Mandel v. Bd. of Regents of Univ. of State York

Decision Date31 December 1928
Citation164 N.E. 895,250 N.Y. 173
PartiesMANDEL v. BOARD OF REGENTS OF UNIVERSITY OF STATE OF NEW YORK.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Application by Adolph Mandel for a writ of certiorari to be directed to the Board of Regents of the University of the State of New York, to review the determination of the board in revoking the license of petitioner as a junior pharmacist. The determination of the board was confirmed by the Appellate Division (224 App. Div. 772, 230 N. Y. S. 870), and petitioner appeals.

Affirmed.Appeal from Supreme Court, Appellate Division, Third department.

Edward Goodell and S. Goodelman, both of New York City, for appellant.

Ernest E. Cole, of Bath, and George V. Fleckenstein, of Rochester, for respondent.

LEHMAN, J.

In June, 1925, the petitioner procured a license to practice pharmacy as a ‘junior pharmacist.’ He presented satisfactory proof of his qualifications for that license. Before he could obtain a license to practice as a ‘pharmacist,’ satisfactory proof of additional qualifications was required. Public Health Law, § 233, now Education Law (Consol. Laws, c. 16) § 1353. In order to obtain that license, the defendant sought to manufacture evidence of qualifications he did not in fact possess. Upon proof of the attempted fraud, and after notice to the defendant and a hearing before the state board of pharmacy, the petitioner's license as a junior pharmacist was revoked.

To obtain a license to practice pharmacy, an applicant must show good moral character as well as adequate instruction and experience. So the Legislature has decreed for the protection of the public. That protection is inadequate if after the license has been obtained it becomes apparent that the holder is unfit or incompetent. Therefore the Legislature has provided also that ‘any license or certificate obtained by misrepresentation or fraud or that is held by any one unfit or incompetent from negligence, habits or other cause may be revoked after reasonable notice and an opportunity to be heard.’ Public Health Law, § 240, now Education Law, § 1362.

The Legislature has vested in an administrative board power to determine the fitness and competency of those who desire to practice pharmacy in this state, both before and after a license has been granted. The board has revoked the license of the petitioner as ‘junior pharmacist,’ not because that license was obtained by fraud, but because it has found that the petitioner was ‘guilty of fraud in endeavoring to procure a pharmacist license, and consequently was and is unfit to practice the profession of pharmacy under any form of license.’

The Legislature has not attempted to define the causes which may produce unfitness or incompetency sufficient to justify revocation of a license, nor the acts which shall be regarded as sufficient evidence of such unfitness or incompetency. The statute is enacted for the protection of the public against the dangers that might arise from the practice of pharmacy by the unfit and incompetent. It is the lack of fitness or competency in a practitioner which creates the danger, regardless of how such lack may have arisen or how it has been demonstrated. Negligence or bad habits may usually be at its root; ‘other cause’ may give rise to it. The Legislature has in terms declared that the board shall look to the result, not the cause, as ground for revocation of a license. Narrower construction of the statute would unreasonably limit its language and in part defeat its purpose.

It is said that under that construction the Legislature has attempted to delegated to an administrative board the unrestricted power to define offenses to which the penalty of the revocation of a license shall attach, and that such power is a legislative function which may not be delegated. Czarra v. Board of Medical Supervisors of District of Columbia, 25 App. D. C. 443,Hewitt v. State Board of Medical Examiners, 148 Cal. 590, 84 P. 39, 3 L. R. A. (N. S.) 896, 113 Am. St. Rep. 315, 7 Ann. Cas. 750. Unquestionably the definition of offenses and the prescription of punishment for such offenses is a legislative power. U. S. v. Eaton, 144 U. S. 677, 12 S. Ct. 764, 36 L. Ed. 591. The power vested in the administrative board and exercised by it in this case has a different scope.

Denial or revocation of a license because of guilt of an offense which tends to show moral or intellectual unfitness does not constitute punishment for the offense. Hawker v. New York, 170 U. S. 189, 18 S. Ct. 573, 42 L. Ed. 1002. It is only a measure of protection of the public. Decisions of the Supreme Court of the United States leave ‘no doubt * * * that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the...

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    ...to license lawyers, Matter of Glucksman, 57 A.D.2d 205, 394 N.Y.S.2d 191 (1st Dept. 1977); and pharmacists, Matter of Mandel v. Board of Regents, 250 N.Y. 173, 164 N.E. 895 (1928); or to qualifications which have been mandated for issuance of a gun permit, United States v. Matassini, 565 F.......
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    ...interesting discussion of this question is found in the decision of the New York court of appeals in the Matter of Mandel v. Board of Regents, 250 N.Y. 173, 176, 178, 164 N.E. 895, 896, where it was said: ‘Denial or revocation of a license because of guilt of an offense which tends to show ......
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    ...County Harness Racing Assn. v. Glasser, 30 N.Y.2d 269, 277, 332 N.Y.S.2d 622, 283 N.E.2d 603; Mandel v. Board of Regents of Univ. of State of N.Y., 250 N.Y. 173, 175, 164 N.E. 895). Where there has been no direction given to the administrative body, the legislation has been held to be uncon......
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