
    State of Ohio ex rel. Hygea Medical College v. Coleman et al., as the Ohio State Board of Medical Registration and Examinations.
    
      Writ of mandamus — Will not issue to compel State Registration Medical Board— To recognize college as medical institution in good standing — Nor compel board to issue certificates to holders of diplomas.
    
    The writ of mandamus will not issue, on the relation of a medical college, to compel the State Board of Medical Registration and Examination to recognize the college as a medical institution in good standing, nor to compel the board to issue certificates to practice medicine in this state, to holders of diplomas from such college.
    (Decided March 26, 1901.)
    Mandamus.
    This action is brought to compel the State Board of Medical Registration and Examinations to recognize the relator as a “legally chartered medical institution in good standing,” and to issue to its graduates who may hereafter apply to the Board for that purpose, certificates authorizing them to engage in the practice of medicine in this state. The petition is as follows:
    “The plaintiff says: That the defendants constitute the Ohio State Board of Medical Registration and Examination, under the provisions of section 4403, Revised Statutes of Ohio, as amended February 27, 1896, 92 Ohio Laws, page 44.
    “1. Plaintiff further says that the relator was duly incorporated under the laws of the said state of Ohio, on the 4th day of October, 1893, as a medical college, at Cincinnati, Ohio, and thereafter at once fully perfected its organization, acquired property, and on the 6th day of November, 1893, its trustees filed in the office of the secretary of state of Ohio, a schedule of the kind and value of a part of its property in value over five thousand dollars ($5,000), which schedule was verified by the oaths of its trustees,- and thereupon said trustees appointed a .president, professors, tutors, and other agents and officers, as provided in section 3726, Revised Statutes of Ohio, which was then and is now, as follows:
    “Sec. 3726. ‘The trustees of a college, university, or other institution of learning incorporated for the purpose of promoting education, religion, morality, or the fine arts, which has acquired reál or personal property of the value of five thousand dollars, and which has filed in the office of the secretary of state a schedule of the kind and value of such property, verified by the oaths of the trustees, may appoint a president, professors, and tutors, and any other necessary agents and officers, and fix the compensation of each, and may enact such by-laws, not inconsistent with the laws of this state or of the United States, for the government of the institution, and for conducting the affairs of the corporation, as they may deem necessary ; and may, on the recommendation of the faculty, confer all such degrees and honors as are conferred by colleges and universities of the United States, and such others having reference to the course of study, and the accomplishments of the student as they may deem proper.’
    “That thereupon this relator became vested with the certain rights granted in said section, and has sought to enjoy the same ever since as it lawfully might. That among said vested rights is the right to carry on a medical college; and the right to grant diplomas to, and confer the degree of doctors of medicine upon its regular graduates; and the right to enter into various contracts necessary and proper for such purposes, which said relator has done. That said law of February 1896, 92 O. L., 44 [Sec. 4403c. Rev. Stat.], under which said board was organized required a graduate of medicine, or surgery, before practicing either, to present his diploma to said board Tor verification.’ That said law further provided ‘accompanying such diploma the applicant shall file his affidavit, duly attested, stating that the applicant is the person named in the diploma and is the lawful possessor of the same, and giving his age and the time spent in the study of medicine. If the board shall find the diploma to be genuine, and from a legally chartered medical institution in good standing, as determined by the board, and the person named therein be the person holding and presenting the same, the board shall issue its certificate to that effect, signed by its president and secretary.’ That the provision of said law ‘in good standing as determined by the board’ ‘gives to said board an unlimited power and discretion by adverse action to render totally useless and valueless the valuable franchises granted by the state to this relator, which impairs and destroys its vested rights aforesaid, imposes new and unreasonable burdens upon it, puts within the uncontrolled power of said board, without the right of appeal to this relator, its very existence, and is, therefore, in this particular in conflict with section 28, article 2 of the constitution of Ohio as being retroactive, and impairing the obligation of contracts; and in conflict with section 10, article 1 of the constitution of the United States, and also the fifth and fourteenth amendments thereto, as impairing the obligation of contracts and depriving the relator of its property without due process of law.
    “2. Plaintiff further says that said lav7 of February 27, 1896, recognized all schools of medicine then existing in this state, of which this relator was one, and provided for their proportionate representation on said board, but that this relator was ignored in the formation of said board, because of the unreasonable antagonism and prejudice against it, as a new school of medicine, by the older school followers, and graduates, who secured all the appointments thereon, as was arranged by them while the law was pending, and before its final passage. That this relator was organized, and has been conducted as, in effect, a new school of medicine, along progressive, modern, and logical lines of thought, involving in brief, the treatment of diseases by the use primarily of strictly hygienic measures, and discouraging and minimizing the use of drugs, especially those of a poisonous character, although fully teaching in the regular way their uses and abuses, and in this it was, and is, the only school of its kind in Ohio, and has received at the hands of other schools and their graduates and adherents, the usual unfair, one-sided, and sometimes malicious treatment accorded a new school, by those that are older, and established upon different lines of thought and practice. That the members of said board are adherents and graduates of other schools of medicine, and are not free from the prevailing prejudice existing among them against this relator as a new school, and that the president of said board has been especially hostile, illiberal, and arbitrary towards this relator, without cause therefor.
    
