(dissenting). My reasons for disagreement with the majority in both of the above cases are set out below.
Case No. 480. The majority opinion quashes the order of the Chancellor which required the Eclectic State Medical Board to hold open meetings. The reason given by the majority for its conclusion is that the Chancellor had no jurisdiction to issue said order. The reason why the Chancellor had no jurisdiction, says the majority, is because, at the time the order was issued, the Circuit Court of Pulaski County had already taken jurisdiction of the ease.
In my opinion the conclusion of the majority is erroneous because:
(a) The question of lack of jurisdiction by the Chancellor was not raised by either party either in the pleadings or the arguments. The court should, it seems to me, confine its decisions to the issues raised by the parties unless grave questions of justice dictate otherwise. No such questions appear here. It is recognized that this court can and should raise the question of jurisdiction whether it is pleaded or not, but, as is pointed out presently, the majority can not justify its opinion on this basis.
(b) Where does the majority get its information that the Circuit Court had jurisdiction of the Schirmer hearing on April 12th when the Chancellor issued his order ? It must have gotten this information from hearsay, the newspapers, or some other litigation, none of which sources are approved if my understanding of law is correct. There is not one word or sentence in the entire record on file in this case which says or remotely suggests that the Circuit Court of Pulaski County had acquired jurisdiction on April 12, 1954 when the Chancellor’s order was issued.
Aside from the above I agree with the dissenting opinion in this case written by the Chief Justice.
Case No. 490. The majority opinion holds that the Circuit Court, by virtue of its two orders issued herein on April 24, 1954, did not take jurisdiction to try all the issues in the Schirmer case. Its conclusion was that the Circuit Court have another hearing to determine whether (a) it will try the case or (b) send the matter back to the Eclectic State Medical Board for trial. Under the situation thus created by the majority opinion I can see but one result when the matter is presented to the Circuit Court, and that will be to send the matter back to the Board for trial. The reason I say this is: The only thing, so far as the record shows, that stopped the Board from proceeding with the hearing on April 12th was the order issued by the Chancellor, and now, the majority says, the order of the Chancellor was illegally issued. Thus, I envision another round of delays and appeals to this court.
In my opinion, based on the record in this case, the Circuit Court took complete jurisdiction, by virtue of the two orders issued by it on April 24th, to try this cause, and this court should now order the Circuit Court to proceed with the trial and make a complete disposition of the cause. My reasons are set out below.
(a) On April 15, 1954, after the Board had refused to proceed with the hearing on the 12th of April, the Attorney General filed in the Circuit Court a Petition For Certiorari alleging, among other things, that; he had “vainly and fútilely attempted to present evidence” before the Board; “it was obvious that said respondent Board had no intention of conducting a hearing on said charges,” and; “it is impossible for the petitioner to obtain a hearing before the respondent Board. ’ ’ Petitioner’s prayer was: (1) That copies of the proceedings and records of the Board be brought up for review: (2) That the Circuit Court “set down for full and complete hearing and its subsequent determination thereupon the charges filed” before the Board; (3) That the Circuit Court revoke and cancel the purported license of Schirmer, and; (4) That the Circuit Court enjoin Schirmer from practicing medicine in the State of Arkansas.
To the above petition Schirmer filed a Response in which he denied all the allegations made by the petitioner, and he also alleged that he was entitled to a closed-session hearing before the Board.
On the above state of the pleadings a hearing was had before the Circuit Court on April 24, 1954. The court, after stating it was “well and sufficiently advised, ’ ’ found “that said petition for Writ of Certiorari should be granted,” and gave the Board 10 days in which to file “a full and complete transcript of the record of the entire proceedings.”
(b) If the above does not make it sufficiently clear that the Crcuit Court took complete jurisdiction of the case, then all doubt was removed when tbe Circuit Court issued its next order on tbe same day. This order reads as follows:
‘ ‘ Tbe defendant, Jacob Sass Schirmer, is ordered to appear in tbe court room of tbe Pulaski Circuit Court, Third Division, on April 30th, 1954, at 1:30 P. M., for tbe purpose of answering questions propounded to him in accordance with tbe provisions of Act 335 of tbe Acts of 1953.”
A casual reading; of Act 335 of 1953 reveals tbe fact that tbe Circuit Court bad no authority to issue this order unless it was taking jurisdiction to try tbe case. Respect for tbe trial judge’s familiarity with the law compels tbe conclusion that be intended to and did take complete jurisdiction to try tbe case against Schirmer.