood...
To continue reading
Request your trial