208 Mich. 552 | Mich. | 1919
In May, 1918, this plaintiff, as petitioner, presented his petition to this court, sworn to May 3, 1918, praying that a writ of mandamus might issue directed to the defendant board, commanding it to cause a license to be issued to him under sections 3 and 5 of Act No. 338 of the Public Acts of 1907, as amended by Act No. 183 of the Public Acts of 1913 (2 Comp. Laws 1915, §§ 6750, 6752), to practice dentistry in this State. He represented that, in the fall of 1917, desiring to locate and practice his profession in this State, he made such application for an examination as to his proficiency in his profession. He represented that he successfully passed the examination required of him by the defendant board, and that he had never received his license to practice den
An order to show cause why the writ of mandamus should not issue was made, and the board made return and answer thereto. Among other things it was specifically stated in the return of said defendant board that the petitioner had failed to pass his examination on certain subjects, and was not entitled to a license to practice under the laws of the State of Michigan. This return'was not traversed by any plea; and this court, applying the somewhat technical rule of the statute, held that the answer of the defendant board, in the absence of a plea, must be taken as true and conclusive, and for that reason the writ of mandamus was denied. (See 204 Mich. 151.)
In April, 1919, the petitioner presented the petition in the instant proceeding, under section 10 of the said acts, praying to be licensed and registered by the defendant board to practice dentistry and dental surgery in the State of Michigan; that such application was made on the 2d day of April, 1919; and that said application was refused by the defendant board. The return of the defendant board stated, among other things, that the equality of the standards recognized as. a matter of comity between the States of Wisconsin and Michigan pertaining to the practice of dentistry and the reciprocal issue of licenses was regulated between the dental boards of the two States under a contract for the purpose of effecting a mutual understanding, executed by their respective dental boards, and a true copy of such contract, called a “reciprocity contract,” was set forth in said answer in full. The return averred that the said contract was on file and a part of the records of the defendant board, and had been in operation between the two States since the 29th day of May, 1917, the date of its execution, and was still in force; that it constituted
Upon the filing of said return, the plaintiff and petitioner filed a plea, in which every substantial allegation of fact contained in said answer was denied,
“Whenever a return shall be made to any such writ, the person prosecuting the same may plead to all, or any of the material facts contained in said return; and such issue of fact thus joined, shall be determined as in other cases: Provided, That all material facts stated in said return, that are not specifically denied by the plea, shall be taken as admitted to be true. In case no plea is filed to such return the cause shall stand for hearing upon the petition and return. Such issue of fact shall be tried in the county within which the material facts are alleged to have taken place.”
In referring to the statute which has been merged into the present statute, Justice Campbell, speaking for the court, in Township of Roscommon v. Midland Supervisors, 49 Mich. 454, 457, said that its provisions relate to cases where the writ of mandamus had been issued in the first place, and a return had been made to it under which issues were made of fact or law; but he goes on to state that substantially the same practice obtained where an order to show cause had been made, and a return filed thereto. Formerly in this State in mandamus cases the only pleadings contemplated were the relator’s petition and the respondent’s answer or return; and if the relator desired to 'controvert the facts stated in the answer issues were formed under the direction of the court. See Lewis v. Detroit Board of Education, 139 Mich. 306.
Under the present practice this issue is now formed
Another difficulty that confronts us with the present record is that we are asked by the defendant board to consider numerous ex parte affidavits in support of the return of the board, but filed four or five months after such return was. filed. It has been held in this State that affidavits of others than the defendant, attached even to the return, are properly no part thereof. See 2 Stevens’ Michigan Practice, p. 407, and Michigan cases there cited. This is an additional reason why testimony should be taken in this case. We have here presented the anomalous condition of square issues of fact, without any evidence upon the subjects.
A perusal of the pleadings, so-called, makes clear the issues formed by the plea. We think it our duty,