268 P. 1073 | Cal. Ct. App. | 1928
In a proceeding instituted before the respondent Board of Medical Examiners the license of appellant to practice medicine and surgery in this state was revoked. Thereafter appellant filed in the superior court a petition for a writ of certiorari, in which it was prayed that the proceedings before said board which resulted in the order for the revocation of petitioner's license to practice medicine and surgery be reviewed and said order annulled. The respondent board demurred to said petition, with the result that the demurrer was sustained without leave to amend the petition. Thereupon judgment was entered in favor of respondent; and it is from such judgment that this appeal is prosecuted.
In substance, one of the contentions of appellant rests upon the allegation in his petition for a writ of certiorari to the effect that because one of the members of respondent Board of Medical Examiners was prejudiced against petitioner, and because, in the circumstances, the vote of such member was necessary in order that a legal order of revocation of the license of petitioner be made by said board, a qualified quorum of said respondent board was not present at its proceedings in said matter, and, consequently, that it was without jurisdiction in the premises. It thus appears *67 that, as to this contention, specifically the question of whether the petition presented to the superior court stated a cause of action depended upon whether the alleged prejudice toward the accused of an essential member of the trial board amounted to his legal disqualification.
It is urged by appellant that in the matter of determining the issues in the proceeding before the Board of Medical Examiners such board was necessarily acting in a quasi-judicial capacity; and, consequently, that any disqualification arising from bias or prejudice which, in similar circumstances, would so affect a judge as to prevent him from acting judicially in a matter pending in the court in which he was presiding, would also act as a like disqualification when applicable to a member of a board sitting in a quasi-judicial capacity.
Subdivision 4 of section 170 of the Code of Civil Procedure in substance provides that no justice, judge or justice of the peace shall sit or act as such in any action or proceeding when it appears that either party to such litigation cannot have a fair and impartial trial before such judicial officer by reason of his prejudice or bias. As originally enacted prejudice or bias of the judge before whom an action or proceeding was to be tried was not a ground for his disqualification. Beginning as early as the case of McCauley v. Weller,
[1] Since before the enactment of the special statute relating thereto bias or prejudice did not constitute a valid ground of disqualification of a judicial officer, it is apparent that in the absence of an inclusion in the statute of a provision affecting members of boards of medical examiners, any bias or prejudice of any of such members in a matter pending before such board would have no effect upon its jurisdiction. The case ofButler v. Scholefield,
[2] It is next contended by appellant that because the petition contained an allegation to the effect that the onlyevidence introduced at the hearing of the charge against petitioner was hearsay, the demurrer to the petition was improperly sustained.
In addition to the allegation to which attention has just been directed, the petition purports to set forth a substantialresume of all the evidence adduced before the Board of Medical Examiners on the hearing of the charge. It is a well-established rule that for the purpose of ruling on a demurrer, all the well-pleaded allegations contained within the complaint are presumed to be true. It would serve no useful purpose to herein set forth the evidence introduced before the respondent medical board in support of the charge against petitioner herein. Suffice it to say that, assuming, as it must, that the evidence to which attention is directed by the allegations of the petition wasall the evidence presented in substantiation of the charge, this court is convinced that under the ordinary rules of evidence, while (assuming its substantiation) in substance it may have been properly admissible in evidence, nevertheless in the form in *69 which it was attempted to be introduced, it was altogether hearsay and incompetent.
Section 14 of the act regulating the examination of applicants for license to treat diseases, etc. (Stats. 1913, p. 722, and various amendments thereto), among other things, provides in effect that in determining the issues presented in a charge wherein the object is the revocation of the license of a medical practitioner, the board "shall hear such proper evidence as may be adduced before it."
Analogously, it may be noted that by section 77 of the Workmen's Compensation, Insurance and Safety Act as originally enacted in this state (Stats. 1913, p. 279), it was provided that the industrial accident commission should not be bound "by the technical rules of evidence." Nevertheless, it was held in the case of Englebretson v. Industrial Accident Commission,
The case of Thrasher v. Board of Medical Examiners,
[3] On this appeal this court is bound by the allegations contained within the petition presented to the lower court.
[4] As hereinbefore indicated, in the state of the record it appears that none of the evidence received by the respondent board on the hearing of the charges against the appellant was properly admissible; from which it results that said board was without jurisdiction to make its order revoking the license of appellant to practice medicine and surgery in this state.
[5] Further history of the present litigation discloses the fact that some time in the month of August, 1920, in a proceeding brought before the Board of Medical Examiners, appellant was charged "with having been guilty of unprofessional conduct by violating section 14 of chapter 354 of the Statutes of 1913, and acts amendatory thereof, of the State of California, in that he, Philip Dyment, procured by fraud and misrepresentation a certificate to practice medicine and surgery in the State of California." After hearing thereon, the Board of Medical Examiners adopted a resolution by which the license of appellant to practice medicine and surgery in this state was revoked. Thereafter, on appeal from a judgment in a proceeding incertiorari in the superior court by which the order of the Board of Medical Examiners was affirmed (
In the former proceeding between the same parties the effect of the judgment rendered by this court (
It is ordered that the judgment be and it is reversed.
Conrey, P.J., and York, J., concurred. *72