83 N.E.2d 648 | Ohio Ct. App. | 1948
This is an appeal on questions of law from a judgment of the Court of Common Pleas affirming an order of the State Medical Board, appellee herein, denying the plaintiff, appellant herein, a license to practice mechanotherapy, a limited branch of medicine. The ground for the refusal was that the plaintiff failed to make the required grade.
The first error assigned is that the court erred in holding that the plaintiff had not passed the examination required by statute. The record discloses that plaintiff submitted to two examinations. One was given by four doctors of medicine and one doctor of osteopathy, all being members of the State Medical Board. That examination covered the subjects of anatomy, physiology, chemistry, diagnosis and pathology. *317 The grade received in that examination was 55.8. The other examination was given by Harry F. Gleim, a mechanotherapist of established reputation and known ability, who was designated by the board to conduct such examination. This examination resulted in a grade of 77.5. The plaintiff was notified that he failed to pass the examination by reason of his grades in the "basic branches," and that his application for a license was denied. Plaintiff is contending that the examination in the "basic branches" by the members of the board was not authorized by law, and that, since he passed the examination conducted by Harry F. Gleim, the license should be granted to him. The statutes relating to the limited practice of medicine and surgery are Sections 1274-1 to 1274-7, General Code.
Section 1274-1 provides that the State Medical Board shall establish rules and regulations governing mechanotherapy and shall examine persons desiring to practice in such limited branch of medicine.
Section 1274-2, General Code, provides as follows:
"For the purpose of establishing the practice of such limited branches the State Medical Board shall call to its aid the designated persons as provided in Section 1274-3 of the General Code, and such designated persons shall examine any person who has practiced any such branch in Ohio for a period of at least one year prior to June first, 1915, and who makes application prior to October first, 1915, on a form prescribed by the board in those subjects only which are appropriate to the limited branch of medicine or surgery, for a certificate to practice which his application is made. * * * The examination of all applicants shall be conducted under rules prescribed by the board and at such times and places as the board may determine. Such examination shall be given in anatomy, *318 physiology, chemistry, bacteriology, pathology, hygiene, diagnosis, and in such other subjects appropriate to the limited branches of medicine or surgery, certificate to practice which is applied for, as the board may require * * *."
Section 1274-3 provides as follows:
"For the purpose of conducting such examinations the State Medical Board shall call to its aid any person * * * of established reputation and known ability in the particular limited branch in which the examination is being held * * *."
We are of the opinion that the purpose of the General Assembly was to have the examination, in the subjects appropriate to the limited practice, conducted by a person of established reputation and known ability in the particular limited branch in which the examination is held, and that the examination in the basic subjects shall be conducted by the board under rules prescribed by it pursuant to the authority of Section 1274-1, which provides that "the State Medical Board shall also examine and register persons desiring to practice any limited branch or branches of medicine or surgery, and shall establish rules and regulations governing such limited practice."
The record discloses that the following rule was adopted by the board:
"The applicant for a license to practice mechanotherapy shall after submission and approval of his preliminary and professional credentials pass a licensing examination conducted by the State Medical Board in the subjects of anatomy, physiology, chemistry, bacteriology, pathology, hygiene and diagnosis, and before a special committee of licensed mechanotherapists appointed by the State Medical Board an examination in practice, symptomatology, diagnosis *319 and therapeutics as applied to the practice of mechanotherapy * * *."
It seems to be the position of plaintiff that where the statute says that the board shall call the mechanotherapists to its aid this means that it shall turn the complete conduct of such examination to the person so called. With this contention we cannot agree. If the General Assembly had intended such a procedure, it could easily have so stated, but that body used the phrase, "call to its aid," and it did not say that the person so called should be substituted for the board. "Aid" is defined by Webster as follows, "to help; to further. Syn. — One who * * * promotes or helps in something done."
It is a cardinal rule of statutory construction that where a word of common use is employed, and it is not technical in nature, such word will, unless a contrary sense is specifically expressed, be deemed to have been used in its ordinary sense. It is our conclusion that it was the intention of the General Assembly that the examination in general subjects should be conducted by persons especially qualified therein, to wit, the State Medical Board, and to have the examination in the special subjects also conducted by specially qualified persons. This is what the board did and its actions met the legislative requirements.
The next error assigned is that the court erred in sustaining the constitutionality of the board's order. It is contended that the examinations given to plaintiff were not reasonably appropriate to the purpose; that they constituted an "overexamination."
This question has been passed upon by our Supreme Court in the case of Williams v. Scudder,
"The act of the General Assembly, passed April 27, *320 1915 (106 O.L., 202-204), now Sections 1274-1 to 1274-7, General Code, further regulating the practice of medicine and surgery by authorizing the examination and registration of practitioners in the limited branches thereof, is a constitutional and valid exercise of legislative power."
We therefore hold that there was no error in this assignment.
The next error assigned is that the board abused its discretion in grading the papers of the plaintiff, such contention being based on the statement that the board had no "approved solution to the questions." There is no evidence in the record of any nature showing that the questions were improperly, arbitrarily or capriciously graded. We cannot substitute our judgment on these questions and answers for that of the board. The principle is well stated in the case of People, ex rel. Jones, v. New YorkHomeopathic Medical College and Hospital, 20 N.Y. Supp., 379, wherein it is said:
"The court cannot re-examine the relator as to his qualifications to practice medicine, nor go over the studies in which he is said to be deficient. If it attempted to do so, the relator's road would be easy, for, with his experience, imperfect though it may be, he would no doubt pass a better medical examination than any court could be expected to give him. The law wisely intended no such result. It leaves the subject where it belongs — with those qualified to master it."
We find no prejudicial error in the record, and the judgment is affirmed.
Judgment affirmed.
WISEMAN, P.J., and HORNBECK, J., concur. *321