State ex rel. Burg v. Milwaukee Med. Coll.

• Decision Date: 23 February 1906
• Citation: 128 Wis. 7,106 N.W. 116
• Parties: STATE EX REL. BURG v. MILWAUKEE MEDICAL COLLEGE ET AL.
• Court: Wisconsin Supreme Court

128 Wis. 7

106 N.W. 116

STATE EX REL. BURG

v.MILWAUKEE MEDICAL COLLEGE ET AL.^a1

Supreme Court of Wisconsin.

Feb. 23, 1906.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Mandamus proceedings by the state on the relation of Robert Burg, against the Milwaukee Medical College and others. From a judgment awarding a peremptory writ, defendants appeal. Reversed.

This is an appeal from a judgment of the circuit court for Milwaukee county awarding a peremptory writ of mandamus commanding the appellant to issue to respondent a diploma of graduation from the dental department of the Milwaukee Medical College. The facts set up on petition for writ, so far as material, are substantially to the effect that the appellant Milwaukee Medical College, is a corporation organized and existing under the laws of the state of Wisconsin and particularly chapter 86, Rev. St. 1898, and the acts amendatory thereto; that said corporation was organized, among other things, to conduct and maintain a medical college for the purpose of teaching medicine, surgery, and dentistry, with power to issue diplomas and confer degrees upon graduates of said college, and that said corporation has maintained and conducted a dental college; that the defendants Earles and Hill are and were president and secretary during the times mentioned; that in 1902 the appellant Milwaukee Medical College represented and advertised that all persons received as students, who should complete the course prescribed for its dental department, should be entitled to, and should receive a degree of Doctor of Dental Surgery, and receive a diploma certifying that such attainments had been achieved as entitled persons holding such diplomas to enter upon the practice of dentistry in the state of Wisconsin, or elsewhere according to law, and that, upon receiving such diploma, students would thereupon be entitled to receive a license without further examination; that said appellant college gave out and advertised in the summer of 1902 that it was a member of the National Association of Dental Faculties and regulated in accordance with its rules, which rules provided for preliminary educational requirements beginning with the sessions of 1902 and 1903, which should be a certificate of entrance into the third year of a high school, or its equivalent; that said appellant Milwaukee Medical College gave out and advertised during the summer of 1902 that it subscribed to the rules governing the conduct of dental colleges in the state of Wisconsin adopted by the board of dental colleges, and that entrance requirements might be completed during the first year; that the diploma of appellant is of great pecuniary value and entitles the possessor to a license from the Wisconsin state board of dental examiners, and to the right to a lawful practice of a lucrative profession; that on October 3, 1902, in accordance with the requirements of admission, the petitioner matriculated as a regular student of the dental department and paid the matriculation fees required; that he expended time and money, paid his fees with the agreement and understaning that upon completion of the full college course in compliance with the rules of the college in passing final examinations at the close of the college course, the appellant would give petitioner, and petitioner would receive from said corporation a diploma conferring the degree of Doctor of Dental Surgery; that since October 3, 1902, and up to, and including, the time of final examinations in May, 1905, petitioner was and continued to be a regular student, and performed all the work for the full three years' course and regularly and successfully passed all final examinations required, and is legally entitled to receive a diploma from appellant, and has demanded the same, and said appellant has and does, without reason or excuse, refuse to issue such diploma; that prior to October 4, 1902, one Hesse was special dental examiner, duly appointed by the board of dental examiners of the state of Wisconsin, and that between October 4 and 11, 1902, petitioner attended examinations conducted by said Hesse, but subsequent thereto was informed that he had failed to pass said examinations, but, relying upon the representations made by the appellant, proceeded to complete his entrance requirements, and did thereafter during the first year of his attendance complete said requirements, and in December, 1902, January and April, 1903, made application to the college and to said Hesse for re-examination as to his qualifications, which requests were refused, and thereafter petitioner applied to the county superintendent of Green Lake county, Wis., and duly and satisfactorily passed examinations and on April 8, 1903, received from said superintendent a teacher's second-grade certificate, which is equivalent to the preliminary educational requirements of entrance under his contract at the time he matriculated; that said certificate was accepted by appellant as satisfactory evidence that he had duly completed his entrance requirements during the first year; that said petitioner was directed by appellant to present said certificate to said Hesse as state dental examiner, but said Hesse refused to consider or examine it; that before petitioner matriculated the appellant was a member of the National Association of Dental Faculties and conducted in accordance with its rules, and that under such rules it was the custom to allow students who might be deficient in entrance requirements to complete the same during the first year of attendance; that advertisements and representations made and contained in the catalogue of appellant college in the year 1902, and prior thereto, were made and published with the knowledge, notice, and acquiescence of the board of dental examiners, and that with such knowledge said board licensed to the practice of dentistry in the state of Wisconsin students graduated from said Milwaukee Medical College, who had, to the knowledge of said board and said college, completed their entrance examinations during the first year of attendance, and that said board of examiners at various times prior to October, 1902, and on the 15th of June, 1903, with knowledge of such facts recognized and declared said Milwaukee Medical College a reputable Dental College; that said appellant is a reputable Dental College in the judgment of the board of dental examiners, and, upon presentation of diplomas and payment of fees, the regular graduates are duly licensed to practice dentistry in the state of Wisconsin, and that upon the issuance of a diploma of graduation and presentation thereof, together with the required fee to the board of dental examiners, a license will be duly issued to petitioner; that all matters requiring the exercise of discretion upon the part of the appellant relative to granting such diploma have been passed upon and decided in favor of petitioner; that the relief sought does not call for the exercise of discretion, but for the performance of a ministerial act. The return substantially admits the allegations of the petition, but avers that on October 1, 1902, the defendants received notice from the state board of dental examiners that...