Summary
reversing grant of writ; appropriate remedy for challenging revocation of license to practice medicine was by suit in equity alleging fraud
Summary of this case from State ex Rel. Kelley v. MitchellOpinion
June 14, 1939.
1. APPEAL AND ERROR: Record Proper. On appeal from a judgment for relator in an action by mandamus to require the State Board of Health to annul an order of the board revoking relator's license to practice medicine, where the board pleaded res adjudicata by a reference to opinions of the Supreme Court in two prior cases, the appeal was before the Supreme Court on the record proper only and a motion to dismiss the appeal is overruled.
2. MANDAMUS: Action at Law: Reciprocity. In a mandamus proceeding to set aside an order of the Board of Health revoking relator's license to practice medicine, where relator was licensed in the State of Arkansas and the amended alternative writ did not command the board to show cause why it should not be compelled to issue a license under the rule of reciprocity, the question of reciprocity was not before the Supreme Court where the amended petition did not ask that the board be compelled to issue a license to relator under that rule and although the trial court found that the board abused its discretion in refusing to revoke the license.
The observance of the reciprocity rule lies within the sound discretion of the Board of Health.
3. MANDAMUS: Board of Health. Mandamus is a hard and fast rule, essentially the exponent of judicial power and is reserved for extraordinary emergencies.
It does not issue except in cases where right is doubtful or where there is another adequate remedy.
It will not lie to compel the State Board of Health to vacate its order revoking relator's license to practice medicine on the ground that such order was brought about by fraud; relator's remedy is a suit in equity to set aside the order.
Appeal from McDonald Circuit Court. — Hon. Daniel E. Bird, Judge.
REVERSED.
Roy McKittrick, Attorney General, and Arthur O'Keefe, Assistant Attorney General, for appellant; Stanley Clay of counsel.
(1) Mandamus will not lie in this case. Sec. 9120, R.S. 1929; State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635; State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943; 38 C.J. 568; State ex rel. Schneider v. Bourke, 338 Mo. 86, 89 S.W.2d 31; State v. Edwards, 260 S.W. 445; 38 C.J., p. 575; State ex rel. Kramer v. Schwartz, 82 S.W.2d 63, 333 Mo. 932; Laws 1901, p. 209, sec. 7; Russell v. Dibble, 132 Wn. 51, 231 P. 18; 95 A.L.R. 1424; State ex rel. Onion v. Supreme Temple Pythian Sisters, 227 Mo. App. 557, 54 S.W.2d 468. (2) The questions and facts adjudicated in the former case are now res adjudicata. State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635; Baumhoff v. St. Louis Kirkwood Railroad Co., 205 Mo. 248, 104 S.W. 5; Avery v. Kansas City Central Bank, 221 Mo. 71, 119 S.W. 1106; Bierman v. Crecelius, 135 Mo. 386, 37 S.W. 121; Bushman v. Barlow, 15 S.W.2d 329, 321 Mo. 1052; 34 C.J. 902; State v. Bliss, 99 S.W.2d 91; Chouteau v. Gibson, 76 Mo. 38; In re McMeanany's Guardian, 270 S.W. 662, 307 Mo. 98; 15 R.C.L. 974. (3) The petition does not state a cause of action because there is no allegation of a demand and refusal. Ferris Extraordinary Legal Remedies, p. 280, sec. 236; State ex rel. Erwin v. Holman, 301 Mo. 333, 256 S.W. 776; State ex rel. Onion v. Supreme Temple, 54 S.W.2d 468, 227 Mo. App. 557; 18 R.C.L., p. 123; 38 C.J., p. 576; Bailey's Extraordinary Remedies, p. 792; State ex rel. Abbott v. Adcock, 225 Mo. 335, 124 S.W. 1100. (4) The testimony of witnesses, Schneider, Tuebel and Coglizer and others was not material and was not a basis of revocation. Sec. 9113, R.S. 1929; State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635. (5) The decision of the Supreme Court that it had jurisdiction on appeal from the order of the circuit court restoring to the respondent his license makes that question res adjudicata. State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635; State ex rel. Lentine v. State Board of Health, 65 S.W.2d 943, 334 Mo. 220; Ellis v. Starr Piano Co., 49 S.W.2d 1080; Kansas City v. St. Louis Kansas City Land Co., 260 Mo. 395, 169 S.W. 62; Baisley v. Baisley, 21 S.W. 29, 113 Mo. 544; 34 C.J. 907; Balwin v. Iowa State Traveling Men's Assn., 51 Sup. Ct. 517, 75 L.Ed. 1244, 283 U.S. 522. (6) Respondent made false assertions in his application for license. State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635; 34 C.J., p. 868; 2 Freeman on Judgments, sec. 627; 15 R.C.L. 950; Bushman v. Barlow, 321 Mo. 1052, 15 S.W.2d 218; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Squaw Creek District No. 1 v. Turney, 138 S.W. 12, 235 Mo. 80. (7) The State Board of Health's discretion as to reciprocity cannot be controlled by mandamus. Sec. 9113, R.S. 1929; State ex rel. Walker v. State Board of Health, 61 S.W.2d 925. (8) Respondent's high school qualifications were and are not sufficient to cause this writ to issue. State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W.2d 635; Sec. 9120, R.S. 1929.
