(dissenting). Appeal from an order of the Albany Special Term which directs the Regents to issue to the petitioner a “ Certificate of Extension of Authority ” to practice osteopathy in the State of New York, for which he was licensed in 1919. By an amendment to section 1262 of the Education Law (Laws of 1939, chap. 741) it was enacted: “ A license to practice osteopathy shall not permit the holder thereof to administer drugs or perform surgery with the use of instruments. Provided, however, that any person holding a license to practice osteopathy * * * who upon the submission of proper credentials or by examination satisfies the Regents that he has received sufficient instruction and training, may be granted the right to use instruments for minor surgical procedures and to use anesthetics, antiseptics, narcotics, and *673biological products.” Petitioner has passed the examination. He has been denied the so-called extension of authority by the Regents solely for the reason that he is blind.
The permission to practice osteopathy is granted by the People of the State acting through the Legislature. The only power granted to the Regents is to determine from credentials or by examination whether an applicant “ has received sufficient instruction and training ” to authorize the certificate. Doubtless the Legislature might enact that a person who is blind should not receive a license to practice medicine, surgery, osteopathy or any kindred profession. This has not been done. The view of the Special Term was that “ It is not to be presumed that the petitioner will undertake such tasks as his blindness incapacitates him from performing.” A license to practice medicine and surgery is issued by the Regents to an applicant who is not qualified to perform all of the delicate operations which the license issued under' the statute would permit him tó attempt. Only one physician in ten thousand is qualified to attempt to remove a brain tumor, but it has not been found necessary to limit the broad permission granted by a physician’s license. This petitioner, sufficiently qualified to pass the examination, would know his limitations and would not unwisely attempt treatments requiring vision, more than the young physician would go into fields beyond his ability. It is not questioned that the remaining senses become more highly developed to compensate for the loss of sight. Petitioner’s senses, particularly touch, and possibly others, may be developed to an extent which would permit him to be of greater assistance in some classes of cases than an osteopath with vision but without the compensating super-development of the other senses. If a physician or an osteopath becomes blind after he has received his certificate and license to practice it is not thought necessary to cancel his license.
The language of the Legislature is that the Regents “ may ” grant a license if they determine by credentials or examination that an applicant “ has received sufficient instruction and training.” The meaning would not be different if “ must ” had been substituted for “ may.” The granting of a license by the Regents is not an act of grace. They act under power delegated by the Legislature. It has never been the theory of our lawmakers that those who suffer from physical handicaps should be discouraged or prevented from following any profession or vocation.
I favor an affirmance of the order.
Bliss, J., concurs.
Order reversed and the proceeding dismissed, with costs.