State ex rel. Sheppe v. West Virginia Bd. of Dental Examiners

• Decision Date: 11 December 1962
• Docket Number: No. 12183,12183
• Citation: 147 W.Va. 473,128 S.E.2d 620
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Joseph H. SHEPPE v. WEST VIRGINIA BOARD OF DENTAL EXAMINERS et al.

Page 620

128 S.E.2d 620

147 W.Va. 473

STATE ex rel. Joseph H. SHEPPE v. WEST VIRGINIA BOARD OF DENTAL EXAMINERS et al.

No. 12183.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 9, 1962.

Decided Dec. 11, 1962.

Syllabus by the Court.

1. Mandamus is an extraordinary proceeding and will not lie unless there is a clear legal right to the performance of the act demanded and there is no other adequate remedy.

2. In the absence of a specific time limit, the failure of a state board or agency to take decisive action within a reasonable time, upon a matter properly before it, will be assumed to be a refusal of the action sought. 3. The remedy provided by Code, 30-1-9, to a person who has been refused a license or registration for any cause other than the failure to pass an examination, to have his case reviewed by the circuit court, is unavailable to an applicant desiring to take an examination in any professional specialty, whose application has been neither definitely approved nor rejected, and therefore such applicant is without any adequate remedy in the premises and mandamus will lie.

4. Code, 5-2-3, requires all state agencies, including state boards, authorized by law to make rules, to compile and index all lawfully adopted rules which were in force before the statute was enacted in 1955 and to file two certified copies of such rules in the office of the secretary of state before July 1, 1955, and if any board failed to do so such rules are null and void and of no legal force and effect.

5. The state through its agencies has a right to control and regulate the professions but such regulations must not be arbitrary or unreasonable and must conform to the laws made and provided for in such cases and to the federal and state constitutions.

Quinlan, Nelson & Williamson, H. G. Williamson, Huntington, for relator.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondents.

BERRY, Judge.

Relator, Joseph H. Sheppe, instituted this original proceeding in this Court on May 29, 1962, seeking a writ of mandamus directing the respondents, the West Virginia Board of Dental Examiners and the individual members thereof, to examine relator in the dental specialty of orthodontics. The petition alleges, in substance, that: relator was duly licensed to practice dentistry in this state on July 20, 1950, and thereafter continuously engaged in such practice in the City of Huntington, West Virginia, until July, 1959; in August, 1959, he enrolled in the University of Alabama School of Dentistry, an accredited institution, where he successfully completed in the month of July, 1960, one (1) year of postgraduate work in the specialty program of orthodontics; he returned to Huntington and resumed his practice of dentistry, limiting his practice to the field of orthodontics, and has so limited his practice for at least two (2) years; he is eligible to attempt the examination for a special certificate of qualification in orthodontics and has tendered the proper fee as required by law; and, notwithstanding the above allegations, the respondents have capriciously refused to accept and certify relator for examination in the special field of orthodontics, and continue to refuse to do so, concluding with the prayer hereinbefore mentioned.

This Court, on June 5, 1962, granted a rule directed to respondents requiring them to show cause why the writ should not issue as prayed for. Respondents appeared in compliance with the rule and demurred on the grounds that: (1) Mandamus will not lie in the instant case for the reason that relator has an adequate remedy at law under the provisions of Code, 30-1-9; (2) It affirmatively appears on the face of the petition that relator has not met the requirements for examination in that he has not completed at least one (1) year of graduate education in his chosen specialty in an accredited dental school as required by Sec. 3, Art. III, of the Rules and Regulations of the respondent Board, and that his application for examination cannot be considered under Sec. 4, Art. III, of said 'Rules' because it does not show any time as a teacher, or any period of practice confined to the specialty in the office of a certified specialist, and, shows he had not completed twelve (12) years of practice in West Virginia at the time of filing his application; (3) On March 1, 1962, the West Virginia Orthodontic Society filed with the respondent Board a written complaint protesting the application of relator and questioning his qualifications for examination and certification and it became respondents' statutory duty to withhold any decision until such complaint had been fully investigated; and (4) Code, 30-4-17a, as amended, vests in the respondent Board the authority to establish higher standards and additional requirements for any licensee who desires to hold himself out to the public as especially qualified in a branch or specialty of dentistry recognized by the Board.

