State ex rel. Sherman v. Hyman

• Decision Date: 05 December 1942
• Citation: 171 S.W.2d 822,180 Tenn. 99
• Parties: STATE ex rel. SHERMAN v. HYMAN et al. STATE ex rel. AVAKIAN v. SAME.
• Court: Tennessee Supreme Court

171 S.W.2d 822

180 Tenn. 99

STATE ex rel. SHERMAN v. HYMAN et al.

STATE ex rel. AVAKIAN v. SAME.

Supreme Court of Tennessee.

December 5, 1942

Appeal from Chancery Court, Shelby County; John E. Swepston Chancellor.

Bills by the State of Tennessee on the relation of Philip J Sherman against O. W. Hyman and others, and by the State of Tennessee on the relation of John V. Avakian against O. W Hyman and others, praying that an alternative writ of mandamus be issued to compel defendant to reinstate plaintiffs as students in the medical department of the University of Tennessee, and for further relief. Decree for plaintiffs and defendants appeal.

Reversed and bills dismissed.

Certiorari denied by the United States Supreme Court 63 S.Ct. 1158, 87 L.Ed. ---.

Nat Tipton, Asst. Atty. Gen., John Heiskell, Asst. Atty. Gen., and Wassell Randolph, of Memphis, for appellant.

Shephered, Owen & Heiskell, of Memphis, for appellee.

NEIL Justice.

The appellees in these causes were expelled from the medical department of the University of Tennessee upon the charge of having sold final examination questions to their fellow students. They filed their separate original bills in the Chancery Court of Shelby County against O. W. Hyman, Dean of the University of Tennessee College of Medicine, James D. Hoskins, President of the University of Tennessee, and others who are members of the Executive Committee of the University of Tennessee College of Medicine, also others who are named as members of the special committee of the Board of Trustees of the University of Tennessee, praying that the alternative writ of mandamus issue to compel the defendants to reinstate them immediately and to certify to each of them the credits received, without derogatory statement and without mention of the "unlawful, illegal expulsion," or "to show cause why they have not done so." Since the issues are the same in both cases, they were tried together by the Chancellor, without objection, and a separate decree entered.

It is alleged that the University of Tennessee is a public educational institution of the State of Tennessee, supported by state funds, and that it is maintained and operated for the special benefit of citizens of this state. It is further alleged that relator was admitted to the College of Medicine of the University, his qualifications for admission being in all respects satisfactory to the school authorities; that the acceptance of relator as a student was a contract by implication, under which he has the right to continue his studies until he has completed his education entitling him to practice his profession in the State of Tennessee. It is admitted in the bill that the defendants had the authority to expel relator for violating the rules of conduct established by the University, but only after relator was found guilty of charges preferred on a full, fair and complete hearing Each of the relators aver that they had studied for two years in the College of Medicine, and, while they were "laying out for a quarter" in accordance with the rules of the school, they were expelled upon false charges of having sold examination papers to fellow students; that they were not given a fair hearing or any hearing at all, and were deprived of the right to make proper defense against false accusations. It is further alleged that there was no proper notice given of the charge against them and that there was no opportunity given them to face their accusers or to cross-examine them.

It would unnecessarily prolong this opinion to state all the averments in the bill as to what occurred leading up to the final action of the Executive Committee in expelling relator from school. It is claimed that everything that was done was unlawful and that relator is deprived of valuable rights in that he is deprived of the right to pursue the vocation of his choice. It is averred that "the officials herein named having refused to give relator a hearing required by law, and having refused to reinstate relator, he is now entitled to have a writ of mandamus issue."

The alternative writ of mandamus issued on April 21, 1942. Thereupon the defendants appeared and made return to the bills filed by relators. Respondents aver that in their several capacities they are charged with the supervision of the medical department of the University of Tennessee; that the practice of medicine is affected with the public interest to a high degree, and that the preparation for engaging in the practice is a matter likewise affecting the public interest; that it is their duty to so supervise the study of medicine as to maintain the highest standards of integrity and efficiency in the school, in keeping with requirements of accredited schools giving medical training; that the stealing and sale of examination questions "was of such momentous import to the good name of the school and of the medical profession generally that it warranted a searching investigation and disciplinary action to the end that the evil complained of be corrected."

It is further averred that in August, 1940, the attention of the Executive Authorities was directed to the fact that examination questions were being stolen and some of them at least sold and that they were confronted with many administrative difficulties in making a proper investigation; that being fully aware of their difficulties, the respondents organized a student council which should have primary jurisdiction of such investigations and should report its recommendations to the faculty. The Dean of the College of Medicine was a member of this student council, in addition to the twelve students composing said council. During the progress of this investigation testimony was elicited involving a number of students, among whom were these relators; that the relators were called before the council and were advised that it was in possession of evidence connecting them with the alleged theft and sale of examination questions. The relators denied their guilt and claimed to have no knowledge of the guilt of anyone. The council demanded full cooperation of all students and warned everyone that a failure to thus cooperate in the investigation would result in a recommendation for their dismissal from school. The student council after hearing the testimony against relators recommended their dismissal. They were notified by the Dean to meet with the faculty or Executive Committee on a day certain. Relator Sherman refused to attend this meeting because of business engagements. The faculty committee, following the recommendation of the student council, expelled relators Sherman and Avakian. Some time later the relator Sherman made a request for a rehearing, which was granted on January 8, 1941, and at this meeting the President of the University, Dr. Hoskins, was present. It is averred that at this meeting the relator had read to him the substance of the testimony against him and was permitted to be heard in his own behalf and did deny having any connection with the transaction. The same procedure was had in the case of Avakian. Later the President of the University appointed a special committee from the Board of Trustees of the University to hear an appeal from the relators. This committee met in Memphis on September 30, 1941, and was presented with the substance of the testimony heard by the Dean and the student council. The relators were represented by counsel and were permitted to testify and introduce witnesses to rebut the previous findings and conclusions of the Executive Committee. After hearing the transcript of the testimony against relators read and after hearing them both in person and by counsel, the committee of the Board of Trustees voted to affirm the action of the faculty Executive Committee and concur in the expulsion of relators.

It is further averred, "While it is true that relator was not confronted face to face with the witnesses who accused him, and was not permitted to cross-examine them, he was at all times aware of the nature of the charges against him." It is also averred, "These respondents deny that the relator, under the circumstances, was entitled to a trial in the form provided by the common law, but on the contrary they aver that the various tribunals before whom relator was heard were more in the nature of administrative bodies whose duty it was to undertake to reach a correct conclusion from all the facts at their command."

A number of exhibits are filed with both the original bills and the return of the respondents. The respondents have appealed from the decree of the Chancellor in directing the issuance of the alternative writ of mandamus and have assigned it as error. While the question is made by respondents that mandamus is not the proper remedy in the instant case, we think it proper to waive this question aside and consider whether these relators were given a lawful hearing and a reasonable opportunity to make defense against the charges preferred against them.

Since these causes were heard upon bill and answer, the facts alleged therein, as well as all exhibits, must be considered as true, not as to the guilt or innocence of the relators but as to the nature of the hearing accorded them. In State ex rel. v. Williams, 110 Tenn. 549, 577, 75 S.W. 948, 954, 64 L.R.A. 418, the Court said: "It results that we must treat every averment of fact in the answer, for the purposes of the present hearing, as true, and, after consideration thereof, either grant or deny the...