Hall v. Bledsoe , 126 Ark. 125 ( 1916 )

McCulloch, C. J-.

The appellants in this case constitute the Board of Control for the Charitable Institutions of the State, and Dr. E. P. Bledsoe, the appellee, is the superintendent of the institution known as the State Hospital for Nervous Diseases. The Board of Control, pursuant to statutory authority, preferred charges against Dr. Bledsoe, and after notice given and a hearing, an order was made removing him from said office. Dr. Bledsoe then applied to one of the judges of the Pulaski Circuit Court for a writ of certiorari to bring the proceedings of the Board of Control before that court for review, and on the hearing before the circuit court a judgment was rendered quashing the order of the board, and an appeal has been duly prosecuted to this court. On the hearing of the cause before the circuit court, the record as made before the Board of Control, including all of the oral testimony adduced, was considered, and also appellee was permitted to introduce additional testimony, oral and documentary.

The statutes of the State originally provided that the charitable institutions should be under the supervision of a board of trustees appointed biennially by the governor. The office of superintending physician was created and the duties of the office prescribed in part as follows:

“The superintending physician shall have the power to appoint and remove all subordinate officers and persons allowed by the board of trustees. He shall, at the time of the reception of each patient, enter in a book kept for that purpose the name, age, sex, residence, office and occupation of the person, by whom and by whose authority each insane person is brought to the asylum, and have all the orders, warrants, requests, certificates, and other papers accompanying such insane person, carefully filed and forthwith copied in-said book; he shall also have general superintendence of the buildings, grounds and farms, with their furniture, fixtures and stock, and the direction and control of all persons therein, subject to the by-laws- and regulations of the trustees; he shall daily ascertain the condition of the patients, and prescribe their treatment, in the manner prescribed in the said bylaws; and he shall also be required to see that all the rules and regulations for the discipline and good government of the institution are properly obeyed and enforced.” Kirby’s Digest, Sec. 4186.

The General Assembly of 1915 created the Board of Control to consist of three members to be appointed by the governor, instead of the board of trustees as " originally provided.- Acts 1915, ,p. 403, No. 108. The new statute referred to does not enlarge nor otherwise change the duties and powers of the superintendent, but merely changes the management from that of the old board of trustees to the new Board of Control. Section 7 of the new statute reads as follows: “The Board of Control shall have full authority to adopt such rules and regulations -for the conduct of its business, and of the affairs of the institutions under its control; as it may deem proper; it may meet at such times and places for the conduct of its business as may seem fit, but must meet at least once each month. ” Section 8 of that statute contains the follo'wing provision: “The board may at any time remove the Secretary, or the superintendent, or steward of any of the institutions, for inattention, neglect, misconduct or inefficiency in the discharge of his duties, or for other adequate cause; but in case of such removal, it shall state specifically and distinctly the ground therefor.

The substance of the charges against Dr. Bledsoe, which we deem it worth while in the discussion to mention, is that he was guilty of inattention and neglect and inefficiency in failing to devote his entire time to the discharge of the duties of the office, and in absenting himself frequently from the institution at times when his presence was required; that he failed to visit and inspect the wards in the institution and to personally familiarize himself with the conditions existing there; and that he failed to hold staff meetings for the purpose of consulting concerning the treatment of patients. There were other charges embraced in the specifications which we do not deem it important to mention. The fact that some of the charges are unsustained does not affect the merits of the controversy with respect to the other charges.

The discussion of counsel in their respective briefs has taken a very wide range, and many questions which we think are well settled are debated with great zeal.

(1) In the first place, it appears clear to us that this is not, as contended by counsel for appellants, a suit against the State. It is merely a review of the proceedings of a tribunal created by the State to perform certain functions, the one exercised in this instance being quasi judicial. The rights of the State are in no wise drawn into the controversy, for the proceeding merely raises the question of regularity and correctness of the action of the Board in removing Dr. Bledsoe from the office which he held. The State is not sued, either directly or indirectly. That feature of the discussion may therefore be dismissed without further comment.

