The holder of a physician’s license or diploma issued in another State or country, who before the granting met all the preliminary and professional qualifications required for earning a license on examination in this State and who thereafter was in reputable practice for ten years, and “ has reached a position of conceded eminence and authority in his profession,” is entitled to have the Commissioner of Education on the approval of the
I agree with the justice presiding at the Special Term that the refusal by the Commissioner of Education and the Board of Regents to approve and indorse the Austrian medical diploma or license of Otto Marburg was arbitrary and unreasonable. The Legislature, under its broad grant of power, established the standard for this indorsement, that an applicant must have reached a position of conceded eminence and authority in his profession. It grants to the Board of Regents and the Commissioner of Education discretion to determine whether an applicant is eminent and an authority, but not to select favorites from among those who are concededly eminent and regarded as authorities. If an applicant is concededly eminent and an authority in the medical field, the indorsement is not discretionary.
Petitioner’s application was indorsed by many of the most distinguished and famous American physicians working in the field of neurology. The names of some of these are stated in the opinion in the court below. Quoting very briefly from a few of the letters: “ I had occasion to see Dr. Marburg at work in his Institute in Vienna, and can state very definitely that everyone regarded him as the leading neuropathologist of Europe. In Vienna, I also happen to know, he was the great consulting neurologist and people flocked to him from every country of Europe; ” “ Dr. Marburg was Director of the Neurological Institute at Vienna before he was forced to come to this country by the political situation in Austria. As Director of the Institute, he was the head of the best known and most widely attended clinic and laboratory for post-graduate instruction in neurology in Europe. * * * He is one of the most eminent scientists who have been added to our academic circles; ” “ Dr. Marburg, owing to political events in Europe, is now in New York, where his great learning and experience can be used for the benefit of American medicine. I know of no greater figure in the medical world, and hope the authorities of the Board of Education can endorse medical license for him.”
The record fails to disclose any who hold opinions opposite to those quoted. The arguments advanced by the attorney on behalf of the appellants are not convincing. It is said, in substance, that Dr. Marburg’s fame and eminence are limited to one branch of medicine — neurology; that the Regents require eminence as general practitioners. This does not seem to accord with recognized authorities on medical history. I quote from the Encyclopaedia Britannica (Vol. 15 [14th ed.], p. 205): “ The system of medical
No argument is required to convince even a layman of adult years of the effect of a nervous disorder upon all physical functions. A further argument advanced for the reversal of this order is that the indorsement of the certificate would affect adversely the fortunes and privileges of the medical profession of this State because, as the brief states, “ Our own citizens are required to spend money and time to secure a complete background of elementary and academic education and long periods in colleges devoted to obtaining technical knowledge concerning the profession.” The statutes concerning the licensing of physicians are not intended to be for the benefit of the members of that guild, but to advance and promote the public welfare through the improvement of the health of our citizens. Except for the latter consideration, it would be in violation of our Constitution to grant to a limited number of persons the privilege to treat human ills in return for very adequate compensation. With complete unanimity the imposing array of medical experts who have spoken in connection with this matter say, in substance, that the public health will be benefited by permitting this famous man to practice in the State of New York.
The Board of Regents and the Commissioner of Education may not disregard uncontroverted evidence. (Matter of Guernsey Breeders Co-op. v. Noyes, 284 N. Y. 197.) (
I vote to affirm the order of the Special Term.
Bliss, Schenck and Foster, JJ., concur; concurring opinion by Schenck, J., in which Hill, P. J., Bliss and Foster, JJ., concur; Heffernan, J., dissents, in an opinion.