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District Court of Appeal, First District, Division 2, California.


Civ. 13254.

Decided: January 30, 1947

Robert W. Kenny, Atty. Gen., State of California, and J. Albert Hutchinson, Deputy Atty. Gen., for appellant. Heller, Ehrman, White & McAuliffe, Lloyd W. Dinkelspiel and Louis Heilbron, all of San Francisco, for respondents.

The respondent brought a mandate proceeding in the Superior Court to compel the appeliant board to issue a reciprocity certificate entitling him to practice medicine and surgery in this state, after the board had denied his application. Following a court hearing, characterized by respondent's counsel as ‘bitter and stormy’, a peremptory writ was ordered as prayed. This appeal was then taken.

There are two companion cases. Dr. Oscar J. Burroughs also applied directly for a reciprocity certificate, while Dr. Zelwyn A. Aarons applied for an examination. Their applications were likewise denied, and they, too, sought and obtained writs of mandate. The three cases were tried together and on one record. The Burroughs and Aarons cases are discussed in separate opinions this day filed. Burroughs v. Board of Medical Examiners, etc., Cal.App., 176 P.2d 715; Aarons v. Board of Medical Examiners, etc., Cal.App., 176 P.2d 706.

The respondent studied medicine in Chicago Medical School from 1932 to 1936 and graduated with the degree of doctor of medicine in 1936. He served for a year as an intern in a Chicago hospital and was admitted to practice in Illinois in 1937. The same year, after a written and practical examination, he was admitted in Massachusetts, and in 1940, after a written examination, he was admitted in Texas. In 1940 he applied unsuccessfully in California for a direct reciprocity certificate; in 1941 he applied to take an examination, but was refused.

In April, 1945, respondent filed his second application for a direct reciprocity certificate, based on his Illinois license. On such an application the law does not call for a hearing before the board but in this case a hearing was requested and granted.

Ever since 1913 the medical practice act has required that every applicant in California be a graduate of a medical school approved by the board.

The medical school from which the respondent graduated was disapproved by the board by a resolution appearing on its minutes of February 18, 1924, and its action has never been rescinded of record.

To surmount this barrier counsel for the respondent at the board hearing drew to the board's attention the fact—disclosed, of course, by its own records—that (despite such formal disapproval) at least seven graduates of the same school had been granted reciprocity certificates by the board.

On July 10, 1945 respondent's application was denied ‘upon the ground that he has not shown to the satisfaction of this Board compliance with section 2171 of the Business and Professions Code, in that he has failed to establish that he completed a resident course of professional instruction at a school approved by this Board.’

The petition in mandate was then filed, wherein it was alleged that the school had been approved by the board; that the board's records so showed; that there was no evidence to the contrary, and that the application had been capriciously denied. It was alleged ‘that many of its graduates were admitted to practice in California under direct reciprocity and without the necessity of taking any written or oral examination for licensure in this State.’ It was alleged also that there never had been any pretense that between the time of the former approval of the school, ‘by either the act of admitting its graduates to practice * * * or otherwise, * * * and the time of petitioner's graduation therefrom, there was any deterioration in the quality of its instruction or a later investigation into the character and standards of its teachings, and that said Board's action was hence unreasonable, arbitrary, and constituted an abuse of discretion, and was in excess of its jurisdiction.’

The board denied these allegations and affirmatively pleaded that it had not approved the school but on February 18, 1924 and again on June 30, 1927 had disapproved it, which actions had never been revoked.

The court found that the school at the time of petitioner's attendance and graduation was approved by the board and at the time he was admitted in ‘Illinois, Massachusetts and Texas, the requirements of the medical licensing authorities of said states were not in any degree or particular less than those required for the issuance of a similar certificate’ in California.

The theory on which the mandate proceeding was commenced as shown by the pleadings, the record, and the findings therein, and the theory of the respondent on this appeal, is that what the board did in admitting nine graduates of the same school outweighed and nullified what it said in the resolutions of disapproval and amounted to de facto approval of the school.

