court, the said district court, on the motion of the county attorney of the said county and the Attorney General of the state, dismissed the petitioner's appeal, upon the ground that the said court had no jurisdiction to try and determine the same. The petitioner asks for a writ of mandate in this proceeding, commanding the district court to reinstate his appeal and to proceed to Demurrer the hearing and determination thereof. On the return of the writ, not facts suffich the Attorney General, for the said district court, demurred to the to entitle pet!! petition for the reasons-First, that said petition does not state facts sufficient to entitle said petitioner to the relief prayed for; and, sec- 2. Pet shum bis ond, that said petition shows affirmatively that the action of the med- ach was condur ical board in refusing to issue a certificate for the cause specified was final, and not subject to review by any appellate tribunal, and that said defendant (district court), in dismissing said petition, acted correctly and within its jurisdiction, in that no appeal lay from the action of the board to said defendant. PEMBERTON, C. J. (after stating the facts). The only question presented here is this: Does the statute allow an appeal to an applicant who has been refused a certificate by the medical board authorizing him to practice medicine and surgery in this state on the ground that the applicant's examination papers show that he has not the requisite learning to entitle him to such certificate? Counsel for the defendant, the Attorney General, contends that the right of appeal exists only when the certificate is refused or revoked by the board for unprofessional, dishonorable, or immoral conduct, and that no appeal lies from the refusal of the board to issue a certificate on the ground of the incompetency of the applicant. That part of section 603, Pol. Code, which provides for appeals from the action of the medical board is as follows: "In all cases of the refusal or revocation of a certificate to practice medicine by the said board, the person aggrieved thereby may appeal from the decision of the board to the district court of the county in which such revocation or refusal was made." Counsel for defendant contends that this provision only gives the right of appeal where the certificate is refused or revoked by the board for unprofessional, dishonorable, or immoral conduct, and that State v. District Court of First Judicial District, 13 Mont. 370, 34 Pac. 298, in which this court discussed the right of appeal from the action of the medical board, does not go to the extent of deciding. that an appeal lies in cases like the one at bar. Statute Statute egn But, in examining our statute, we find no language that restricts no restrict to the right of appeal to any particular class of cases. The terms of a parlic class of cases the statute are general, and give the right of appeal "in all cases of the refusal or revocation of a certificate to practice medicine by the said board." A number of the states have statutes like ours, but we are not referred to any decision of any of the states where the precise question here involved has been adjudicated and determined. mudiffe that the 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; Job wa be hard that the court or jury could not try and determine the question of forach 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 SECTION 66.-DEFENSE TO ENFORCEMENT PRO- Fr. 521 Fr. 150, 549 Fr.sal 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); Fv. 546 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. 375 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. Jeph- F. 168,644,655 son, 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 Fr. 142. Fr. 381,392 Fr. 209, 654 CHAPTER IX JURISDICTION, CONCLUSIVENESS, AND JUDICIAL CONTROL SECTION 67.-IN GENERAL STATE ex rel. COOK v. HOUSER. (Supreme Court of Wisconsin, 1904. 122 Wis. 534, 559, 100 N. W. 964, 971.) 1 * 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 involved, 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 errors. 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 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 PREREQUISITES f 337 el sy 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 Leadenhall 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 said goods, and detained them in their |