State ex rel. Coffey v. Chittenden

• Decision Date: 07 January 1902
• Citation: 88 N.W. 587,112 Wis. 569
• Parties: STATE EX REL. COFFEY v. CHITTENDEN ET AL., DENTAL EXAMINERS.
• Court: Wisconsin Supreme Court

112 Wis. 569

88 N.W. 587

STATE EX REL. COFFEY

v.CHITTENDEN ET AL., DENTAL EXAMINERS.

Supreme Court of Wisconsin.

Jan. 7, 1902.

Syllabus by the Judge.

1. The scope of mandamus proceedings to coerce a person or board to the performance of a judicial or quasi judicial duty extends only to compelling such person or board to act, not to directing him or it how to act, unless the underlying facts are substantially undisputed, leaving no reasonable ground for action other than one way.

2. If a person or board is clothed with judicial or quasi judicial power in the determination of questions of fact and the taking of some specific action upon such determination, and fails to make a proper investigation of such questions, it is not within the function of a mandamus proceeding, predicated on such neglect, for the court to assume and exercise the duty of such person or board and make such investigation.

3. The character of a dental college or other institution of learning at a particular time may be established by evidence of its character at a prior time not so remote but that it would be reasonable to assume that the prior condition still exists. The rule applies that, “when the existence of a person, a personal relation, or a state of things, is once established by proof, the law presumes that the person, relation, or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised, from the nature of the subject in question.”

4. The character of a dental college in April of one year is evidentiary of its character in May of the next year, and may have sufficient probative force in that regard to reasonably establish such later character.

5. The word “reputable,” as applied to dental colleges in the law authorizing the state board of dental examiners to license persons to practice the profession of dentistry, without examination, who have graduated at such a college having certain specified requisites, means “reputable” in the general sense in which the term is ordinarily used: worthy of repute or distinction, held in esteem, honorable, praiseworthy.

6. In passing upon the application of a graduate of a dental college for a license to practice his profession in this state, the board of dental examiners must determine whether his diploma comes from a reputable source as an independent fact, considering the term “reputable” in its ordinary sense and measuring the character of the college from the standpoint of men competent to judge thereof by reason of their scientific attainments in the line of work for which such a college stands.

7. The state board of dental examiners, proceeding reasonably, is the sole tribunal under the statutes to determine the questions of fact to be solved, precedent to the licensing of a person to practice the profession of dentistry in this state.

8. When a graduate of a dental college applies to the state board of dental examiners for a license to practice his profession, the burden of proof is upon him to establish the reputability of such college.

9. The state board of dental examiners, having once determined the character of a dental college, may properly consider all questions in regard thereto at rest till, by lapse of time or otherwise, some reasonable ground exists for believing that its character may probably have changed.

10. The state board of dental examiners, having once determined the character of a dental college, within all reasonable limits, when and under what circumstances the subject shall be re-examined rests solely in its discretion.

11. Since the law does not define the method by which the state board of dental examiners shall proceed to determine the reputability of a dental college when that is material to its official action, such board may perform its duty in that regard in any reasonable way it may deem proper, and candidates for licenses to practice the profession of dentistry must submit to its judgments so long as they are within the boundaries of reason and common sense.

Appeal from circuit court, Milwaukee county; Eugene S. Elliott, Judge.

Mandamus by the state, on relation of W. L. Coffey, against C. C. Chittenden and others, state board of dental examiners. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Action for a peremptory writ of mandamus to compel the state board of dental examiners to license the relator to practice dentistry in the state of Wisconsin. The petition, in the main, is as follows, omitting formal parts: May 11, 1901, the relator was duly awarded a diploma by the department of dental surgery, of the Wisconsin College of Physicians and Surgeons, of Milwaukee, Wis. He had taken three full courses of lectures of seven months each, the last two being at such college. It was a duly incorporated institution under the laws of this state, authorized to grant such diplomas, and was a reputable institution of its kind. May 21, 1901, the petitioner, upon his said diploma, applied to the state board of dental examiners for a license to practice dentistry in the state of Wisconsin tendering a fee of $1 to the board, and making proof of the corporate organization of said college. May 23, 1901, said board refused to grant the petitioner's application without examination. The members of the board are prejudiced against the petitioner and the institution which graduated him, and have unreasonably and maliciously determined that the graduates therefrom shall be examined by such board before being licensed to practice dentistry, upon the ground that such institution is not reputable, and acted upon petitioner's application pursuant to such determination.

The board made return to the alternative writ, denying all the allegations of wrongful conduct recited therein, and alleging that its refusal to license the petitioner without an examination was solely because, after a fair and impartial investigation of the college which graduated him, the conclusion was reached that it was not a reputable institution.

The issue thus formed was brought to trial before the court June 20, 1901. Proof was then adduced of what the board acted upon in reaching the aforesaid conclusion, as follows: In April, 1900, the college in question, desiring to join the National Association of Dental Faculties, applied to the state board of dental examiners for its approval thereof, that being a prerequisite thereto. Its rules as to eligibility to membership therein have been substantially adopted by the board, as to what constitutes a reputable dental college. Such rules require, among other things, that no college shall receive a student from another college, giving him an advanced grade, except upon the evidentiary certificate of his work at the latter being verified by its dean, and upon the same conditions that would have been imposed by it, the facts in that regard to be ascertained by conferring with such institution. As a basis for action upon said application, the board visited said institution and subjected it to the test of said rules, in the course of which questions were asked of the persons in charge thereof, their answers being taken down by a stenographer. Among such answers were, in substance, the following: The number of students at the institution is 33. The faculty is without a dean. Students are taken from other colleges without investigation as to their standing at such colleges. All members of the faculty are paid except two. Students have not been received for less than the legal fees stated in the catalogue. The institution advertises for customers to be practiced upon at the institution. An investigation of the truth of such answers resulted in a discovery that three members of the faculty were not paid salaries, and that the number of students was 21. The result was a conclusion not to approve of said application, which was communicated to the faculty of the applicant. From time to time after the occurrences stated, the members of the board, in an individual way, made inquiries as to the character of the dental department of said college. Confirmatory of the information obtained as aforesaid, that students were received at the college from other institutions and given advance standing without adequate knowledge to base such action upon, an instance was brought to the attention of the board where a student was admitted to the college who had failed in his examination at another college and left there dissatisfied on that account, and was given credit for full time spent at the institution from which he came, without examination. No formal investigation was made after the one mentioned. On the information then obtained, and that acquired subsequently by the individual members as stated, the decision was made in May, 1901, that the institution in question was not reputable.

The court, against objection, received evidence tending to explain some of the objectionable matters which the board discovered or concluded existed in April, 1900, and evidence showing that the board was mistaken in such conclusions as to other of such matters, and that those which in fact existed were removed prior to the graduation of the petitioner.

The court delivered an opinion to the effect that the members of the board acted in the utmost good faith in deciding against the petitioner's application upon the ground that the college that graduated him was not reputable, but that it proceeded outside its discretionary authority in that it based its conclusion upon facts existing in April, 1900, without any investigation as to the actual condition of things in May, 1901; that, had the facts upon which the board acted in April, 1900, existed in May, 1901, they would have justified the conclusion then reached; but that the conditions had changed so that, at such later date, the college was in fact reputable.

Findings of fact were accordingly filed, which are, in substance, as follows: When the...