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The law provides that appeals in such cases shall be conducted like appeals from a decision of a board of county commissioners disallowing a claim. Pol. Code, § 603. Appeals from actions of boards. of county commissioners are prosecuted and tried like appeals from a justice of the peace. Id. § 4289. Appeals from a justice court are tried de novo.

It is said by counsel for the defendant that a trial of this case de novo in the district court would be impracticable, if not impossible; that the court or jury could not try and determine the question of petitioner's competency to practice medicine. It is further insisted. that the law does not provide any procedure by which the district court could properly try and determine this question.

In State v. District Court of First Judicial District, supra, this court held that the right of appeal was not rendered nugatory because the law did not prescribe rules to guide the district court in trying such appeal. This was when there were no proceedings or rules prescribed by law for appeals in such cases. The present statutes do prescribe the manner of appeal, and, if the proceedings prescribed by the statute are inefficient, under the provision of section 205, Code Civ. Proc., "any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the Code." Awkward, difficult, and unsatisfactory as a trial of this case in the district court might, and doubtless would, be, we are of the opinion that the learned district judge would be able to devise ways and means not incompatible with the Code for disposing of the case. Impolitic and unwise as this law may be, still, if the Legislature has given the petitioner the right of appeal in this case, we have neither the right nor disposition to deprive him of its exercise by any unauthorized construction of the statute or by any apparent judicial legislation. Unless we construe or legislate something very material into the statute not placed there by the Legislature, we think the petitioner, under the law, which is broad and general in its terms, is entitled to prosecute his appeal in this case. Whether or not such laws are wise or unwise, politic or impolitic, are questions for the legislative branch of the government, and we have no right or inclination to invade that domain.

The order of the district court dismissing the appeal in this case is reversed, and a peremptory writ of mandate is ordered to issue, directing that the district court reinstate said appeal and proceed to the trial of the cause.

Reversed.

BUCK, J., dissents.

6 The concurring opinion of Hunt, J.. is omitted.

See Laws Mont. 1907, c. 100, providing for a trial of appeals by a jury of six physicians.

Compare Raaf v. State Board of Medicial Examiners, 11 Idaho, 707, 84 Pac. 33 (1906); also Munk v. Frink, 75 Neb. 172, 106 N. W. 425 (1905).

As to whether the provision by statute for an appeal excludes other reme

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SECTION 66.-DEFENSE TO ENFORCEMENT PRO-
CEEDINGS

This is a very common method of testing the legality of administrative action, illustrated by numerous cases in this collection. See the following: Galbraith v. Littiech, 73 Ill. 209 (1874); Nealy v. Brown, 6 Ill.'10 (1844); State v. Weimer, 64 Iowa, 243, 20 N. W. 171 (1884); People v. Hopson, 1 Denio (N. Y.) 574 (1845); Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569 (1884); Waye v. Thompson, L. R. 15 Q. B. 342 (1885); Philadelphia v. Scott, 81 Pa. 80, 22 Am. Rep. 738 (1876); Metropolitan Board of Health v. Heister, 37 N. Y. 661 (1868); Health Department v. Trinity Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, 45 Am. St. Rep. 579 (1895); Salem v. Eastern Railroad Co., 98 Mass. 431, 96 Am. Dec. 650 (1868); Com. v. Sisson, 189 Mass. 247, 75 N. E. 619, 1 L. R. A. (N. S.) 752, 109 Am. St. Rep. 630 (1905); Com. v. Kinsley, 133 Mass. 578 (1882); Martin v. State, 23 Neb. 371, 36 N. W. 554 (1888); King v. Venables, 2 Ld. Raym. 405 (1725); People v. McCoy, 125 Ill. 289, 17 N. E. 786 (1888); State v. Lamos, 26 Me. 258 (1846); Hutton v. Camden, 39 N. J. Law, 122, 23 Am. Rep. 203 (1876); State v. Kansas Central R. Co., 47 Kan. 497, 28 Pac. 208 (1891); Interstate Commerce Commission v. Cincinnati, etc., R. Co., 167 U. S. 479, 17 Sup. Ct. 896, 42 L. Ed. 243 (1897); Wilson v. Eureka City, 173 U. S. 32, 19 Sup. Ct. 317, 43 L. Ed. 603 (1899); McLean v. Jephson, 123 N. Y. 142, 25 N. E. 409, 9 L. R. A. 493 (1890); Harrington v. Glidden, 179 Mass. 486, 61 N. E. 54, 94 Am. St. Rep. 613 (1901); Fire Department v. Gilmour, 149 N. Y. 453, 44 N. E. 177, 52 Am. St. Rep. 748 (1896); Spencer & Gardner v. People, 68 Ill. 510 (1873); Interstate Commerce Commission v. Alabama Midland R. Co., 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed. 414 (1897).

