State ex rel. Gaines v. State Medical Board

22 Ohio C.C. Dec. 687

• Court: Ohio Circuit Courts
• Decided: June 5, 1909
• Status: Published

Opinion

GIFFEN, P. J.

Section 30 of act 99 O. L. 492 (Gen. Code 1273), “To revise and consolidate the laws relating to the powers and duties * * * of the state board of medical registration and examination” provides as follows:

"The examinations of applicants for certificates to practice medicine or surgery shall be conducted in the cities of Cincinnati, Cleveland, Columbus and Toledo, under rules prescribed by the state medicine board.”

This provision needs no construction to determine that it is the duty of such board to cause an examination to be conducted in the city of Cincinnati as well as in Columbus; but the act is entirely silent as to when it shall be done, and hence a reasonable time will be implied, which must in the first instance be determined by the board from all the circumstances of the case. State v. Barberton (Bd. of Ed.), 76 Ohio St. 297 [81 N. E. Rep. 568; 10 Ann. Cas. 879].

It may be assumed that said section was intended to accommodate students of medicine completing the course of instruction in or about the respective cities-named — not a particular class, but the student body of each city and vicinity. There is no allegation in the petition when the current school year ends at the Ohio Medical College of the University of Cincinnati, or at any other college if there be such in or near the city. Nor is the pleader aided by the averment of the conclusion that, the relator and others in the same institution with him would be required to present themselves for examination "long after the close of their medical college course.”

The welfare of the majority is superior to that of a minority, and there is no allegation in the petition that all or a majority of the Cincinnati students are demanding or would be benefited by an examination on June 8, 9 and 10 or near thereto. How then can we say that the board has abused the discretion vested in it and grant relief, when the rule of law justifying interference by the courts requires that such abuse be clearly shown? Sycamore (Bd. of Ed.) v. State, 80 Ohio St. 133 [88 N. E. Rep. 412].

It may be that a majority of such applicants may prefer to and will attend the examination at Columbus on the days named, and while this result would not relieve the board from holding an examination in Cincinnati, it would have much weight in determining whether the board had abused its discretion in declining to hold it on or about June 8, 9 and 10.

We are constrained to hold therefore that the allegations of the petition fail to show a clear abuse of discretion and do sustain the motion to quash the alternative writ.

Smith and Swing, JJ., concur.