State ex rel. Kirchgessner v. Board of Health

53 N.J.L. 594 | N.J. | 1891

The opinion of the court was delivered by

Knapp, J.

The writ oí mandamus is not oí right. The-allowance of its use rests in judicial discretion. It is rarely issued to a subordinate body or tribunal for the purpose of directing the particular judgment that shall be given by such tribunal, or directing an act to be performed in a specified-manner. It is only so used when the act to be,done is a ministerial one merely, and the duty to perform it in a definite-way is clear. Benedict v. Howell, 10 Vroom 221; Mooney v. Edwards, 22 Id. 479.

The writ which the relator seeks is of this character, and before it can be awarded at his instance he must make it manifest that the duty of respondent in respect to relator’s admission to sign the register provided for is clear and imperative and in its exercise without choice or discretion.

The respondent is a public body with power to pass ordinances respecting the public health.

The parties to this proceeding have treated the ordinance-in question as a valid by-law passed upon sufficient legislative authority. If it were otherwise, the relator could gaire nothing in his suit by a successful attack upon it. The right that he claims has no possible basis without it. The registry system is solely the creature of the ordinance, the provisions-of which are incapable of severance. Evidently the relator’s-standing will pass from him if the system of registry provided by the ordinance be not upheld. If, then, the ordinance does not open to all comers the right to subscribe their names in this registry, but declares and establishes in the board the right and duty of determination and judgment respecting the persons who shall be allowed to record their námes in it, the relator cannot have redress by mandamus, even though the board in passing upon his claim has erred in its conclusion respecting his qualifications and suitableness to be enrolled in the board’s registry.

Mandamus proceeding has not the quality of a writ of error to revise and overturn faulty judgments, and the court will not, and cannot, in this course of law, look into evidence of fact upon which the judgment of the subordinate tribunal was based for the purpose of determining whether the conclusions drawn from it were correctly or incorrectly formed.

It is a fault to have burdened this record with the volume of testimony taken to show, on the one hand, that the corporate body issuing the relator’s diploma was a respectable institution--of medical and surgical instruction, and on the other, to prove that. it was without standing aud entitled to no credit. It is quite obvious, I think, that the court could not in this proceeding, with any propriety, be called upon to consider and decide that question.

If, as relator contends, holding a diploma was the sole requisite ■ in showing his right to sign the registry, then nothing more was needed than proof of the existence of the diploma. It is equally clear that if the facts and opinions furnished appropriate matter for the board to have, considered in forming .a necessary judgment, this court will not here consider such facts and opinions for the purpose of revising such judgment.

The case, as before remarked, must turn upon the question whether, under the ordinance, the admission of relator to enrollment was in anywise within the discretion of the board. Under the ordinance the registry of applicants is' made an incident merely to and conditioned upon the more substantial provision “that no person shall, in Hudson county, pursue the calling or practice the profession of physician ” without first producing the designated diploma or certificate; that is, one eminating from some reputable school or college of medicine and surgery. As a condition precedent to the right to enroll, such certificate must be presented. The ordinance does not provide that a mere form of certificate or diploma issued by any school or college of medicine and surgery will suffice. The requirement is that it be from a reputable school or college.

Are all schools of medicine and surgery reputable? The by-law implies that all are not so. Then, if one from a reputable school or college only will meet the requirement, it besomes a matter to be determined in any given ease in some forum whether the diploma or certificate presented' by the person applying to practice in the county is from a reputable school or college.

The by-law does' not in express terms declare with whom rests the duty of decision in this matter, but it seems quite obvious that, in the absence of other provisions for that purpose, of necessity it is within the body that must act upon it, viz., the board of health, &c. With the duty of decision goes necessarily the. right and duty of inquiry and investigation;

As already stated, if trial and decision be a duty of the board, we cannot in this proceeding hear parties in complaint of the. methods used in such' investigation. y

I conclude it to be quite clear that the board was by this by-law required to examine and decide the question whether the diploma presented was within the requirements of the ordinance, and after having decided, this court cannot by mandamus review the determination and judgment which the board formed, or the evidence upon which it proceeded to its judgment, and on this ground we think the mandamus should be refused.

Another reason is suggested why this mandamus ought not to go that is not without force. An act was passed in 1890 entitled “An act to regulate the practice of medicine and surgery, to license physicians and surgeons and to punish persons violating the provisions thereof.” By this act a board of examiners is created in the state, having the power to-examine and license those desiring to practice medicine and surgery in this state. It requires all persons, after the passage of the act, commencing the practice of medicine and surgery, in any of its branches, in this state, to apply to said board of examiners for license to do so. The board has convenient and frequent meetings for such examinations. It is extremely questionable, to say the least, whether the relator could now or hereafter pursue the calling or profession of physician and surgeon in this state without first obtaining a license from the board so constituted!

We think the writ of mandamus should be refused.