      “That the first session of this relator commenced on the 4th day of January, 1894, and that regular sessions have been held each year since up to the time of the first adverse action of said board hereinafter set forth, and since then in all classes having students in attendance. That in length of sessions, number of years for graduation, curriculum, equipment, entrance qualifications, final examinations, recommendation of faculty to graduate, and in all other essential matters connected with the conduct of a medical college, this relator has always conformed to the law, 'the practice of reputable medical colleges in Ohio, and the suggestions of the American Association of Medical Colleges of the United States. That its students have been fully and carefully prepared and instructed in all the branches of medical study, by able and competent professors and teachers, with facilities ample for that purpose, and have been given diplomas only when thoroughly qualified for the responsible duties of doctors of medicine, and that this relator is now, and since its first incorporation has been, ‘a legally chartered medical institution in good standing’ in this state.
    “That said board in 1896 adopted resolutions defining what medical colleges .must teach in order that they might be recognized by the board as fin good standing,’ and that this relator has at all times taught its students all and more than the terms of said resolutions expressed, and in every respect has not been deficient thereunder. That full information of the work and purposes of this relator have been from time to time furnished said board, and that nothing has been misrepresented or concealed. That since 1896 the faculty of the relator has been composed of reputable physicians, in-active practice, duly registered by said board, except as to a small minority thereof who resided in Kentucky and Indiana, who- were reputable, in full practice, and registered in their respective states. That the board of trustees of the relator are well known business men in Cincinnati, who have confidence from actual experience in the school of medicine adopted by the relator, as said defendants have been repeatedly informed. That said defendant board has never made a full, careful, and impartial investigation of this relator, has never by committee or otherwise attended any of its lectures, but has simply contended itself with a show of fairness to cover a tacitly predetermined adverse decision. That in the summer of 1896 said board examined under oath certain of the then faculty of this relator, whose testimony clearly affirmed its good character, and plainly described its policy .as a school. That at about the same time said board appointed a committee of Cincinnati physicians, not on said board, to examine and report upon the equipment of this relator, and that said committee did examine the same, and reported the relator as well equipped for a small college. That this plaintiff is informed and believes the members of the board at the same time, and at other times, did covertly and secretly, without notice to, or the knowledge of this relator, interview and examine other witnesses as to the character of this relator, who were prejudiced against it, thus depriving the relator of the opportunity to know and rebut the evidence against it. That after this hearing the board decided that this relator was not a 1 legally chartered medical institution in good standing,’ and so notified it, whereupon the relator requested said board to specify in what particulars it was deficient, which specifications the board declined to give. That said board has never given this relator a fair hearing with knowledge of what was claimed against it, nor an opportunity to hear, know, and rebut, evidence adverse to it, nor has said board ever advised the relator of its objections, and given an opportunity to fairly hear and overcome the same. That three (3) members of the board in 1896, being the president thereof and the two (2) members from Cincinnati were connected with and interested in competing medical colleges, and endeavored to prevent, and have prevented, physicians from accepting places on the faculty of the relator, and have discouraged and dis countenanced those already serving in that capacity, and that three (3) members of said board are a controlling number thereof, under the terms of said law making the concurrence of five (5J out of the seven (7) members thereof necessary for legal action.
    “That in July 1898 the relator filed an application with said board for a reversal of its previous action, and recognition of the relator as ‘ in good standing, ’ and at the same time four (4) of its five (5) graduates of 1898 filed in due form of law with said board applications for certificates to practice medicine, and pending these various applications the trustees and faculty of the relator presented to said board a statement in writing of its proper conduct in the past, and a pledge of its future adherence to reputable methods and work. That said board filed said application, and seeking to harass, vex, and delay, and thus destroy the relator, inspired a suit in quo warranto in this court No. 6199 against the relator, without probable cause, and with malice, to oust it from its franchises, which suit was promptly dismissed on hearing. That in July 1899, after a full year of unnecessary and vexatious delays, the relator meantime urging fair hearing and action, said applications were rejected on the sole ground that the board had found that the relator was not ‘a legally chartered medical institution in good standing,’ and again no specifications Avere furnished against the relator, nor any fair and impartial hearing had thereon, although often requested, and that in the various particulars aforesaid said board has acted in gross abuse of the discretion vested in it by the law of its creation.
    “That the turning down of this relator by said board Avas given by it to the public press, and heralded to the world, and resulted in crippling and practically destroying the business of the relator since 1896. That only five (5) persons have graduated and received diplomas since 1896, being those of 1898 aforesaid, and that others who had matriculated have dropped out by reason of the action of said board aforesaid, so that only two (2) of its many students now remain with the relator. That some years since 1896 have been entirely without a class, and the growing classes and patronage with which it was favored up to 1896, have been swept away by the adverse actions-of said board, to the damage of this relator in the sum of $25,000.00.
    “Wherefore plaintiff prays a writ of mandamus requiring said board to recognize the relator as a ‘legally chartered medical institution in good standing,’ and to issue its certificates to the holders of diplomas from this relator, who may apply to it in proper form of laAv, and that this relator may recover damages in the sum of $25,000.00, and costs.”
    The defendants have filed a general demurrer to the petition, upon which the cause is submitted to the court for final disposition.
    