(2) Again, it is very plainly settled, we think, that the writ of certiorari is available for the purpose of giving the circuit court, a court of general original jurisdiction, the opportunity to review the decision of the Board in removing an officer pursuant to the terms of the statute. Pine Bluff Water & Light Co. v. City of Pine Bluff, 62 Ark. 196; State, ex rel. v. Railroad, Commission, 109 Ark. 100. “The test, therefore, is,” we said in the case last cited, “whether the act sought to be reviewed is done in a judicial or quasi judicial capacity, and not merely in a legislative, executive or administrative capacity.” It being seen that the Board, in hearing the charges against the superintendent of the hospital, and in removing him, acted in a quasi judicial capacity, it follows that a writ of certiorari may run for the purpose of bringing up the proceedings for review.

(3) In Burgett v. Apperson, 52 Ark. 213, this court said: “The writ is granted in two classes of cases, first: where it is shown that the inferior tribunal has exceeded its jurisdiction; and, second, where it appears that it has proceeded illegally and no appeal will lie, or that the right has been unavoidably lost.”

More serious questions arise concerning the scope of the inquiry of the court in reviewing the proceedings of the Board. At common law the scope of the remedy was merely to review for errors of law, and the inquiry on the hearing was confined to the record made before the tribunal whose proceedings were sought to be reviewed. Harris on Certiorari, Sec. 59; Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206; Morrill v. Morrill, 20 Ore. 96; Stevens v. County Commissioners, 97 Me. 121; note to the case of Wulzen v. Board of Supervisors, 40 Am. St. Rep. 35.

The rule is stated in the note referred to above as follows: “No questions can be presented for review upon certiorari other than those which arise on the record, save and except that the court may sometimes hear evidence in support of the record for the purpose of showing that substantial justice has been done, or that for some reason the discretion which the court has to deny relief by this writ ought to be exercised and-the petitioner left to such other means of redress as he may have, but it is clear in the absence - of statutory authority, that the record-cannot be contradicted by extrinsic evidence, and that the petitioner’s cause must be determined on the record alone. * * * If the evidence received has not been preserved in such a manner as to constitute a part of the record in the lower court, it must be excluded from consideration in the superior court, though the judge or some other officer has certified to it, and thus attempted to make it a part of the return to the writ. In the great majority of cases in which redress is sought by this writ it is directed to inferior courts or tribunals exercising a limited or summary jurisdiction having no record. In such eases perhaps the most usual practice is to require such court or tribunal, by its clerk or otherwise, to certify the proceedings taken before it and its action thereon, as well as to furnish copies of such petitions and other papers as have been presented to it and made a basis of its right to act, together with a statement of its rulings upon any point in which it is claimed to have acted erroneously to the prejudice of the applicant. ”

In Ruling Case Law (Vol. 5, p. 260), we find this statement: “In many jurisdictions the doctrine is asserted that the office of a certiorari, at common law, is only to bring up for review questions of jurisdiction, power and authority on the part of the inferior tribunal; and that the superior court is confined to the simple consideration whether the inferior tribunal had jurisdiction, and whether the proceeding and order was within that jurisdiction, and that, if the superior court finds that the inferior tribunal has not exceeded its jurisdiction, it must not go further and inquire whether the order or judgment complained of was right upon the merits. This statement of the law is, doubtless, sufficiently accurate when considered in connection with the cases in which it is generally made. But the rule is not strictly adhered to. Courts do frequently consider upon a common-law certiorari, defects and errors in the proceedings of the inferior tribunal which are not strictly of a jurisdictional nature, and it cannot be gainsaid that questions relating to the regularity of the proceedings, or questions of law which arise on the face of the record, or of the proceedings and orders which are in the nature of records, may be reviewed. ”