The codification into the Business and Professions Code (Stats. 1937, p. 1229) is based on the medical practice act of 1913, as amended. The subjects ‘The Physician's and Suregon's Application’ (sections 2190–2195) and ‘Examinations' (sections 2280–2293) were formerly contained in sections 2, 2d, 9, 10, 11, 11a and 23 of the act. The subject ‘Reciprocity’ (sections 2310–2325) was contained in section 13 of the act.

Except for the addition in 1943 of sections 3168.5 and 2316.5 the reciprocity part of the (act (as far, at least, as the question here presented is concerned) has not been materially changed since 1913.

One of the provisions which differentiates the reciprocity part of the act from other parts relating to licenses is the requirement that reciprocity candidates shall be admitted without examination. A doctor from any of the other 47 states is admitted in California simply on his license issued by the other states, augmented by a showing respecting his educational qualifications.

In the period from 1922 to 1945, during which the nine doctors were admitted in California, the law read substantially as it now reads in the following sections: Section 2310: ‘The board shall issue a reciprocity certificate to an applicant to practice a system or mode of treating the sick or afflicted in this State that he is authorized to practice in any other State if it is a system or mode that is recognized by this chapter or any preceding practice act. Subject to the provisions of sections 2320 and 2321, no examination for any reciprocity certificate shall be required’. (Emphasis added.)

The qualification found in the last sentence naturally directs the inquiry to section 2320, which reads as follows: ‘The board may make an independent investigation of the educational qualifications and the character, ability and standing of the applicant. If, after this investigation and any other or further examination or investigation which the board may see fit to make on its own part, it is found that the requirements of the medical licensing authority issuing his certificate were in any degree or particular less than the requirements provided by the law of the State at the date of the issuance of his certificate, * * * he will not be entitled to practice in this State without examination’. (Emphasis added.)

Section 2321 provides that if the out-of-state license is more than 10 years old the candidate must take an oral examination.

When sections 2310 and 2320 are read together they must necessarily mean that if the candidate measured upon, in his own state, to California's requirements—one of which is graduation from a school approved by the California board—then he should be admitted without examination, but if he did not, he must submit to an examination. The fact that an examination is called for must necessarily mean that the requirements of the other state have been found to be below those of California. Certification after an examination so required cannot possibly amount to approval of the applicant's school.

The certification in California of nine graduates of respondent's school is relied on to estabish his claim of de facto approval of it. Seven of the nine were admitted in California only after they had been subjected to examination. Their histories follows:

Dr. E. M. F. graduated in 1917. He was admitted in California after an oral examination in 1922, 16 months before the 1924 resolution disapproved his school. The minutes show that the board ruled in his case: ‘that reciprocity certificate be issued [to E. M. F.], based upon his certificate issued by the Illinois Board, when considered in conjunction with the granting of a First Lieutenant's commission in the Medical Corps of the United States Army after an oral examination, followed by service in the A. E. F.’ His case should fall of its own weight because he was admitted before the board took formal action disapproving the school. At least it cannot be claimed in his case that the board impliedly approved the school after it had formerly disapproved it.

Dr. W. F. R. graduated in 1912. He was granted a reciprocity certificate in 1927 after his application had been once denied. That he was forced to take the examination not because he held a state license, but because the board had found his out-of-state grounding below California standards appears from the following minutes of the board: ‘Dr. R. when informed of the denial of his application, signified his intention of filing a new application, outlining his additional work, and coming under the oral provisions of the law.’ (Emphasis added.)

Dr. A. M. graduated in 1916. In 1923 his first application for a reciprocity certificate in California was denied because (as the minutes show) of the ‘low standard’ of his school. In 1929, when he argued his case before the board, he was an army captain on duty in a government hospital at San Fernando. The minutes show that he filed ‘various documents to supplement his application. One document was listed as Complete Military Record, including Citation for Bravery under heavy gas bombardment in St. Mihiel Sector.’ He was granted a reciprocity certificate in 1929 after taking an oral examination.

Dr. H. C. S. graduated in 1927 and his application that year was at first denied. On reconsideration he was permitted to take a written examination, which he failed to pass. In 1934 he was admitted after taking an examination.

