Stern v. State Bd. of Dental Examiners

• Decision Date: 16 July 1908
• Citation: 96 P. 693,50 Wash. 100
• Court: Washington Supreme Court
• Parties: STERN v. STATE BOARD OF DENTAL EXAMINERS.

96 P. 693

50 Wash. 100

STERN v. STATE BOARD OF DENTAL EXAMINERS.

Supreme Court of Washington

July 16, 1908

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Samuel R. Stern against the State Board of Dental Examiners for services as attorney rendered, under employment by said board, in the prosecution of violations of the dental law. After recovery of judgment, a receiver was appointed in supplementary proceedings, and the board appeals. Affirmed.

John D. Atkinson and E. C. Macdonald, for appellant.

W. F Meier and Samuel R. Stern, for respondent.

RUDKIN J.

On the 1st day of November, 1907, the plaintiff in this action recovered judgment against the State Board of Dental Examiners for the sum of $1,424.66 and costs of suit. An execution issued on the judgment was returned unsatisfied and the plaintiff thereupon made affidavit that the defendant had funds in its possession and under its control which it refused to apply in satisfaction of the judgment, and prayed that the defendant be examined in supplementary proceedings. On such examination, the court found that the defendant had money in its possession and under its control which should be applied on the plaintiff's judgment, and appointed a receiver to take charge of, receive, and collect all funds in the possession or under the control of the defendant, and apply the same toward the satisfaction of the plaintiff's demand.

From the order appointing the receiver this appeal is prosecuted and the appellant makes the following contentions in support of its appeal: (1) That the original judgment in favor of the respondent is void; (2) that the remedy of the respondent is by writ of mandamus; and (3) that the court was without jurisdiction to appoint the receiver. It is claimed that the original judgment is void for two reasons First, because the complaint failed to allege that the respondent was employed to assist in prosecutions for the violation of the dental act by the consent of the prosecuting attorneys of the several counties in which such prosecutions were instituted, as required by section 3031, Ballinger's Ann. Codes & St. (Pierce's Code, § 4474); and, second, because the suit is in effect against the state and the dental board itself is exempt from suit. The purpose of the statute in requiring the consent of the prosecuting attorney to the employment of private counsel to assist in prosecutions for violations of the dental act is manifest. Under the law, the prosecuting attorney is charged with the duty of prosecuting all violations of the criminal laws of the state, and the Legislature did not deem it wise or proper to permit private counsel to intervene or interfere in such prosecutions without the consent of the regular prosecuting officer. The same rules apply to the employment of private counsel by individuals. But the authority of the dental board to employ private counsel is not dependent upon the consent of the prosecuting attorney, any more than the authority of a private person depends on the like consent. Furthermore, if the respondent assisted in such prosecutions, the consent of the prosecuting attorney will necessarily be implied. We do not concede for a moment that the absence of such allegation from the complaint would defeat the judgment in a collateral proceeding, as we are of the contrary opinion. The original action was in no sense a suit against the state. The state is not bound by the judgment, nor are any of the state's funds charged with its...