(dissenting). The respondent, Otto Marburg, was bom in Romerstadt, Czechoslovakia, on May 25, 1874. He was graduated from the University of Vienna Medical School and licensed to practice medicine in Austria in 1899. He emigrated to the United States in June, 1938, and later filed a declaration of Ms intention to become a citizen of tMs country. Prior to Ms arrival here he was connected with the Neurological Institute of Vienna. Since coming to tMs country he has secured a position as climcal professor of neurology at Columbia Umversity. Neurology is but one of a great variety of subjects in the vast domain of medicme. He is also engaged in the capacity of research associate at the Montefiore Hospital, New York city. It is unnecessary for Mm to obtain a medical license in this State for the discharge of the duties of either of these positions.
On January 23, 1940, respondent submitted to appellants, the Commissioner of Education and the Board of Regents, an application for the indorsement of Ms foreign license, without examination, under the provisions of section 1259 of the Education Law. Accompanying Ms affidavit and as part thereof he annexed certain documents from abroad certifying to Ms prefiminary and professional qualifications. At the same time he also filed with appellants verified statements as to Ms practice and experience together with letters from six American doctors who recommended that Ms application be granted. During the pendency of Ms application respondent was accorded opportumty to appear before a committee of the Board of Regents. He availed Mmself of tMs privilege and he and Ms counsel were heard orally and the merits of Ms claim fully considered. Later and on May 17,1940, appellants demed Ms application.
Thereafter respondent instituted tMs proceeding under article 78 of the Civil Practice Act to review such determination. After hearing the parties the Albany Special Term of the Supreme Court annulled the decision of appellants and directed them to indorse respondent’s Austrian medical license, thereby opening the door to him to practice Ms profession in tMs State without the necessity of submitting to a medical licensing examination. From that order appellants have come to tMs court.
WMle the question presented to us primarily concerns only the right of respondent to practice medicme without examination, the real issue involved is one of paramount importance to the people of tMs State. At common law the practice of medicme was open to all people who desired to practice it, subject to liability for damages for lack of skill on the part of the practitioner and to the right of the government to proceed by quo warranto to prevent *335incompetents from following the profession. With the passing of the years in practically all civilized countries laws were enacted requiring every one who proposed to devote himself to the prevention, cure or alleviation of disease and pain to demonstrate that he possessed the requisite knowledge of the nature of disease, its anatomical and physiological features, its causative relation and the preparation and action of drugs. One of the principal functions of government is the protection of the Health of the citizen and to that end the Legislature, under the police power, may adopt and enforce reasonable rules and regulations not only to prevent the spread of communicable diseases but also for the cure or alleviation of the sick or injured. It is by reason of its solicitude for the public health and welfare that it has enacted laws requiring a certain standard of learning and training of those who undertake to preserve or repair that most delicate mechanism ■ — • the human body.
Today no person has an absolute, unqualified or vested right to practice medicine or surgery. It is a privilege granted upon compliance with certain prescribed conditions and always subordinate to the police power of the State in the protection of the public health against ignorance, incapacity, deception or fraud in the practice of that profession. In order to secure a license to practice the applicant must submit proofs of fitness to administer to the ailments of the afflicted. To earn the coveted degree of doctor of medicine our own citizens must pursue a rigorous course of study, be profuse in the expenditure of time and money in the acquirement of elementary, academic, collegiate and technical education, supply evidence of good character and then pass a licensing examination to establish their fitness. (Education Law, §§ 1256, 1257.)
The statute prescribes three alternative methods of procedure, compliance with any one of which will enable a foreign doctor to obtain a license to practice medicine in this State. Section 1256 of the Education Law prescribes a way for foreign practitioners to enter the practice of medicine in this State. Any person who has the preliminary general education required by the rules of the department and who has completed not less than four satisfactory courses of at least eight months each in a medical school in a foreign country maintaining a standard not lower than that prescribed for medical schools in this State may take the licensing examination. Subdivision 3 of section 51 of the Education Law provides that the Regents shall have power to indorse a medical license issued in any other State or country upon receiving satisfactory evidence that the requirements for the issuance of such license are sub*336stantially the equivalent of the requirements in force in this State when the license was issued and that the applicant has been in the lawful and reputable practice of his profession for a period of not less than five years prior to the application for such indorsement.
Respondent is not seeking a license to practice in this State through either of these routes. His application is to compel appellants to indorse his foreign license under section 1259 of the Education Law, the pertinent provisions of which are: “ The Commissioner of Education may in his discretion on the approval of the Board of Regents indorse a license or diploma of a physician from another State, or country, provided the applicant has met all the preliminary and professional qualifications required for earning a license on examination in this State, has been in reputable practice for a period of ten years, and has reached a position of conceded eminence and authority in his profession.”
The language of this statute is quite significant. An applicant desiring to have his foreign license indorsed must establish that he possesses the preliminary and professional qualifications necessary to obtain a license as the result of an examination and also that he has been in reputable practice for the statutory time “ and has reached a position of conceded eminence and authority in his profession.” If he satisfies these requirements the statute then provides that the Commissioner of Education “ may in his discretion on the approval of the Board of Regents ” indorse his license.
As we have already shown, a foreign practitioner may be licensed to practice medicine in this State by passing a satisfactory examination as provided in section 1256. He may under certain conditions outlined in section 51 be licensed without examination. Surely it was never the intention of the Legislature in the enactment of section 1259 that it should be used by the Board of Regents as a vehicle for the indiscriminate indorsement of foreign medical licenses, thereby relieving these applicants from all the requirements which we exact from our own citizens. A foreign practitioner seeking a license has no just cause for complaint if placed on an equality with our own people. He ought not, except in very rare instances, to be immune from those requirements which we impose upon our own candidates.
