
    In the Matter of Denis J. Lees, Respondent, against Francis T. Spaulding, as Commissioner of Education of the State of New York, Appellant.
    Third Department,
    December 29, 1949.
    
      
      Charles A. Brind and Elisabeth M. Eastman for appellant.
    
      C. Everts Mangan and Herbert A. Einhorn for respondent.
    
      Gerald H. Chambers and C. Everts Mangan for Accountants’ Association of New York, Inc., amicus curiae.
    
   Santry, J.

The petitioner, on the 9th day of May, 1947, presented to the State Education Department an application for the issuance to him, without examination, of a Certified Public Accountant’s Certificate, pursuant to section 1492 of the Education Law, as amended by chapter 340 of the Laws of 1947.. The- application was considered by the State Board of Certified Public Accountant Examiners, and denied on the ground ‘ ‘ that the record as submitted by you does not satisfy them that your experience as offered meets the requirements of the statute.” From this decision of the board the petitioner appealed for a review to the Commissioner of Education. The commissioner dismissed the appeal on the grounds, as stated in the order of dismissal, that the petitioner “ has not met the requirements of chapter 340 of the Laws of 1947 for the reason he has not had 15 years of public accounting experience. Since this requirement has not been met, it is unnecessary to give consideration to his record in respect to diversification of accounting experience.”

Prior to 1947, section 1492 of the Education Law provided that a certificate of public accountant was to be issued only to a person who submitted satisfactory evidence of the possession of academic and professional qualifications for the public practice of accounting and who passed the examination requirement by the Department of Education. By chapter 340 of the Laws of 1947, the statute was amended by the adoption of the following provisions: provided, however, that in lieu of the requirements as to education and examination herein the department may accept, in the case of applicants who have reached the age of forty years, evidence of fifteen years ’ experience in the intensive application of accountancy principles and auditing procedures satisfactory to the state board of certified public accountant examiners, subject to review by the commissioner of education".

The respondent’s application for a certificate was made pursuant to the provisions of the amendment. His application was denied by the board of examiners and he appealed to the commissioner for a review of the board’s action as provided by the amended statute. The sole question involved in this appeal is whether the respondent received, at the hands of the commissioner, the review to which he was entitled under the provisions of the statute.

The amended statute authorized the granting of a certificate to a person who presented evidence satisfactory to the board of examiners of “ fifteen years’ experience in the intensive application of accountancy principles and auditing procedures ”. The board of examiners denied the petitioner’s application because in its judgment his experience did not meet the requirements of the statute, but when the commissioner dismissed the petitioner’s application for review, he did so not because of a failure to meet the requirements of the statute, but upon the express ground that the petitioner did not have “ 15 years of public accounting experience ’ ’, and in his decision the commissioner specifically stated that in view of the lack of such public accounting experience, it was unnecessary to consider the petitioner’s record in respect to diversification of accounting experience.

The petitioner was entitled to have his right to a certificate determined on the basis of the qualifications specified by the Legislature in the amendment to the statute. Public accounting experience was not a qualification so specified, and the commissioner had no power or authority to write it into the law.

The petitioner was entitled to a review based on his experience in the intensive application of accounting principles and auditing procedures, as provided by statute. The dismissal of his application, specifically stated to have been based on his lack of a qualification which was not required by the statute, constituted a denial of the review to which he was entitled.

The order appealed from should be affirmed, with costs.

Bergan, J.

(dissenting). The statutory standard in New York for the issuance of the certificate of a certified public accountant is based on a long and comprehensive examination with a background of full high school and college courses and three years of diversified accounting experience.

A statutory amendment (L. 1947, ch. 340) permitted the Education Department to issue certificates “ in lieu of the requirements as to education and examination,” where the applicant was forty years old and gave evidence of fifteen years’ experience in intensive application of accountancy principles and auditing procedures satisfactory to the State Board of Certified Public Accountant Examiners subject to review by the Commissioner of Education.

This statute was one of permissive waiver. The department ‘ ‘ may accept ’ ’ the stated experience instead of an examination and formal education. These are not mandatory directions to the department; they are minimal conditions upon which the permissive power could be based.

The permission could be accompanied by any higher standards which the department considered necessary to prevent breaking through the high level of competency and responsibility attaching to this profession in New York. It was upon assurance of the Department of Education that the permissive powers granted would be so exercised that the Governor approved this statute. (See memorandum of approval, L. 1947, ch. 340; McKinney’s Education Law, Book 16, part 2, p. 491.)

It is well within the scope of this discretionary power to decline to exercise it unless the applicant has fifteen years of public accounting experience. The condition is entirely reasonable, and the approval on review by the commissioner of the determination of the board of examiners on this ground alone presents no justiciable question.

The discretion is not given to the court; it is given to the department and certainly the favorable exercise of its permissive power cannot be compelled because an applicant may show he has met the minimum standard set up by the statute.

Besides this, the statute vests in the board of examiners the power to determine whether the experience offered in lieu of the usual standard is “ satisfactory The board was not satisfied with petitioner’s qualifications. This was within the frame of the board’s powers and nothing in the papers presented to the Special Term by the petitioner gives any suggestion that in his case he showed the board that his qualifications were such that the board must have accepted them or that the court could require the board to accept them.

On the review by the Commissioner of Education, the appeal was dismissed. Even if it be assumed that the reasons given by the commissioner in dismissing the appeal were untenable or insufficient, if the departmental determination which he considered on appeal to him was well grounded, the dismissal of the appeal was proper whether the reasons stated were right or wrong. This is the view commonly taken by courts of appeals from judicial decisions. But, as it has been seen, the reasons given by the commissioner were well within the power of the department.

The order should be reversed and the determination of the Commissioner of Education confirmed.

Brewster and Deyo, JJ., concur with Santry, J.; Bergan, J., dissents, in a memorandum, in which Heefernan, J. P., concurs.

Order affirmed, with $10 costs. 
      
       Since repealed by L. 1948, ch. 629, § 1, eff. March 30, 1948.— [Rep.
     