136 N.Y.S. 428 | N.Y. App. Div. | 1912
In 1901 a license to practice dentistry was issued by the Board, of Regents of the University of the State of New York to the relator. Shortly after receiving such license the relator registered for practice in the county of New York and filed with the clerk of that county an affidavit stating, amongst other things, that before the receiving of such license he had complied with all the preliminary requirements of law as to study and the passing of examinations? The relator had practiced his profession about three years when charges were preferred against him to the Board of Dental Examiners of the State, alleging that he had procured his license to practice dentistry by fraud, and that his affidavit that he had passed the preliminary examinations was false, in that he had procured another to personate him on such examinations, and had adopted as his own the examination papers of such other person. A copy of the charges and notice of the time and place of hearing before the Board of Dental Examiners were served upon the relator, and he appeared in person and by counsel, and made certain preliminary objections which were overruled, and testimony was taken, argument had and briefs submitted. After consideration the Board of Dental Examiners found the charges true, and transmitted to the Board of Regents all the proceedings had before them, with the recommendation that the license of the relator be revoked. • The relator asked for a hearing upon this report and recommendation in person or by counsel before the Board of Regents, which was refused. Without any hearing, and after denying his request to be heard, the Board of Regents revoked relator’s license, and directed it to be canceled.
We would have no hesitancy in confirming the determination of the Board of Regents except for the practice pursued by that Board in refusing a hearing to the relator.
It was competent for the Legislature to vest in the Board of Dental Examiners the right to entertain complaints and hear proof, and the charges were sufficiently pertinent and specific, and the relator’s preliminary objections were properly overruled.
The practicing of fraud in the procuring of a license to practice a profession is immoral” and unprofessional” as that term
It was not necessary that the relator should he prosecuted criminally either for false impersonation or perjury in making his affidavit and his guilt established upon a criminal trial before his license could be revoked by the proper authorities. Power to revoke his license existed with or without conviction of a criminal charge. (Matter of Smith, 10 Wend. 449.) Nor was the introduction of the testimony given in the divorce action in view of the character of the trial and proceeding such ' error as to require reversal of the determination if it were otherwise legal.
Whether or not the relator’s rights were so fully preserved by the hearing which was had before the Board of Dental Examiners, of which he had notice and opportunity to be heard, that the Board of Regents, which alone had the" power of revoking his license, was justified in refusing to hear him further, is a question which has given us much trouble. If the relator upon a proceeding to revoke his license was entitled to a trial as that term is understood in the law, a refusal to give him an opportunity to be heard would be wholly unjustified and clearly nullify any determination which might be made. The difficulty arises in determining the character of the proceeding to revoke a" license granted by the public authorities to an individual to practice a prescribed profession.
One must expend much time and money to prepare himself for the practice of medicine, dentistry and the like. It has long been the law that however great a man’s attainments may be he must obtain a license from the duly constituted .authorities of the State before he can practice such profession, and the propriety and necessity of such a law is not disputed or challenged. While such a license when, once obtained is not, strictly speaking, either a personal or a property right, it partakes in a measure of the nature of both. Notwithstanding the value of such license to the holder, the authorities are unanimous that it can be taken away from him for misconduct or fraud in its procurement through a tribunal other than a duly constituted court, and that his constitutional rights are
This right to a notice and a hearing by all classes of persons to whom licenses to follow various callings may be granted is recognized by the Legislature and is provided for in one way or another by the Public Health Law permitting the issuing and revocation of licenses by particular boards. With respect to
The earliest law with respect to the revocation of licenses of physicians is found in the Revised Statutes of 1828 (Part 1, chap. 14, tit. J). It was there provided that when any charges were preferred to any county medical society against a physician ten days’ published notice should be given of the time and place of hearing before such society, and its action thereon should be transmitted to the district attorney of the county, who should immediately serve a copy upon the accused, together with at least fourteen days’ notice of the time and place of hearing by the judges of the Court of Common Pleas of the county, before whom witnesses should be sworn and a trial had, and by whom judgment of expulsion from the society and a suspension of the right to practice could be rendered.
We have thus adverted to the statutes not only for the purpose of showing their provisions for notice and hearing, but for the purpose of pointing out "what we deem to be defects in the scheme of according complete right to a hearing to the licensee. The Board of Dental Examiners has no right to grant a license to practice dentistry, nor upon its recommendation that a license be granted does the Board of Regents have any power to withhold a license. The statute is that upon such recommendation a license must be granted. Nor does the Board of Dental Examiners have any power to revoke a license. On the contrary, the statute gives it only the power to report to the Board of Regents its conclusion with respect to-the accused. The Board of Regents is not bound to follow such recommendation because the statute expressly says that upon
It was held in People ex rel. De Vries v. Hamilton (84 App. Div. 369) that a deputy county clerk might hear charges against an employee in the clérk’s office, and if such charges were sustained dismiss him; but-he could not, in the absence of express statutory authority, conduct the trial and thereafter turn the evidence taken by him over to the county clerk and leave to the latter the duty to .pass upon its sufficiency in the absence of the accused employee and without notice to him or without giving him any opportunity to be heard before the clerk himself.
The question- involved does not appear to have previously arisen and there is no authority for or against the proposition that the Board of Regents has or has not the right to deny a
We are of opinion that the refusal of the Board of Regents to allow the relator to be heard on the coming in of the report was unauthorized and denied to him a privilege which the law accorded to him.
We are aware that in the city of New York charges against members of the police force are heard before a deputy police commissioner and ultimate judgment passed by the police commissioner himself, and that the determination of the deputy as to guilt, as is held in People ex rel. Garvey v. Partridge (180 N. Y. 237), need not even be in writing. It does not appear in any of the adjudicated cases that the accused was denied a hearing by the police commissioner when sentence was ultimately passed.
Nor are we unmindful of the decision in People ex rel. Lodes v. Department of Health (189 N. Y. 187), holding that a permit to sell milk, granted by the board of health of the city of New York, may be revoked without any notice to or hearing by the licensee. The revocation of the license of a practitioner of medicine or dentistry is quite a different matter from the ordinary action of the board of health of a particular locality where immediate and summary action is necessary to the welfare of the community.
Our conclusion is that the determination of the Board of Regents must be annulled and the proceeding remitted to such Board to the end that a hearing on the evidence taken before the Board of Examiners may be accorded to the relator, without costs, however, of this appeal.
All concurred, except Smith, P. J., and Kellogg, J., dissenting.
Determination of the Board of Regents annulled, without costs, and the proceeding remitted to such Board for a rehearing in accordance with opinion.