as to his qualifications, and the necessity for granting the license. could decline to introduce his testimony, and submit to a judgment against him, and, by an appeal to another tribunal, deprive the municipality of the judgment of those selected by law to pass upon such questions. When, therefore, this discretion is confided to certain boards, the facts upon which their action was based should go to the circuit court, in order to enable that court to determine whether or not the judgment of the board was an exercise of arbitrary power. If this mode of practice is not to be adopted, and we think this discretionary power cannot exist without it, then it appears, from the testimony heard below, that a decision might well have been rendered for either party; and, assuming the board acted alone upon the testimony heard by the circuit judge, still there was nothing to show that any arbitrary action was taken by the board, and for that reason, if no other, the judgment should have been affirmed. The judgment of the circuit court is therefore reversed, with directions to dismiss the appeal taken from the license board. 5 5 See Hopson's Appeal, 65 Conn. 140, 31 Atl. 531 (1894): "The act of 1893, in permitting an appeal from the decisions of county commissioners to the superior court, called into action a judicial function for dealing with such appeal; but it did not alter the actual nature or extent of the power originally vested in the county commissioners for the selection of proper persons and proper places for the sale of liquors. The discretion necessary to the exercise of that power by the county commissioners is, by the appeal, transferred to the judge of the superior court; but there is nothing in the act which can be construed as attempting to vest in this [the Supreme] court the final exercise of that discretion, or the control of its exercise by a judge of the superior court. In dealing with such appeal the superior court is bound by the rules of law regulating the conditions on which the discretionary power of selection shall be exercised, such as the meaning and effect of the language of the regulating statutes, and the acts required by statutory regulations in order to permit any action on the original application or the appeal. The court is also bound by those fundamental rules of law that control all exercise of judicial, or quasi judicial, power. It may not, for instance, arbitrarily refuse to hear any evidence, or to listen to a person entitled to be heard. The failure of the court to comply with such rules may be error, which this court upon appeal will correct. But in exercising the duty of determining a suitable person and a suitable place for the sale of liquors, imposed on the county commissioners, and, by force of the appeal, transferred unchanged in its nature and extent to a judge of the superior court, the judge is engaged in settling a matter of discretion. In this case, certainly, the court was not engaged in the trial of 'matters of fact in any cause or action,' within the meaning of the statute regulating appeals to this court." In Norwalk Street Railway Company's Appeal, 69 Conn. 576, 596, 37 Atl. 1080, 1087, 39 L. R. A. 794 (1897), the court said: "In Hopson's Appeal, 65 Conn. 140, 31 Atl. 531 (1894), we held that the selection or appointment of such a licensee was a means apparently appropriate both to the exercise of executive and judicial power; that the uniform practice of courts and Legislature in so treating such appointment might be safely accepted when the distinction to be drawn must be subtle and doubtful." Further, in Norwalk Street Railway Company's Appeal, 69 Conn. 576, 37 Atl. 1080, 39 L. R. A. 794 (1897): "The act of 1893 confers upon city councils certain powers in establishing regulations for the location, construction. and operation of street railways, and requires a council, if requested by a STATE ex rel. SERES v. DISTRICT COURT OF FIRST JÜDICIAL DISTRICT. (Supreme Court of Montana, 1897. 19 Mont. 501, 48 Pac. 1104.) Application of the State of Montana, on the relation of J. R. Serres, for mandamus against the District Court of the First Judicial District of the state of Montana in and for the county of Lewis and Clarke. Writ awarded. This is an application for a writ of mandamus. The petitioner alleges that he is a regular graduate of an accredited college of medicine; that he attended at least four courses of lectures at said college, of six months each; that on the first Tuesday of October, 1896, petitioner was an applicant to the board of medical examiners for a certificate entitling him to practice medicine and surgery in the state of Montana; that a meeting of said board was held in Helena on the day aforesaid; that at said meeting the petitioner presented his diploma from said medical college, evincing his graduation; that said diploma was found by the said board of examiners to be genuine, and issued by a regular medical college, legally organized and in good standing; that he thereupon submitted to an examination in the various branches prescribed by law and the said board of examiners, and filed with the