129 S.W.2d 866 | Mo. | 1939
Lead Opinion
This cause is in mandamus and is against the State Board of Health. An amended alternative writ commanded the board to "vacate and annul all of the orders made" by it and pertaining to the revocation of the license of relator to practice medicine and surgery in this State, and to reinstate said license, or to show cause why such should not be done.
We have named in the caption the personnel of the board as would appear from a stipulation filed November 25, 1938, as to substituted appellants. Below, respondent was designated as relator and to avoid confusion we refer to respondent as relator, and to appellants as the State Board of Health, or just the board.
The original petition was filed October 20, 1933, and on same day an alternative writ of mandamus was issued. December 16, 1933, motion to quash the alternative writ was filed. Nothing further appears until December 31, 1935, when an amended petition was filed; an amended alternative writ was issued, returnable on day of issue; a general and a special demurrer were filed to the amended alternative writ, and were overruled; return, answer, and reply were filed; and the cause was tried, and by the judgment rendered the amended alternative writ was made peremptory. The board appealed.
The judgment is as follows: "It is by the court considered and adjudged that the amended alternative writ of mandamus heretofore issued should be made permanent and that a writ of peremptory mandamus be issued commanding and directing the State Board of Health of the State of Missouri and each and all of the members thereof (naming them) to forthwith vacate and annul all of the orders made by them, the members of the State Board of Health of the State of Missouri, or by their predecessors in office as members of *830 said State Board of Health of the State of Missouri, concerning the revocation of the relator's license to practice medicine and surgery in the State of Missouri, and to forthwith issue unto the relator a license to practice medicine and surgery in the State of Missouri, or reinstate relator's license number 19190, heretofore revoked, and that all of the respondents make immediate return to this writ and report to this court their compliance with the commands contained in said peremptory writ of mandamus."
[1] Relator has filed here a motion to dismiss the appeal, and the motion was taken with the case. Our Rule 16 provides that if an appellant in any civil case fails to comply with Rules 11, 12, 13, and 15, "the court, when the cause is called for hearing, will dismiss the appeal, or writ of error, or, at the option of the respondent, continue the cause at the cost of the party in default." There are five alleged grounds in the motion to dismiss, but only the fifth deals with grounds embraced in the Rules mentioned. The first two grounds alleged go to what is shown in the abstract as to the filing and overruling of a motion for a new trial. In the third ground, complaint is made because there is printed in the abstract the respective petitions, answers, and opinions in Horton v. Clark et al.,
[2] The board's chief contentions are that mandamus will not lie and that the matters and things complained of by relator areres adjudicata.
We do not deem it necessary to set out the pleadings or the substance thereof. The court made a finding of facts, and from this it appears: That on October 18, 1922, relator, on written examination, was licensed to practice medicine and surgery in this State; that, after being so licensed, he practiced medicine and surgery in this State until May 27, 1927, except when "studying medicine and surgery in the University of Budapast, Hungary;" that on May 27, 1927, at a hearing before the board, sitting in St. Louis, relator's license to practice medicine and surgery in this State was revoked.
Since there is nothing here except the record proper, it is sufficient, *831 we think, to say, without detailing at length, the facts found, that the order revoking relator's license was set aside on the ground that said order was brought about and procured by fraud. It was found that the board and certain named persons entered into a conspiracy whereby these persons would give false evidence against relator at the hearing before the board on the occasion when relator's license was revoked. And it was found that these persons, pursuant to the alleged conspiracy, did appear before the board and testify falsely against relator.
It was also found that relator, "in obtaining a license to practice medicine and surgery (in this State) . . . made no misrepresentations of facts concerning the relator's qualifications, of any kind or character, and practiced no fraud upon the board . . . or upon any member thereof." And it was found that on May 10, 1922, relator was licensed by the State Medical Board of Arkansas to practice medicine and surgery in that State, and that on October 18, 1933, he properly petitioned the board (in Missouri) for a license, under the rule of reciprocity; and that at said time it was customary for the board to issue licenses, under the rule of reciprocity, to those physicians and surgeons who held licenses to practice medicine and surgery in the State of Arkansas; that the board refused to issue a license to relator under the rule of reciprocity, and that in so refusing the board grossly abused its discretion.
