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

• Decision Date: 20 March 1906
• Citation: 127 Wis. 468,107 N.W. 500
• Parties: STATE EX REL. MILWAUKEE MEDICAL COLLEGE v. CHITTENDEN ET AL.
• Court: Wisconsin Supreme Court

127 Wis. 468

107 N.W. 500

STATE EX REL. MILWAUKEE MEDICAL COLLEGE

v.CHITTENDEN ET AL.

Supreme Court of Wisconsin.

March 20, 1906.

Syllabus by the Judge.

Relator was accorded the certiorari remedy to vacate a sentence of nonreputability. There was a motion to change the venue to Dane county, under chapter 366, p. 591, Laws 1905, relating to actions against state officers. It was denied. Prior to May 27, 1903, chapter 56c, Rev. St. 1898, relating to dentistry, provided for a board of five members, appointed by the Governor, a majority to be from the Wisconsin State Dental Society. It was required, upon the faith of his diploma, to license to practice dentistry, any regular graduate of a reputable incorporated dental college requiring candidates for graduation to take two full courses of lectures, of five months each. Said chapter, by chapter 411, p. 664, Laws 1903, was changed making the mandatory feature as to issuing licenses discretionary, giving the Dental Society power to nominate a majority of the board, and fixing as the requisites for an efficient diploma, reputability of the college in the judgment of the board, preliminary education of matriculants enough for entrance to the junior class of an accredited high school and four courses of lectures of at least seven months each, in separate years. It remained silent as to the board's controlling examinations for matriculation. Prior to March 1, 1902, a custom existed permitting matriculants to make up entrance deficiencies the first year. Prior to the occurrences material here, the board ruled thus: entrance qualifications shall be equal to those required for entrance to the junior year of a high school; examinations shall be conducted by the Superintendent of Public Instruction, or his appointee; three full courses of not less than seven months each, in separate years, shall be required for graduation, as to students matriculating prior to the session of 1903-1904, an additional course commencing with such session; colleges shall not charge students less than one hundred dollars per term nor rebate advertised fees; no student shall be received or retained, deficient in entrance qualifications, and compliance with such rules shall be a condition of reputability. The change as to entrance qualifications was unknown to relator till it became morally bound to accept students for 1902-1903 as before. Six so accepted were made freshman and academic students as well. They made up the deficiencies during the year. June 15 to June 20, 1903, inclusive, the board considered conduct of relator as aforesaid, also as to rebates and other alleged transgressions, resulting in its being adjudged reputable, though censured on the second point and admonished against further transgressing. Thereafter it was mooted as to whether the students should have credit for the year partly spent in preparation. The board ruled negatively. Nevertheless the students were otherwise registered. Before graduation day, according to such registration, relator indicated willingness to comply with the board's will to save condemnation. An action was then commenced against it by a student to test the matter, the board being given opportunity to defend, which it declined. The decision was against the relator. The board formally and without notice condemned it as not reputable, upon failing to obtain a more definite answer as to whether it purposed obeying the court without further contest than that it did unless notified by the board not to do so and that otherwise it would be deemed not reputable. Such decision was reversed for judicial error.

An independent proceeding commenced by an original writ, such as certiorari, mandamus and the like, is an action under section 2595, Rev. St. 1898.

The ordinary meaning of “state officer” is head of a state department, such as Governor, Secretary of State and the like. It should be thus restricted when used without circumstances indicating any other intent.

Where a decision by a quasi judicial tribunal affects injuriously and with substantial directness one not a party to the record having no other efficient legal remedy, he may, in the discretion of the court, possessed of the jurisdiction, have the use of its writ of certiorari to remedy the wrong as to jurisdictional errors.

If in the exercise of sound judicial discretion an injured person ought to be accorded an original writ of certiorari, it is an abuse of authority to refuse it.

The rule that no one but a party is entitled to use the remedy of certiorari is to be regarded as using the term “party” in its broad sense: that of including all persons injuriously affected with substantial directness and having no other efficient legal remedy, whether they are parties to the record or might properly be such.

When the writ of certiorari is granted to one neither a party to the record nor necessary thereto--the tribunal in the proceeding sought to be reviewed having jurisdiction of the party or parties and of the subject matter--such writ reaches only jurisdictional matters committed in deciding a matter within its jurisdiction to decide, proceeding properly.

When the proceeding to be reviewed was direct against person or property, the personal right being the only one involved or being one coupled with another primary right, he is a necessary party and, if not brought in by proper citation, a writ of certiorari in his behalf will reach jurisdictional error as to proceeding at all in the matter and excess of jurisdiction as well.

A decision as to the status of a dental college, incidental to passing upon an application for a license to practice dentistry, based on a diploma issued thereby, is within the rule stated as regards discretionary authority to permit the use of the writ of certiorari to correct jurisdictional errors.

It is proper, in administering the law regulating the practice of dentistry, for the official board, of its own motion, or on petition of a college of which it has jurisdiction, to adjudicate its status as regards reputability.

The adjudicated status of a college is presumed to continue till the presumption shall have been reasonably rebutted, under the general rule 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.”

If the status of a dental college is adjudicated in an action in rem, whether the proceeding is solely against the res or one to pass upon an application for a license and against the res as well, such college may properly be accorded the certiorari remedy to test the decision for jurisdictional error, either as to the subject matter or excess of jurisdiction.

The writ of certiorari is not usable as a means of reviewing legislative discretion, or judicial discretion, or a determination which is strictly a usurpation in that it was pronounced by one having no authority or semblance of authority.

The writ of certiorari on behalf of a proper applicant is a proper means of testing, for jurisdictional error, the decision of a quasi judicial tribunal having authority, under some circumstances, to deal with the subject involved, or of a tribunal of such dignity that its action in the matter might probably be injurious to such applicant if allowed to stand unchallenged.

The authority of the board, under the law regulating dentistry, to pass upon the reputability of colleges, is neither legislative nor judicial but is quasi judicial: that species of authority commonly intrusted to individuals, boards or commissions to determine matters of fact when that is essential to the performance of administrative duties.

The judicial authority of the Constitution is power to administer remedies for remedial rights, formally exercisable exclusively by courts: to make judicial decisions, strictly so called, in actions or special proceedings and to enforce the same.

Authority which, by the Constitution, is vested in the Legislature, is the power to make law. It may be exercised, leaving in the particular instance to some other agency the duty of determining questions of fact essential to the application thereof. The former involves legislative, the latter administrative discretion.

When the condition of a person, the thing denominated status, is a matter of public concern, it is a proper object to be dealt with and settled by a direct proceeding in any tribunal having jurisdiction of the res, and that applies to the status of a college under the system of legislative regulation of the profession of dentistry.

Where the subject matter involved in a judicial or quasi judicial proceeding is the intangible thing denominated status, the proceedings in respect thereto requisite to a legitimate determination are the same as in a case where the subject matter is of a tangible character.

In any such case the rule applies that no one shall be condemned in his person or his property without first having had his day in court according to the law of the land, the fundamental principles of justice.

The constitutional grant of appellate jurisdiction given to circuit courts does not include authority to review the proceedings of an inferior tribunal on the merits by the use of a writ of certiorari. The use thereof, to commence an action relates to judicial authority to supervise inferior courts and jurisdictions.

The appellate jurisdiction of the Constitution is one thing, the right of appeal is another. The latter is a creature of the Legislature and does not exist where the Legislature has not acted.

The power of superintending control given to circuit courts is limited by the means afforded for its exercise: the functions of the original writs referred to in connection with the grant, all of which appertain to matters of...