said board his examination papers, written upon the questions by the said board propounded in the said various branches; that thereupon said board denied the petitioner's application for a certificate to practice medicine and surgery in the state of Montana upon the ground that said examination papers showed that the petitioner had not the requisite learning to entitle him to such certificate; that, after being notified by said board of its determination not to grant this petitioner such certificate, he within 30 days duly appealed from the decision of the said board of medical examiners to the district court of the First judicial district of the state of Montana in and for the county of Lewis and Clarke; and that, after said appeal was duly taken to the district. railway company, to take some action within sixty days, and to notify the company in writing of its action. Whenever a council fails to give such written notice, the act of 1895 confers the same powers upon the 'superior court or any judge thereof,' to be exercised on application of a railway company, and calls this application an 'appeal.' * The so-called 'appeal' in this case is not a process to invoke the judicial power. It is simply an application to the superior court to exercise a legislative function. We cannot recognize such a right, because the recognition leads inevitably to the obliteration of any line of separation between the judicial and other departments of the government." See New York Railroad Law, § 94. See, also, Appeal of Spencer, 78 Conn. 301, 61 Atl. 1010 (1905); Tyson v. Washington Co., 78 Neb. 211, 110 N. W. 634, 12 L. R. A. (N. S.) 350 (1907). As to appeals from administrative action concerning questions of right, see United States v. Duell, 172 U. S. 576, 19 Sup. Ct. 286, 43 L. Ed. 559 (1899). court, the said district court, on the motion of the county attorney of the said county and the Attorney General of the state, dismissed the petitioner's appeal, upon the ground that the said court had no jurisdiction to try and determine the same. The petitioner asks for a writ of mandate in this proceeding, commanding the district court to reinstate his appeal and to proceed to the hearing and determination thereof. On the return of the writ, the Attorney General, for the said district court, demurred to the petition for the reasons-First, that said petition does not state facts sufficient to entitle said petitioner to the relief prayed for; and, second, that said petition shows affirmatively that the action of the medical board in refusing to issue a certificate for the cause specified was final, and not subject to review by any appellate tribunal, and that said defendant (district court), in dismissing said petition, acted correctly and within its jurisdiction, in that no appeal lay from the action of the board to said defendant. PEMBERTON, C. J. (after stating the facts). The only question presented here is this: Does the statute allow an appeal to an applicant who has been refused a certificate by the medical board authorizing him to practice medicine and surgery in this state on the ground that the applicant's examination papers show that he has not the requisite learning to entitle him to such certificate? Counsel for the defendant, the Attorney General, contends that the right of appeal exists only when the certificate is refused or revoked by the board for unprofessional, dishonorable, or immoral conduct, and that no appeal lies from the refusal of the board to issue a certificate on the ground of the incompetency of the applicant. That part of section 603, Pol. Code, which provides for appeals from the action of the medical board is as follows: "In all cases of the refusal or revocation of a certificate to practice medicine by the said board, the person aggrieved thereby may appeal from the decision of the board to the district court of the county in which such revocation or refusal was made." Counsel for defendant contends that this provision only gives the right of appeal where the certificate is refused or revoked by the board for unprofessional, dishonorable, or immoral conduct, and that State v. District Court of First Judicial District, 13 Mont. 370, 34 Pac. 298, in which this court discussed the right of appeal from the action of the medical board, does not go to the extent of deciding that an appeal lies in cases like the one at bar. But, in examining our statute, we find no language that restricts the right of appeal to any particular class of cases. The terms of the statute are general, and give the right of appeal "in all cases of the refusal or revocation of a certificate to practice medicine by the said board." A number of the states have statutes like ours, but we are not referred to any decision of any of the states where the precise question here involved has been adjudicated and determined. The law provides that appeals in such cases shall be conducted like appeals from a decision of a board of county commissioners disallowing a claim. Pol. Code, § 603. Appeals from actions of boards of county commissioners are prosecuted and tried like appeals from a justice