dies, and especially also whether it prevents defects of administrative action to be availed of by way of defense to proceedings brought on behalf of the public against the individual, see Governors of Bristol Poor v. Wait, 1 Ad. & El. 264 (1834); Allen v. Sharp, 2 Exch. 352 (1848); Clinkenbeard v. United States, 21 Wall. 65, 22 L. Ed. 477 (1874).

See, for application of statutory right of appeal, the following cases in this collection: Gross' License. 161 Pa. 344, 29 Atl. 25 (1894); Whitely v. Platte Co., 73 Mo. 30 (1880); Fuller v. Colfax Co. (C. C.) 14 Fed. 177 (1882); Lillienfeld's Case, 92 Va. 818, 23 S. E. 882 (1896); Gilbert v. Columbia Turnpike Co., 3 Johns. Cas. (N. Y.) 107 (1799).

FR.ADM.LAW-34

CHAPTER IX

JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL

SECTION 67.-IN GENERAL

STATE ex rel. COOK v. HOUSER.

1

(Supreme Court of Wisconsin, 1904. 122 Wis. 534, 559, 100 N. W. 964, 971.) MARSHALL, J.1 * * * Whatever privileges are within the power of the Legislature to grant may be granted upon such conditions and subject to such regulations as it in its wisdom may see fit to impose. That is elementary. In dealing with this subject care should be exercised to distinguish between common-law rights, which are within the protection of constitutional restraints upon legislative authority, and mere legislative creations. A failure in that regard would be quite likely to lead one astray. The right to vote and to secrecy in respect to the elector's opinion thus expressed cannot be impaired, but the enjoyment of those rights which are within constitutional protection may have every legislative aid which the wisdom of the lawmaking power may see fit to afford. The power of regulation to that end is limited only by what is reasonable. Any attempt to regulate passing that barrier is destructive of the right involv ed, not an aid to its enjoyment, and hence is not legitimate.

So the plan for an official ballot, and opportunity for party representation thereon, are matter of legitimate legislative creation; hence the conditions of party representation upon such ballot are purely within legislative control. Whoever joins a political party impliedly submits to regulations in that regard, as in effect by-laws of the organization, the same as every member of any other voluntary association, upon joining the same, irrevocably pledges himself to be bound by the decisions of its tribunals, save as regards jurisdictional This court very recently dealt with such relations in Bartlett v. L. Bartlett & Son Co., 116 Wis. 450, 93 N. W. 473, and Wood v. Chamber of Commerce, 119 Wis. 367, 96 N. W. 835.

errors.

Errors of judgment committed by such a tribunal, however numerous or serious, even though by reason thereof justice, except as regards mere form, be denied and wrong from an original standpoint be made to bear the stamp of right, does not militate at all

