People ex rel. Scott v. Reid

119 N.Y.S. 866 | N.Y. App. Div. | 1909

Laughlin, J.:

On the 8th day of October, 1907, the relator filed an application in writing with the Board of Regents of the State of New York for a license to practice osteopathy in the city of New York. The application consisted of a verified petition and a certificate of character signed by two practitioners of osteopathy ; and he inclosed therewith a photograph of himself and a diploma from the Old Physip Medical College, department of osteopathy, and a check for ten dollars for the license fee. The petition was apparently on a blank application furnished by the Board of Regents for that purpose,) and it was therein stated, among other things, in answer to questions, that on the 4th day of January, 1907, he received the degree of D. 0., meaning Doctor of Osteopathy, from the Old Physio Medical College, department of osteopathy, and that this college was incorporated under the laws of the State of West Virginia, but that the’college was in the city of New York; that it was in good standing as a college of osteopathy ; that he attended lectures-on osteopathy, at this college during all- the months of the years 1905 and 1906, excepting July and August. Thereafter he received a communication from one Wheelock, chief of the examination division of the Department of Education of the State, under date of October 17, 1907, returning his check, and stating that the “ Old Physio Medical College,” of which the relator in his application stated that he was a graduate, “ is not considered by us a regular organized school of osteopathy under-the statute.”

The application was based on section 14 of chapter 344 of the Laws of 1907 (now section 173 of the Public Health Law, chapter 45 of the Consolidated Laws, Laws of '1909, chapter 49), which, so far as material, provided as follows: “ It is further provided that any person who shall be actively engaged in the practice- of osteopathy in the State of New York on the date of the passage of this act, and who shall present to the Board of Regénts satisfactory evidence that he is a graduate in good standing of a regularly conducted school or college of osteopathy within the United States which at the time of his or her graduation required a course of study of two years or longer, including the subjects of anatomy, physiology, pathology, hygiene, chemistry, obstetrics, diagnosis and the theory and practice of osteopathy, with actual attendance of not less than twenty monthsj which facti shall be shown by his or her diploma and affidavit, shall upon application and payment of ten dollars be granted, without examination, a license to practice osteopathy, provided application for such license be made within six months after the passage of this act.”

It appears by affidavits in opposition to the petition for the writ, among other things, that this college in which the relator studied osteopathy and from which he was graduated and received his degree was not incorporated under the laws of this State and has not been given permission by the Regents of the University of the State of Hew York to transact business under the name “ Old Physio Medical College ” or to assume the name “ college ” or to confer diplomas or degrees pursuant to the provisions of section 33 of the University Law (Laws of 1892, chap. 378, as amd. by Laws of 1895, chap. 859; now § 1104 of the Education Law, which is chap. 16 of the Consolidated Laws, Laws of 1909, chap. 21); that this college is a stock corporation• organized under the laws of the State of West Virginia with authority to teach, among other things, osteopathy and to confer degrees therefor, and that it has not obtained a certificate from the Secretary of State pursuant to the provisions of section 15 of the General Corporation Law (Gen. Laws, chap. 35 ; Laws of 1892, chap. 687, as amd. by Laws of 1904, chap. 490; now chap. 23 of the Consolidated Laws, Laws of 1909, chap. 28) authorizing it to do business within this State. It thus appears that the relator is a graduate of a college which teaches osteopathy incorporated under the laws of a sister State, but having its college within this State, and conducting it within our jurisdiction in violation of two statutes enacted by the Legislature of this State. Hot-withstanding these facts the learned .counsel for the relator contends that the evidence presented should have been deemed satisfactory by the Board of Regents that the relator “ is a graduate in good standing of a regularly conducted school or college of osteopathy-within the United States.” Many immaterial issues are presented by the application and answering affidavits, and the relator claims the right in any event to an alternative writ for the purpose of having the uncontroverted question of fact determined as to whether or not he is a graduate in good standing of a regularly conducted college or school of osteopathy within the United States,

We are of the opinion that the uncontro verted evidence makes the question as to whether this was a school or college regularly conducted within the purview of the statute, one of law. It is not controverted that the college is a stock corporation, incorporated under the laws of the State of West Virginia, with capital stock of the par value of $25,000; that its college is in the city of Bew York, and that it has not received authority from the Secretary of State or from the Begents of the University of the State to conduct its college within this State. These are. the facts which we regard as inaterial and, as matter of law, they, in our opinion, sustain the action of the Begents of the University of the State. The Legislature evidently intended to provide for licensing osteopaths who' are graduates in good standing of a school or college of osteopathy duly organized, existing and conducted under the laws of any State or territory within the United States, but it was not intended to provide that graduates of schools or colleges, of osteopathy conducted within the United States, but without the. sanction of the laws of the State in which they are conducted which is presumed to provide for proper supervision, should be licensed to practice osteopathy. Surely the Legislature did not intend to recognize a school or college which was being conducted in violation of the laws of this State, nor did it intend to recognize a school or college conducted in any. other State or territory in violation of the laws of that State or- territory. It will not do to give to the words “regularly conducted school or college” the limited meaning for which the learned counsel for the relator contends, viz., that they have reference only to the regularity of the. sessions and continuity of the course of study at the school or college. The word “regularly,” as used in legal proceedings and statutes, has a much broader meaning and is ordinarily used in the sense of “ duly,” which means “ lawfully ” or “ legally ” (24 Am. & Eng. Ency. of Law [2d ed.], 243; 10 id. 315), and such, we think, is the meaning that the Legislature intended by the use of those words in the provision of the statute quoted. The relator, therefore, was not entitled either to a peremptory or to an alternative writ of mandamus.

We are of opinion, however, that the learned court placed the denial of- the application on an erroneous ground.

It appears that the motion was denied on the ground that certiprari and not mandamus is the proper remedy. If the relator were entitled to any relief in the premises, we think that mandamus and. not certiorari would , be the proper remedy. The action of the Regents of the University of the State, in considering and denying an application for a license to practice osteopathy under this statute, is not judicial in the sense that it may be reviewed by a writ of certiorari, but its nature is executive, administrative or ministerial in the sense in which those terms are used by the courts in determining whether official -action is reviewable by certiorari or by mandamus or whether there may be any review at all. (People ex rel. Kennedy v. Brady, 166 N. Y. 44; People ex rel. Schau v. Mc Williams, 185 id. 92; Matter of Walker v. Maxwell, 68 App. Div. 196; People ex rel. McNulty v. Maxwell, 123 id. 591; Matter of North American Mercantile Agency Co., 124 id. 657; People ex rel. Empire City T. Club v. State R. Com., 190 N. Y. 31. See, also, Matter of Bandel v. Dept. of Health, 193 id. 133; People ex rel. Lodes v. Dept. of Health, 189 id. 187; People ex rel. Wooster v. Maher, 141 id. 330; People ex rel. Harris v. Commissioners, 149 id. 26.)

It follows, therefore, that the order should be affirmed, with ten dollars costs and disbursements.

Ingraham, McLaughlin, Clarke and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.