Respondents also answered admitting the allegations as to relator's licensing and subsequent practice in this state until July, 1959, and his enrollment in the University of Alabama in August, 1959, but denying that relator has completed one (1) year of postgraduate work, asserting that he did not attend any classes after May 29, 1960. Respondents also admit in their answer the tendering of the proper fee by the relator, allege that they are without sufficient information to admit or deny the allegations as to the limiting of relator's practice, and deny that relator is eligible to attempt the prescribed examination or that respondents have acted capriciously or arbitrarily. The answer then reiterates the points asserted in the demurrer and in addition avers that since the institution of this proceeding, relator has circulated among the dentists of West Virginia and adjoining states a letter offering a course in all major orthodontic appliance techniques and therapy for $1,000.00 and that such conduct, inasmuch as relator has not been certified in such specialty, is in violation of Code, 30-4-7, as amended, and renders relator's license subject to suspension or revocation.

The foregoing answer was verified by three of the members of the respondent Board, two of the members refusing to verify the same and filing letters, in the form of individual answers, setting out their positions. Dr. A. Brooks Drake affirms his position that relator has met and complied with the necessary minimum requirements for examination, asserting that: The one (1) year requirement of postgraduate study refers to an academic, as distinguished from a calendar, year; Board records reveal that the Board 'has previously accepted applications, examined the applicant and then withheld issuance of his specialty license until completion of additional training, upon completion of which the applicant was licensed without further examination * * *'; and, no compliance with any part of Sec. 4, Art. III of the 'Rules' has been required of the majority of those previously licensed as specialists by the Board. Dr. Drake concludes: 'In summary, may I take this opportunity to again repeat my often expressed opinion that these Rules and Regulations are very poorly written, incoherent, contradictory, in conflict with the state Code, and therefore not capable of unqualified interpretation.' Dr. Paul L. Fiess, by letter, indicated his opinion that relator has complied with the requirements of Sec. 3, Art. III, but asserts a lack of documentary evidence as to relator's compliance with Secs. 4 and 5, Art. III, and his belief that such sections are not to be considered as alternative requirements to those set out in Sec. 3.

The following facts are stipulated: Relator was graduated from the dental school of The University of Maryland on June 10, 1950, receiving the degree of Doctor of Dental Surgery; on July 20, 1950, relator was duly licensed to practice in West Virginia and entered upon practice in Huntington, West Virginia; on or about August 3, 1959, relator enrolled in the University of Alabama and commenced a program of postgraduate study which relator contends he completed in July, 1960, but the dean of said school states that petitioner did not attend classes to anyone's knowledge after the graduation exercises of the University on May 29, 1960; on or about September 7, 1960, relator made application to the respondent Board for examination in orthodontics, which application was refused on June 30, 1961; on July 28, 1961, relator was informed by respondent that a ruling was being sought from the Attorney General with regard to his application; on January 3, 1962, relator was advised by the Board that a committee of specialists would be appointed to examine relator and he would be notified of the date of such examination; on March 1, 1962, the West Virginia Orthodontic Society filed a written complaint protesting the application of relator and questioning his qualifications for examination and certification as a specialist in orthodontics, of which protest relator was advised by letter of March 19, 1962, the letter also informing relator that the Board would meet in June, 1962, to review his application in the light of the protest; subsequent to the institution of this proceeding, relator was granted an audience by the Board at its June meeting, at which time the Board decided to refrain from taking any action until the matter was disposed of by this Court; and, the 'Rules and Regulations' of the Board were relied upon by all parties in determining relator's eligibility for examination although said rules and regulations are not filed in the office of the Secretary of State as required by Code, 5-2-3.

Code, 30-4-7, as amended, provides that the Board may refuse to issue, or after issuance suspend or revoke, a license 'to practice dentistry or dental hygiene' for, inter alia, 'Announcing or otherwise holding himself out to the...