*1
FINDLAY BOARD OF et al. OF
COUNTY MOHAVE
No. 5328.
Supreme Arizona Court of
April 23, 1951. *2 Elmer, Kingman,
Charles P. Favour Prescott, Quail, appellants. & T. Byrne, Prescott, of Counsel. J. *3 Hammond, Kingman, Carl D. of Mor- Locklear, gan Phoenix, appellees. & for STANFORD, Justice. appeal
This an from an order superior quashing court a of certiorari writ stay had thereto- dissolving that at fore been the writ was ordered time issued. There was also made order petition upon which the writ dismissing granted. had been appellants (petitioners The below) are physicians four of the five practicing County. Kingman,, Mohave Located at county county seat, hospital a known Hospital, as the Mohave General author- remaining 1949, August three ized, In maintained under directed and IV, petitioners 17, similar notifications provisions Ill and received Chapter Arts. use prohibited further the and were also from A.C.A.1939, powers of relating to the charges were hospital of the facilities. No favor- supervisors maintaining board of peti- preferred Incidentally, hearing given this was able health conditions. A state- prior tioners notifications. county and to the only hospital in the was the each ment was added at the bottom of the north widely by the residents of used request notice a hear- petitioners that could westerly As a corner the state. ing they if completely the con- so desired. hospital, it was under supervisors Mohave trol of the board 31, 1949, petitioners On filed August provided a man- County, general who had petition in the for of certiorari writ February 1949, 19, ager therefor. On superior County, the court Mohave super- respondent board'of members of the presiding. Honorable Faulkner W. J. passed certain resolution or rule a visors thereupon writ issue ordered that the pertaining to use of facilities respondents and the were commanded to resolution, hospital by This doctor. transcript certify complete and return the Resolution is as follows: known as proceedings regard- of the held record “Resolved, using That if doctor Mohave ing the notifications above-mentioned Hospital requested General facilities is petitioners pro- had received. All which facilities, doctor, using another ceedings, subsequent to the issue of professionally assist him that re- doctor writ were heard and determined assistance, give fails then fuses or Honorable H. L. Russell. such doctor shall be allowed to incorporated also a thereafter, except There was in the writ said facilities parties stay requiring the in the meantime only patients for his in the at that proceedings from to desist further time.” purpose be matter to reviewed. of the 26, 1949, February petitioner Barnes On to secure review of the writ was actions by respondent Coppa, manager was notified supervisors. peti the board of hospital, of the that longer he would alleged: tion the writ (1) hospital, allowed the use of the with the jurisdiction board had exceeded its in find exception patients which he was respondents guilty ing violating *4 hospital. treating then in the He was later trial; resolution without notice authority notified that for this action had juris had exceeded that the board its (2) respondent been obtained from the board denying the use of the diction in and was the result alleged respondents; that the (3) of violation facilities to 111, supra. jurisdiction its Resolution board had exceeded
62 court, here, re In the lower the reason resolution for
adoption of the
of the writ
questioned the use
spondents
was unconstitutional
that the resolution
constitution
challenge
the
certiorari
and of
unjust, unreasonable
in that it was
void
ality
position
Their
of the resolution.
discretionary powers
the
exceeded
is,
the writ of
was, and
that
this behalf
board.
to review
may not be used
certiorari
issued, respondents
was
After
writ
tribunals, boards
of inferior
actions
quash,
was
which
filed their motion
execu
legislative,
officersin the exercise
They then
thereupon
by the court.
denied
have
tive or ministerial functions. We
petition
response to the
which
filed-their
is confined
heretofore ruled that
writ
proceed
partial record of
contained a
action,
judicial
and then
to a
review
and also denied cer
before the board
ings
tribunal,
inferior
only to
determine whether
petition for
contained in the
tain material
exceeded its
ard
or officer has
bo
petitioners
certiorari,
alleging that
further
jurisdiction
jurisdiction.
or acted without
requested
hearing after the notifica
had
Ariz.
Supervisors, 17
Faulkner v. Board of
ter
Resolution 111 and
tion of violation of
139,
rel. Andrews
149 P.
In State ex
382.
hospital facilities.
mination of their use of
192,
242,
Superior Court,
P.2d
Ariz.
v.
response, respondents also set
For further
only to
certiorari
issues
it was held that
concerning
alleged
violation
out details
and not
to determine
jurisdiction
test
in the record
which
not contained
were
The
erroneously
whether it was
exercised.
regard,
In
proceedings of the board.
this
n
jurisdictio
have
inferior court must
matter
particularly
only
we note
matter,
power to
subject
person and
record, pertaining
contained in the certified
particular judgment
render the
which
violations,
copy
alleged
proof
judgment be
given in order that the
board,
said
which states
minutes of the
v. Su
against
by certiorari. Wall
attack
111 had been vio
merely that Resolution
perior
Yavapai County, 53 Ariz.
