Schirmer v. Cockrill

269 S.W.2d 300, 223 Ark. 817, 1954 Ark. LEXIS 757

• Court: Supreme Court of Arkansas
• Decided: June 14, 1954
• Docket: 5-490; 5-480
• Status: Published

Opinions

Ed. F. McFaddin, Justice.

These two cases stem from the efforts of the Attorney General to have a hearing by the Eclectic State Medical Board (hereinafter called “Board”) regarding the validity of the license of Dr. J. S. Schirmer.

On September 14, 1953, the Attorney General of Arkansas filed suit in the Circuit Court of Clay County, Arkansas, against Dr. J. S. Schirmer, seeking a hearing for the purpose of cancelling the license of Dr. Schirmer to practice medicine in this State. That matter reached this Court in the case of Schirmer v. Light, which was a prohibition proceeding, and in which an opinion was delivered by us on November 23, 1953. See Schirmer v. Light, 222 Ark. 693, 262 S. W. 2d 143.

In keeping with the views expressed in the foregoing-opinion, the Attorney General, on December 8,1953, filed a petition with the said Board, seeking a hearing on the validity and legality of the license which Dr. Schirmer claimed to have been issued by the said Board. The hearing was sought under the provisions of § 72-611, et seq., Ark. Stats. On December 15, 1953, the Board decided that May 11, 1954, was the earliest date on which the Board would hold a meeting. The Attorney General felt that the Board was unduly delaying the hearing, and filed suit against the Board in the Pulaski Circuit Court, seeking a writ of mandamus to compel the Board to meet at an earlier date. The Pulaski Circuit Court, Third Division (J. Mitchell Cockrill, Judge), thereupon issued its order, directing- the said Board to meet and have its hearing on April 12, 1954.

The Board did meet on April 12, 1954, and decided that its hearing should be secret, and not open to the public. Thereupon, certain newspaper, radio, and television representatives obtained an order from the Pulaski Chancery Court, requiring- the Board to have open hearings. The Chancery Court in issuing this order was apparently relying on Act 343 of the Acts of Arkansas of 1953. When the Chancery Court order was served on the Board, it immediately suspended the hearing in the Schirmer matter, and filed Case No. 480 in this Court,¹ in which the Board sought a writ of certiorari to bring up to this Court and quash the order of the Pulaski Chancery Court which required the Board to have public hearings.

After the said Board suspended its hearings on April 12, 1954 (which hearings were being held in accordance with the mandamus order of the Pulaski Circuit Court), the Attorney General of Arkansas then filed in the Pulaski Circuit Court, Third Division, Case No. 40487 against the said Board and Dr. Schirmer, praying for certiorari against the said Board, alleging that the Attorney General had appeared before the Board at the hearing on April 12th and had sought to introduce his evidence and present his case, regardless of whether the sessions were open or closed, and that the Board had indefinitely adjourned its meeting of April 12th, without giving the Attorney General any opportunity to present his case, and that such indefinite adjournment on April 12th was in violation of the mandamus order of the Pulaski Circuit Court, Third Division, directing the Board to proceed on that date to a hearing.

The Attorney General also alleged that the conduct of the Board had been such as to clearly demonstrate that it would be futile and useless for the Attorney General to present his case to the Board, and that the Board had clearly demonstrated that it was not going to proceed with the hearings as directed by the Pulaski Circuit Court. The Attorney General prayed (1) that the Pulaski Circuit Court should issue a writ of certiorari directing a copy of all the proceedings and records of the respondent, Eclectic State Medical Board, to be brought before it for review; and (2) “that this Court enter an order setting down for full and complete hearing, and its subsequent determination thereof, the charges filed before the respondent Board herein, which said respondent has failed and refused to hear.” This was case No. 40487 in the Pulaski Circuit Court, in which the said Board and Dr. Schirmer were respondents. Dr. Schirmer filed a response in the Pulaski Circuit Court, denying all material allegations of the petition for certiorari, and praying that it be dismissed.

The Circuit Court issued its order granting the first prayer of the Attorney General’s complaint (i.e., that the Board bring to the Circuit Court all copies of proceedings and records in connection with the Schirmer matter). Thereupon, Dr. Schirmer, without waiting for further Circuit Court action, filed Case No. 490 in this Court, seeking to prohibit the Pulaski Circuit Court (Third Division, J. Mitchell Cockrill, Judge) from any further proceedings in Case No. 40487 therein pending. Dr. Schirmer claimed that the said Circuit Court was entirely without jurisdiction, and that the Eclectic State Medical Board had exclusive jurisdiction.

Thus Cases No. 490 and 480 in this Court are intertwined and grow out of the efforts of the Attorney General to have a hearing regarding the validity of the license of Dr. J. S. Schirmer.

Case No. 490

This is Dr. Schirmer’s petition seeking a writ of prohibition against the Circuit Court; and the petition of Dr. Schirmer is denied. The rule is well established that prohibition does not issue if the court (in this instance the Pulaski Circuit Court) has jurisdiction; and clearly such Court does have jurisdiction. If the Court should wrongfully act within its jurisdiction, then the remedy is by appeal. If it acts in circumstances where there is no jurisdiction or proceeds beyond its jurisdiction, a void order may be quashed by certiorari. But prohibition cannot be used as a substitute for appeal or certiorari. Keenan v. Strait, 221 Ark. 83, 252 S. W. 2d 76; Harris v. Marlin, 220 Ark. 621, 249 S. W. 2d 3, and Gordon v. Smith, 196 Ark. 926, 120 S. W. 2d 325.

