The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-05-23
THE CASE OF %OR.KELLOGC
Judge Buck Decides There Ia no
Appeal From the Medical
Board.
He CONSTITUTES the Intent or tho
Legislature in Creating Such
a Tribunal,
Il Was mn Doubt Assumed Tint II Could
lsotter Determine tho FITNESS
Of Applicants.

Il Was IN Doubt Assumed Tint II Could
Better Determine tho FITNESS
Of Applicants.
III department No. 2 Of the district cour,
yesterday Judge Buck rendo cd y decision In
the matter of ths proceedings to revoke the
license OF DR.. u. &. Kellogg. Tho Judge
holds that there 10 no appeal from this
action Of Che medical board 10 the district
court. The opinion in full Ii ~ follows:
''Ths appellant. Dr. Kellogg, complains Of
the action OF the state board OF msdlsal OK
aminers in revolving Mis- license to practice
medicine and surgery. The bonrd contends
that no has been properly found guilty II a
p, ocesdins before IL. ON the eh:rRe Of dis
honorable and nnprofesslonnl conduct In
connection with the recent investigation BY
a ~coronsr's jury OF the attempted efsma-
zion by said appellant OF a hesdlsss fostus.
AZ the threshold, this eou.t 10 confronted
by the problem Of whether or not IL can en-
terrain an appeal from any action Of this
hoard In refusing or rsvokiug q physisisn's
license TO practice medicine and surgery IN
Montana. Tho act OF the Sixteenth Iegisla-
tive assembly OF tho tor. itory Of Mon
tans. approved Feb. %, 1883,
which crentss the board Of msdi-
cal examiners and defines It's pow
ers and duties. contains the following
language: Ia all eases Of refusal or rsvs-
cation (of licsnces) the applicant. II he Or
shs feels a%garieved. may appeal to the dis
trict court of the eounty where such APP
plicant may have spilled for . Certificate
The not aforesaid contains NO Other pro-
vision relative to an appeal-prsscribes NO
sreclal mode Of procedure for tho same
As to whether the applicant agerisved 10
entitled to q jury trial in the district court.
or to . nero review Of the proceedings to
which he objects, and ~ TO the power of
intimation 10 given, direct or infersntial.
1t 10 conceded that this act 10 coaatitu-
tional. and within a proper cxssciso of the
inherent police power OF the territory and
state OF Montana. I do not think IL 10 de-
nicd either, that the board OF medical sx-
Rminers il in nc sense a court. although it
may posness quasi judicial pows:s In the
proceedings before II.
"The territorial Legislature. without in
fringing the constitutional rights Of tho
people OF Montana either pnder the tori
torinl or state government. authorized this
board. subject of conrse to the limitations
of tho act comforting the power, to deter
mine who should and who should not prae-
tice medicine in Montana. II was no doubt
assumed that Q board COMPOSED Of 'sevsn
learneJ. skilled and capable physicians as
expressly required BY the act, would DO
better qualified to pass upsn the fitness.
both from an educational and moral stand
point. Of persons engaged in the discharge
Of the duties OF n saeredly confidential and
indispensably learned profession, than any
other board. tribunal or court. composed
tonl education OF experience.
Much OF course can be logically urged
against the practical operation .! such q
Law. - this, upon the premise Of the inhe-
rent frailtY of human beings invested with
a power capable Of being applied arbitrar-
lily; but the legislative intent whom ascsr-
tainable must receive due consideration
In tho construction Of u law. Was there
ever any legislative intent, then, that q
judge Of q court and a jury of laymen IN
versed in medical Bcisnus and trsiniug
should share or control q power. contided
to the discretion Of men of = particular
class. espscially selected to exeIclse and
apply. it?
Il do not wish to DO underRtood as init
mating that the legislative assembly vhlot.
enacted this law. for one momen eonten-
plated that there should DO no legal redress
for an abuso of tho disc otioh copfded to
this board. Appeal in tts strict technical
review of a judgment OF. at inferior
eourt by a superior oourt or, judi.
dial tribunal-the word, of csurss
when used ~ a verb, meaning to apply for
such review. Into legislative enactmente.
however, and tho .treasisss Of learned
writers on legal subjects. q misuse of the
word has often crept. and Nis employed to
an application for sNredtess, to a
court, of a decision by a tribunal not judi
cial in character, or a resort TO q a~upe1io.
officer for redrsss Of a ruling or decision by
= subordinate. .~t,+tsa- ~
''Bus this misuse. although ofton mis-
leading. should not confuse. II the word
appear in the act I am now constituting.
VAS used BY the legislature in the loossr, i
less technical sense which I,hnve described.
tiscn 1t follows. I artieuInrly in view OF the
u DIVISION Of our stats constitution sabse-
q uently to be quoted. that the district
court would have no authority under this
- to afford relief to IN applicant AZ. |
even though mesiting relief, be-
cause its aid would be invoked not az a
but As q non.jpdicial or quasi-judi-
cinl tribunal only. whose powers nnd dutios
as such this act fails to define or oven to
But II tho legislature used the word In
'ts technical senas,. which it presumably
did. .hen tho question il. answered BY thss
following language OF the cOnstisution of
lhs state Of Montana: They (distriet |
couFts) shall havo appellate jurisdiction In
such cases arising In Justices and other in
ferior courts in their respective districts a.
may be prescribed by law and consistent
this constitution tSee See. II. Art,
). Constitution Of NoAtana.) Here che
appellate jnrisdiotion of district cout 10 ID
expressly defined. In view Of this pro
vision OF the constitution, I am oon-
strained TO dismiss this appeal or s~pplioa-
lion for relief in tbs form Of an appeal. |
authorities might be cited 70 |
ths proposition that this board Of
10 not q court. but ] do not think
Il 10 disputed.
I'm arriving at this conclusion Of dis.
l have been seriously embarrassed
BY two decisions OF the supreme court Of
Montana. Iefer to tho decision In the
case of State OK rel Nxrcsoss W., Medical
and in that Of state VI. Schultz. In
these opinions the court manifsstly assnmsa
that an appeal lies from the action Of this
board In reference to licenses, for in tho
case of Naroross, Q writ of no 4
Janus was denied because of tho rtoht 40
IN appeal, and in tho latter il was held. be-
OF tho tendency of suoh All appeal.
hat a conviction for pRacticinR without 4
icense could mot be sustained. But I do
,ot believe that the constitutiouality Of
his appeal WINS questioned. or in any vsy
Jailed to the attention Of the learned ms.
ices b rendered or ooncufssd In thess
decisions. In view Of them. however.
:annot suggest to appellants that his rroror
emedy, II injured, would be q writ Of OCT
.rsud l1lu.tr.t.J v.r.. -