Court of
lated,
particulars being set
It is
forth.
In numerous other cases
63 ' County supervisors, use of under necessity “The of that had for the board pre- might be and are hospital's restrictions as facilities and who limitations by law, may: scribed patients. principle admitted The as of law v. laid in the case of Mill down
quired
tingly applicable in the instant case.
inquiry
assent to the doctrine that a
— jurisdiction — of
court in that case said:
law
respondent
applicant
qualification
Brown,
fore,
be
void
into
unconstitutional,
goes
31
and
Utah.
in this
which affect the
respondent
to do
directly to
473,
no force or
so,
proceeding.
support,
88 P.
then
" *
hence can
act, not to his
and
citizen
609, 611,
the acts
power
rights
**
effect.
We
are, there
affected
cannot
If the
of the
be
is
This
fit
in
ties as
penses
with the
tions for
tion
homes and
in their
ance of the
poor
“17.
“5. Provide
of
necessary,
thereof;
Adopt provisions
county hospital,
discretion
working the
[*]
indigent,
health of their
hospitals therefor;
county;
for
[*]
the care and
a
sick and the
farm in connection
provide
erect and maintain
[*]
same;
and make
for the
respective
[*]
for -the ex-
dependent
preserva-
mainten-
provide
regula-
* *
coun-
judicial proceeding,
by
ing unconstitutional and therefore void.
An
sought
a
unconstitutional
law
may
affect the
not,
at
rights
attack that
any
time and
by
the citizen
which
law
in
as
any
be
things
“22. Do
[*]
duties
necessary
[*]
as the
government;
perform
[*]
to the full
legislative
[*]
all
but
other
[*]
discharge
authority of
supervisor
acts
[*]
or effect
bind
force
and would not
upon any
shall
in which
not
measure
vote
any
Shelby County,
one.
U.
Norton v.
118
he,
family,
part-
member of his
or
425-442,
1121,
Any
interested;
ner,
S.
may
pecuniarily
6 S.Ct.
L.Ed. 178.
be
act, therefore,
respondent
affecting
local, police,
“23. Make
enforce all
applicant's rights,
if such act is based sanitary
regulations
in
and other
con-
upon
law,
an unconstitutional
with
is both
laws;
general
flict with
out and
void. The first
tained."
beyond jurisdiction,
objection
cannot be sus
therefore
They
[*]
A.C.A.1939,
also
[*]
direct
[*]
which in
attention to
[*]
[*]
part provides
section
[*]
17—
board,
actions,
defending
their
“Except
emergency
when
cases
that:
powers
upon relying
conferred
hospitalization
or medical care is
immediate
provisions
law, pointing
preservation
out that
for
life or
provided hospitali-
shall be
17-309,
person
limb no
section
A.C.A.1939:
hospital;
terms and
under what
zation or medical care hereunder
Presumably,
supervisors
conditions we
not know.
filing
first
the board
do
with
*
* * *
*
might
*. The
(indigent oath)
required
he
be
to assist without
compensated
his
supervisors
admit
for
may
being
board
into
assurance
care,
required
or sur- services. He
to assist
might
medical
operation
judgment
an an
attention, any
than
which in
honest
other
his
gical
*6
whole,
unnecessary
pay,
part
in
is
be deferred. Un
indigent who
or
or should
will
any
doubtedly,
hospital care,
surgical
person worthy
the title
medical or
for such
“Physician”
attention,
pre-
Medicine”
regulations
and
or “Doctor of
under rules
would,
many
in a
oth
emergency
admission
case of
or
by said board.
scribed
The.
situations,
professional
er
aid and
patient
be
the incon-
render
paying
a
shall not
to
ability
patient.”
assistance to
without
any indigent
the best of his
venience of
thought
obligations
of his
incurred under
considering
In
the reasonable
Hippocratic
not the
his
is
Oath. Such
under consideration
ness of the resolution
regulation
here.
enforces
situation
This
taken into consideration
Code
we have
voluntarily
for
his
contracted
services not
portion
referred to
that
above
and
sections
perhaps
patient, yet
not
by
or
desired
A.C.A.1939,
17-349,
wherein
of section
“ *
compulsorily
upon
* *
en
enforced
him. To
Any
expressly provided that
is
It
him.
is
force the rule would enslave
indigent
than an
who has been
other
physicians
axiomatic that licensed
c.ourse
may
county hospital,
em
to the
admitted
right
practice
have no constitutional
expense
ploy, without
to the
county, a
profession
hospital
a
maintained
permitted
physician
shall be
or nurse who
Hayman
political
or
state
subdivision.
necessary
hospital
use of the
facilities
”
City
414,
Galveston,
* * *
47
273
S.Ct.
v.
