In re Barresi

Hinman, J.:

The petitioner has not established a case in mandamus. She had no vested right to practice as a.midwife in the State of New York. Her profession is so closely allied to the practice of medicine that the Legislature could, if it desired, prohibit the practice of midwifery except to those licensed to practice medicine. Her sole authority to practice as a midwife must be based upon full compliance with the law. Realizing its importance to human life and health the Legislature has invested the Public Health Council and the State Commissioner of Health with authority to regulate the practice of midwifery. The State Commissioner of Health has been invested with authority to pass upon the technical qualifications of the applicants and also upon the character of the applicants. While the petitioner appears to have the technical qualifications, in that she possesses a diploma from a recognized school for the teaching of midwifery, the regulations require her. to “ present evidence satisfactory to the State Commissioner of Health of good moral character, vouched for by at least two reputable citizens.” (State Sanitary Code, chap. 4, reg. 5, subd. e.) The presentation of affidavits of two reputable citizens vouching for her good moral character does not completely satisfy this regulation. That is only the minimum requirement. The ultimate requirement is that the evidence shall be “ satisfactory to the State Commissioner of Health.” This involves on his part the exercise of his judgment and discretion. In this case he was not satisfied as to the moral fitness of the applicant.

At the time the petitioner’s application for license was passed upon, the Commissioner had before him official reports from the inspectors of his department and others officially connected with his department, relating to the conduct of the petitioner. These reports were a part of his official files. The substance of these reports was such that the action of the Commissioner was not only justifiable but it would have been grossly improper for him to have granted the license in the absence of at least a denial or satisfactory explanation of the conduct criticized by his inspectors.

Concededly the petitioner made no attempt whatever to satisfy the Commissioner by refutation or explanation of the specific charges of misconduct now made by the Commissioner and set forth in the affidavit of his deputy in the record before us. The application for the license and the two affidavits as to good moral character are not included in the record but there is no pretense that the petitioner ever took the trouble to ask what information was in the possession of the State Commissioner of Health relative to her conduct as a midwife, or what specific instances of violation of the regulations were charged against her, or even what regulations had been violated.

Having no knowledge as to what rules were claimed to have been violated or in what respects or instances she was deemed to have violated the same, her general denial that she ever violated any of such rules or regulations must be treated as her mere conclusion. The situation that we find before us is in effect a denial which in no sense meets the allegations of the answering affidavit* of the Deputy Commissioner of Health and which stand before us uncontroverted except by a sham denial. We are asked to sustain an alternative order of mandamus subjecting the Commissioner of Health to an inquest as to whether he has acted arbitrarily, when in fact and concededly the Commissioner has never been called upon to pass upon the issues raised here for the first time.

How can we say what the determination of the Commissioner would have been if, having asked for particulars as to the rules and regulations deemed to have been violated and as to the specific charges of misconduct laid against her, she had presented proofs or explanation to meet those specific charges? In petitioning for an order of mandamus and after receiving such specific information in the answering affidavit of the Deputy Commissioner of Health, she did not even request permission of the court to file reply affidavits to meet the specific charges there raised. Her counsel apparently was content to rest her case upon the claimed right to a hearing which he had never asked for and upon her general denial in advance of any knowledge on her part of the specific grounds upon which the Commissioner had acted. The allegations, set forth in the affidavit of the defendant in opposition to the application not having been controverted by the petitioner, stand admitted. The right to the order of mandamus must be determined upon the assumption that these averments in the opposing affidavit are true. The proceeding in this form is in the nature of a demurrer to the facts set up by the defendant. (People ex rel. City of Buffalo v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 570.)

It follows, therefore, that the alternative mandamus order should be reversed and the proceeding dismissed, on the ground that the petitioner has failed to establish a prima facie case of arbitrary action on the part of the State Commissioner of Health, within such authorities as People ex rel. Lodes v. Department of Health (189 N. Y. 187), relied upon by the petitioner. The action of the State Commissioner of Health cannot be considered a revocation of the license. The petitioner’s license had expired. Under regulation 8 of chapter 4 of the State Sanitary Code relating to midwifery, the term of the license is “ only during the current calendar year in which such license is issued.” In the absence of any regulation setting forth the requirements for a renewal at the expiration of the year for which a license has been granted, the implication is that a new license may be granted upon compliance with the regulation requirements as to the initial license. In no sense can the refusal to grant a new license be considered a revocation of the license previously granted within the meaning of regulation 9 of chapter 4 of the State Sanitary Code which provides for an opportunity to be heard on the part of a licensee before revocation. One cannot revoke a license which has already expired by its own limitations. Therefore, the petitioner was not denied a rightful hearing within the meaning of regulation 9 of chapter 4 of the State Sanitary Code. The remedy of the petitioner is to apply again for a license, which right is not affected by this decision.

Van Kirk, J., concurs.

Order reversed, and application dismissed, without costs.