#### UNITED STATES EX REL. HAMMOND *v.*CUSTIS.

Physicians and Surgeons; Boabd op Medical Supebvisobs; Licenses; Mandamus.

The provisions of the regulations of the board of medical supervisors of the District of Columbia, promulgated under the act of Congress of June 3, 1896 (29 Stat. at L. 198, chap. 313), that in examinations of applicants for license to practise medicine, 98 per cent shall be allowed for a perfect written examination, and 2 per cent for a perfect oral examination, and requiring applicants to have a general average above that acceptable in one or more subjects upon which he is examined,—are reasonable and valid; and a petition for the writ of mandamus by an applicant to whom a license has been refused on the ground that he had not attained the necessary average in his examinations, based upon the alleged unreasonableness and invalidity of such provisions, to compel the board to issue him a license, is properly dismissed.

No. 2321.

Submitted October 5, 1911.

Decided November 6, 1911.

Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia sustaining a demurrer to the .answer to a petition for the writ of mandamus, and dismissing the petition, the petitioner electing to stand upon his demurrer.

*Affirmed.*

The Court in the opinion stated the facts as follows:

This is an appeal by the United States ex rel. Thomas Victor Hammond, Jr., from a judgment of the supreme court of the District’ overruling appellant’s demurrer to the answer filed by appellees to appellant’s petition for a writ of mandamus to ■compel J. R. Gregg Custis, George C. Ober, Edward J. Collins, Benjamin E. Leighton, and L. Cabell Williamson, the board •of medical supervisors of the District to issue to him a license to practise medicine and surgery within this jurisdiction, and *450dismissing the petition, appellant electing to stand upon his demurrer.

Sec. 2 of the act of June 3d, 1896, 29 Stat. at L. 198, chap. 313, regulating the practice of medicine and surgery, and governing the licensing of physicians and surgeons, in this District, authorizes the board of medical supervisors to make, subject to the approval of the Commissioners of the District, such regulations as may be necessary to carry into effect the provisions of the act, and requires the board to supervise all examinations for which the act provides. Sec. 3 requires applicants to submit to examination upon certain named branches “and such other branches as said board shall deem advisable.” Sees. 5 and 6 create three boards of medical examiners from three named schools of medicine, each of these boards to examine such applicants as may be certified to it by the board of medical supervisors, and each board, not less than one week prior to each examination, must submit to the board of medical supervisors for thorough examination a list of questions in the named branches and such other branches as the board of medical supervisors may direct. From these lists of questions the board of medical supervisors are required to select the questions for each examination, such questions to be the same for all candidates, “except that in the departments of therapeutics, practice of medicine, and materia medica the questions shall be in harmony with the system of medicine selected by the candidate.” Sec. 7 further provides that “said examinations shall be conducted orally and in writing, in accordance with the rules and regulations prescribed by the board of medical supervisors, and shall embrace the subjects as stated in sec. 3 of this act.” This section further requires an official report of the result of each examination to be transmitted by the board of medical examiners conducting such examination to the board of medical supervisors within a given time, “stating the average attained by each applicant in each branch, the general average, and the result of the examination, whether successful or unsuccessful.” This report must embrace all the examination papers, questions, and *451answers thereto, and must be preserved for reference or inspection for a period of not less than five years.

Sec. 8 of the act provides “that if, in the opinion of a majority of the board of medical supervisors, after a careful examination of the report of the board of medical examiners by which any applicant was examined, said applicant has fairly and successfully passed such examination as hereinbefore provided for, the board of medical supervisors of the District of Columbia shall, as soon thereafter as possible, issue to him a license,” etc. It is unnecessary in this case to review the remaining provisions of the act.

The substantial and material averments of appellant’s petition are as follows: He states in substance that he possessed', the requisite preliminary qualifications to entitle him to examination; that he appeared for examination with other authorized applicants at the January, 1911, examination conducted by the board of medical examiners, and submitted himself fully to said examination, which was conducted both orally and' in writing, and embraced the eight separate branches or subjects required by law; that he was subsequently notified of the* rejection of his application, the reason assigned for said rejection being that, while his average in any particular subject was not less than 60 per cent, his general average was only *70.24*per cent, whereas the regulations required a general average of' *75*per cent.

The petition further avers that under the regulations of the* board of medical supervisors of September 26, 1896, *75*percent. was allowed for correct answers to the written examination^ in any subject, and 25 per cent for a perfect oral examination; in any subject; that thereafter, on January 5, 1906, this regulation was superseded by a regulation providing for an allowance of 98 per cent for a perfect written examination, and-. *2'*per cent for a perfect oral examination, partial or imperfect-answers to be rated according to their approach to completeness and correctness; these later regulations further requiring a gem eral average of *75*per cent, and a particular average of not less' than 60 per cent in every section, to entitle an applicant to' ai *452license; if such average be less than 60 per cent in any one section, and 45 per cent or more, an applicant npon request, to be entitled to an immediate re-examination in that subject. jRegardless of the general average, no license to be issued if the average be less than 60 per cent in more than one section, or less than 45 per cent in any one section.

The petition characterizes the above change in the regulations as to the difference in the ratings between the written and oral ■examinations “as unreasonable, absurd, contrary to law, and of no force and effect,” and avers that if the ratings provided in the prior regulations be followed, “petitioner will have a general average rating of more than 75 per cent, thus entitling petitioner to a license.”

