State v. State Board of Health

• Decision Date: 02 February 1891
• Parties: STATE ex rel. HATHAWAY v. STATE BOARD OF HEALTH.
• Court: Missouri Supreme Court

15 S.W. 322

103 Mo. 22

STATE ex rel. HATHAWAY v. STATE BOARD OF HEALTH.

Supreme Court of Missouri, Division No. 1.

February 2, 1891.

MANDAMUS TO STATE BOARD OF HEALTH — PLEADING.

1. The functions of the state board of health under Rev. St. Mo. 1889, § 6878, authorizing it to refuse certificates to practice medicine to individuals guilty of unprofessional or dishonorable conduct, after giving the accused an opportunity to be heard, are quasi judicial in their nature; and where they have refused a certificate to an applicant, because of his publication of advertisements of a character tending to deceive the public and impose on the ignorant, mandamus will not lie to compel them to grant it.

2. Where the return to an alternative writ of mandamus, though containing no specific denial in terms of the matters stated in the petition and writ, contains allegations in an affirmative form, which in effect deny all the matters of substance alleged by the relator, it will be held sufficient.

Mandamus.

H. S. Kelley, for relator.

BLACK, J.

This is a proceeding commenced in this court by mandamus to compel the respondents, who constitute the state board of health, to issue to Dr. Hathaway, the relator, a certificate to practice medicine in this state.

1. The first question is one of pleading. The petition for the writ, after alleging that the relator was a graduate of a medical college in good standing, and that he presented to the respondents his diploma, and the respondents found the diploma to be genuine, and the college in good standing, proceeds to state, in substance, that the respondents refused to issue to him a certificate, "upon the alleged and only ground that relator's method of advertising himself as a specialist in the treatment of private, blood, and skin diseases was dishonorable and unprofessional, and that by such advertising he was guilty of unprofessional and dishonorable conduct; but relator denies that he has been guilty of any unprofessional or dishonorable conduct in and by such advertising, or in any other manner; and relator charges the truth to be that said defendants, as such board, have knowingly issued certificates to divers physicians and surgeons who are and claim to be specialists, and advertise as such, in the same manner as relator;" and that the board, "in refusing to grant to him a certificate, were and are actuated, governed, and controlled by prejudice, bias, caprice, and partiality, and wantonly refuse to issue such certificate to relator," etc. These statements, concerning the reason why the board refused to issue a certificate, and bias and prejudice on the part of the board, were not set forth or recited in the alternative writ. To the writ the secretary of the board, for want of means to engage counsel, it seems, made return. This return concedes that the relator had and held a diploma from a medical institution in good standing, and it goes on to state that the relator was heard in person and by counsel, and on the 11th July, 1889, the board refused him a certificate, because he was found guilty, on charges duly preferred, of unprofessional and dishonorable conduct, in the habitual publication of advertisements which, in the opinion of the board, tended and were designed to mislead and deceive the public, and impose upon sick and credulous persons by impossible claims of the treatment of diseases, and for the further reason that he was then engaged in the practice of medicine without a certificate and in defiance of the law. The return further states that the respondents, "in their further endeavor to faithfully and impartially discharge their sworn duty under the law," were guided by the ruling of this court in the Granville Case, 83 Mo. 123. To this return the relator made answer, in which he sets up, among other things, the matters stated in the petition, and which were not recited in the alternative writ. The respondents filed no reply to this answer, and the claim is now made that those matters stated in the answer stand admitted, and that a peremptory writ should be issued on the face of the pleadings. The statute, it is true, provides, in substance, that the respondent shall make return to the alternative writ, that the relator must plead to or traverse the return, and that the respondent shall then reply, take issue, or demur. Still the alternative writ is in our practice the first pleading, and it takes the place of a petition in an ordinary common-law action. Hambleton v. Town of Dexter, 89 Mo. 190, 1 S. W. Rep. 234; High, Extr. Rem. § 537. The writ should set forth all the matters stated in the petition, so that the respondent will be informed of the grounds upon which the relief is asked. State v. Everett, 52 Mo. 94; High, Extr. Rem. § 538. In view of the fact that the pleadings are informal on both sides, and of the further fact that the return was evidently made in view of the matters stated in the petition, we are of the opinion no undue advantage should be awarded the relator...