The legal residence of the Eclectic State Medical Board is Pulaski County, Arkansas. BaKer v. Fraser, 209 Ark. 932, 193 S. W. 2d 131; Leonard v. Henry, 187 Ark. 75, 58 S. W. 2d 430; Downey v. Toler, Judge, 214 Ark. 334, 216 S. W. 2d 60. The said Board had power and authority to conduct a hearing at Little Rock in reference to the revocation of Dr. Schirmer’s purported license. See § 72-611, Ark. Stats., and the case of Schirmer v. Light, 222 Ark. 693, 262 S. W. 2d 143. The Pulaski Circuit Court has supervisory jurisdiction over the said Eclectic State Medical Board. Section 22-302, Ark. Stats., provides:

‘ ‘ Said Circuit Courts shall have power to issue writs of certiorari to any officer or board of officers, city or town council, or any inferior tribunal of their respective counties, to correct any erroneous or void proceeding or ordinance, and to hear and determine the same; . . .”

Thus the Pulaski Circuit Court could legally issue a writ of certiorari to the Board; and if the Circuit Court found that the Board was failing and refusing to act in accordance with the order of the Pulaski Circuit Court directing the hearing for April 12, 1954, then the Pulaski Circuit Court could act in lieu of the Board.² Some of the cases involving the authority of the Circuit Court over Boards are Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; Green v. Blanchard, 138 Ark. 137, 211 S. W. 375, 5 A. L. R. 84; Eclectic State Board v. Beatty, 203 Ark. 294, 156 S. W. 2d 246.

Therefore the issue now before the Pulaski Circuit Court is to decide whether the said Board has been so dilatory and slothful in the matter of the Attorney General’s efforts to have a hearing against Dr. Schirmer as to justify the Circuit Court in lifting — -because of such extraordinary circumstances — -the entire proceeding' against Dr. Schirmer to the Circuit Court for trial and determination. If the Circuit Court should so find (a matter within its sound discretion), then the Circuit Court will proceed to a hearing on the Attorney General’s case against Dr. Schirmer, and at the conclusion of that hearing, a final judgment may be entered by the Circuit Court, from which there may be a review, as in any other final judgment.

If the Circuit Court should decide that the Board should be allowed to continue to hear the Attorney General’s case against Dr. Schirmer under strict orders of the Circuit Court that prevent any delay in hearing and decision, then such conclusion is for the Circuit Court.

At all events, we deny Dr. Schirmer’s petition for prohibition in Case No. 490.

Case No. 480

In this case the Board is seeking to quash the order of the Pulaski Chancery Court, which directed the Board, to have public hearings. Because of what we have said in Case No. 490, it is obvious that the Pulaski Circuit Court had undertaken to exercise jurisdiction, and was-exercising jurisdiction in directing that the Board meet, and conduct its hearing on April 12, 1954.

It is clear that there must be no conflict of jurisdiction between the circuit courts and the chancery courts; and the Circuit Court had jurisdiction to order the Board to meet and conduct its hearing, and such meeting was being held in accordance with the order of the Circuit Court. Under these peculiar facts, it is obvious that the Chancery Court should have remitted. Hughes, et al., to the Circuit Court for such relief as they desired, because the Circuit Court had already taken, jurisdiction. In instances in which law and equity courts have concurrent jurisdiction, then when one court assumes jurisdiction, the other court must not thereafter attempt to act in the same matter. Ford v. Judsonia Merc. Co., 52 Ark. 426, 12 S. W. 876, 6 L. R. A. 714; McCracken v. McBee, 96 Ark. 251, 131 S. W. 450; Home Fire Ins. Co. v. Benton, 106 Ark. 552, 153 S. W. 830, and Shields v. Shields, 183 Ark. 44, 34 S. W. 2d 1068.

We therefore hold that in Case No. 480, the newspaper, radio, and television representatives should have gone into the Circuit Court, which had already undertaken to exercise jurisdiction; and this makes it unnecessary for us to decide anything about the meaning of Act 343 of 1953. It is only fair to say that nothing in the record shows that the Board ever advised the Pulaski Chancery Court that the Pulaski Circuit Court had taken jurisdiction, but rather it used the Chancery order as an excuse to indefinitely adjourn the hearings. Therefore, in quashing the order of the Pulaski Chancery Court, we do so at the expense of the Board, which did not raise the proper question in the Court below. Our holdings in each case herein are effective immediately so that the Pulaski Circuit Court may proceed without awaiting any time for rehearing.

Justice Ward dissents in Case No. 490. The Chief Justice and Justice Ward dissent in Case No. 480.

1 That case is styled: Eclectic State Medical Board v. William W. Hughes, Bobbie Forster, Wm. H. Hadley, Jr., Dick Evans, Bill Neel, Bud Lemke, Sam G. Harris, and Dean Duncan.

2 In Smith v. Ill. Bell Tele. Co., 270 U. S. 587, 70 L. ed. 747, 46 S. Ct. 408, it was shown that the Telephone Company had filed an application with the State Commerce Commission of Illinois for a schedule of rates; and that the Commission had allowed the petition to remain dormant for a period of two years. In holding that the Courts could act when the administrative agency had failed, the U. S. Supreme Court said: “For this apparent neglect on the part of the commission, no reason or excuse has been given; and it is just to say that, without explanation, its conduct evinces an entire lack of that acute appreciation of justice which should characterize a tribunal . . .” Thus, the U. S. Supreme Court held that an unreasonable delay by a Board gave the courts just power to act. On the general subject of the exhaustion of administrative remedies, see 73 C. J. S. 351 et seq.