      
      A. M. Warner, for plaintiff in error,
    cited the following authorities :
    
      State ex rel. v. Moore, 42 Ohio St., 103; Merrill on Mandamus, Secs. 40, 41.
    
      F. S. Monnett and R. E. Westfall, for defendant in error,
    cited the following authorities;
    
      State ex rel. v. Henderson, 38 Ohio St., 644; State v. Haben, 22 Wis., 660; Stoddard v. Benton, 6 Col., 508; Am. & Eng. Ency. of Law, Vol. 14, p. 19; Ency. Plead. & Prac., Vol. 13, p. 637; France v. State, 57 Ohio St., 1; Spelling on Extraordinary Relief, Vol. 2, paragraphs 1384, 1394, 1433, 1459, 1467, 1476, 1483, 1519, 1556 and 1577; Ohio Revised Statutes, Sec. 6742; Ex parte Black, 1 Ohio St., 30; State v. Governor, 5 Ohio St., 528; State v. Nash, 23 Ohio St., 568; Commissioners v. Commissioners, 24 Ohio St., 401; State v. Commissioners, 31 Ohio St., 211; Rutter v. State, 38 Ohio St., 496; State v. Crites, 48 Ohio St., 460; State v. Commissioners, 49 Ohio St., 301; State v. Gregory, 83 Mo., 123; State v. McGrath, 91 Mo., 386; People v. Dental Examiners, 110 Ill., 180; Ex parte Black, 1 Ohio St., 30; State v. Benton, 25 Neb., 834; Davis v. Connurs, 63 Me., 396; Vincent v. Bowes, 78 Mich., 315; 25 Me., 333; Moses on Mandamus, 19; High on Mandamus, 536; 7 East., 345; 12 Ill., 254; 9 Neb., 92; McKenzie v. Ruth, 22 Ohio St., 371; 15 Barb., 607; Kinkead Code Plead. Yol. 2, Sec. 800 (2nd Ed.); Black v. Auditor, 26 Ark., 237; People v. Chicago, 25 Ill., 483; Potts v. State, 75 Ind., 336.
   By the Court :

The two specific acts, performance of which the court is asked to require of the board of medical examinations^ are- (1) the recognition, by the board, of the relator as a legally chartered medical institution in good standing, and (2) the issuance of certificates to practice medicine to holders of diplomas from the relator, who may hereafter make application to the hoard for that purpose.