of the peace. Id. § 4289. Appeals from a justice court are tried de novo. It is said by counsel for the defendant that a trial of this case de novo in the district court would be impracticable, if not impossible; that the court or jury could not try and determine the question of petitioner's competency to practice medicine. It is further insisted that the law does not provide any procedure by which the district court could properly try and determine this question. In State v. District Court of First Judicial District, supra, this court held that the right of appeal was not rendered nugatory because the law did not prescribe rules to guide the district court in trying such appeal. This was when there were no proceedings or rules prescribed by law for appeals in such cases. The present statutes do prescribe the manner of appeal, and, if the proceedings prescribed by the statute are inefficient, under the provision of section 205, Code Civ. Proc., "any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the Code." Awkward, difficult, and unsatisfactory as a trial of this case in the district court might, and doubtless would, be, we are of the opinion that the learned district judge would be able to devise ways and means not incompatible with the Code for disposing of the case. Impolitic and unwise as this law may be, still, if the Legislature has given the petitioner the right of appeal in this case, we have neither the right nor disposition to deprive him of its exercise by any unauthorized construction of the statute or by any apparent judicial legislation. Unless we construe or legislate something very material into the statute not placed there by the Legislature, we think the petitioner, under the law, which is broad and general in its terms, is entitled to prosecute his appeal in this case. Whether or not such laws are wise or unwise, politic or impolitic, are questions for the legislative branch of the government, and we have no right or inclination to invade that domain. The order of the district court dismissing the appeal in this case is reversed, and a peremptory writ of mandate is ordered to issue, directing that the district court reinstate said appeal and proceed to the trial of the cause. Reversed. BUCK, J., dissents. 6 The concurring opinion of Hunt, J.. is omitted. See Laws Mont. 1907, c. 100, providing for a trial of appeals by a jury of six physicians. Compare Raaf v. State Board of Medicial Examiners, 11 Idaho, 707, 84 Pac. 33 (1906); also Munk v. Frink, 75 Neb. 172, 106 N. W. 425 (1905), As to whether the provision by statute for an appeal excludes other reme SECTION 66.-DEFENSE TO ENFORCEMENT PRO- This is a very common method of testing the legality of administrative action, illustrated by numerous cases in this collection. See the following: Galbraith v. Littiech, 73 Ill. 209 (1874); Nealy v. Brown, 6 Ill. 10 (1844); State v. Weimer, 64 Iowa, 243, 20 N. W. 171 (1884); People v. Hopson, 1 Denio (N. Y.) 574 (1845); Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569 (1884); Waye v. Thompson, L. R. 15 Q. B. 342 (1885); Philadelphia v. Scott, 81 Pa. 80, 22 Am. Rep. 738 (1876); Metropolitan Board of Health v. Heister, 37 N. Y. 661 (1868); Health Department v. Trinity Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, 45 Am. St. Rep. 579 (1895); Salem v. Eastern Railroad Co., 98 Mass. 431, 96 Am. Dec. 650 (1868); Com. v. Sisson, 189 Mass. 247, 75 N. E. 619, 1 L. R. A. (N. S.) 752, 109 Am. St. Rep. 630 (1905); Com. v. Kinsley, 133 Mass. 578 (1882); Martin v. State, 23 Neb. 371, 36 N. W. 554 (1888); King v. Venables, 2 Ld. Raym. 405 (1725); People v. McCoy, 125 Ill. 289, 17 N. E. 786 (1888); State v. Lamos, 26 Me. 258 (1846); Hutton v. Camden, 39 N. J. Law, 122, 23 Am. Rep. 203 (1876); State v. Kansas Central R. Co., 47 Kan. 497, 28 Pac. 208 (1891); Interstate Commerce Commission v. Cincinnati, etc., R. Co., 167 U. S. 479, 17 Sup. Ct. 896, 42 L. Ed. 243 (1897); Wilson v. Eureka City, 173 U. S. 32, 19 Sup. Ct. 317, 43 L. Ed. 603 (1899); McLean v. Jephson, 123 N. Y. 142, 25 N. E. 409, 9 L. R. A. 493 (1890); Harrington v. Glidden, 179 Mass. 486, 61 N. E. 54, 94 Am. St. Rep. 613 (1901); Fire Department v. Gilmour, 149 N. Y. 453, 44 N. E. 177, 52 Am. St. Rep. 748 (1896); Spencer & Gardner v. People, 68 Ill. 510 (1873); Interstate Commerce Commission v. Alabama Midland R. Co., 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed. 414 (1897). dies, and especially also whether it prevents defects of administrative action to be availed of by way of defense to proceedings brought on behalf of the public against the individual, see Governors of Bristol Poor v. Wait, 1 Ad. & El. 264 (1834); Allen v. Sharp, 2 Exch. 352 (1848); Clinkenbeard v. United States, 21 Wall. 65, 22 L. Ed. 477 (1874). See, for application of statutory right of appeal, the following cases in this collection: Gross' License, 161 Pa. 344, 29 Atl. 25 (1894); Whitely v. Platte Co., 73 Mo. 30 (1880); Fuller v. Colfax Co. (C. C.) 14 Fed. 177 (1882); Lillienfeld's Case, 92 Va. 818, 23 S. E. 882 (1896); Gilbert v. Columbia Turnpike Co., 3 Johns. Cas. (N. Y.) 107 (1799). FR.ADM.LAW-34 |