Dr. J. A. M. graduated in 1934 and was admitted in 1935 after taking a written examination.

Dr. D. E. A. graduated in 1928 and was granted a reciprocity certificate in 1941. From the record it would appear that his examination was required because of deficient grounding, for he took a written examination.

Dr. H. L. D. graduated in 1926. He applied to the board in 1943 for an examination looking to the issuance of a reciprocity certificate. He had a hearing before the board attended by his counsel, and the board denied an examination. In 1944, he filed in the Superior Court a petition entitled ‘Petition for writ of mandate or other appropriate relief pursuant to section 2174 of the Business and Professions Code of California’. Section 2174 provides an applicant a remedy where a school has been disapproved. The fact that he invoked this remedy plus the fact that he sought before the board and in court only the right to take an examination indicates that he knew the Chicago Medical School was not approved by the board and that it would be futile to seek a reciprocity certificate outright. The court mandated the board to give him an examination. It obeyed and he passed. We fail to see his certification under the compulsion of the writ and in the peculiar circumstances of this case can be seriously urged as de facto approval of the school.

Dr. E. W. S. graduated in 1916. In 1920 his application for a reciprocity certificate was denied on the ground (according to his pleading, in evidence here) that the institution from which he graduated ‘did not appear on the list of schools as qualifying petitioner for a license to practice in the State of California.’ (The board in 1923, as appears earlier, had denied the application of Dr. A. M., who likewise had graduated in 1916, because of the ‘low standard’ of the school). In 1944, twenty-four years after his application had been denied, he filed a petition in the Superior Court for a writ of mandate. The judgment therein declares ‘that the then Board of Medical Examiners were without jurisdiction to deny petitioner's application for a physician's and surgeon's certificate by direct reciprocity and without examination and that it is now the duty of Respondent Board, as successor to the then Board, to correct such old Board's mistake * * *’ It mandated the board to annul the 1920 order and to issue Dr. S. a reciprocity certificate. The board did so under the compulsion of the writ. As in the preceding case, we fail to see how the board's action in such circumstances can be characterized as inconsistent, or held to be an approval of the school.

Finally, Dr. A. O. T. graduated in 1923 and was admitted in 1925 without examination as far as the record shows by a resolution reading: ‘Moved by Dr. Campbell, seconded by Dr. Brown, that a reciprocity certificate be issued to [A. O. T.]’

The cases of Dr. A. O. T. and Dr. E. W. S. are the only ones of the nine where there was reciprocity certification without examination in the period of 23 years from 1922 to 1945, as far as the record shows.

Counsel for respondent with commendable candor concede that ‘the admission of one or two applicants from the school might be subject to the contention that the Board was guilty of an error in slighting its statutory obligation’. The leeway thus frankly conceded just about squares with what this record shows except that in the case of Dr. E. W. S. there was no oversight on the board's part—it denied his application in 1920 and was forced to reverse its action by court order 24 years later. In his case, moreover, the court conceivably might have based its mandate on the fact that in 1920 when the board rejected his application it had not yet formally disapproved his school.

Throughout this discussion we have dealt with nine doctors only. Counsel for respondent state that six other graduates were admitted in California and are shown in the board's directory, making 15 in all. Before the board the records of but seven doctors were brought up, and in the trial court the histories of no more than nine were discussed. We therefore feel under no obligation to go further respecting the other six in the absence from the record of their individual histories.

Again, it is argued by the respondent that the official directory shows over 1000 doctors admitted and practicing in California who are graduates of medical schools now nonapproved, extinct or merged with other schools. Although the directory is properly before the court and its contents are in the record, the nine specific cases which were before the trial court are as many as we can be expected, within reason, to consider. The burden of proof, after all, was on the respondent.