It appears in the finding of facts that on June 3rd, 4th, and 5th, 1935, relator took and successfully passed a written examination "through the office of the State Superintendent of Public Schools of Missouri," and that on June 12, 1935, the superintendent, by reason of said examination, issued a certificate to the relator showing "the establishment of 15½ units of high school work." And it appears that in the year 1924, "relator was graduated from the school of medicine of the University of Budapest, Hungary."
As appears from the finding of facts, relator was licensed to practice medicine and surgery in the State of Arkansas, and sought a license in this State under the rule of reciprocity, but was refused. Section 9113, Revised Statutes 1929 (Mo. Stat. Ann., sec. 9113, p. 5075), among other things, provides that the State Board of Health "may, under the regulations established by the board admit without examination legally qualified practitioners of medicine who hold certificates to practice medicine in any state or territory of the United States or the District of Columbia with equal requirements to the State of Missouri, and that extend like privileges to legally qualified practitioners from this state upon the applicant paying a fee of fifty dollars ($50.00)." (Italics ours.)
It is quite plain from Section 9113 that the observance and recognition of the rule of reciprocity lies within the sound discretion of the board, and, as appears, it was found that the board "grossly *832
abused" its discretion in refusing to issue to relator a license under the rule of reciprocity. However, it also appears that the amended petition did not ask that the board be compelled to issue a license to relator under the rule of reciprocity, and the amended alternative writ did not command that the board show cause why it should not be compelled to issue a license to relator under the rule of reciprocity. Also, it will be noted, from the judgment set out, supra, that the board was not directed to issue to relator a license under the rule of reciprocity. Mandamus is an action at law (38 C.J., pp. 543, 545, secs. 6, 12; State ex rel. Haeussler et al. v. German Mut. Life Ins. Co. et al.,
[3] Will mandamus lie to set aside, on the ground of fraud, the order of the board revoking relator's license and compel the board to restore or reinstate the revoked license? The writ of mandamus has been "denominated a hard-and-fast writ, an unreasoning writ, a cast-iron writ, the right arm of the court. It is essentially the exponent of judicial power and hence is reserved for extraordinary emergencies. It does not issue except in cases where the ministerial duty sought to be coerced is simple and definite arising under conditions admitted or proved and imposed by law. It does not issue where the right is doubtful or where there is another adequate remedy." [State ex inf. Barker, Attorney General, ex rel. Kansas City v. Kansas City Gas Co.,
It will be observed that the court, in its judgment, directed the board "to forthwith vacate and annul all of the orders made by them . . . or by their predecessors . . . concerning the revocation of the relator's license to practice medicine and surgery in the State of Missouri." Let us assume that mandamus was the proper remedy, and that there had been no appeal. In such situation could it be contended, with good reason, that relator would have been without authority to practice medicine and surgery in this State, until the board made an order vacating the order revoking his license. We do not think so. The effect of the court's judgment, assuming mandamus the proper remedy, was to set aside the order revoking relator's license and to revive and revalidate the revoked license.
Relator relies upon State ex rel. McCleary v. Adcock et al.,
The gist of the Johnston case is stated in headnote 1 [
The distinction between the McCleary and Johnston cases and the present case is apparent. Relator does not call our attention to any case and we find no case where mandamus has been invoked to set aside a record. It appears from the board's return that the question of relator having an adequate remedy, other than by mandamus, was raised below, hence there is no question of waiver on that point. In the situation, we are constrained to rule that mandamus will not lie to redress whatever wrong, if any, was done to relator by the board in revoking his license. His remedy, if one survives to him, as to said order, is a suit in equity to set it aside on the ground of fraud.
It is not necessary to rule the question of res adjudicata,
but we do not think it amiss to refer briefly to relator's troubles with the State Board of Health. An appellate court takes judicial notice of its own records. [Bushman et ux. v. Barlow et al.,
The original complaint was filed against relator on June 9, 1925, September 12, 1925, he filed the injunction suit. Opinion in the injunction suit was handed down February 15, 1927, and on March 22, 1927, an amended complaint was filed with the board against relator and it was on the amended complaint that the board revoked relator's *834
license on May 27, 1927. [See State ex rel. Horton v. Clark et al.,
The board also makes the point that relator has been guilty of laches and on that ground should be precluded, but it is not necessary to rule that point and we do not.
The judgment should be reversed and it is so ordered. Hyde,C., concurs; Dalton, C., not sitting.
Addendum
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur, except Clark, J., not sitting.
*876