State v. District Court of Thirteenth Judicial Dist. in and for Yellowstone County

• Decision Date: 16 February 1915
• Docket Number: 3608.
• Citation: 146 P. 743,50 Mont. 289
• Parties: STATE EX REL. MARSHALL ET AL. v. DISTRICT COURT OF THIRTEENTH JUDICIAL DIST. IN AND FOR YELLOWSTONE COUNTY ET AL.
• Court: Montana Supreme Court

146 P. 743

50 Mont. 289

STATE EX REL. MARSHALL ET AL. v. DISTRICT COURT OF THIRTEENTH JUDICIAL DIST. IN AND FOR YELLOWSTONE COUNTY ET AL.

No. 3608.

Supreme Court of Montana

February 16, 1915

Original application for a writ of prohibition by the State, on the relation of Lucy A. Marshall, M. M. Hughes, and others, as the Montana State Board of Examiners for Nurses, against the District Court of the Thirteenth Judicial District in and for the County of Yellowstone, and the Judge thereof. Writ issued.

F. B Reynolds, of Billings, for respondents.

SANNER J.

Original application on the relation of Lucy A. Marshall and four other persons, constituting the Montana State Board of Examiners for Nurses, for a writ absolute to prohibit the district court of Yellowstone county and the Hon. George W Pierson, one of the judges thereof, from taking any further steps in a certain mandamus proceeding now pending before said court. The material facts are as follows: On January 2 1914, one Ellen M. Woolsey filed with the relators her application for examination and registration under the provisions of chapter 50, Session Laws 1913. She was then over the age of 21 years and of good moral character, she had graduated from a correspondence school of nursing, and she presented with her application the requisite certificates of competency. Her application was granted. She was examined, and upon such examination was credited with a mark of 47 2/3 per cent. Under the rules established by the relators, the mark required for passing is 70 per cent. She was notified of her failure and that the board would not recommend her to the Governor for registration. Thereupon she appealed to the Montana State Association of Graduated Nurses, under the provisions of section 11 of the act referred to, and that body at its first annual meeting thereafter sustained the decision of the relators. She then filed in the district court of Yellowstone county her petition praying that a writ of mandate issue commanding the relators to recommend her to the Governor for registration under said act, averring that she had pursued as a business the vocation of nursing for five years prior to March 3, 1913; that she had in fact passed said examination; and that the relators, as well as the State Association to which she had appealed, "abused the discretion vested in them," and acted in such matter unfairly and with bias and prejudice. Upon this petition and the affidavit which accompanied the same, an alternative writ was issued. The relators demurred generally, and their demurrer was overruled. They then moved to quash the alternative writ upon the grounds that the petition and affidavit were not sufficient to entitle the petitioner to the writ and that the court was without jurisdiction, and this was denied. The relators then made answer and return, the effect of which, so far as pertinent here, was to deny that the petitioner had pursued as a business the vocation of nursing for five years prior to March 3, 1913, or had passed the examination, or had been marked lower than she deserved, or had been treated unfairly or arbitrarily in said examination, and to aver that the mark of 47 2/3 per cent., given her upon said examination, represented the best judgment of the relators thereon. The affirmative allegations of the answer were denied by a reply, and a motion of relators for judgment on the pleadings, challenging the jurisdiction of the court, was thereafter overruled. The proceedings then came on for trial, and a jury was impaneled for the purpose of answering whether the petitioner had pursued as a business the vocation of nursing for a period of five years prior to March 3, 1913, and whether on her examination before the State Board of Examiners for Nurses she was entitled to the credit of 70 per cent. or more upon her answers to the questions submitted to her. After hearing the evidence, the taking of which occupied several days, the jury answered both interrogatories affirmatively. These findings were adopted by the respondent judge, over the objection of relators and over their challenge to the jurisdiction of the court. He also made an additional finding to the effect that the relators acted from prejudice and bias in not giving the petitioner an average grade of 70 per cent. or more upon her examination, and he announced as "a conclusion of law" that the petitioner "is entitled to have a peremptory writ of mandamus * * * directing the defendants to recommend" her to the Governor of the state of Montana "for registration as a nurse under the provisions of chapter 50 of the Session Laws of the Thirteenth Legislative Assembly of the State of Montana." It is conceded that a judgment will be entered directing a peremptory writ to issue in accordance with said conclusion of law, unless prevented by an absolute writ of prohibition from this court as sought by the relators.

The respondents contest the right of relators to maintain this proceeding because an appeal may be taken to this court from the threatened judgment whenever it shall be entered. The existence of a remedy by appeal is not of itself a bar to prohibition, unless such remedy be plain, speedy, and adequate. Rev. Codes, § 7228. A remedy is speedy when, having in mind the subject-matter involved, it can be pursued with expedition and without essential detriment to the party aggrieved; and it is neither speedy nor adequate if its slowness is likely to produce immediate injury or mischief. 32 Cyc. 617. The judgment proposed to be entered by the district court amounts to nothing more nor less than a peremptory mandate to the relators to do a thing which, if their contention be correct, they ought not to do, and the doing of which may cause much mischief, both public and private. The doing of it, however, would require so little time that the district court, if correct, might well command it to be done forthwith. The taking of an appeal would not of itself operate as a stay; nor could a stay be obtained from this court until such appeal should be perfected and lodged with us, an operation which might require quite an appreciable time. Meanwhile, should the district court be exacting, the relators would be subject to proceedings in contempt, with all its annoyances and possible pains and penalties. This they could avoid only by compliance with the writ, and the effect of that would be to execute the judgment and render any appeal unavailing. We are of opinion that, under the circumstances of this case, an adequate remedy is not furnished by appeal. Havemeyer v. Superior Court, 84 Cal. 327, 24 P. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192; Cronan v. District Court, 15 Idaho, 184, 96 P. 768; Terrill v. Superior Court, 60 P. 38 ^[1]; State v. Denton, 128 Mo.App. 304, 107 S.W. 446; People v. Carrington, 5 Utah, 531, 17 P. 735; People v. District Court, 26 Colo. 386, 58 P. 604, 46 L. R. A. 850; Glide v. Superior Court, 147 Cal. 21, 81 P. 225; People v. Court, 30 Colo. 123, 69 P. 597; State v. Aloe, 152 Mo. 466, 54 S.W. 494, 47 L. R. A. 393; Keefe v. District Court, 16 Wyo. 381, 94 P. 459.

The controlling question, then, is one of jurisdiction: Whether the district court has power to issue any writ in the mandamus proceeding, and, if so, whether the proposed writ can be lawfully issued. The power of the district court to entertain the proceedings at all, or to enter any judgment or issue any writ, is denied upon the ground that in the case stated by the petition the relators cannot be compelled to do what the petition asks to have done, for two reasons: (a) The thing sought to be done cannot be compelled in any case; and (b) the relators cannot be compelled to do anything because the matter has passed beyond their jurisdiction by reason of the petitioner's appeal to the State Association of Nurses for whose action the relators are not responsible.

(a) We think it must be conceded that the district court has no authority to issue a peremptory writ commanding the relators to certify the petitioner to the Governor for registration. The fundamental postulate of the petitioner's whole proceeding is that the relators are a public board, and this cannot be doubted in view of the provisions of chapter 50 Laws of 1913. The board must consist of five members who are chosen by the Governor with reference to their possession of some special training and skill; their principal duty is to examine persons who seek registration as...