Erlanger v. Regents of University

Hill, P. J.

(dissenting in Matter of Levi). Petitioner sought to review a determination made by the Regents of the University of the State of New York, denying his application under the Education Law (§51, subd. 3) to have his German medical license indorsed to permit him to practice his profession in this State. The Regents may so indorse a medical license (Education Law, supra) issued by a legally constituted board of examiners of any foreign country upon satisfactory evidence that the requirements of that country for the issuance of a license were substantially equivalent to the requirements in force in this State when the foreign license was issued, upon proof that the applicant has practiced his profession in a lawful and reputable manner for not less than five years.

Petitioner made the application to review under article 78 of the Civil Practice Act (§ 1284, subd. 2) by presenting his petition to the Albany Special Term of the Supreme Court. The Regents filed an answer containing a so-called return. The court determined that issues of fact "were raised which should be tried, and made an order, which it deemed was required by section 1295 of the Civil Practice Act, that a trial be had to determine whether or not the requirements made by the board of examiners in Germany at the time petitioner’s license was issued, were substantially equivalent to those in force in this State at that time, and whether petitioner had engaged in the practice of his profession, as required by the Education Law (§51, subd. 3), for five years. Both the petitioner and the respondents appeal from the order.

*452Respondents plead in their answer that the application was denied under a “ policy ” established by them October 13, 1933, to refuse indorsement to any applicant who had previously failed in the “ professional licensing examination and that such policy has been followed by the department, without exception, since that date,” and further, that the application was denied under a rule ” which the Regents had adopted September 21, 1936, concerning applications made after October fifteenth of that year, that “ no license issued by a legally constituted board of examiners in any foreign country shall be indorsed, pursuant to the provisions of section 51 of the Education Law, unless the applicant shall pass the licensing examination prescribed by law or Regents' rule.”

I quote the relevant language of the statute to aid in determining whether the Regents were permitted to adopt and enforce the “ policy ” and the “ rule ” which they invoked in deciding this case: “ And the Regents shall have further power to indorse a license issued by a legally constituted board of examiners in any other State or country upon satisfactory evidence that the requirements for the issuance of such license were substantially the equivalent of the requirements in force in this State when such license was issued, and that the applicant had been in the lawful and reputable practice of his profession for a period of not less than five years prior to his making application for such indorsement.” (Education Law, § 51, subd. 3.) Under a statute so phrased, may the Regents make further requirements as outlined in their policy and “ rule ” as conditions precedent to the indorsement? They may not make laws; that is a legislative function. When the Legislature by statute has delegated power to them and prescribed a standard under which they may exercise the delegated power, they may make rules in conformity therewith. (United States v. Grimaud, 220 U. S. 506, 517; People v. Klinck Packing Co., 214 N. Y. 121, 139; Brown v. University of State of New York, 242 App. Div. 85; affd., 266 N. Y. 598.) The standard here is, (1) that the requirements of the foreign country must have been substantially equivalent to those of this State as of the date of the foreign license, and (2) the lawful and reputable practice of medicine by the applicant for at least five years. The" Regents' “ rule ” and policy ” overreach, and do not comply with, the standard fixed by the Legislature. The adoption and attempted enforcement was an ultra vires act and supererogation. Further, the decision by the Regents was a final order conclusively determining substantial rights of the petitioner, which may not be made pursuant to self-made ultra vires policies and rules, or without a hearing. (Matter of Sperduto v. N. Y. City Inter. R. Co., 226 N. Y. 73.)

*453When the Special Term made the order appealed from, it erroneously applied section 1295 of the Civil Practice Act upon the assumption that issues of fact which the court had jurisdiction to try were presented by the pleadings. The issues of fact are to be determined by the Regents. The language of this section of the Education Law contemplates that hearings will be had, as the determination is to be made “ upon satisfactory evidence.” A hearing of a kind was held, although petitioner was not notified. The answer states that there was a hearing and decision “ as part of this return of all acts and proceedings on the application of said Dr. Julius Levi * * * defendants submit herewith the following summary of the exhibits heretofore mentioned.” In this summary is listed letters, affidavits, certificates, notifications and like documents. Under such conditions, a paragraph of section 1296 of the Civil Practice Act applies, “ Where the determination under review was made as a result of a hearing held, and at which evidence was taken, pursuant to statutory direction, the following questions shall also be determined.” These are numbered 6 and 7 and deal with the sufficiency of proof to sustain the decision made by the administrative board. Under a subsequent paragraph of the same section the Special Term is to determine the issues under the first five paragraphs. As to the issues mentioned in paragraphs 6 and 7 {supra) it is enacted, “ Where one of the other two issues [6 and 7] is raised, the court [the Special Term! shall make an order directing that the proceedings be transferred for disposition to a term of the Appellate Division held within the judicial department embracing the county in which the proceeding is instituted.” Thereunder the determination of an administrative board is final except for the limited review provided by these two paragraphs.

The Special Term should have disposed of this matter by annulling the determination made by the Regents under the authority given by the 5th numbered paragraph of section 1296, whereunder the Special Term is to decide “ Whether, in making the determination, any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the petitioner.” The determination of the issues mentioned in the first five paragraphs of section 1296 is to be made by the Special Term. The Regents violated rules of law to petitioner’s prejudice by deciding the cause in conformity with the ultra vires “ policy ” and “ rule ” adopted by them and by failing to determine the issues framed by the Legislature.

Now that this matter is before the Appellate Division, another portion of section 1296 applies. We are to treat the cause, even if it comes before us erroneously, “ as if the proper proceedings had been taken,” and we are to dispose of the issues * * * or if the *454papers * * * are not sufficient therefor * * * remit the proceeding to the proper term or court to be disposed of.” Thereunder, the determination of the Board of Regents should be annulled, because of the errors earlier pointed out.

The background of the Regents’ new policy and rule is, of course, the great influx of non-Aryan ” German physicians who have recently come to this country to escape persecution in Germany. The wisdom of changing the policy to meet changed conditions is for the Legislature, not the Regents. The former enacts statutes governing admission to the practice of medicine in this State, and determines what recognition will be given the licenses of those taught in foreign States and countries, and when it has set a standard, the Regents thereunder, and in conformity therewith, may exercise powers delegated to them, and in the exercise thereof may make rules, but may not change or modify the act of the Legislature by establishing new governmental policies. Their answer pleads the petitioner failed to pass the “ medical licensing examination.” This is not material, as the statute does not require that he shall. Should we apply natural justice rather than this statute, the standard set by the Legislature seems wiser than the Regents’ new policy, as the best of American-born physicians five years out of medical school would probably be confounded by the questions prepared for the graduate fresh from the hands of the professors.

Reference is made to section 1259 of the Education Law. That section has no application, and the Board of Regents did not purport to act thereunder, as their rule ” of September 21, 1936, specifically mentions section 51 of the Education Law, and the return contained in the answer refers to “ the application of said Dr. Julius Levi, for the indorsement of his German medical license as a license to practice medicine in the State of New York pursuant to section 51 of the Education Law.”

I favor the reversal of the order appealed from, with fifty dollars costs and disbursements, and an annulment of the determination made by the Board of Regents, with fifty dollars costs to petitioner.

Orders appealed from reversed on the law and facts, with fifty dollars costs and disbursements, as in one proceeding, and applications denied, with fifty dollars costs, as of one motion.