Kelley Tatum for respondent.
(1) The respondent's motion to dismiss appellants' appeal should be sustained for the following reasons, to-wit: (a) The appellants have willfully presented a false record in the abstract of record prepared and filed herein by the appellants. (b) The appellants have willfully interpolated more than forty-three consecutive pages of foreign matter into their abstract of record. St. Louis v. Chartrand, 254 S.W. 866. (c) The appellants have indistinguishably commingled and garbled together in their abstract of record matters of exception and matters of record proper to the extent that said abstract of record presents a confused record. Wallace v. Libby, 231 Mo. 341; Barham v. Shelton, 221 Mo. 66; Keaton v. Weber, 233 Mo. 695; Palmer v. Moyers, 14 S.W.2d 657; Myrick v. Hamilton, 26 S.W.2d 1008. (d) The appellants, in their brief, have not made a sufficient and intelligible statement of the facts involved in this appeal, and their statement does not constitute a fair and complete presentation of the ultimate facts. Sec. 1060 R.S. 1929, Rule 15, Mo. Sup. Ct.; Le Clair v. Le Clair, 77 S.W.2d 862; Seifert v. Seifert, 52 S.W.2d 817; Terry v. Ingraham, 12 S.W.2d 763; Sims v. Hydraulic Press Brick Co., 19 S.W.2d 294; Bank of Meta v. Schnitzler, 67 S.W.2d 106; Evans v. General Explosives Co., 239 S.W. 487; Crockett v. K.C. Rys. Co., 243 S.W. 902; Kirby v. Balke, 266 S.W. 704. (2) Mandamus will lie in this case for Section 9120, Revised Statutes 1929, by its provisions, does not provide the respondent any remedy at all by certiorari, for Section 9120 allows the use of certiorari to review the action of the Board of Health only when the Board of Health has by its judgment revoked a physician's license and not when the application of one who applies for a license is refused. Sec. 9120, R.S. 1929; State ex rel. McCleary v. Adcock, 206 Mo. 550, 105 S.W. 270; State ex rel. Johnson v. Lutz, 136 Mo. 633, 38 S.W. 323. (3) The defense that respondents' have another efficient remedy at law other than mandamus is waived, as the record does not show that the point was made in the trial court or that any evidence of another remedy was introduced. State ex rel. Nee v. Tippin, 268 S.W. 666. (4) Since no bill of exceptions is abstracted, this cause must be heard on appeal only on the record proper. Billings Special Road Dist. v. Christian County, 5 S.W.2d 379, 319 Mo. 969. Brown v. Ins. Co., 228 S.W. 884. (5) If the appellants' abstract of record does not include the content of the bill of exception, it will be presumed that there was proper and sufficient evidence to support the judgment, and that the judgment is correct. Euler v. State Highway Comm., 55 S.W.2d 722; Fronk v. Fronk, 159 Mo. App. 548; Colorado Milling Elevator Co. v. Rolla Wholesale Gro. Co., 102 S.W.2d 681. (6) The defense of res judicata was waived by appellants as the record does not show that the appellants availed themselves of that defense at the trial, or introduced any evidence in support thereof. 34 C.J. 1057; 2 Freeman on Judgments (5 Ed.), sec. 808, p. 1715; Koontz v. Whitaker, 111 S.W.2d 201. (7) Res judicata is an affirmative defense and must be both pleaded and proved, and there is nothing in the record to show proof of any facts amounting to res judicata by the appellants. Koontz v. Whitaker, 111 S.W.2d 201. (8) In mandamus, the appellate court must try the appeal upon the record and not de novo as in equity cases. State ex rel. v. German Mut. Life Ins. Co., 152 S.W. 620; State ex rel. v. Dreyer, 167 S.W. 1123. (9) An abstract statement of law not specifically stating that the lower court erred, is not a sufficient assignment of error and will not be considered. Le Clair v. Le Clair, 77 S.W.2d 862; Automatic Sprinkler Co. v. Stephens, 306 Mo. 518. (10) Laches is an equitable defense, and has no application in a mandamus action, which, is a law action. State ex rel. Hixon v. Nerry, 105 Mo. App. 458; Bevier v. Graves, 213 S.W. 76; Wengler v. McComb, 188 S.W. 78. (11) Laches is an affirmative defense, and the record does not show that such a defense was proved. Ambruster v. Ambruster, 31 S.W.2d 28; Breneman v. Laundry, 87 S.W.2d 429. (12) Mere delay, however long, standing alone, does not constitute laches, for laches is an unconscionable delay resulting in a detriment to your adversary. Jones v. McGonigle, 37 S.W.2d 892.
