State v. Miller

• Decision Date: 04 February 1926
• Docket Number: No. 26438.,26438.
• Citation: 280 S.W. 47
• Parties: STATE ex rel. NORTH et al., State Board of Health, v. MILLER, Judge.
• Court: Missouri Supreme Court

280 S.W. 47

STATE ex rel. NORTH et al., State Board of Health, v. MILLER, Judge.

No. 26438.

Supreme Court of Missouri, in Banc.

February 4, 1926.

Prohibition by the State of Missouri, at the relation of Dr. Emmett P. North and others, composing the State Board of Health, against Hon. Franklin Miller, Judge of the Eighth Judicial Circuit within and for the City of St. Louis. Writ quashed.

Robert Otto, Atty. Gen., J. Henry Carruthers, Asst. Atty. Gen., and Jourdan & English, of St. Louis, for relators.

Gillespie & Dempsey, of St. Louis, for respondent.

PER CURIAM.

In this case the state board of health was threatening to hear and determine certain charges lodged before such board against Dr. Clara W. McGrew, in which charges the party making them asked that Dr. McGrew's license to practice medicine in this state be revoked. Dr. McGrew filed a bill in equity in the circuit court to restrain such board from proceeding with the hearing, in which irreparable damages to her business was alleged. Application for a temporary restraining order was made before Judge Franklin Miller, and by him granted, after an order to show cause had been served, and the said state board of health, through counsel, had made return to such order. The substance of the return is: (1) That plaintiff's bill did not plead facts sufficient to constitute a cause of action; and (2) that plaintiff had an adequate remedy at law by and through a certiorari to the circuit court. The petition did allege that the grounds stated in the complaint were not statutory grounds for revoking a physician's license, and that the board was acting without statutory authority, and hence without jurisdiction. We shall not go into details. It suffices to say that the trial of the case upon its merits would have been set for a day certain by Judge Miller, but our preliminary rule in prohibition stopped such action. In his return to our writ of prohibition Judge Miller, among other things, says:

"Respondent further states that except as prohibited by order of this honorable court, so soon as the pleadings are made up, it had been and is his purpose and intention to cause the said petition or bill for injunction, together with the other pleadings making up the said cause, to be set down in its order, according to the rule and practice of his court, for final trial, hearing, and decision.

"Respondent further states that he is willing now and at all times to obey whatever orders this honorable court may...