The People of the State of New York ex rel. Eucarpio Pisani, Appellant, v. St. Clair McKelway and Others, Constituting the Board of Regents of the University of the State of New York, Respondents

The People of the State of New York ex rel. Eucarpio Pisani, Appellant, v. St. Clair McKelway and Others, Constituting the Board of Regents of the University of the State of New York, Respondents. Fourth Department, July 7, 1914. Physicians — Regents — mandamus — indorsing certificate from foreign State — failure to pass examination in English — attempt to evade Regents’ requirements — reciprocity agreement with Michigan Medical Examining Board. Section 169 of the Public Health Law, providing that applicants for a license to practice medicine, who have been examined and licensed by other State examining boards, registered by the Regents “may without further examination” receive their licenses, is permissive only, and not obligatory. The Regents still have, in such cases, discretion to grant or to withhold the license, although such discretion cannot he arbitrarily exercised. Where a graduate in medicine of an Italian university, having ascertained that to obtain a license to practice in this State he must pass a Regents’ examination in English, and then take his medical examination in the English language, went to Michigan and there obtained a license without an English examination, and after having been examined as to his qualifications only in Italian, he is not entitled to a writ of mandamus requiring the Regents to indorse his Michigan diploma, so as to permit him to practice here. This is so, although the Michigan Examining Board is registered by the Regents. Relator’s attempt to evade the requirements in regard to the English examination and the medical examination in English was a sufficient reason for the refusal to indorse his Michigan license. Furthermore, the reciprocity agreement with the Michigan Board whereby, if at all, the latter is “registered” in this State, fully reserves to the Regents the right to request a reconsideration of the certificate of indorsement of any one applying for a license here, and where, in the case at bar, the Regents did this and the Michigan Board on reconsideration withdrew its indorsement, the relator has no ground for complaint. The requirement that the indorsement of the Michigan Board be obtained as a condition precedent to an indorsement by the Regents of such license, so as to enable an applicant to practice here, is reasonable. The Michigan Board never having been registered other than by the reciprocity agreement, such registration is subject to the provisions of that agreement. Appeal by the relator, Eucarpio Pisani, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 5th day of February, 1914, denying his motion for a peremptory writ of mandamus to compel the respondents as and constituting the Board of Eegents of the University of the State of New York to indorse the license, or diploma, authorizing him to practice medicine in the State of Michigan, heretofore issued to bim by the Medical Examining Board of that State, and to confer upon him all the rights and privileges of the license issued by such Board of Eegents after an examination in this State. Horace O. Lanza, for the appellant. Frank B. Gilbert, for the respondents. [MAJORITY — Robson, J.:] Robson, J.: The relator was on January 22, 1913, licensed to practice medicine in the State of Michigan, and seeks an indorsement by the respondents of his Michigan license in accordance with the provisions of section 169 of the Public Health Law (Consol. Laws, chap. 45; Laws of 1909, chap. 49). So much of this section as is here material reads as follows: “ Applicants [for a license to practice medicine] examined and licensed by other State examining boards registered by the Regents as maintaining standards not lower than those provided by this article * * * may without further examination, on payment of twenty-five dollars to the Regents and on submitting such evidence as they may require, receive from them an indorsement of their licenses or diplomas conferring all rights and privileges of a Regents’ license issued after examination.” The relator is an Italian; and is a graduate in medicine of the Royal University of Palermo, Italy. After coming to this country he became and has since continued to be a resident of Buffalo, iST. Y. In the spring of 1912 he made inquiry as to the requirements for a medical licensing examination in this State, and ascertained that prior to entrance on such examination he would be required to take the special subject of second year English in Regents’ examination. This requirement is provided for by section 365 of Regents’ Rules enacted September 20, 1905, as follows: “ English essential for qualifying certificates.—All applicants for qualifying certificates upon equivalents from-countries, other than those in which English is the language of the people, must pass a Regents examination in English.” Section -168 of the Public Health Law also prescribes that examinations for medical licenses “ shall be exclusively in writing and in English.” With a knowledge of these facts, and apparently, as is charged in the affidavit filed in reply on behalf of respondents, on the return of the order to show cause, the relator, “ upon finding that he was unable to enter the medical examinations conducted by the New York State Board of Medical Examiners, under the supervision of the Regents of the University, applied to the Michigan State Board of Registration in Medicine, for admission to the examinations conducted by such board, and having passed such examination, was granted a medical license by such board.” This examination was taken in Italian, and he was not required to take the examination in English required of applicants for medical examination in this State who had received their preliminary education in foreign countries where the language of the people is not English. Within a few days after receiving his Michigan license he made application to respondents for an indorsement thereof pursuant to the provisions of section 169 of the Public Health Law above quoted. Shortly after receiving this application, which had been indorsed by the Michigan Board, he