The opinion
Brown, J.
(dissenting in part). — I concur in the very persuasive majority opinion on all questions of substantive law. But I must dissent in part to that portion of the opinion dealing with the adjective law of the case.
This is a case of original jurisdiction. The Supreme Court is primarily an appellate court, but our Constitution vests this Court with original jurisdiction in cases properly based upon certain common-law writs, mandamus, certiorari, prohibition, quo warranto and habeas corpus, and also all writs necessary to the complete exercise of its jurisdiction; and we have long held that the jurisdiction thus vested in this Court, as*to such named common-law writs,
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was the jurisdiction attaching to those writs at common law, and that the Legislature cannot take away any part of the common-law power thus vested in this Court by the Constitution.
Now it appears that at common law, as it existed on and prior to July 4, 1776 (See Sec. 87, C. G. L.), the writ of mandamus, unlike the writ of prohibition, might be directed, not only to some inferior court, but also to an officer, or official body, whether judicial, administrative or ministerial, or to a corporation, requiring the performance of some legal duty, while the writ of
prohibition
was only used to prevent the exercise by an inferior
judicial tribunal
of jurisdiction not within its cognizance, or from exceeding its jurisdiction in matters of which it had cognizance, and could not be resorted to when there was some other adequate remedy. See 3 Blackstone Com. 112; 50 C. J. 654. In many of the States, statutes and judicial decisions have extended the scope of the writ (50 C. J. 675), but that has not been attempted in this State, at least insofar as this Court’s powers are concerned.
It is true that it has been said that prohibition is, in a sense, the “counter-part of mandamus” in that it prevents, while mandamus compels, action; but this word, “counterpart,” merely illustrates the
operation
of the writ of prohibition when used in a proper case, and is not intended to enlarge or add to the class of cases in which resort to the remedy may be had. 50 C. J. 656.
Can this Court properly hold that the common-law writ of prohibition, when issued by this Court, may be extended so as to control the action of executive or administrative boards' (50 C. J. 676 ; 48 C. J. 1097), especially where, as here, the statute provides a remedy for the prompt review by the Circuit Court of such action? Undoubtedly great
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enlargement of the writ has been allowed in some States, and denied in others. But here we are dealing with the common-law scope of the writ, which, when issued from this Court, not even the Legislature can narrow or widen.
The question is, shall this Court, following the statute of 1829, now Section 87 of the Comp. Gen. Laws, adopting the common law of England down to July 4, 1776, measure the scope of the writ by the common law as it existed on July 4, 1776, or as it existed when the Constitution of 1885, was adopted ? If the latter date should constitute the bases of measurement, and if the common law that existed when our present Constitution was adopted should be determined by the prevailing trend of judicial decisions in the various States of this Union at that time, then perhaps the writ might lie against executive or administrative boards when exercising quasi-judicial powers, not to correct mere errors of procedure, but to prevent such boards from acting without, or in excess of, their lawful powers. But what constitutes' quasi-judicial power has been, and still is, the subject of various and conflicting opinions by the Court. 50 C. J. 675; 16 Encyc. Pldg. & Prac., 1102-1107; 22 R. C. L. 17-18.
I do not recall that this exact question has hitherto been presented to this Court, but the following cases have a bearing upon the questions above referred to: State,
ex rel.
Chapman, v. State Board of Medical Examiners (Minn.), 26 N. W. 123 ; People v. Apfelbaum (Ill.), 95 N. E. 995 ; Board of Medical Examiners v. Shotridge (N. D.), 207 N. W. 442 ; Jamieson v. State Board of Medical Examiners (Okla.), 130 Pac. 923 ; State,
ex rel.
Swearingen, v. R. R. Commissioners, 79 Fla. 526 , 84 Sou. 445 ; Sherlock v. City of Jacksonville, 17 Fla. 93 ; State v. Goodier (Mo.), 93 S. W. 928 ; Curtis v. Albritton, 101 Fla. 853 , 132 So.
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677; Tullidge v. Driskell, 117 Fla. 717 , 158 So. 277 ; Palmer v. Johnson, 97 Fla. 479 , 121 So. 466 .