In the same volume, p. 263, we find the following statement with respect to the particular matter now under consideration: “In some jurisdictions the courts, restricting the writ to its original common-law office, hold that it brings up for review only the record, and not the evidence, and hence that they will not look into the evidence at all, but merely inspect the record to see whether the inferior tribunal had jurisdiction, or exceeded it, or proceeded according to law, or, as sometimes expressed, whether the tribunal kept within its jurisdiction, ■ or whether the cause assigned was a cause for removal under the statute. In other jurisdictions it is held that the evidence may be brought up, not for the purpose of weighing it, to ascertain the preponderance, but merely to ascertain whether there was any evidence at all to sustain the decision of the inferior tribunal — whether it furnished any legal and substantial basis for the decision. While in the exercise of this power of removal for cause the proceedings of these bodies are quasi judicial and so reviewable by the court, still they are not courts, but essentially legislative and administrative bodies, whose action should be considered in view of their nature and the purposes for which they were organized, and not be tested by the strict legal rules which prevail in trials in cburts of law. Therefore, if such a body has kept within its jurisdiction, and the evidence furnished any legal and substantial basis for its action, it ought not to be disturbed for any mere informalities or irregularities which might have amounted to reversible error in the proceedings of a court. To. apply any other rule would be impracticable, and disastrous in the extreme to public interests.'.”

Our statute regulating the remedy on certiorari reads as follows:

“They 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; application for such writ may be made to the court or to the judge thereof in vacation on reasonable notice; and a temporary restraining order may be granted thereupon on bond and good security being given, in a sum to be fixed by the court or the judge in vacation, conditioned that the applicant will perform the judgment of the court.” Kirby’s Digest, Sec. 1315.

“Affidavits may be read on such applications, and evidence de hors the record may be introduced by either party on the hearing. The record of any such inferior judicial tribunal shall be conclusive as far as the sa,me may extend, but the acts of any executive officer or board of such shall only be prima facie evidence of their regularity and legality. The court shall have power in such cases to enforce its judgments by mandamus, prohibition and other appropriate writs.” Kirby’s Digest, Section 1316.

It has been expressly held by this court that the scope of the writ of certiorari at common law' is not enlarged by the statutes of this State on that subject. St. L., I. M. & S. Ry. Co. v. Barnes, 35 Ark. 95; Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605; Pine Bluff Water & Light Co. v. City of Pine Bluff, 62 Ark. 196.

In the case of Merchants & Planters Bank v. Fitzgerald, supra, Judge Battle, speaking for the court, said: “According to the well-settled practice in this State the writ of certiorari can be used by the circuit court in the exercise of its appellate power and superintending control over inferior courts in the following classes of cases: (1) Where the tribunal to which it is issued has exceeded its jurisdiction; (2) where the party applying for it had the right to appeal, but lost it through no fault of his own; and (3) in cases where the superintending control over a tribunal which has proceeded illegally, and no other mode has been provided for directly reviewing its proceedings. But it cannot be used as a substitute for an appeal or writ of error, for the mere correction of errors or irregularities in the proceedings of inferior courts.”

(4) Now, while it is true that our statute has not enlarged the scope of the remedy it has enlarged the power of the court with respect to the method of bringing a case before the court for review. At common law a court was bound by the record made in the inferior court, but the statute which has just been quoted provides in express terms that “evidence de hors the record may be introduced by either party on the hearing. ” It was the manifest purpose of the Legislature to set aside the common law rule to that extent and to permit the court to hear evidence de hors the record for the purpose of possessing itself fully of the matter presented to the inferior tribunal. To give any less effect to this language would be to nullify it altogether.

(5) But it does not follow that the court, on hearing the writ, proceeds de novo and tries the ease as if it had never been heard in the inferior court. This is true, because as we have already seen, the office of the writ, which has not been enlarged by statute, is merely to review for errors of law, one of which may be the legal insufficiency of the evidence, and for the purpose of testing out that- question the circuit court is, by the statute, empowered to hear evidence de hors the record in order to ascertain what evidence was heard by the inferior tribunal, and to determine whether or not the evidence was legally sufficient to sustain the judgment of that tribunal. That question is one of law, which is subject to review like all other errors of law. Callett v. Railway Co., 57 Ark. 461.

