In 1891, the legislature created the commission known as the "state board of registration in dentistry." Laws 1891, c. 43; P.S., c. 134. Three dentists constitute the board (c. 134, s. 1), and two members of the board constitute a quorum for the performance of its duties (s. 2). It is required to hold at least one session a year for the purpose of giving examinations to persons desiring to enter the profession (s. 2). Any person can apply at a regular session and be examined "with reference to his knowledge and skill in dentistry and dental surgery" (s. 3). Certificates or licenses are to be issued to such persons as, upon examination, the board find to be qualified (s. 3). The practice of dentistry without a license from the board, by any person other than a practicing physician who is a graduate from the medical department of an incorporated college, is made a misdemeanor punishable by a fine not exceeding one hundred dollars (ss. 6, 7).
It seems clear that the powers vested in the board by the act are of a judicial nature. The subject-matter which it is to pass upon is the qualification of applicants to practice dentistry. While all three of the members may hear and pass upon the question, only two are required to constitute a valid tribunal. An attempted exercise of jurisdiction by a less number is coram non judice and void. State v. Richmond, 26 N.H. 232,234. It is agreed that the examination of the defendant was had before a single member of the board, and that the license which he holds was issued to him without the knowledge and approval of any other member. The decision of that member, not being authorized by the statute, is void, and the same is true of the license.
The superior court, as a court of general superintendence to prevent and correct errors and abuses of inferior tribunals, has jurisdiction to entertain a proceeding to correct the error disclosed by the case. P.S., c. 204, s. 2. The objection taken by the defendant, that the plaintiffs are not authorized to bring such a proceeding for the state, is well founded. It can, however, be brought by the attorney-general, and the state board of registration in dentistry is a necessary party defendant because it is the official action of that board as a judicial tribunal which is attacked.
In its present form, the proceeding cannot be maintained, and the decree for the plaintiffs is erroneous. Should the attorney-general see fit to adopt the proceeding, the state and the state board of examiners can be made parties by amendment, and the proceeding will then be a direct attack by the state upon the judgment. If this is done, it is not probable any further hearing of the facts will be required. Upon the facts found, the state will be entitled to the decree asked for by the present plaintiffs.
Case discharged.
All concurred. *Page 429