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 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."
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., 316 Mo. 770, 293 S.W. 362, and in State ex rel. Horton v. Clark et al., 320 Mo. 1190, 9 S.W.2d 635. The fourth ground goes to what appears in the abstract as to demurrers to the evidence at the close of relator's case and at the close of the whole case. The fifth ground is to the effect that the statement is not a substantial compliance with the requirements of Rule 15. The board, on the defense of res adjudicata, pleaded, by reference, the pleadings and opinion in each of the two cases mentioned. It is conceded that the present case is here on the record proper only, and in such situation the statement is sufficient. The other grounds alleged are not sufficient to justify dismissal of the appeal. In the situation, the cause should be considered on the record proper, Noble et al. v. Brinson et al., 231 Mo. 640, 132 S.W. 1068, and the motion to dismiss the appeal should be and is overruled.
The board's chief contentions are that mandamus will not lie and that the matters and things complained of by relator are res 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, 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 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., 169 Mo. App. 354, 152 S.W. 618), hence, in the situation, the question of a license, under the rule of reciprocity, is not before us.
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., 254 Mo. 515, l.c. 532 (and cases there cited). 163 S.W. 854.] The cases holding that mandamus will not lie where there is any other adequate remedy are numerous. Some of them, in addition to the one cited, are State ex rel. Porter v. Hudson, 226 Mo. 239, 126 S.W. 733; State ex rel. Rainwater v. Ross, 245 Mo. 36, 149 S.W. 451, 36 Ann. Cas. 1913E, 978; State ex rel. Snow Steam Pump Works et al. v. Homer, 249 Mo. 58, 155 S.W. 405; State ex rel. Schneider v. Bourke et al., 338 Mo. 86, 89 S.W.2d 31, l.c. 32.
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., 206 Mo. 550, 105 S.W. 270, and State ex rel. Johnston v. Lutz et al., 136 Mo. 633, 38 S.W. 323, to support his contention that mandamus, in the situation, will lie. These cases were in mandamus to compel the issue of licenses to practice medicine and surgery in this State. In the McCleary case the only disputed question was as to when the relator matriculated in a medical college. All other requisites for a license were admitted. If the relator had matriculated prior to March 12, 1901, he was entitled to a license; if he had not so matriculated, he was not entitled to a license. The opinion recites that the evidence was overwhelming that matriculation was prior to March 12, 1901, and it was held that the board had acted arbitrarily in refusing a license, and the alternative writ was made peremptory.
The gist of the Johnston case is stated in headnote 1 [ 136 Mo. 633] as follows: "The state board of health cannot refuse a certificate permitting an applicant to practice medicine in this State because the medical college from which he received his diploma had not complied with a resolution of the board requiring medical colleges by a certain time to furnish the board with a list of its matriculates and the basis of their matriculation, where the evidence shows that the applicant graduated before the college received notice of the resolution." It was held that the license was refused on grounds that did not involve discretion or judgment and the alternative writ was made peremptory.
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., 321 Mo. 1052, 15 S.W.2d 329, l.c. 332, and cases there cited.] Numerous cases so hold. Horton v. Clark et al., 316 Mo. 770, 293 S.W. 362, was an injunction suit against the board to enjoin a hearing on the original complaint filed against relator here. A temporary restraining order was granted, but at a trial on the merits the temporary injunction was dissolved. The cause was appealed to this court and the judgment was affirmed.
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 license on May 27, 1927. [See State ex rel. Horton v. Clark et al., 320 Mo. 1190, 9 S.W.2d 635.] And we might say here that it appears from the last mentioned case that this court held that the board had sufficient evidence before it, exclusive of the evidence of the three alleged conspiring witnesses, to support revocation of relator's license.
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.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur, except Clark, J., not sitting.