was duly notified by the Hew York officials that his application had been returned to the Michigan Board with the request that they withdraw their indorsement of the application on the ground as stated in the notification: “ (1st) That you by going to Michigan for the examination have avoided the specific requirement in this State of which you were notified last May, viz., that in order to be admitted to our medical licensing examination, you would have to pass the Regents examination in 2nd year English for foreigners and (2nd) Because you took the examination in Michigan not in English as required by the statute of this State you are avoiding the statutory requirement of this State and are not eligible to have your license endorsed.” Thereafter the Michigan Board complied with the request made in behalf of respondents and withdrew its indorsement of relator’s application, and it has not since been renewed. Relator alleges in his affidavit, upon which his application for the writ is based, that the Medical Examining Board of the State of Michigan, by which he was licensed to practice medicine in that State, is, within the provisions of said section 169 of the Public Health Law, registered by respondents as maintaining standards not lower than those required by the provisions of that section. He, therefore, claims that these two facts, to wit, that he has been licensed by the Michigan Board to practice medicine, and that the said Board is registered by respondents within the requirements of the section, as matter of law, entitle him to the indorsement by respondents of his Michigan license. But the language of the section is not, in terms at least, mandatory upon respondents, absolutely requiring them to indorse a license which has been issued by a duly registered examining board of another State. The provision of the section on that point is that applicants with such licenses “may without further examination * * * receive from them [the Begents] an indorsement of their licenses or diplomas conferring all rights and privileges of a Begents’ license issued after examination.” This language is on its face permissive only and not obligatory. It is true that the discretion given the Begents in according or withholding indorsement of a license in such case cannot be arbitrarily exercised. But relator has not been discriminated against by the respondents in refusing their indorsement of his license for the reasons given above, since it appears that it has always been their policy to refuse applications for indorsement of licenses issued by other State examining boards, where the qualifications or credentials of the applicants were such that they could not have been admitted to an examination in this State. That relator did not possess those qualifications inferentially appears. Certainly it does not appear from any examination he has taken that he possesses them. That his license was obtained in Michigan on an examination which would have been neither permitted nor accepted in this State also appears. The statute also provides for the submission to respondents by the applicant for indorsement of his license of such evidence as they may require. It would seem that respondents may properly require evidence that the applicant had as a preliminary to his examination by the registered board of another State, by a preliminary examination or otherwise, shown that he had the knowledge of English which would have been required of him had he presented himself for examination in this State. I am also of the opinion that relator’s attempt to evade the respondents’ requirements preliminary to an examination in this State and the further statutory requirement that such examination must be in the English language was a sufficient reason for respondents’ refusal to indorse relator’s license in the proper exercise of the discretion given them by the statute. If I am right in the conclusions above stated it is unnecessary to discuss the effect of the reciprocity agreement, so called, entered into in behalf of the authorized officials of this State with the official board of the State of Michigan, which appears to be the only way in which, if at all, the latter has been, as the statute prescribes, registered in this State. It is sufficient to say that this agreement reserves fully to respondents the right to return to the Michigan Board its certificate of indorsement of its license, issued by it to the applicant for indorsement in this State of such license, with a request for a reconsideration of the certification, if they have reasonable doubts of the qualifications of the applicant either personal or professional. The certification of relator’s license received from the Michigan Board was duly returned by respondents with a request that it withdraw the same. The reasons for this action by respondents were stated, in the sufficiency and propriety of which the Michigan Board heartily concurred, and formally withdrew the certification. There is now before respondents no certification of relator’s license by the Michigan Board. Under the reciprocity agreement such certification is required before an indorsement of such a license by respondents can be had. This seems to be a reasonable requirement as a condition precedent to an indorsement by respondents of such a license. It does not appear that relator can now either secure the return by the Michigan Board of its original certification of his license, or procure a new certification thereof. This also seems to furnish sufficient reason for denying his application for the writ. Again, the Michigan Board has in no way other than by this reciprocity agreement been registered by respondents within the terms of the statute. If the agreement effects a registration then such registration is subject to the provisions of the agreement. Acting within the agreement respondents properly refused indorsement of relator’s license. If the reciprocity agreement is not a statutory registration by respondents of the Michigan Board, then that Board has not been registered by respondents; and relator is for that reason not entitled to demand of respondents an indorsement of his license. The order should be affirmed, with costs. All concurred. Order affirmed, with costs.