84 Wash. 279 | Wash. | 1915
This is an original application for a writ of mandamus. In the petition for the writ, it is alleged that one of the relators is the state board of medical examiners of the state of Washington, and the other “the regularly retained and employed attorney and legal adviser of said board;” that the respondent is the auditor of the state of Washington; that, on the 15th day of August, 1914, the board audited and allowed the account of the relator Wardall for his services as such attorney at the sum of $200, and issued to him a voucher therefor; that Wardall presented the voucher to the respondent and demanded a warrant on the state treasurer for the amount thereof, and that the respondent refused to issue the warrant on the ground that the medical board was without power to hire or employ private counsel at the expense of the state. It is further alleged that it is impossible for the board to properly discharge the duties imposed upon it by the statute creating it without the aid of legal counsel with whom it can at all times consult and who is conversant with the work of the board and the legal questions constantly arising out of such work, and that it has been the custom and practice of the board, since its creation by the statute of 1909, to employ and pay private counsel, as well as the practice of the medical boards, acting under like and similar statutes, existing prior to the enactment of the statute creating the present board.
The petition is accompanied with the affidavits of the president and secretary of the board. These set out in more detail the nature of the work of the board and the character of the matters coming before it for hearing and decision. In them the allegation is repeated that the work of the board cannot be successfully performed without the aid and assistance of counsel and the charge is made that this- aid and assistance cannot be obtained, either from the office of the Attorney General or from the offices of the various prosecuting attorneys of the state. Indeed, in the affidavit of the president of the board, these officers are openly charged with neglect of
The auditor, in his return to the alternative writ, both answered and demurred to the petition. His answer consists of a denial of all of the allegations of the petition relative to the necessity of the board to employ private counsel, the allegations of inability, neglect, or refusal of the Attorney General, and the various prosecuting attorneys, to attend to the legal matters confronting the board. The demurrer suggests the question of the power of the medical board to employ private counsel for any purpose. Both sides request the court to send the case to a referee for the purpose of taking testimony, should it deem the determination of the truth of the disputed matters necessary to a proper disposition of the cause.
The cause is before us on the question raised by the demurrer. But before discussing this question, it is well to consider the effect of the allegations of the petition concerning the inability, neglect and refusal of the Attorney General, and the various prosecuting attorneys of the state, to attend upon and advise the board, and to prosecute violators of the provisions of the medical act. We cannot think these allegations material. They were inserted in the petition, no doubt, to show the necessity for the employment of private counsel. As will hereafter appear, there is no express provision in the act creating the medical board empowering it to employ private counsel. This power, if it exists at all, can only be inferred from the general powers conferred on the board; the power implied from the general grant of power to take such steps
But conceding that the board may find it necessary in the performance of its imposed duties to have the advice and assistance, and is obligated by law to seek such advice and assistance from the Attorney General of the state, or from some one of the various prosecuting attorneys of the state, it cannot, merely because these officers are unable, or because they neglect or refuse to furnish it with such advice and assistance, employ private counsel for that purpose. The term “necessity” in such cases means “legal necessity” as distinguished from “actual necessity.” In other words, if a person or board is charged by law with a specific duty, and the means by which the duty is to be accomplished are not specially provided for, the person or board so charged has the implied power to use such means as are reasonably necessary to the successful performance of the required duty, which in the present case might include the power to employ- private counsel. But where a person or board is charged by law with a specific duty, and the means for its performance are appointed by law, there is.no room for implied powers, and the means appointed must be followed, however inadequate may be the result. So, here, if the law has made the Attorney General and the several prosecuting attorneys of the state the legal representatives of the board of medical examiners, these are the only persons who can lawfully be paid for the work, no matter how indifferently they perform their duties. On the other hand, if these officers have not been constituted by law the legal representatives of the board, then the -board may hire and pay with state funds such assistants in the way of legal counsel as it may find reasonably necessary to the performance of their duties. The disputed allegations of the petition, therefore, since they charge only neglect or omission of duty on the part of public officers, raise no issue material to the inquiry.
Passing to the principal question, we find that-the board of medical examiners was created by the act of March 18, 1909.
Prom the foregoing epitome of the provisions of the acts relating to the medical board, it will be observed that nowhere in the -act is the board expressly empowered to employ, at the expense of the state, private counsel to assist it in carrying out the provisions of the act. Nor can we discover anything in the language of the act from which it can be said that this power is impliedly given .the board. It must follow, therefore, that, if the power exists at all, it arises from the necessities of the case; it arises because the services of counsel are necessary to enable the board to carry out the duties imposed upon it by the statute, and that such counsel is not otherwise provided for it by law. It is our opinion that the statute presents no such unusual conditions.
Turning again to the act, it is found that no special punishments are provided by it. Violations of certain of its pro
Nor is the board without duly appointed legal advisers as to matters that pertain to the general administration of the statute. As to all matters connected with the prosecution of offenders, they have the right to consult with the prosecuting attorney of the county in which the offender must be prosecuted. As to the general administrative.questions, the Attorney General is their legal adviser. By the constitution and by the statute, the Attorney General is made the legal adviser of all state officers. And while it may be true, as coun
But the act authorizes the board to prosecute all persons guilty of violating the provisions of the act, and it is said that this provision empowers them to employ private counsel for that purpose. We cannot, however, think it has that effect. The provision is not an uncommon one in statutes of like character. Like duties, within their respective jurisdictions, are imposed upon the labor commissioner, the state board of health, the state insurance commissioner, the game and fire wardens, and it is made the duty of school superintendents and directors, road supervisors, all sheriffs, constables and other peace officers, to make complaints of violation of certain laws, yet no one has heretofore supposed that these officers might employ private counsel at the expense of the state to aid them in the prosecution of their duties. The state has an interest in the selection of officers charged with the administration of its laws, and this interest is not to be deemed surrendered unless upon the clearest implication. As we said in Ritchie v. State, 42 Wash. 653, 85 Pac. 417: “A court is treading upon dangerous ground when it rests the authority of a public officer to bind the state on some unforeseen emergency or the law of necessity.” See, also, Young v. State, 19 Wash. 634, 54 Pac. 36.
Our conclusion is that the state board of medical examiners is without power to employ, at the expense of the state, private counsel to assist them in the performance of their duties. The application for the writ of mandamus is therefore denied.'
Crow, Mount, Main, and Ennis, JJ., concur.