It is obvious that the statute under consideration invests the Commissioner of Education and the Board of Regents with a very wide discretion, with which we have neither the wish nor the power to interfere. It is not for us, where opposing inferences may be drawn, to determine which we shall accept and which reject. It is not for us, where the evidence is conflicting, to determine where lies the truth. The courts will not control the discre*337tion of the Board of Begents, in the absence of clear and convincing proof that it has been arbitrarily, oppressively or capriciously exercised. (Matter of Levi v. Regents of University of State, 256 App. Div. 444; affd., 281 N. Y. 627.) Much of what we said in the Levi case applies with equal force to the facts in this record.
On the record before us our power of review is limited to a consideration of the single question whether the action of the Board of Begents in denying respondent’s application was arbitrary, unfair or capricious. The burden of proof is on respondent to establish that contention.
The Commissioner of Education and the Board of Begents have exercised the discretionary power conferred upon them by section 1259 with commendable caution. Since January 1, 1918, but four persons have been licensed under this section, namely, Dr. Bela Schick, the discoverer of the Schick test for determining susceptibility to diphtheria; Dr. Benjamin Philip Watson, outstanding discoveries and services in the field of gynecology; Dr. George Hoyt Whipple, codiscoverer of the cause and cure for pernicious anemia; Dr. Manfred Sakel, the originator of the so-called insulin shock treatment for dementia praecox or schizophrenia. Each of these persons is recognized throughout the world by reason of some unique contribution in the field of medicine; each has attained a position of eminence and authority in the medical profession.
A glance at respondent’s record which we are bound to assume appellants thoroughly investigated unhesitatingly discloses that his accomplishments are not at all comparable to any one of the doctors named. True it is that he has an excellent record in Austria as a professor. True it is also that he has written or collaborated in writing many books and brochures. The mere fact that a member of one of the learned professions has written one or more books relating to his calling is no criterion of success; very often it spells inefficiency in the author’s field. The books which respondent has written are in native German and are not familiar to members of the medical profession in this country. The record fails to show that any one of these books or papers shows unusual scholarship or makes claim to any discovery in medicine or surgery. Highly significant is the fact that the record contains not the slightest intimation that respondent’s teachings or theories have been sanctioned, adopted or followed by other members of the profession. It is not even asserted that he has made any recognized contribution to medical science. Certainly there is nothing in his medical career to justify the conclusion that he has been touched by the magic wand of genius. So far as the proof shows he has done nothing to justify the inscription of his *338name on the permanent rolls of the medical profession. Even if we assume that he distinguished himself in his native land in one branch of learning that is not sufficient warrant for his claim to recognition as one who “ has reached a position of conceded eminence and authority in his profession ” in this country. It is a fair inference from the record that he never has been actively engaged in the practice of medicine but that his entire professional life has been passed in the cloistered security of teaching institutions. This is not a case, as Justice Schencic seems to think, where the ability or standing of legal writers is involved. We are passing only on the question of respondent’s right to coerce the action of the Board of Regents.
Respondent has emphasized the fact that many physicians now practicing in various States in this country pursued part of their course of study in the institution with which he was connected at Vienna. It is not claimed that these physicians chose that institution because respondent was one of its professors or that because of his instruction they have achieved success in their profession. It is common knowledge that literally thousands of our medical students have studied abroad. That does not warrant licensing their professors in this country on the ground of “ conceded eminence and authority.” If that were sufficient reason it would open the door of the medical profession to a prodigious influx of European professors.
The letters of recommendation attached to respondent’s application commend him highly. They are not under oath and carry no probative value, however. In no one of the letters does there appear a single reason why respondent should be so highly honored by this State. In fact all the letters are so discreetly phrased that they convey little, if any, information, beyond the good wishes of the writers. Then, too, judges know, what every one else knows, how easily letters of recommendation are obtained. In any event we are not specially concerned about the opinions of a few doctors as to respondent’s qualifications. We are dealing only with a question involving the discretion of the Board of Regents and not the discretion of some one else.
On the record before us we may not say that the educational authorities of the State have acted unfairly, arbitrarily or capriciously in passing on respondent’s application. Certainly there is not a scintilla of evidence to justify such a conclusion. They have not discriminated against him. The Commissioner of Education and the members of the Board of Regents are individuals of probity, integrity and honor. It is hardly fair to attempt to sully their official action by characterizing it as “ dirty business.” *339By contemporaneous construction of the statute in question, as evidenced in the four instances in which licenses have been indorsed, the Commissioner of Education and the Board of Regents have given the words “ conceded eminence and authority ” used in the statute a definite meaning, one generally acquiesced in by the medical profession. The Regents are simply insisting in this case, as it is their duty to do, that no person shall be licensed to practice medicine on the claim that he has reached a position of conceded eminence and authority unless he has earned a reputation of international repute in his profession and has, by his achievements, clearly demonstrated that he is the possessor of outstanding talent and ability.
The order appealed from should be reversed, on the law and facts and the proceeding dismissed, but under the circumstances, without costs.
Order modified to direct that the proceeding be remitted to the Board of Regents and the Commissioner of Education with instructions that the Commissioner of Education indorse the petitioner’s medical license in compliance with section 1259 of the Education Law and that the Board of Regents approve, and as so modified the order is affirmed, with fifty dollars costs and disbursements.