The petition avers that the provisions in said regulations of January 5, 1906, requiring a general average of 75 per cent when an average of only 60 per cent is required in any particular subject, is unreasonable, contrary to law, and of no force and effect. The petition closes with a prayer that said board of medical supervisors be directed to issue to him a license to practise medicine and surgery in this District.

From the answer filed in behalf of the respondents, appellees here, to which, as above stated, a demurrer was filed, it appears that under said regulations of September 26, 1896, eighty or more questions were asked each applicant in his oral examinations ; that for reasons stated in the answer it was found impracticable to ask so many questions in the oral examination; that the board of medical supervisors, being of opinion that the greater purpose to be subserved in an oral examination is to afford an opportunity to determine from an applicant’s appearance whether the answers given in his written examination fairly and reasonably represent his actual learning, promulgated the later regulations, which were approved by the Commissioners, as required by law; that, in accordance with these regulations, petitioner was asked but two questions on his oral ■examination, each of which he answered correctly. From this ■answer it further appears that in one subject petitioner received a marking in his written examination of 58.80; that petitioner *453in July, 1910, was an applicant for a license, and was then examined, when his general average was 67.39.

*Mr. George E. Sullivan*and *Mr. Arthur Peter*for the appellant.

*Mr. E. H. Thomas,*Corporation Counsel, and *Mr. William H. White,*Assistant, for the appellees.

Mr. Justice Robb

delivered the opinion of the Court:

The validity of said act of July 3d, 1896, is not questioned, nor is the power of the board of medical supervisors to make reasonable rules and regulations challenged. The case merely presents for our inquiry the question whether the rules and regulations, under .which this petitioner was examined, are reasonable and within the purview of said act. If they are, petitioner has nothing of which he can justly complain, since the record fails to show that he did not receive exactly the same treatment accorded to all other applicants; in other words, petitioner’s contention is not unjust discrimination or arbitrary action in a given case, but rather that the rule governing all applicants is void for the reasons assigned. In the light of these observations, we will now proceed to determine the specific question before us.

While the statute ordains that examinations shall be conducted both orally and in writing, there is the additional provision in the same sentence that such examinations shall be “in accordance with the rules and regulations prescribed by the board of medical supervisors.” That board, in the exercise of the discretion thus intrusted to it, has prescribed these regulations, and, while the percentage allowed 'for the oral examination is small and possibly lower than it should be, we cannot say in the circumstances disclosed by the record that it is so unreasonable as to warrant us in interfering. These regulations, as did those they supersede, recognize that a written examination is the better calculated to demonstrate an applicant’s qualifica*454tions. Petitioner himself concedes this in his contention that the earlier regulations be declared to be in force, since those earlier regulations allowed not more than 25 per cent to the oral examination. It must be kept in mind that these examinations are conducted by a board of examiners, and that their work, under the express mandate of the statute, is to be reviewed by the board of medical supervisors, the appellees here, and that the latter board issues a license if, in the opinion of a majority of its members, after a careful examination of the record of the examining board, the applicant “has fairly and successfully passed” the examination provided by law. It is apparent that if such a review by the appellees is to amount to anything, it must be based upon the entire proceedings before the examining board; in other words, the questions propounded in the oral ■examination and the answers thereto should be before the reviewing board. It is equally apparent that if appellant’s contention is accepted to its full extent, the only difference between the oral and the written examinations will be one of form.

In our opinion, the provision requiring an oral as well as a written examination is precautionary in its nature. Thus, the result of an applicant’s written examination might be creditable and satisfactory, and his oral examination demonstrates an utter lack of the requisite qualifications. The scope of the oral examination is not restricted by the statute. If anything develops in that examination to the prejudice of the applicant, it is the duty of the examining board to report it to the reviewing authority, and such report undoubtedly may be considered by the reviewing board in passing upon the question whether the .applicant shall receive a license. In the present case nothing to the prejudice of the applicant was developed in his oral examination, and he was allowed 2 per cent additional because of that examination, upon the ratings allowed him in his written ■examination. In one subject his rating in his written examination was 58.80 per cent, or below the 60 per cent required in any one subject to entitle an applicant to a license. The 2 per cent allowed him on account of his oral examination, it will be seen, raised his average in this subject to 60.80 per cent, *455which was above the particular average required in that subject. The allowance on account of his oral examination, therefore, was of substantial benefit to him. Taking the act as a whole, we agree with the trial court that the regulation is not void because of the provision with respect to the weight and value of the oral examination.

The second contention is without merit. The board, in requiring a general average above that acceptable in one or more subjects, is merely following a practice as old as the examination system. An applicant might, for various reasons, fail to attain a high average in some subjects, but if his average on all other subjects was no better, the conclusion would be irresistible that lack of knowledge, and not some other reason, was responsible for the result. On the other hand, should the applicant, in his examination in a given subject, fall below the general average required, and pass a much better examination in other subjects, the result would indicate such general proficiency as to overcome the evidence of mediocrity in the particular subject; in other words, while it sometimes might happen that an applicant’s rating in a given subject would not correctly represent his knowledge of that subject, it would seldom happen that the average of his ratings in all the subjects would not truly represent his general proficiency.

Judgment affirmed with costs. *Affirmed.*