The respondent also contends that an approval of the school is to be implied from the wording of the board's directories. Instead of approval, the directories, in our opinion, definitely show disapproval. The 1945 directory contains a list of medical schools both existing and extinct. It announces that ‘Existing recognized schools are in black face type. Schools in light face type are extinct, have merged with other schools or are not recognized’. Under Illinois, 45 schools are listed. Five of these are shown in black face type, meaning approved. Of the remaining 40, 16—including the school in question—are listed not only in light face type but with the designation ‘Reported not acceptable for licensure by many of the State Licensing Boards, or not approved as a medical school by the Council on Medical Education of the American Medical Association.’ This certainly does not indicate approval.

At the trial the board offered in evidence its minutes of June 30, 1927, wherein by resoution the board disapproved the school for the second time. The respondent objected that the resolution had not been called to the board's attention or introduced in evidence, so to speak, at the informal hearing which the board accorded to respondent and the objection was sustained. We have no doubt that the ruling was erroneous. The resolution was contained in the board's minutes and was certainly within its own knowledge. Anderson v. Board of Dental Examiners, 27 Cal.App. 336, 339, 149 P. 1006; Benton v. Industrial Acc. Comm., 74 Cal.App. 411, 415, 240 P. 1021; Rich v. McClure, 78 Cal.App. 209, 213, 248 P. 275. The principal, if not the only, question in the case was whether there had been approval or disapproval of the school. The resolution tended to disprove respondent's allegations and to prove those of appellant on that issue. The first resolution, of February 18, 1924, had been admitted and the second resolution was just as admissible as the first.

These resolutions showed two formal actions by the board disapproving the school. Opposed to this documentary proof were the distories of the nine graduates which we have discussed at considerable length and which, in our opinion, add up to no showing whatever of approval.

Manifestly such formal and deliberate actions of the board, to whom the legislature has committed the important duty and function of approving or disapproving medical schools, should not be subject to nullification by less formal or deliberate action except by the strongest kind of showing. The evidence relied on to establish such nullification should be clear, convincing and unequivocal. Such proof was not forthcoming in this case, and we are constrained to hold that there is no substantial evidence in this record to sustain the findings that the school had been approved; that the requirements of Illinois, Massachusetts and Texas equalled California's or that many of the school's graduates were admitted ‘under direct reciprocity and without the necessity of taking any written or oral examination’. The finding of arbitrary, capricious and unreasonable board action is dependent, of course, on the finding that the school had been approved.

The evidence, on the contrary, establishes that the school had been definitely disapproved.

The medical practice act sets up a series of conditions precedent to the issuance of a certificate and the respondent did not prove his compliance therewith, which means, in short, that he did not sustain his burden of proof. Arwine v. Board of Medical Examiners, 151 Cal. 499, 91 P. 319.

The case of Herzig v. Board of Medical Examiners, 135 Cal.App. 41, 26 P.2d 513, 514 is in point. In that case the doctor's petition in mandate was denied because his medical school had been disapproved by the same resolution—that of February 18, 1924—which disapproved the Chicago Medical School. In that case, as in this, the admission of other graduates was claimed to be an approval. In the main opinion this contention is not even mentioned, but in the concurring opinion Mr. Justice Conrey says: ‘Some evidence was introduced to show that certain reciprocity certificates to holders of diplomas from those institutions were granted by respondent board after February 18, 1924. In most of those instances, if not all, evidence was introduced to show that these exceptions were justified by the particular circumstances of those cases; as for instance, when it appeared that a diploma was issued in 1892, whereas the resolution refusing recognition was by its terms effective only as against certificates issued in 1907 and thereafter. I think that these particular instances were not sufficient to overcome the effect of the formal resolutions adopted and maintained in force by respondents.’

Cases from outside jurisdictions are cited in the briefs where admissions were claimed to overcome formal board action, and to amount to recognition of the school. It is not necessary to discuss them because of the authority in our own state.

The respondent in the trial court strenuously contended, and so contends on appeal, that the board's action was arbitrary, capricious, discriminatory, and violated his constitutional rights. In that connection he quotes from Hewitt v. State Board of Medical Examiners, 148 Cal. 590, 84 P. 39, 40, 3 L.R.A.,N.S., 896, 113 Am.St.Rep. 315, 7 Ann.Cas. 750, the familiar statement that ‘The right to practice medicine is, like the right to practice any other profession, a valuable property right, in which, under the Constitution and laws of the state, one is entitled to be protected and secured’. However true that is, it must be borne in mind that that language was used with respect to a license which had been already issued and was outstanding not one which was then only applied for.

