Massachusetts Society of Graduate Physical Therapists, Inc. v. Board of Registration in Medicine

116 N.E.2d 264, 330 Mass. 601, 1953 Mass. LEXIS 525
CourtMassachusetts Supreme Judicial Court
DecidedDecember 7, 1953
StatusPublished
Cited by20 cases

This text of 116 N.E.2d 264 (Massachusetts Society of Graduate Physical Therapists, Inc. v. Board of Registration in Medicine) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Massachusetts Society of Graduate Physical Therapists, Inc. v. Board of Registration in Medicine, 116 N.E.2d 264, 330 Mass. 601, 1953 Mass. LEXIS 525 (Mass. 1953).

Opinion

Spalding, J.

This case arises from a petition for a writ of mandamus brought by The Massachusetts Society of Graduaté Physical Therapists, Inc. (hereinafter called the society), and two of its members, Warren J. Bailey and Anna T. Curran. The respondents are the members of the board of registration in medicine, hereinafter sometimes called the board. The object of the petition is to compel the board to issue a certificate of registration to practise physical therapy to certain members of the society who have complied with St. 1951, c. 656, § 2.

The judge ordered the writ to issue with respect to eighty-two members of the society, including the two individual petitioners, Bailey and Curran. As to others, for various reasons that will presently appear, he denied relief and re- . ported the case to tMs court upon the pleadings, the evidence,1 findings of fact and rulings of law.

[603]*603Chapter 112 of the General Laws (Ter. Ed.) was amended by St. 1951, c. 656, § 1, by inserting §§ 23A to 23P, under the caption Registration of Physical Therapists. Under these provisions a person who desires to represent himself as a registered physical therapist must register with the board of registration in medicine. To be registered one must satisfy the eligibility requirements contained in § 23C and pass an examination conducted by the board. See also §§ 23D and 23H. Unregistered persons who represent that they are registered physical therapists are subject to a fine. Section 2 of c. 656 reads: "Notwithstanding the provisions of sections twenty-three A to twenty-three P [which include the sections relating to eligibility requirements] of chapter one hundred and twelve of the General Laws, inserted by section one of this act, the board of registration in medicine shall register as a physical therapist any person who applies for such registration on or before March first, nineteen hundred and fifty-two, who on the effective date of this act is a member of . . . the Massachusetts Society of Graduate Physical Therapists .... Such applicant shall pay the board a fee of five dollars and shall be entitled to a certificate of registration” (emphasis supplied).

It is plain from the quoted provisions of the statute that the eligibility requirements contained in §§ 23A to 23P were not applicable to one who was a member of the society on November 28, 1951, the effective date of the act, provided he applied for registration on or before March 1, 1952. It will be noted that "shall,” a word of command, is used in the statute. Elmer v. Commissioner of Insurance, 304 Mass. 194, 196. An applicant who satisfies the requirements of § 2 is entitled to registration as a matter of right. No discretion with respect to registering such persons is lodged in the board. Evidently the Legislature thought that the integrity and standards of the society were such as to justify exempting its members from satisfying the requirements contained in §§ 23A to 23P. It is not open either to the board or to the courts to override this policy.

With this construction of the statute in mind we turn to [604]*604the findings and rulings of the judge. By the terms of the report we are concerned only with situations in which the writ was refused. All of the applicants hereinafter discussed became members of the society before the effective date of the statute and applied for registration prior to March 1, 1962. All were refused registration by the board.

1. With respect to one group consisting of forty-four members of the society, the judge found that they had become members on or after November 1, 1951, and that their purpose in joining the society was “merely to take advantoge of the law to become automatically registered.” It was error to deny relief on this ground. The statute does not impose any such limitation on the right to registration. As stated above, the only limitations were membership in the society prior to the effective date of the statute coupled with an application on or before March 1, 1952, both of which were satisfied here. In so providing the Legislature must have contemplated that there would be persons who might join the society during the period between the enactment of the statute and its effective date.

2. Five members of the society were denied relief because it was found that they resided outside the Commonwealth.

But the act does not make residence in the Commonwealth a prerequisite to registration. These applicants were entitled to be registered.

3. As to six members it was found that they had not graduated from a school of physical therapy and for that reason they were deemed ineligible for registration. This was error. While one seeking to be registered under §§ 23A to 23P must be a graduate of an approved school of physical therapy, that is not required of applicants who come within § 2.

4. The writ was refused to one member because it was found that his license to practise medicine had been revoked by the board on the ground of fraud in the procurement of his medical degree. Doubtless the Legislature could have made conduct of this sort a ground for refusing registration. And it would seem that one applying for registration under [605]*605§§ 23A to 23P might be turned down for such conduct.1 But these sections, as we have seen, do not apply here.

5. Relief was denied to ten members because, as the judge found, they had “insufficient experience as physical therapists.” The statute does not set out any standard of experience as a requirement for those coming within § 2. These members, therefore, were entitled to be registered.

6. It was ruled that one member was not entitled to the writ because, although her application for registration was made prior to March 1, 1952, the registration fee was not tendered until after that date. This was error. Section 2 provides for a registration fee of $5. A registration fee of $25 is required by § 23B. But the wording of § 23B differs materially from the provision in § 2. The former provides specifically that the fee must be paid “at the time of filing” the application. And a similar provision is contained in § 23D which deals with applicants registered in another State. Section 2, however, states that the “applicant shall pay the board a fee of five dollars and shall be entitled to a certificate of registration.” The difference in language is significant. Section 2 cannot fairly be read as requiring payment of the fee at the time of application in order to make the application effective.

In holding that the judge erred in denying relief in the six situations just discussed we have not overlooked the fact that he did so “as a matter of law and discretion.” It has often been said that the issuance of the writ of mandamus is discretionary. But it has also been recognized that the discretion cannot be arbitrarily exercised and that “the writ ought not to be refused if the petitioner shows an absolute right and is without other remedy, and where no reason exists for refusing the writ. To deny the writ in such a case is to quarrel with the policy of the law which creates the right.” Elmer v. Commissioner of Insurance, 304 Mass. 194, 199. St. Luke's Church in Chelsea v. Slack, 7 Cush. 226, [606]*606239. Mengel v. Justices of the Superior Court, 313 Mass. 238, 244. Attorney General v. Bureau of Old Age Assistance of Cambridge, 324 Mass. 63, 65.

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Bluebook (online)
116 N.E.2d 264, 330 Mass. 601, 1953 Mass. LEXIS 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/massachusetts-society-of-graduate-physical-therapists-inc-v-board-of-mass-1953.