U.S.
equipment.
It is thus seen
and
363,
gen
71
likewise the
L.Ed. 714.
patient
a
right
has
to em
a
that
municipalities may regulate
eral
that
physician.
ploy
regula
Does this
his own
prescribe
hospitals
and
and
control their
upon this
If the
impinge
privilege?
tion
reasonable
and regulations
rules
patient
is restricted
rule
enforced
by physicians using
followed
facilities.
may employ,
he
for the regula
in whom
City
Green v.
St. Petersburg,
154 Fla.
may
he
provides
employ
that
a
tion
339, 17
517;
City
So.2d
v.
Selden
of Ster
regula
has not
to the
acceded
doctor who
455,
ling,
Ill.App.
316
65 experienced preclude practitioner. surgery arbitrarily reg cannot a The rules ularly regulations just physician all refer- surgeon or referred to> have licensed orderly ence right practice long management of the hos- hospital, so pital and physician stays as in most instances are made for surgeon within protection City Knoxville, patients. rules and law. Such Henderson v. regulations 477, appear 157 to be reasonable Tenn. A.L.R. S.W.2d complain doctor could for 652. be heard to hav- comply ing to regula- therewith. But the provisions of section 17- goes beyond tion under consideration 349, supra, expressly upon confer a paying common-place transcends the ordinary patient county in a privilege regulations personal liberty and invades the private physician of employing a rights patient and contractual of both the expense county, to the physician and such physician. and the To accede to the rule permitted shall be use virtually compulsion what amounts to equipment. This facilities and repulsive would be dignity and beneath the destroys implica express provision professional of a man. power physicians a from tion of to exclude “ * * * Physicians public are not hospital except servants who are bound to serve all who to reasonable rules nonadherence them, innkeepers, seek common car- *7 regulations. professional areWe without ”* * * riers, and the like. Am.Jur., knowledge encompas might what be as to Physicians Surgeons, Sec. 4. sed within the of “reasonable definition managements regulations”. rules and The “A physician is obligation under no to of hospitals require physicians all modern practice engage accept professional or to surgeons keep clinical thorough and to employment, professional but when the reports patients their concerning their physician accepted services of a by are treatment, of the which become records purpose for the another of medical hospital. provided Wards are obstetri treatment, surgical or physi- the of relation cal cases; operative contagious cases and patient cian and is created. The relation cases. provide Additional for num is a patient rules consensual one wherein the knowingly the seeks assistance physi- of the hygienic precautions. erous reading The physician cian and knowingly accepts the hospitals cases indicates that have ” * * * patient. him aas 41 Am.Jur., adopted denying rules and in young Physicians Surgeons, Sec. 71. experienced surgeons right perform to operations certain in the except In view of circumstances guidance under the surrounding or observation an apparent this case it is that of certiorari quashing the writ ade- trial court speedy and petitioners plain, had stay must be reversed and and rights dissolving remedy protect their quate to heartily ground disagree with the physicians in but we obligations fulfill as to opinion for its re- majority assigned in the private patients who the treatment by passed versal, pa- wit, to that the resolution might be admitted regularly supervisors is the board .unconstitutional. declar- Respondents suggest that tients. appeal in event atory an judgment and upon judgment of ground which af- an would judgment adverse reversed, in should be our the lower court conten- this adequate With forded relief. of the board opinion, finding is that tion we cannot concur. appellants had violated resolution that the by it; its previously passed hold that and in therefore Ill We No. unconstitutional; all that prohibiting appellants from further order was resolution county ef is and was of facilities of taken under it action conclusion, judicial it of a Having reached this in the exercise fect. the board was point that the juris- out way without anti-climax to function. therefore complained for review provided judgment no method to render the diction resolution finding appellants oppor- an given the board had that the action of until it presented rule had to guilty violating tunity heard and petitioners trial, appel- sustaining finding finds no accusation, notice or evidence county system of due doctor requiring lants refused to assist basis under our patients professionally of citizens in the treatment rights substantial process where upon .upon destroyed. performance operations infringed or in hospital. patients confined in the quashing dis- judgment the writ and reversed, stay and the trial solving the pause Let us that the here observe enter rein- judgment is instructed to court has no such connota- professionally word desist stituting the order. opinion. majority tion as indicated only professional not be but It would reversed. Judgment unprofessional highly for a it would be performance physician assist in the PRADE, J., LA con- UDALL, J.,C. operation he which believed to be un- cur. perform or unwise at that *8 time. CONCINI, DE and PHELPS Justices concurring).