1 Only a portion of the opinion of Marshall, J., is printed.

against the binding effect of the result. All must bow to it as the right of the matter from a legal standpoint, however much from a moral aspect it may appear to be wrong. That applies to all tribunals of voluntary organizations and to all special tribunals created by law to deal with legislative rights and privileges. There are so many illustrations of approved legislation as regards the latter that it is strange that a layman, even, should marvel at the existence of such laws, and passing strange that others should. There are hundreds of such tribunals. Every board of review, every one of the numerous official boards and councils empowered to act judicially, is such a one. Who would expect to avoid the decision of a board of review, or the board of law examiners, or the board of control, or the board of regents, or the board of dental examiners, as to any matter within its jurisdiction, except for errors of a jurisdictional character? The books are full of decisions in harmony with what is here suggested. The following are examples: State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587; State ex rel. Vilas v. Wharton, 117 Wis. 558, 94 N. W. 359; State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N. W. 188; State ex rel. Heller v. Lawler, 103 Wis. 460, 79 N. W. 777; State ex rel. N. C. Foster Lumber Co. v. Williams, 123 Wis. 61, 100 N. W. 1048, and State ex rel. Gray v.. Common Council, 104 Wis. 622, 80 N. W. 942. * *

SECTION 68.-POLICE POWER-JURISDICTIONAL PRE

REQUISITES

WARNE v. VARLEY et al.

(Court of King's Bench, 1795. 6 Durn. & E. 443.)

To an action of trespass for taking the plaintiff's goods (leather) and detaining them eighteen days, the defendants pleaded a justification under St. 2 Jac. I, c. 22, in which, after alleging that they were duly appointed according to the act to view and search all tanned hides, skins or leather that should be brought to Leadenhall Market and sworn to execute their office truly, and that Varley was also appointed a sealer under the act, they stated that the plaintiff, a tanner, on the 25th of November, 1795, offered for sale in Leadenha!! Market the goods in question, which "had not after the tanning thereof been well and thoroughly dried in the judgment of the defendants according to the true intent and meaning of the said act of Parliament, wherefore the defendants by virtue of their office seized and carried away the s, and detained them in their

custody until they might be duly tried in manner and form as is directed by the said statute, etc., and that within a reasonable and convenient time after the said seizure, to wit, on the 28th of November, the defendants gave notice of the seizure to the Lord Mayor of London, in order that triers might be appointed for trying the same according to the directions of the said act, etc.

The plaintiff replied that the said skins, after the tanning thereof and before they were put up to sale, had been well and thoroughly dried according to the true intent and meaning of the said act, and that after the seizure they were duly tried by six persons (naming them) duly appointed by the Lord Mayor to be triers, who upon their oaths determined that the leather had been well and thoroughly dried after the tanning according to the true intent and meaning of the act, and that the leather was afterwards restored to him.

Lord KENYON, C. J. I should have been glad to have found some ground on which the defendants' justification could have been supported, because they appear to have acted fairly and bona fide; but after comparing the pleadings with the act of Parliament, it is impossible to decide in their favor. This act was made early in the time of James the First, when the trade of this country was in its infancy, and in a reign during which, notwithstanding what wits have said concerning the pedantry of the monarch, more wholesome acts of Parliament were made for the benefit of the trade of the country than in any subsequent period of the same duration. But this furnishes one of many examples that the wisest legislature in making a law do not forsee every possible case that may happen. I have no doubt but that, if the case in question had occurred to their minds when they framed this law, they would have provided for it. But, sitting in a court of law, we are bound to decide on the act of Parliament as we find it, and are not at liberty to introduce into it any regulations, however wise and proper they may appear to us. This statute, after directing that searchers shall be appointed, authorizes them to seize leather of a certain description, and to submit it to the future inquiry of the triers. It seems reasonable that, if these searchers exercise their authority bona fide, and only seize such leather for the examination of the triers as in their judgment ought to be examined, they should be protected; in such a case they do not transgress any moral duty, and I should have been glad to find that they had not transgressed any legal duty. But the act of Parliament affords them no such protection. It only empowers them to seize leather which is not dried, etc., according to the true intent and meaning of the act. Here the plea does not allege that the leather was insufficiently dried; and the replication does state expressly that it was sufficiently dried, etc., according to the true intent and meaning of this act. Therefore it appears on the record that the defendants seized leather which the statute did not authorize them to seize.

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