(6-7) The record made at the hearing before the Board of Control should have included, of course, all testimony that was offered, whether accepted by the Board or not, and the circuit,court on the hearing of the writ therefore had the right to inquire into all evidence that was adduced or offered, and had the right to hear other evidence to determine what matters were offered before the Board. Learned counsel for appellee concede the correct rule to be that “Where the writ is limited as at common law, then the court is confined in its review of the evidence to the determination of whether there was any substantial evidence to sustain the conviction of the charge” and we-are of the opinion that that is the rule applicable to this proceeding under our present statute.

The testimony introduced before the Board was accurately preserved and a transcript furnished. There is no question made about its accuracy. It may be said; too, that the additional evidence heard by the circuit court,' even if considered, adds nothing to the solution of the question really presented, whether or not the Board acted arbitrarily and without legally sufficient evidence. That is the real question presented, since we find the law to be that the court cannot in this proceeding review merely for errors of judgment upon legally sufficient evidence, and we proceed to an analysis of the testimony for the purpose of determining whether or not there was evidence of a substantial nature which justified the action of the Board of Control, or whether the removal of Dr. Bledsoe was arbitrarily done and without any justification in fact.

Dr. Bledsoe became superintendent of the hospital on January 1, 1916, and these charges were preferred on June 9, 1916, the hearing being begun the next day. The testimony was undisputed that there were no morning staff meetings held for about thirty days prior to the time the charges against him of inattention and inefficiency were made. It appears that it had long been the custom, and was thought necessary, to hold two meetings of the staff of physicians daily for the purposes of consultation. One of those meetings was held early in the morning, and are referred to as the morning staff meetings, and the other was held about. 11:30 a. m., and are referred to in the testimony as the noon meeting. There is testimony to the effect that the morning meetings were the more important ones. At the examination of patients by members of the staff, a stenographer is usually present who takes down everything that is said at the examination, and a transcript of that is furnished so that it may be submitted to' the staff at the meetings. Every case is taken up in consultation ánd the opinion of each physician expressed in the order of seniority, beginning with the superintendent. The reason given by Dr. Bledsoe for not holding these staff meetings for the period named was that he had insufficient stenographic help. It seems that there were ordinarily three stenographers employed for that work, and two of the places were vacant, one of the stenographers having been discharged by Dr. Bledsoe and the other having resigned. Dr. Bledsoe states that the reason he had not filled those vacancies was that there was so. much strife and controversy between him and the Board over the management of the institution that he could not make employments. He admits, however, that there were a number of .applicants for the places and that the members of the Board had sent persons out there to apply for the places, but that he considered the applicants inefficient and did not employ them.

The testimony tends to show that Dr. Bledsoe was frequently absent from the noon staff meetings. The physician next in rank to Dr. Bledsoe, who appears not to be unfriendly to him and who was introduced by him as a witness, testified that Dr. Bledsoe was absent from the noon consultations on an average of two days in each week. Dr. Bledsoe denies that statement and says that while he was absent from the consultation room a good many times, he was generally busy in another room at the hospital.

Quite a number of witnesses were introduced — ■ nurses and attendants in charge o’f the wards — and the testimony tended to show that Dr. Bledsoe very seldom visited certain wards. The testimony shows that during the six months he was in charge he did not visit certain wards more than once or twice, and had no opportunity to ascertain the condition of the wards except through the reports of his subordinates. The testimony shows that he did not interrogate the attendants actually in charge. Many of them testified that he never spoke to them at all. Much of the testimony is to the effect that Dr. Bledsoe’s conduct towards the attendants, if not actually uncivil or discourteous, manifested indifference or unwillingness to get acquainted with his subordinates.

Again, there was testimony tending to show that Dr. Bledsoe was absent from the institution a great deal of the time and spent considerable time in the city of Little Rock. One witness, who was an employee at the institution for the purpose of carrying the mail back and forth from the city to the hospital, testified that frequently on his return from the city about ten or eleven o’clock in the morning, and about four o’clock in the afternoon, he met Dr. Bledsoe going towards the city. Another witness testified that frequently he was unable to find Dr. Bledsoe about the premises on important occasions when his presence was desired.

