State ex rel. Milwaukee Medical College v. Chittenden

107 N.W. 500, 127 Wis. 468, 1906 Wisc. LEXIS 209

• Court: Wisconsin Supreme Court
• Decided: March 20, 1906
• Status: Published

Opinion

Maeshall, J.

It is provided by ch. 366, Laws of 1905, that “the place of trial of all actions authorized to be brought against the state or any of the state officers in their official capacity shall be Dane county.” Counsel concede that whether error was committed in denying the motion to change the place of trial turns on the solution of these points:

First. Is a certiorari proceeding an action ? Second. Are-members of the State Board of Dental Examiners state officers within the meaning of the law under consideration ?

1. It is not entirely without difficulty that proceedings commenced by original writs were classified with reference' to the two hinds of judicial remedies under the Code. The old system which was superseded thereby furnished some aid in the matter. By such aid, the general scheme of the statutes- and the procedure required, a conclusion was logically reached that they should be regarded as actions. Paine v. Chase, 14 Wis. 653; State ex rel. Green Bay & M. R. Co. v. Jennings, 56 Wis. 113, 14 N. W. 28; State ex rel. Manitowoc v. Manitowoc Co. 59 Wis. 15, 16 N. W. 617; State ex rel. Drury v. Lincoln, 67 Wis. 274, 30 N. W. 360; State ex rel. Buchanan v. Kellogg, 95 Wis. 672, 70 N. W. 300; State ex rel. Rice v. Chittenden, 107 Wis. 354, 83 N. W. 635; State ex rel. Durner v. Huegin, 110 Wis. 189, 222, 85 N. W. 1046; State ex rel. Court of Honor v. Giljohann, 111 Wis. 377, 384, 87 N. W, 245; State ex rel. Risch v. Trustees, 121 Wis. 44, 58, 98 N. W. 954. True, that is not in harmony, strictly, with the-letter of the Code. The remedies afforded by original writs-are commonly of a civil nature, and sec. 2629, Stats. 1898, provides that a civil action shall be commenced by summons. Construed strictly that does not apply to a remedy invocable only by a judicial writ.

By sec. 2594 all judicial remedies are divided into actions and special proceedings. By sec. 2595 the former includes every “proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” By sec. 2596 the latter includes-every other proceeding. Actions are subdivided into, two-classes, criminal and civil. Sec. 2597. The former includes-every action prosecuted by the state as a party against a person charged with a public offense for the punishment thereof. Sec. 2598. -The latter includes all others (sec. 2599), whether prior to the Code denominated actions at law or suits in equity, the distinctions in that regard and the forms-in respect thereto being abolished and. wholly superseded by the civil action of the Code. Sec. 2600. The appeal statutes were framed in harmony therewith, the right of appeal as to a final determination of an action being conferred separate and distinct (sec. 3047) from the right of appeal as to intermediate orders, orders in special proceedings, and others (sec. 3069). A proceeding instituted by the issuance of one of the original writs mentioned must fall within those denominated actions. A writ of error to review, on the merits, a final judgment is in no sense a proceeding in an action, but is a new proceeding to review a final judgment rendered in an action in a court different from the one issuing the writ. Paine v. Chase, supra. The writ of habeas corpus is used to institute ■a proceeding for the vindication of the right to personal liberty. Stale ex rel. Durner v. Huegin, supra. Such a proceeding is not in a prosecution, but “is a new suit to enforce a civil right.” Waite, C. J., in Ex parte Tom Tong, 108 U. S. 556, 2 Sup. Ct. 871. Likewise the issuance of a writ of certiorari is essentially the commencement of a proceeding independent of that to be reveiwed. It is a remedy afforded by law to enable one who has been, or may be, injured by a de-términation of a judicial nature, good merely in form, but void for jurisdictional error to vacate it. It is in many cases the only remedy by which the right of the-matter can be directly vindicated.

The procedure in all cases above mentioned must necessarily assimilate to that of actions, strictly so called, not to that of ■special proceedings. State ex rel. Risch v. Trustees, supra. There must be papers in the nature of pleadings whether they are called such or not. There must be a trial, which in many cases may include the Solution of questions of fact. The issues are commonly placed on the calendar for trial, in all respects like those in other actions. The rules of court expressly provide therefor in certiorari actions, and recognize that they should be brought to a hearing in the circuit court upon the usual notice of trial. Sec. 4, rule XXX, Circuit Court Rules. Tbe proceeding is closable only by a judgment.

