The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1891-07-07
THAT FAKE N. D. Mill.
Judge Knapp's Decision Re-
fusing a Mandamus to
KiTchgessner.
BOARD OF HEALTH POWERS
The Evidence Concerning tho stand-
ing Of the Medical College Of
New Jersey Was OF No
Value.

About everyone remembers the 20
called Medical and Surgical College Of
New Jersey" and how the Legislatnrs
last winter very properly took away It's
charter. This was the direct result Of the
refusal Of the County Board OF Health to
register Eslil Kirc hgessuer, who had .
diploma from the bogus concern as .
physician. The ground for such refusal
was that in the judgments Of the Health
Boaru the diploma presented By him
was not from q reputable school or col-
lege Of medicine anG surgery
mandamus was applied for to CON-
pei the Board to register Kir cheessner
| and testimony was taken n which IL was
shown that no person could practice as 4
physician in this county unless he was q
graduate of a reputable college and was
registered ia the Office Of the County
Board Of Health. In this matter Judge
Knapp filed the opinion of the Supreme
Court on June 29 IL reads IN part as fol-
iovs;-
JUDGE KKAPP's REVIEW
The writ OF mandamus Is not of right
The allowance Of its use rests in judicial
discretion. It is rarely issued to a sub-
ordinate body or tribunal for the purpose
Of directing the particular Judgment that
shall be given by such tribunal. or direct
ing al act TO be performed in specified
manner. IL is only so used when the act
10 De done Is an administerial one merely,
and the duty to perform It in definite
way. The writ which the relafor seeks
Is OF this character, and before 1t can 5o
awarded at his instance he muss make it
manifest that the duty OF respondent In
respect to REALTORS admission 10 sign the
register provided for is clear and fmpera-
tive. ana In It's exercise without choico
or discretion.
The respondent is public body with
power to pass ordinances respecting the
public health Tue parties to this pro-
ceedtng have creared the erdinance in
question as a valid bylaw. II II wers
otherwise the rslator could gain nothing
in his suit By successful attack upon IT,
The right that he claims has no possible
basis without It. Evidently the feIaror,s
wiz pass from him IL the system OF req
istry provided by the ordinance be not up
held. If then the ordinance does not
open to all corners the right 70 Subscribe
their names In this registry, but declares
and establishes in the Board the rioht
and dut7 Of deter mfnasion and Judgment
respecting she persons who should be al
lowed TO record bhelr names In a., the re-
laror can not have redress by mnndamns.
even though the Board IN passing upon
his claim mas erred in Its conclusion res
pecting his Qualifications and suitable
ness TO be enrolled In the Board Of Reg
istry.
-Mandamus proceeding has not tho
quality Of writ OF error TO revise and
overtuxn faulty judgments. ara she Ecuri
win not, and can not In this course OF
law, look into evidence Of fact upon watch
the Judgment Of the subordinate tribunal
was based. for the purpose OF detsrmining
fhat aor fha ri ms
were correctly or incorrectly formed.
Tits fault to have buroened tzis record
with the volume OF testimony taken 70
show, on the one hand. that The corporate
body issuing the REALTORS dipinma was
respectable Institution Of medical and
surgical instruction, and on the other. to
prove that it was without standing and
entitled TO no credit. II is quite obvious,
! think, that the Court could not In this
proceeding with any propriety be called
upon 70 consider and decide that question
Is TIE BOARD OF HEALTH INFALLIBIEf
..If, as relaEor contends, holding di-
pioTna was the sole requisite in showing
his right TO sign the registry, then nottl>
lug more was needed than proof Of the
existence Of the diploma; it is equally
nished appropriate matter for tho
Board to have considered In forming
8 necessary Judgment, this Court viii not
here consider such facts and opinions tOr
the purpose Of reversing such 1ndg-
ment.
.sThe case, as before remarked, must
turn upon the question whether under
the ordinance the admission OF relatoF
TO enrolment was in any visa within the
discretion of the Board Under the ordi-
nance the registry Of applicants Is N ade
an incident merely to and conditioned
upon the more substantial provision, that
no person shall in hudson County pursue
the calling or practice the profession Of .
physician without first producing the
designated diploma or certificate; that ts,
one emanating from some reputable school
or college of medicine or surgery As q
condition precedent TO the right 20 enroll.
such certificate must be presented Tie
requirement. Is that il be from reputable
school or college.
Are all schools Of medicine and sur
gerry reputables The bylaws imply that
all are not So Then If one from reput-
able school or college only will meet the
requirement, il becomes a matter TO be
determired, in any given case, in some
form, whether the diploma or cera6cste
presented by the person applying TO prao-
ace IN the county Is from reputable
school or college.
Il conclude il TO be quite clear that the
Board was by this bylaw required to ez-
anime and decide the question whether
the diploma presented was within the re-
qufEements OF the ordinance, and after
having decided, this Court cannot By
mandamus review the determination and
Judgment which the Board formed. or
the evidence upon which it proceeded 20
its judgment, and On this ground We
think the mandamus should be refused
Another reason IS suggested WAY this
mandamus ought not to 80, that IS not
without force An act was passed In 1890
entitled An act to regulate the practice
Of medicine and surgery. 20 license ply
siclars and surgeons and to punish per-
sons violating tbs provisions thereof. IL
requires ali persons commencing the prac-
tlce OF medicine In this State TO apply 70
the Board this act creates For license
The Board Of Health was represented
BY H w. Winfield and r b Seymour fov
kirchgessner.