There is a farm connected with the institution, which is in charge of a practical farmer selected by the superintendent. This farm has about 45 acres in cultivation and is operated for the purpose of furnishing vegetables to the institution. The man in charge of the farm testified that Dr. Bledsoe, during the whole six months of his incumbency up to the time of the trial, had never visited the farm and had never given him any directions, except upon one occasion in the office he had spoken about planting some potatoes at a certain place. The witness stated that he had never received any other directions from Dr. Bledsoe and had never seen the latter visit the farm.

The laundry at the institution is quite extensive, and 18 men are employed there, and besides about 40 inmates of the institution are worked. The evidence shows that thirty or forty thousand garments are laundered there per week. The testimony of the man in charge of that department is that Dr. Bledsoe never visited the laundry nor gave any directions concerning its management. The testimony of the engineer in charge of the mechanical part of the institution was that Dr. Bledsoe paid very little attention to that department.

Dr. Bledsoe, in his testimony, gives an account of his management of the institution which is very satisfactory, if his version of the matter is accepted as true, and he is corroborated in all important details by other testimony, but it cannot, we think, be said that the undisputed evidence shows that there is no foundation for the charges made against him. There was testimony introduced tending to show that Dr. Bledsoe visited the wards more frequently than is claimed by many of the witnesses who testified, and he says that it was unnecessary for him to visit the wards oftener for the reason that he received frequent reports from his assistants. But we are unable to say that the Board was not justified in reaching the conclusion that a failure on the part of the superintendent to make frequent visits himself and possess himself with personal knowledge of the management of the wards was not a species of inattention which seriously affected his efficiency. The same may be said with respect to his conduct in ignoring the presence of those in charge of the wards when he met them and in failing to get acquainted with them so that he would be informed as to their capacity for earing for the inmates of the institution.

Dr. Bledsoe gives what may be deemed a satisfactory reason for his failure to attend staff meetings, but it cannot be said that his reason is one which necessarily must be accepted by the Board charged with the duty of superintending the institution where the helpless wards of the State are kept and treated. The superintendent was not expected to be a farmer or a laundryman, but the statute makes it his duty to exercise a superintending control over all those departments of the institution, and it was not unreasonable upon the part of the Board to find that he was derelict in discharging his duty by wholly failing to visit those departments.

(8) We are not called on to decide primarily whether or not the decision of the Board was correct. The lawmakers have placed that authority in the Board of Control, and it would be clearly an encroachment by the courts upon the authority of another department of government to undertake to substitute the judgment of the judges for that of the members of the tribunal vested with authority to manage the institutions of the State and to appoint and remove those who are placed there in charge. When all the testimony in the case is considered and viewed in the strongest light to which it is susceptible in support of the Board’s findings, it cannot be said that there is an entire absence- of evidence of a substantial nature tending to establish the charge of inattention and neglect of duty on the part of the superintendent. This being true, it becomes the duty of the courts, upon well-settled principles of law, to leave undisturbed the action of the tribunal especially created by the lawmakers to pass upon those questions. Any other view would make the Board of Control a mere conduit through which a decision on the removal of an unfaithful or inefficient superintendent would be passed up to the courts instead of leaving the matter where the lawmakers have placed it, in the hands of the Board.

(9) There is one other question discussed which we ought to mention briefly, and it is this: It is contended that a few days before these charges were, preferred a compromise agreement was enterad into between Dr. Bledsoe and the Board whereby he was permitted to continue as superintendent on certain terms specified in the written agreement, and that this operated as a condonation of the offenses involved in the charge. We think it is a sufficient answer to this to say that if the charges were true the Board had no power to bind itself not to proceed towards the removal of the superintendent. We cannot concern ourselves about the motives of the members óf the Board further than to look, to the testimony to see whether or not the judgment of removal was a fair exercise of discretion based upon legally sufficient evidence.

Having reached the conclusion that there was sufficient, evidence to justify the action of the Board, it follows that the circuit court erred in quashing the order. The judgment is therefore reversed and the. writ of certiorari dismissed.

Humphreys, J., concurs.