MacCracken v. Board of Medical Examiners

74 P.2d 289, 24 Cal. App. 2d 58, 1937 Cal. App. LEXIS 21

• Court: California Court of Appeal
• Decided: December 14, 1937
• Docket: Civ. No. 10419
• Status: Published

Opinion

THE COURT.

Petitioner sought, by writ of review, to annul an order of respondent Board of Medical Examiners revoking petitioner's license to practice medicine. The alternative writ was issued and a hearing had. The ‘ trial court gave judgment affirming the order of respondent Board of Medical Examiners. Petitioner has appealed from this judgment. Respondent now moves to dismiss the appeal.

We are constrained to hold, in the light of recent decisions, that the writ of review is not a proper remedy to review an order of respondent made in a proceeding to revoke a license to practice medicine. The writ of review will lie only to review the exercise of judicial functions, and, in the absence of constitutional provision, the legislature is without authority to confer upon an administrative board any judicial functions. (Standard Oil Co. of California v. State Board of Equalization, 6 Cal. (2d) 557 [59 Pac. (2d) 119]; Whitten v. State Board of Optometry, 8 Cal. (2d) 444 [65 Pac. (2d) 1296].) The function of the board in a proceeding to revoke a license has been held to be administrative, not judicial. (Hartman v. Board of Chiropractic Examiners of the State of California, 20 Cal. App. (2d) 76 [66 Pac. (2d) 705].)

Since the writ of review was not available to petitioner, the trial court was without jurisdiction to make any order other than one denying the writ. It follows that the motion to dismiss this appeal must be granted. (O’Donnell v. Board of Medical Examiners of Calif., 22 Cal. App. (2d) 80 [70 Pac. (2d) 246].)

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 10, 1938.