The Legislature can, under Section 1 of Article V of the Constitution, confer judicial power upon “courts and commissions,” but is the State Board of Medical Examiners a commission? And in view of the separation of powers provided for in Art. II of our Constitution, can the Legislature confer judicial power, strictly speaking, upon merely administrative or executive boards created in the exercise of the police power of the State for the purpose of enforcing some policy adopted by the Legislature for the regulation of certain professions or business enterprises? The statutory authority to exercise a quasi-judicial power by such boards does' not transform them into genuine judicial tribunals; though, according to the apparent weight of authority, it may bring them within the reach of the writ of prohibition.
Assuming that a proceeding before the State Board of Medical Examiners, to determine the question of whether a physician’s license should be revoked, is one which involves the exercise of quasi-judicial power by an administrative board, as I think it does, yet the Board, having primary authority over that particular subject matter, and the physician having been duly notified and given an opportunity to be heard, as here, writ of prohibition would not lie to prevent the exercise of that jurisdiction merely because of procedural errors in the proceedings which do not go to the jurisdiction of that body to rule on the general question involved, however erroneous its ruling might be. It is well settled that the jurisdiction to decide necessarily carries with it the power to decide erroneously. And, as pointed out by this Court in the Whitman case, the sufficiency of the written charges before such a board, on
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which trial is had, are not to he measured by the technical niceties which obtain in law courts. Thus we have held that cases may be tried in municipal courts upon mere brief docket entries of the charges made, without denying due process of law. Wright v. Worth, 83 Fla. 204 , 91 So. 87 ; State v. Drumright, 116 Fla. 496 , 156 So. 721 . But due process of law requires that the charge made shall be sufficiently specific to give the person charged reasonable notice of just what he is charged with, so that he may be able to intelligently defend against it. However, where the charges as framed are merely defective or demurrable, prohibition will not lie, even against a judicial tribunal which was vested with jurisdiction of the subject matter and the parties, much less against an administrative board. Errors can be corrected, in cases of this particular kind, by certiorari, or trial
de nova
in the Circuit Court, as provided by the statute. Even in habeas corpus, a petitioner will not be released unless the warrant or indictment under which he is held wholly fails to charge any criminal offense. So here, inasmuch as the writ of prohibition goes only to matters of jurisdiction, and as the charges as framed (or at least one of them) do not wholly fail to state a ground for revocation of license, I am not convinced that the writ of prohibition should issue. Adequate remedies for judicial review of the Board’s action are provided by statute, and if the Board does have jurisdiction to proceed, we should not grant the writ merely because an erroneous decision by such Board is anticipated by the relator. If the possibility of an erroneous decision gave ground for the issuance of the writ, it would lie in all cases and against any sort of board. None are infallible. Perhaps if the relator had interposed the same objections before the State Board as he has here,
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they might have sustained them, and resort to court action would not have been necessary.
The following excerpts quoted from the text on pages 676 to 681, of 50 C. J., give what I conceive to be a fair statement of applicable legal principles in line with our own prior decisions:
“Prohibition does not lie to correct or restrict errors or irregularities of a tribunal which is acting within its jurisdiction, although proceeding improperly in the exercise of that jurisdiction. The remedy cannot be used to supersede the ordinary functions of an appeal or writ of error, except as it may be permitted by statute. Where the inferior court or tribunal has jurisdiction of the person and subject matter, prohibition does not lie to prevent an erroneous decision, or to prevent the-enforcement of an erroneous judgment. Where the existence of jurisdiction depends on controverted facts which the inferior court or tribunal is competent to determine, prohibition does not lie, even though the lower tribunal may in such case err in its determination of the question.”
“Under the general rule that prohibition will not lie for the correction of errors or irregularities committed by an inferior tribunal acting within its jurisdiction, the writ has frequently been refused when sought for such purpose in criminal or quasi-criminal proceedings, as for example on-the ground that the information, indictment, or complaint is insufficient to charge an offense, that defendant has been before in jeopardy, that accused was refused a preliminary examination, that accused was bound over for trial in another court, that rulings on motion to set aside an indictment were erroneous, that motion to dismiss was improperly overruled.”
*577
“A writ of prohibition will not ordinarily issue in anticipation of the action of an inferior tribunal where it has jurisdiction over the subject matter, and it will not be assumed that the tribunal will exceed its jurisdiction or rule erroneously with respect thereto. So before prohibition will lie upon the ground of lack of jurisdiction the court below must have so ruled as to make manifest a claim of jurisdiction.”
For these reasons, I think that the writ of prohibition was not available as a remedy in this case.