(specially the matter As we there is basis view holding that in the result reached in this whatever for resolution No. concur We provision judgment the is unconstitutional. No the effect that of .the 111 to case and power the effort to constitution involved and no reiterates the board the adopt specific pro has point any regulations been made rules governing to to and vision violates. admission and 17-349 thereof which resolution treatment. Section “ * * * provides part in as follows: All powers super- of the board of Any person who has indigent than an other granted by legislature visors were to it hospital, may been admitted to the only powers and it has such have been employ, expense county, a expressly, by implication, dele- or physician permitted or nurse shall be who A.C.A.1939, gated to 17-309(5), it. Section the necessary hospital facilities relating to mainte- and construction equipment. a The admission of hospitals nance of sick indigent patient shall not be to the inconvenience of dependent poor is set full in the out in any indigent patient patient indigent and an majority opinion. 17-348,. Section A.C.A. shall receive the same care treatment 1939, provides: person “No than an other accorded to pay patients.” indigent aid, public shall or be ad- receive any mitted the ex- hospital into home or We believe all of the members of the penses county, paid by of which are agree court in adopting No. resolution any person charge or having contractor Ill the supervisors acting board of hospital knowingly home or who legislative capacity. being This true we same, atten- receives into for medical are neither concerned nor have we subsistence, any person tion or other than authority question either reasonable- indigent, guilty an shall a misdemean- ness or adopt- wisdom the board in may hospi- or. The board admit into ing it. These exclusively matters rest with care, surgical hospital tal for medical at- authority the board. The of this court is tention, indigent other than limited solely to determination of the whole, pay, part or who will for such question of whether the in passing board care, surgical medical and atten- resolution No. Ill acted power within the regulations tion, prescribed under rules jurisdiction provi- vested in byit (Emphasis by supplied.) the board.” law quoted. sions of above We it did. think 17-404, portions The material of section supervisors board of charged set A.C.A.1939, majority out in the duty the above with of providing repeated. not be and will here This opinion for the care and maintenance of the indi- at the end thereof identi- contains section dependent poor sick gent and the of Mo- 17-348, language cally the same as section County empowered and were to build to the supra, purpose. relative admission hos- and maintain a for that patients persons indigent power than maintain pital of other carries with it *9 they had any patient then hospital implication for power supervise and con- to right hospital. has in the The board hospital property of Mo- trol it. The is the hos- admit to to refuse to above stated County. Except emergency cases in have any patients oth- pital and all for treatment hospitalization or medical when immediate indigent. of er than preservation is for the care 'be ad- is person or limb allowed to life claim Upon right then does the what apply- hospital first to mitted such without hospital its and appellants the use of to supervisors for ad- ing to the board of property They equipment have rest? for is made a misdemeanor and mission equipment or hospital inor its right in the hospital to ad- charge any medi- practice to right facilities. The its care, hospital medical at- person for mit a Appellants are property right. cine is not a the consent tention and subsistence practitioners merely as medical licensees 17-404, board. Sections 17-348 any may be revoked at licenses and their admit supra, provide may the board they cannot Therefore time for cause. patients regulations paying rules and under has right of theirs property any claim that language used in prescribed by it. The to them them, denying taken from been express grant sections amounts to these The mere hospital facilities. the use of - adopt regulations rules and power medi- practice they licensed to fact that patients. governing admission of engaged and are cine in the state county public hospital operated A County does practice thereof in Mohave public has of a none "of the characteristics right to any legal give of itself them not corporation to ac- and is not bound service its county arbitrarily anyone applies cept for treatment who prac- in the furtherance of facilities expressly gives to therefor. The statute said therefore logically cannot tice. reject paying pa- power the board adopted by the board regulation that the clause In our of the matter the tients. view appellants. The legal rights of violated purely hospital” “may admit into act- regulation was adopting such board in it together express powers granted permissive ing and when considered within the legislature. cir- act under cannot entire with to mean “must be construed cumstances may the board hold that For this court to * * * ”. admit relating to the Ill adopt regulation No. adopted was Ill ac- No. Resolution and control conduct proper light the above purposes and in the with for which for cordance the. in said resolu- to a man- is made amounts Provision is maintained statute. built ab- supervisors must board facilities of that the date appellants to use tion authority manage powers its dicate hospital property Mo- control the turns its County, by judicial fiat appellants control over to
management and appoint- power dictate the
including the county physician of that coun-
ment of *10 taking property
ty. amounts to' process of violation due Federal Constitution.
both the state P.2d 686 COMMIS- v. INDUSTRIAL
GOMEZ al.
SION et
No. 5413.
Supreme Arizona. Court of
May 7, 1951. Rehearing July 12, 1951. on
Award Set Aside
Ariz.
See Sharman,
Leonard of Phoenix, S. petitioner. Morgan, (H.
Donald Phoenix S. Mc- J. Cluskey Yount, Robert E. Phoenix, of respondent counsel), for Insurance Carrier. LOCKWOOD, Superior Judge. Court petitioner, Gomez, ap^ Cresencia has pealed by certiorari for a of an review