In Re Investigation of Conduct of Examination for Admission to Practice Law, 1 Cal.2d 61, 63, 67, 33 P.2d 829, 830, the court, after commenting on the ‘mistaken conception’ that there exists ‘a ‘vested right’ to practice law', says, ‘It has been the rule in this state, * * * that ‘The right to practice law is not an absolute right, derived from the law of nature. It is the mere creature of the statute, and when the license is issued and the official oath taken, which authorizes the attorney to exercise the right, it confers but a statutory privilege, subject to the control of the Legislature.’ Cohen v. Weight, 22 Cal. 293, 319 * * *.'

That declaration of course applies with equal force to the right to practice medicine.

Much time was consumed at the trial in attempting to show caprice and discrimination by a comparison of the individual experience—army, public health, general practice and otherwise—of the same nine graduates of respondent's school, with his own experience and attainments, to the advantage (it is argued) of the respondent. Such comparison was not within or at all relevant to the issue on trial. That issue was not whether Dr. Mann was better qualified or more experienced than any of the nine who had been admitted, but whether, as a matter of right, he was entitled to a certificate without examination on the ground that the board had approved his school. As we emphasized at the outset, that, and that alone, was the issue in this case.

The respondent complains that the board ‘does not even offer him an examination to test his qualifications. Assuming that the Board has not approved this school, despite the contradiction of what it has done in the past with what it has said, nonetheless the Board's action at the very worst should have been only that it refused him admission without examination.’ This is accompanied by the suggestion that in case of an adverse holding this court should order an examination.

Respondent's petition in mandate does not ask for an examination and the record does not indicate that when he was before the oard he sought one. His position is essentially the same as that of the petitioner in the leading case of Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 234, 32 L.Ed. 623, where the court, through Mr. Justice Field, said, ‘It [the statute] authorizes an examination of the applicant by the board of health as to his qualifications when he has no evidence of them in the diploma of a reputable medical college in the school of medicine to which he belongs, or has not practiced in the state a designated period before March, 1881. If, in the proceedings under the statute, there should be any unfair or unjust action on the part of the board in refusing him a certificate, we doubt not that a remedy would be found in the courts of the state. But no such imputation can be made, for the plaintiff in error did not submit himself to the examination of the board after it had decided that the diploma he presented was insufficient.’ (Emphasis added.)

This state has provided a remedy for an applicant in the position in which the respondent found himself. Section 2174 (Business and Professions Code) provides that, ‘If any school is disapproved by the board or any applicant for examination is rejected by it, then the school or the applicant may commence an action in the superior court against the board to compel it to approve the school or to admit the applicant to examination or for any other appropriate relief. In such an action, the court has full power to investigate and decide all facts anew without regard to any previous determination by the board. The action shall be speedily determined y the court and shall take precedence over all matters pending therein except criminal cases, applications for injunction, or other matters to which special precedence may be given by law.’

The respondent disregarded this remedy, then and now open to him, when he elected to go from the board to the court to compel certification without examination. To follow respondent's suggestion and remand this case with leave to amend would invite the pleading in the same case, of a cause of action diametrically opposite to and inconsistent with that pleaded in the original petition. The whole theory would have to be changed from the present one predicated on approval by the board to one based on disapproval. Moreover, in order to amend, further proceedings would doubtless be required before the board (see 16 Cal.Jur., p. 861, sec. 61), as a foundation for action either under section 2174 or under any other proceeding or remedy which the respondent might choose to pursue and we cannot anticipate the board's action on any new application.

Other points raised by the appellant, such as the claimed errors in rejecting proffered evidence, including that relating to practicing without a license, need not be passed on in view of the conclusion at which we have arrived.

The judgment is reversed with the direction to the Superior Court to dismiss the proceeding.

GOODELL, Justice.

NOURSE, P. J., and DOOLING, J., concur.

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