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People ex rel. Greenberg v. Reid

Supreme Court of New York, Appellate Division

May 8, 1912

THE PEOPLE OF THE STATE OF NEW YORK ex rel. MAX GREENBERG, Relator,
v.
WHITELAW REID and Others, as Board of Regents of the University of the State of New York, Respondents.

CERTIORARI issued out of the Supreme Court and attested on the 17th day of April, 1911, directed to Whitelaw Reid and others, as Board of Regents of the University of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in regard to the revocation of the license of the relator to practice dentistry.

COUNSEL

I. N. Jacobson, for the relator.

Frank B. Gilbert, for the respondents.

Page 325

HOUGHTON, J.:

In 1907 a license to practice dentistry was issued by the Board of Regents of the University of the State of New York to the relator. Shortly after receiving such license the relator registered for practice in the county of New York and filed with the clerk of that county an affidavit stating, amongst other things, that before the receiving of such license he had complied with all the preliminary requirements of law as to study and the passing of examinations. The relator had practiced his profession about three years when charges were preferred against him to the Board of Dental Examiners of the State, alleging that he had procured his license to practice dentistry by fraud, and that his affidavit that he had passed the preliminary examinations was false, in that he had procured another to personate him on such examinations, and had adopted as his own the examination papers of such other person. A copy of the charges and notice of the time and place of hearing before the Board of Dental Examiners were served upon the relator, and he appeared in person and by counsel, and made certain preliminary objections which were overruled, and testimony was taken, argument had and briefs submitted. After consideration the Board of Dental Examiners found the charges true, and transmitted to the Board of Regents all the proceedings had before them, with the recommendation that the license of the relator be revoked. The relator asked for a hearing upon this report and recommendation in person or by counsel before the Board of Regents, which was refused. Without any hearing, and after denying his request to be heard, the Board of Regents revoked relator's license, and directed it to be canceled.

We would have no hesitancy in confirming the determination of the Board of Regents except for the practice pursued by that Board in refusing a hearing to the relator.

It was competent for the Legislature to vest in the Board of Dental Examiners the right to entertain complaints and hear proof, and the charges were sufficiently pertinent and specific, and the relator's preliminary objections were properly overruled.

The practicing of fraud in the procuring of a license to practice a profession is 'immoral' and 'unprofessional' as that term

Page 326

is used in the statute and is ample ground for its revocation, and the procuring of another to impersonate the applicant in examinations is fraud of the grossest character.

It was not necessary that the relator should be prosecuted criminally either for false impersonation or perjury in making his affidavit and his guilt established upon a criminal trial before his license could be revoked by the proper authorities. Power to revoke his license existed with or without conviction of a criminal charge. ( Matter of Smith, 10 Wend. 449.) Nor was the introduction of the testimony given in the divorce action in view of the character of the trial and proceeding such error as to require reversal of the determination if it were otherwise legal.

Whether or not the relator's rights were so fully preserved by the hearing which was had before the Board of Dental Examiners, of which he had notice and opportunity to be heard, that the Board of Regents, which alone had the power of revoking his license, was justified in refusing to hear him further, is a question which has given us much trouble. If the relator upon a proceeding to revoke his license was entitled to a trial as that term is understood in the law, a refusal to give him an opportunity to be heard would be wholly unjustified and clearly nullify any determination which might be made. The difficulty arises in determining the character of the proceeding to revoke a license granted by the public authorities to an individual to practice a prescribed profession.

One must expend much time and money to prepare himself for the practice of medicine, dentistry and the like. It has long been the law that however great a man's attainments may be he must obtain a license from the duly constituted authorities of the State before he can practice such profession, and the propriety and necessity of such a law is not disputed or challenged. While such a license when once obtained is not, strictly speaking, either a personal or a property right, it partakes in a measure of the nature of both. Notwithstanding the value of such license to the holder, the authorities are unanimous that it can ...


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