Opinion
[No. 129, October Term, 1954.]
Decided April 21, 1955.
APPEAL — from Order of Circuit Court in Banc Sitting under Constitutional Provision by Party Reserving Points for Its Decision — Dismissed. This Court dismissed an appeal to it from an order of the Circuit Court for Prince George's County, sitting in banc under the Constitution of Maryland (1867), Art. 4, sec. 22, granting a motion to dismiss a reservation of points from a decision by one judge of the Circuit for decision by the court in banc under sec. 22, and holding that appellant, the Board of Medical Examiners, had no right to reserve such points and dismissing the appeal to the court in banc. The Board had revoked the license of appellee, a medical practitioner, because of his conviction in Federal court for evading income taxes, and the order of revocation was reversed by a Judge of the Circuit Court upon appeal by appellee under Code (1951), Art. 43, sec. 144, which grants a right of appeal from the Board's decision only to the Circuit Court where the person resides whose license has been revoked. The Board contended that the exception to the general rule as to appeals from an appellate tribunal exercising special statutory authority, in cases where the jurisdiction of the tribunal is attacked, applied where the tribunal refused to act within its jurisdiction (the court in banc having decided that it had no jurisdiction to hear the points reserved), as well as where it exceeded its jurisdiction. In rejecting this contention, this Court pointed out that the court in banc had jurisdiction over the subject matter and the parties, and power to decide the question of its own jurisdiction, and that Art. 4, § 22, of the Constitution made the decision of the court in banc conclusive as against the party at whose motion the points were reserved. pp. 110-112
J.E.B.
Decided April 21, 1955.
Appeal from the Circuit Court for Prince George's County (GRAY, JR., C.J., and MARBURY and DIGGES, JJ.).
Notice of appeal by Napoleon B. Steward, M.D., from the decision of the Board of Medical Examiners of the State of Maryland revoking his license to practice medicine. On appeal by Dr. Steward to the Circuit Court for Prince George's County, the order of revocation was reversed by Judge Charles C. Marbury on the merits. From an order of the circuit court in banc, dismissing the appeal to it and the reservation of points for its decision by the Board under the provisions of the Constitution of Maryland (1867), Art. 4, § 22, the Board appeals.
Appeal dismissed.
The cause was argued before BRUNE, C.J., and DELAPLAINE, COLLINS and HENDERSON, JJ.
Ambrose T. Hartman, Assistant Attorney General, with whom was C. Ferdinand Sybert, Attorney General, on the brief, for the appellant.
J. Cookman Boyd, Jr., with whom were Henry M. Decker, Jr., Lansdale G. Sasscer and Hal C.B. Clagett on the brief, for the appellee.
The appeal in this case is from an order of the Circuit Court for Prince George's County granting a motion to dismiss a reservation of points for decision by the court in banc under Art. IV, Sec. 22 of the Maryland Constitution. The court in banc held that the Board of Medical Examiners had no right to reserve points for its determination and dismissed the appeal to it. The appellee has filed in this Court a motion to dismiss the appeal, and a brief contending, in the alternative, that the order be affirmed.
The appellee, a medical practitioner, was cited by the Board, on charges based upon his conviction in the Federal court for evading income taxes, and his license was revoked. He appealed to the Circuit Court for Prince George's County, where the order was reversed, on the ground that the Board was improperly constituted, and the case was remanded. On appeal to this Court the appeal was dismissed on the ground that there was no right of appeal under the statute, Code (1951), Art. 43, § 144. Bd. of Med. Examiners v. Steward, 203 Md. 574. On remand, the Board again considered the matter and revoked his license. He appealed to the Circuit Court, where the order was reversed by Judge Marbury on the merits. There was a seasonable motion to reserve points for consideration by the three Judges of the Seventh Judicial Circuit. A motion to dismiss was granted by those three Judges.
It was decided on the previous appeal that there is no right of appeal to this Court by either party. The only right of appeal from the Board's decision is to the Circuit Court, of the city or county where the person resides whose license has been revoked, "the judge or judges of which said court shall fully hear and determine all matters connected with the action of said board from which appeal is taken, and the decision of said court shall be final; * * *." Code (1951), Art. 43, § 144. We recognized, however, that there was an exception to the general rule as to appeals from an appellate tribunal exercising special statutory authority, in cases where the jurisdiction of the tribunal is attacked. Bd. of Med. Examiners v. Steward, supra; Johnson v. Board of Zoning Appeals, 196 Md. 400. The appellant argues that the three-judge court, in deciding that it had no jurisdiction to hear the points reserved, refused to act within its jurisdiction and that this should be treated in the same way as if it had acted in excess of its jurisdiction. It contends that the refusal to act opens the door to an appeal within the exception noted.
We think the argument is unsound. The court in banc had jurisdiction over the subject matter and the parties, and it had the power to decide the question of its own jurisdiction. Taylor v. Ramsay Co., 139 Md. 113, 124, and cases cited. See also Stanley v. Safe Deposit Co., 87 Md. 450, 454, and 1 Freeman, Judgments (5th ed.), § 350. As was said in Hendrick v. State, 115 Md. 552, 560: "If the lower Court had the right to decide what it did decide, then no question can be made in this Court on the ground of want of jurisdiction, and whether it rightly decided what it did decide can only be reviewed by this Court when the right of review is given it." See also Rayner v. State, 52 Md. 368, 376; Lambros v. Brown, 184 Md. 350; Berlinsky v. Eisenberg, 190 Md. 636; Hamburger v. Standard Lime Etc. Co., 198 Md. 336.
The same rule is applied in habeas corpus cases. A judgment that is a nullity, because the court lacked jurisdiction to render it, may be disregarded, even in a collateral proceeding, but in Loughran v. Warden, 192 Md. 719, 724, it was said "* * * the judgment of a superior court of general jurisdiction, which has power to decide all questions involved in a case before it, including constitutional questions and questions as to its own jurisdiction, is not a nullity * * *." See also Superintendent v. Calman, 203 Md. 414, 420.
Art IV, Sec. 22 of the Constitution provides that the decision of the court in banc "shall be the effective decision in the premises, and conclusive, as against the party at whose motion said points or questions were reserved." In Shueey v. Stoner, 47 Md. 167, 170, it was held that the decision of the court in banc was final upon the question as to the power of the Circuit Court to permit amendment of a petition, praying the appointment of a commission to open a road by the County Commissioners, so as to supply allegations of necessary jurisdictional facts. In Costigin v. Bond, 65 Md. 122, the appeal to this Court was taken by the opposite party, not by the party referring the case to the court in banc. It was held that the appeal to the court in banc had not been taken in time, so that the court had no jurisdiction over the subject matter.
For the reasons stated, we think the appeal must be dismissed. It is unnecessary to pass on the other questions argued.
Appeal dismissed, with costs.