One of the grounds upon which this relief is sought is, that the provision of section 4403c, of the Revised Statutes, as amended February 27, 1896, (92 O. L.. 44-5), which confers on the state board the power to determine whether a diploma, presented for its action, is one issued by a legally chartered medical institution “in good standing,” and, if determined not to be so, to refuse to the holder of the diploma, a certificate to practice medicine, is in conflict with section 28 of article 2 of the constitution of this state, and of section 10 of article 1 of the federal constitution, being, it is claimed, retroactive in its operation, and in impairment of the obligation of contracts; and also in conflict with the fourteenth article of amendment to the federal constitution, in that it denies to parties due process of law7. It would seem to be a sufficient answrer to this ground of complaint that, if the statutory provision w7hich confers on the state board the power to determine whether a medical institution w7hose diploma is presented for its action, is of good stand, is repugnant to so many constitutional inhibitions, it w7ould be highly improper for the- court to compel the board to exercise that power by recognizing the relator as a medical institution of the character required by the statute.. How7ever, it was held in France v. State, 57 Ohio St., 1, that the statute was not .obnoxious to the constitutional provisions referred1 to.

The other ground on which the writ demanded'is sought is, briefly stated, that, the refusal of the medical board to recognize the relator as an institution of the réquired standard, is purely arbitrary and the result of prejudice because the system taught by it is new and different from that adopted by other medical colleges. This does not appear to be a sufficient ground for granting the writ at the relator’s instance. The proper scope of a proceeding in mandamus against an official board, is to command the performance of acts which the law has specifically enjoined upon it as a duty resulting from the office. Section 6741, Revised Statutes. Unless the duty is so enjoined, the remedy is inappropriate. A careful examination of the statutes fails to discover any provision authorizing an application to the board by a medical institution to obtain official recognition of its good standing, or any provision requiring of the board any official action in that behalf upon such an application. And such official action not being enjoined by statute, cannot be required by writ of mandamus. Nor, do we find any provision which makes it the duty of the board to determine in advance of an application for a certificate to practice medicine, whether a person holds a diploma from a medical institution of the proper standing. It is only when a diploma is presented upon such application, that the action of the board can be invoked. Whether, upon the refusal of the board to grant a certificate to an applicant, mandamus will lie on his relation, must depend upon the facts of each case. Such cases cannot be covered by a general order to grant certificates to the graduates of any particular college or institution, for, until an application is actually made, by one who then shows himself entitled to a certificate, the duty of the board to grant it does not arise. And then, for a refusal to perform that duty, the remedy belongs to the applicant, as the party directly interested, and not to the college on whose diploma the application was made, and whose interest is only remotely affected.

The statute, does not define what shall constitute a medical institution “in good standing.” Its .language is that, “if the board shall find the diploma to be genuine, and from a legally chartered medical institution in good standing, as determined by the board,” etc., thus leaving the standing of the institution whose diplpma is presented by an applicant, to be determined according to the best judgment of the board.

, It is unnecessary to inquire here whether there may be cases in which the courts would undertake to correct. or control the judgment of the board on this question. . It is clear that the' standing of a medical college within the meaning of the statute, is not to be.determined alone from the:course of study it has prescribed for graduation. The statute imports, at least, that the institution shall be one which has. established a favorable reputation among members of the medical profession; and the board should not be required to recognize one, that, from the brief period of its existence, or the novelty of its system of treatment has not yet acquired such reputation, but might, in the judgment of the board, be considered as still in an experimental state. The statute has undoubtedly left much in this respect to the sound discretion of. the members of the board, who, in passing upon the various applications presented to them, it must be assumed, will act as their official position requires, fairly, impartially, and justly to all. concerned. .

■Demurrer sustained and petition dismissed.  