State Chiropractic Ass'n v. Kelley

79 Mich. App. 789 (1977) 262 N.W.2d 676

MICHIGAN STATE CHIROPRACTIC ASSOCIATION
v.
KELLEY

Docket No. 31155.

Michigan Court of Appeals.

Decided December 2, 1977.

Durant & Card, for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Patrick F. Isom, Assistant Attorney General, for defendants.

Before: DANHOF, C.J., and ALLEN and H.L. HEADING,^[*] JJ.

PER CURIAM.

Plaintiff-appellant appeals from the trial court's grant of a motion for accelerated judgment. The trial court ruled that it was without subject matter jurisdiction, such jurisdiction being in the Court of Claims.

Plaintiff association alleges that the reputations of both it and certain individuals who are members of it were damaged by the initiation of certain civil suits by the Attorney General to restrain the practice of medicine without a license. It further alleges that defendants-appellees violated certain procedures required by MCLA 338.22; MSA 18.1207 and that they therefore exceeded their authority. Plaintiff-appellant asserts that as a result of exceeding their authority the defendants-appellees are subject to personal liability in the circuit court.

The statute relied on by plaintiff-appellant empowers the Department of Licensing and Regulation to investigate complaints against licensees where an appropriate board fails to act. It requires the department to forward its findings to the appropriate board for action. Here, the department apparently communicated its investigations to the Attorney General, who instituted the suits referred to above.

We find that the procedure followed was not consistent with the statute. The Attorney General, if he chose to act, should have done so ex rel the Medical Practice Board. However, that the Attorney General did not sue ex relatione does not mean he exceeded his authority and is therefore subject to personal liability. He has the authority to sue to abate a public nuisance, which an unlawful activity is. Attorney General ex rel Optometry Board of Examiners v Peterson, 381 Mich. 445; 164 NW2d 43 (1969). Further, he has statutory and common law authority to act on behalf of the people of the State of Michigan in any cause or matter, such authority being liberally construed. MCLA 14.28; MSA 3.181; People v O'Hara, 278 Mich. 281; 270 N.W. 298 (1936), Attorney General v Liquor Control Commission, 65 Mich. App. 88; 237 NW2d 196 (1975). Such liberally construed authority and discretion should only be interfered with where his actions are clearly inimical to the people's interest. Gremore v People's Community Hospital Authority, 8 Mich. App. 56; 153 NW2d 377 (1967). Here the action was clearly beneficial to the people of Michigan, the unlawful practice of medicine being harmful to public safety.

The Attorney General acted within his broad authority, although a proceeding ex rel the Medical Practice Board would have been more proper procedurally. The ramifications of the procedure employed are not here at issue, although they would be on appeal from the injunction proceedings.

The Attorney General was perfectly within his authority. Therefore, jurisdiction lies in the Court of Claims. Abbott v Secretary of State, 67 Mich. App. 344; 240 NW2d 800 (1976), Longstreet v County of Mecosta, 228 Mich. 542; 200 N.W. 248 (1924), Fox v Board of Regents of the University of Michigan, 375 Mich. 238; 134 NW2d 146 (1965), MCLA 600.6401 et seq.; MSA 27A.6401 et seq.

Affirmed.

NOTES

[*] Detroit Recorder's Court judge, sitting on the Court of Appeals by assignment.