Fred J. Sanborn v. Robert Weir

• Decision Date: 08 January 1921
• Citation: 112 A. 228,95 Vt. 1
• Parties: FRED J. SANBORN v. ROBERT WEIR ET AL
• Court: Vermont Supreme Court

112 A. 228

95 Vt. 1

FRED J. SANBORN v. ROBERT WEIR ET AL

Supreme Court of Vermont

January 8, 1921

May Term, 1920.

PETITION to the Supreme Court for Washington County for a writ of mandamus to compel the respondents, who are the members of the State Board of Veterinary Registration and Examination, to register the relator as a licensed veterinarian; and heard upon the pleadings and testimony taken. The opinion states the case.

Petition dismissed with costs.

Dunnett Shields & Conant for the relator.

Frank C. Archibald, Attorney General, Herbert G Barber, and C. Menzies Miller (on the brief) for the respondents.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

This is a petition for a writ of mandamus to compel the respondents, who are members of the State board of veterinary registration and examination, to register the relator as a licensed veterinarian. It is alleged in the petition that the relator, described as of Orford in the state of New Hampshire, is a regularly qualified and duly licensed veterinarian within and for the state of New Hampshire; that for more than two years prior to November 19, 1912, he had practiced veterinary surgery, medicine, and dentistry in the State of Vermont; that he began practice thereof on or before March 1, 1904, at Woodstock, in this State, where he continued in practice about two years; that from about May 1, 1907, he practiced veterinary surgery, etc., at Wells River in the town of Newbury for more than two years; that on or about November 15, 1909, he moved to the state of New Hampshire, and since that time has practiced in that state and the State of Vermont continuously; that on or about February 27, 1913, he filed with the secretary of the State board of veterinary registration and examination, hereinafter referred to as the State board, an affidavit stating that he had practiced veterinary surgery, medicine, and dentistry in all of its departments in this State for more than two years prior to November 19, 1912, together with the fee of five dollars, and demanded to be registered as a veterinary surgeon. It is further alleged that the relator has been in the active practice of veterinary surgery, etc., for more than eight years last past, and is well qualified to practice the same and entitled by law and by the comity existing between the states of Vermont and New Hampshire to be registered in this State as a veterinarian; that he has complied with all the requirements to entitle him to be so registered, which the State board wilfully and maliciously neglected and refused. The answer denies the allegations of the petition except such as relate to the application for registration, as to which the respondents deny that in refusing to register the relator they acted in wilful and malicious disregard of the duties of their office, but, on the contrary, allege that, having regard therefor, they refused to register the relator for the reason that he had not complied with the requirements of the statute, and that the affidavit filed by him was false and fraudulent, as shown by facts which are set out in detail, but need not be recited.

The statute relating to the practice of veterinary science was enacted as No. 213, Acts of 1912, and went into effect November 19, 1912. It is now found in Chapter 265 of the General Laws, which for convenience of reference will be cited. The act created a board of veterinary registration and examination and prescribed their powers and duties, which include the examination and registration of persons desiring to practice veterinary science in this State. It is provided that no person shall engage in the practice of veterinary medicine, surgery, and dentistry until he has complied with the provisions of the act, nor until he has obtained a license from such board and caused it to be recorded in the office of the Secretary of State. G. L. 6177. Three methods are provided by which the license may be obtained: (1) By examination (G. L. 6179); (2) by prior practice in this State (G. L. 6178); (3) by interstate comity (G. L. 6181).

The relator pursued the second method in making application. While he makes some claim here that he is entitled to registration by reason of interstate comity, on account of a license in New Hampshire, that question is outside the case made by the petition, for it does not appear that he ever made application to the board on that ground. This he tacitly admits in his brief when he states that the issue resolves itself into a question of fact whether the relator had engaged in the practice of veterinary surgery, etc., in this State for at least two years prior to November 19, 1912.

The statute provides that a person who has practiced veterinary medicine, surgery, and dentistry in any of their departments in this State for two years prior to November 19, 1912, may become registered as an existing practitioner, and shall, upon payment of a fee of five dollars, receive from the board a license of registration, provided that such person, on or before March 1, 1913, files with the secretary of the board an affidavit showing that he has been so engaged. G. L. 6178. The relator recognizes, and properly so, that the affidavit required in such a case is not conclusive evidence of the facts entitling him to be registered as an existing practitioner. Manifestly it was not intended to require the board to issue a license on the unsupported testimony of the applicant. By necessary implication the board is authorized to look beyond the affidavit to ascertin whether the essential facts exist entitling him to registration without examination. Townshend v. Gray, 62 Vt. 373, 19 A. 635, 8 L.R.A. 112; Sherburne v. Board of Dental Exam., 13 Idaho 105, 88 P. 762. The evident purpose was to exempt those having at least two years prior experience as practitioners; such experience being regarded as sufficient proof of qualifications. It fairly appears that the board rejected the relator's application because they failed to find that he was entitled to registration without examination. We are asked to review the evidence and reverse their finding.

It is well to note at the outset that under the statute the State board is the sole tribunal to determine questions of fact to be solved precedent to the licensing of a person to practice veterinary science, and that the burden is upon the applicant to establish such facts. See State v Chittenden, 112 Wis. 569, 88 N.W. 587. The respondents raise the point that the action of the board is not subject to review in this proceeding, as their action involved an investigation of the facts on which the application was based, and so the exercise of judgment and discretion. The proposition is so well recognized as to be quite elementary that the performance of an official duty or act involving the exercise of judgment or discretion cannot ordinarily be controlled by the courts with respect to the particular action which should be taken in the matter. Among the cases in this jurisdiction where the rule has been applied are State v. Plumley, 83 Vt. 491, 76 A. 146; Bankers' Life Ins. Co. v. Howland, 73 Vt. 1, 48 A. 435, 57 L.R.A. 374; State v. Harrington, 68 Vt. 622, 35 A. 515, 34 L.R.A. 100; Richards v. Wheeler, 2 Aik. 369. See also Clement v. Graham, 78 Vt. 290, 319, 63 A. 146, where it was held that the writ would lie to compel the performance of purely ministerial duties, which is the converse of...