Opinion
Nos. 20321 and 20322
Decided May 25, 1927.
State medical board — practitioners in limited branches — License without examination upon five years continuous practice — Section 1274-2, General Code (106 O. L., 202) — Discretion of state medical board not controlled by mandamus, when.
ERROR to the Court of Appeals of Franklin county.
These two causes originated in the Court of Appeals as actions in mandamus to compel the state medical board to issue to the relators certificates for the limited practice of medicine and sur gery as chiropractics, under and by virtue of the provisions of Section 1274-2, General Code. The two cases were quite similar, and were heard and decided together by the Court of Appeals. The writ was denied in both cases. Thereupon error was prosecuted to this court.
In the Kriedeman case it was shown by the depositions of Kriedeman, his wife, and certain witnesses who had been his patients, that he had practiced to some extent during the five-year period immediately preceding October 1, 1915, but it did not appear that he had had many patients, but on the contrary was engaged as motorman and part-time conductor during the early part of that period on a street railway in the city of Cleveland. In the Schelosky case there was an agreed statement of facts which show that Schelosky was born in 1862, and that his schooling did not proceed farther than the grammar course. He became a machinist and served as a master mechanic for a railway company, and later became foreman in a box factory and planing mill in the city of St. Louis and in 1905 came to Cleveland, where he was employed in a factory for a period of ten years, until 1915, as economic engineer and master mechanic. Since 1915 he has had various employment, and for the eight years immediately preceding the institution of this suit was toolmaker in the Willard Storage Battery Company, Cleveland. He became a student in chiropractic while in the city of St. Louis, and studied under a physician of standing in that city. His actual practice during the period between 1905 and 1915 was quite limited, having had altogether 180 different patients, and it further appears that during the same period he was employed in the factory from 7:30 a. m. to 4:30 p. m.
Mr. S.J. Kornhauser, for plaintiff in error. Mr. Edward C. Turner, attorney general, and Mr. Carl J. Purpus, for defendants in error.
The state medical board having considered the evidence offered by each of these relators, and having refused to issue certificates without examination, the powers and duties of the courts in relation to the matter present questions which are not of first impressions in this cause. The questions are in all respects similar to those which were considered and decided in State ex rel. Copeland v. State Medical Board, 107 Ohio St. 20. 140 N.E. 660. It was decided in that case that the medical board has a large measure of discretion, and that, before it can be required by the writ of mandamus to dispense with the preliminary examination of an applicant, the applicant must "establish to the satisfaction of the state medical board the fact of having actually practiced those limited branches for the full period of five years continuously, prior to October 1, 1915." It would be absurd to claim that treatment of a very few patients during a period of five years would constitute a continuous practice during that period. On the other hand, it would be unreasonable and an abuse of discretion on the part of the board to refuse a certificate in a case where the applicant had devoted his entire time to the practice of his profession and had treated many thousands of patients during that period. Between those limits the board must be held to have a discretion which the courts may not control. The practice of these relators was certainly very meager during that five-year period, and it is absolutely certain that they have not been legally practicing their profession since the effective date of Section 1274-2, General Code (106 O. L., 202). Upon the Principles and for the reasons declared in State ex rel. Copeland v. Medical Board, supra, the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.