| N.J. | Jun 15, 1891
The opinion of the court was delivered by
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-
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
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
We think the writ of mandamus should be refused.