The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-10-03
BOARD NOT ABSOLUTE.
he Supreme Court Holds That
Kellogg Has the Right Of
Appeal.
district Courts Can Entertain
Such Appeals Whore Licenses
Are Revoked.

A~ Right Of Separate rris,s In M,sde.
mssuors Discretionary With the
Judge-Othsr Decisions.
Tb- supreme court yesterday handed
own opinions in seven cases and then ad-
burnsd for tho term. The October term
sQins to-day. Chief Justice Fembsrton
~ been away for some time and was con-
pqueutly not able TO join with the other
hsmbers Of tho court on yesterdays de-
(sions. He had been consulted before he
IL, however. and agreed with The oonolu-
ons reached. The opinions. sherefore,
hay be taken as the unanimous conclusions
the supreme court. The most important
uestion determined By the supreme court
estsrday was In relation to the appeal Of
=. E. q. Kellogg. of this city. from the
ction Of the state board Of medical xam-
hers in Eovoking his license. Kelloga ap-
ealed from tho action of the board TO tho
istrict court. Tho medical board moved
; dismiss the appeal on the constitutional
uAIN Sd0b up10ulo ~ Az 0OOAo
ould emily be taken from tho judgment Of
bwsr courts; and that since the adoption
I the constitution no appeal from the
ction of o board such Is the medical
GARD. or any other board, was permissible;
nd further that the statute provided NO
niles Of ,~ractics whereby tho district cosrt
Ould proceed to try q charge against .
MUSICIAN Of "immoraI, unprotossional or
ishonorable conduct in his profession"
udao Buck. in the district court. sustained
be motion Q tho medical board and
ismissed the Kellogg appeal. KellogR's
ounsel then applied to the supreme court
Or a writ of mandate directing the district
ourt to entertain the Kellogg appeal and
roceed to try the case. The supreme
curt holds contrary to the district court.
nd declares that the statutory provision
or an appeal from the medical board,
khere that body refused or revoked a
[cense to practice medicine, was not IN
institutional.
Justice Harwood, in delivering the opin-
On, refers to the law creating the board Of
pedical examiners. and quotas the follow
h1 provisions: "Such board may refuse or
nvoke q certificate for unprofsssional, dis
onorabIe or immoral conduct, or refuse a
,,tihcate to any one who inAy publicly
rofess to cnre or treat disease. injury or
eformity. In such a manner as to deserve
be public. In all cases OF refusal or revo-
alton, the applicant, If he or she feel az
rieved. may appeal to the district court Of
he county where such applicant may
ave applied for q Certificate" This is
L. ----:s-u -t:oH A. AsA.s@k ~~--A kA1A
0 be unconstitutional In dismissing Kel-
pRg's appeal. It was held that the district
QUIT cannot lawfully entertain appeal from
he medical board, because the constitution
provided that the district court shall have
ppellats jurisdiction in oil cases arising IN
nstice and inferior courts. in their respect
ve districts, as may BE- provided by law.
he contention was that under this appeals
ou!A only be entertained from justice and
Inferior courts.
But" says the supreme court. "the provis-
pn OF the constitution under confederation
b not In suoh prohibitory form. and We do
lot think that provision imports suoh inten-
ion. Even appeals which may be allowed
" the constitution within the control of
Ae Legislature. The construction oon-
ended for by respondent would introduce
radical change i'll the system provided for
he ont oil Of certain important public AZ
airs, which has prevailed IN this in isdic-
ion throughout tho territorial regime; and
vhioh provisions are still contained In tho
ody Of the statute laws adopted by tho
constitution, for state government. For
hat holding, logically followed out. would
ut of the appeal to the district court pro-
ided by statute, from the action Of tho
Foard OF county commissioners. in respect
o the allowance or disallowancs of claims
guinst the county; appeals from the award
/ road viewo 9 in laying out highways;
toners. In proceedings where ths
over of eminent domain 10 exc ciSed:
nd appeals from tho actions Of the trus-
eey or corporate authorities In awarding
OTIS under the provisions of the towlsite
Aw, and perhaps other appeals in like
ases. All such appeals from the notion of
he board to the district court IL provided
or by statute in favor of tho party ag-
krieved. and it Ia Very doubtful that the
legislature would ave made provision for
lotion of boards in such important affairs
10 these statutes contemplate. IL such
Ection was tinnI. as it would DO in many
espscts. without provision for appeal.
1T is we'll known that q review BY q court,
through the medium Of certiotari. would,
Under the rules governing such wriss, DO
inadequate to reach a complete oonsiuera-
ion OF the case on the merits. with power
o render snch Judgment as the JUS
ice of the case might warrant.
md taking away the right Of appeal in
buch cases might lead to declaring those
numerous statutes void in toto. on the
,round that the legislature would not have
invested such boards with tho largo powers
tommitte1 to them, il their action had
been understood to be final. and beyond
eview through the appeal provided In the
anne statute. II is therefo.e observed
how extensive and ,adicAl is the effect oon-
kemplated by the frnmers of the oonstitu-
bon in the particular under consider alton,
+ tho Interpretation contendoA for ex-
Dresses the intention Of the francis. But
We think that il such was tho intention, ID
won d have been indicated without unosr-
kainty. by = provision In the prohibitory
form. unlike the CLAUSE under oonsidsra.
hon, but something like the form unto
which said clnCss 10 construed by tho hold
ing commended Cor In this proceed
ing. But. 40 before observed, the
language Of the constitution under
considt ration, Is not in euoh prohibitory
form; nor do we think the trainers of that
hnstrument Intended such Interpretation.
Or the radical change in tho system Of laws
30 long prevailing in this jurisdiction,
which it leads to. without any other provis-
IONS to supply the place Of those laws up.
FOOTED thereby
Continuing. the court says: while IL il