140 P. 743 | Or. | 1914
delivered the opinion of the court.
The defendant is a corporation, organized and existing under the laws of this state, and engaged in conducting a college for the education and training of
The answer denies most of the allegations of the complaint. It admits that the plaintiff paid all tuition and fees. The catalogue of the defendant for 1905-1906, on page 1 thereof, provides that the regular course of instructions in the defendant college for those desiring to obtain a degree is composed of three regular sessions of 32 teaching weeks each, exclusive of vacations and holidays, and that the session for 1905-1906 should begin October 2, 1905, and it states, also, that “students will not be given credit for a full course, when admitted later than 10 days after the opening of the session.”
There seems to be a conflict in the decisions as to whether, in a case of this kind, the person demanding a diploma should proceed by mandamus, or bring a suit in equity for specific performance of contract.
It was held in People ex rel. Cecil v. Bellevue Hospital, 60 Hun, 107 (14 N. Y. Supp. 490), and in State v. Lincoln Medical College, 81 Neb. 533 (116 N. W. 294), 81 Neb. 545 (118 N. W. 122, 17 L. R. A. (N. S.) 930), that mandamus is a proper remedy, while State v. Milwaukee Medical College, 128 Wis. 7 (106 N. W. 116, 116 Am. St. Rep. 21, 8 Ann. Cas. 407, 3 L. R. A. (N. S.) 1115), and other cases, hold that a suit for specific performance is a proper remedy. In this case no question is raised as to the proper remedy, and we will assume that the court has jurisdiction of the matter in controversy, without going into the authorities upon this point.
"The circulars of the respondent indicate the terms upon which students will be received, and the rights which they were to acquire by reason of their compliance with the rules and regulations of the college in respect to qualifications, conduct, etc. When a student matriculates under such circumstances, it is a contract between the college and himself that, if he complies with the terms therein prescribed, he shall have the degree, which is the end to be obtained. This corporation cannot take the money of a student, allow him to remain and waste his time (because it would be a waste of time if he cannot get a degree), and then arbitrarily refuse, when he has completed his term of study, to confer upon him that which they have promised, namely, the degree of doctor of medicine which authorizes him to practice that so-called science. It may be true that this court will not review the discretion of the corporation in the refusal, for any reason*166 or cause, to permit a student to be examined and receive a degree; but where there is an absolute and arbitrary refusal, there is no exercise of discretion.”
In People v. New York H. M. Medical College and Hospital (Sur.), 20 N. Y. Supp. 380, the court says:
“Courts may be versatile, but they must be careful not to infringe upon the discretion vested in excise boards, colleges, or inferior tribunals, nor to substitute its discretion for theirs. The determination by these bodies of any questions within the scope of their jurisdiction is, as it should be, as conclusive and free from control upon mandamus as that exercised by the highest jurisdictions in the country. * * In the present instance, the [defendant] college, in passing on the qualifications of the relator, acted as a quasi judicial body, exercising an ample discretion vested in it by the act under which it was incorporated, and its determination cannot be reversed upon mandamus. * * The relator charges bad faith and ill will upon the part of some of the officials of the college, but these allegations do not alter the underlying fundamental principle which controls. 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."
7 Cyc. 289 says:
“A college or university may, however, refuse a degree to a contumacious student, or to one who has not complied with the conditions required therefor, but it cannot arbitrarily refuse to allow one who has complied with such conditions the right to take the final examination which would entitle him to a degree or deny him a certificate of attendance and that he has satisfactorily passed the final examinations, when the conduct on account of which his degree is denied occurs after final examinations."
We have examined the evidence and the authorities cited in the briefs, and some others, and we are constrained to find that the plaintiff failed to make out a prima facie case. He charges the faculty with misconduct; but fails to swear to it, or prove it.
The notice that the defendant served on him, notifying him that he would not be granted a degree, stated that the faculty (not Dr. Miller) had adjudged that he was not qualified to receive the degree. His grading for the first and second years was very low. He failed to prove that the faculty was guilty of misconduct or bad faith, or that they acted arbitrarily. If the plaintiff had been given, at the last examination, all the credits that he claims he should have been allowed, he would have passed by a very narrow margin. The power to determine whether the plaintiff was entitled to a degree was vested in the faculty of the defendant. They examined him in the various branches taught by the defendant, and required for graduation, and decided, after such examination, that he was not qualified to receive the diploma or the degree, and the college refused to graduate him. In the absence of proof of bad faith, or misconduct or arbitrary action, on the part of the faculty, their decisions cannot be reversed by the court.
The unsworn statement made in the court below by Dr. Miller was not evidence, and we did not consider it.
The decree of the court below is affirmed.
Affirmed.