State ex rel. Scollard v. Board of Examiners for Nurses

156 P. 124, 52 Mont. 91, 1916 Mont. LEXIS 30

• Court: Montana Supreme Court
• Decided: March 1, 1916
• Docket: No. 3,587
• Status: Published

Opinions

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In December, 1913, Alise B. Scollard made application to the board of examiners for nurses to be recommended to the Governor for a license as a registered nurse, under Chapter 50, Laws of 1913. The application was refused, and proceedings in mandamus instituted. From a judgment awarding the peremptory writ and from an order denying them a new trial, the defendants appeal.

On Motion to Dismiss.

Appellants did not furnish any appeal bond, and the [1] respondent insists that the appeals should be dismissed. Section 7196, Revised Codes, relieves the state, a county, a municipal corporation, or any officer in his official capacity on behalf of the state, a county, etc., from furnishing an undertaking where one is otherwise required. It is insisted that the board of examiners for nurses is not a public office, and that the members are not public officers. In passing we may say that, if the members of the board acted only as private individuals in refusing Mrs. Scollard’s application, then mandamus would not lie at all. (26 Cyc. 386.) But we do not agree with respondent’s contention. In 6 Words and Phrases will be found a large number of definitions of “public office” and “public officer,” from which we select the following: “ A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by and for the benefit of the public. The individual so invested is a public officer. ’ ’ (Attorney General v. McGaughey, 21 R. I. 341, 43 Atl. 646, 647.)

In 1913 the state for the first time assumed to exercise to a limited extent its police power to regulate the business or profession of nursing. It created the board of examiners for nurses, provided for the appointment of the members by the governor for a definite term, prescribed the duties, and fixed .the compensation. This is sufficient to meet the requirements of the definition.

It is said that the Act does not require a member to take an [2] official oath; but it is wholly unnecessary that it should do so. The official oath required of every public officer in this state is prescribed by section 1 of Article XIX of the Constitution, and that provision is self-executing. The board of examiners for nurses is a public office, and its members are public officers. They perform duties for the state, public in character, and the extent of those duties is not of consequence in determining the quality of their acts. The motion to dismiss is overruled.