Tbe court established tbe practice as indicated by a series-of decisions. At tbe outset it was said tbat tbe sufficiency of’ tbe writ and tbe return should be tested by ordinary rules and proceedings applicable to pleadings. State ex rel. Green Bay & M. B. Co. v. Jennings, supra. Tbat was said to be tbe rule,, tbe proceeding being a suit. Tbat is hardly accurate, since' a suit, strictly speaking, is unknown to tbe Code. Tbe idea-in mind was tbat tbe fact tbat at common law tbe proceeding was denominated a suit, is to be remembered in connection with tbe substitution by tbe Code of tbe civil action for all common-law remedies denominated suits or actions. In Starkweather v. Sawyer, 63 Wis. 297, 300, 23 N. W. 566, it was said tbat a certiorari proceeding must be closed by a judgment. Later it was held tbat such a final determination is a judgment under tbe appeal statute. State ex rel Court of Honor v. Giljohann, supra. Still later it was-held tbat the proceeding is an action under tbe cost statute. State ex rel. Risch v. Trustees, supra. In State ex rel. Durner v. Huegin, supra, it was stated tbat before tbe Code an-original writ was issued to commence a proceeding denominated a suit, and tbat the abrogation of suits and tbe substitution therefor of tbe action of tbe Code made such a proceeding, though not technically within tbe meaning of sec. 2f597,. an action, but such clearly within tbe broad meaning of sec. 2595, which must be deemed to refer to all remedies displaced' by tbe civil action of tbe Code. Tbat was restated in State-ex rel. Bisch v. Trustees, supra, where the language formerly-used was somewhat amplified, it being said tbat tbe constitutional grant of authority to use tbe common-law writs carried' with it, necessarily, tbe right to use them with tbe functions ’pplicable thereto before tbe Code, which included tbe commencement of proceedings called suits; tbat tbe abrogation of suits and substitution in place thereof of a civil action couldi •not be recognized as changing the function of the writs as preserved by the constitution.

It follows that the issuance of an original writ'is to be deemed to all intents and purposes the commencement of an action in the statutory sense, characterized by proceedings in the nature of pleadings, by issues, by the trial thereof, by a judgment with the incident of costs to the prevailing party, and the right of appeal.

In the above discussion we have treated the writ of certio-rari as one of several original writs necessarily governed by the same rules. All of our decisions on the subject are in harmony therewith, and with authorities elsewhere. Hendrix v, Kellogg, 32 Ga. 435, 437; Kohl v. U. S. 91 U. S. 367; Marion v. Ganby, 68 Iowa, 142, 26 N. W. 40; Holmes v. Jennison, 14 Pet. 540; Coston v. Coston, 25 Md. 500, 507; State v. Newell, 13 Mont. 302, 304; Hartman v. Greenhow, 102 U. S. 672; American Exp. Co. v. Michigan, 177 U. S. 404, 20 Sup. Ct. 695; Roadhouse v. Briggs, 194 Ill. 435, 62 N. E. 778 ; McBane v. People ex rel. Stout, 50 Ill. 503; Weston v. Charleston, 2 Pet. 449; People v. Clarice, 9 N. Y. 349 ; Cohens v. Virginia, 6 Wheat. 264, 409 ; Ex parte Miller, 129 Ala. 130, 30 South. 611.

2. The term “state officers,” used in the act under consideration, is sometimes construed as meaning only heads of the executive departments of the state elected by the people at large, such as governor, lieutenant governor, state treasurer, secretary of state, attorney general, and the like. In its more comprehensive sense it includes every person whose duties appertain to the state at large. The exact sense in which the term is used in any particular law must often be determined by ordinary rules for judicial construction. One of the cardinal rules thereof is, a meaning should not be attributed to words leading to absurd consequences. That at once, we should say, narrows the meaning of the term here to its more ■.restrictive and ordinary signification. Otherwise, it would apply to all actions wherever commenced in tbe state, regardless of tbe residence or principal place of abode, or official residence of tbe parties, in tbe event of tbe defendant being sued in bis official capacity and bis possible field of operations extending to tbe whole state. That would include every member of each of tbe numerous legislative creations called boards or commissions, every notary public, every state game warden and bis deputies, and a multitude of other officers. Such a construction would turn a law, evidently intended to prevent unnecessary disturbance of public affairs, into one of an opposite character.

Tbe state officers, beads of departments who have their official residence at tbe capitol of tbe state and who are expected to keep open office there during business hours and, generally speaking, to be theie themselves, might be greatly prejudiced, and the public welfare as- well, by their being required to attend trials of actions in their official capacities in distant parts of tbe state. Tbe reason of tbe law seems to strictly confine it to such officers. To extend it further would necessarily advance its boundaries so as to include all persons to whom tbe term in any reasonable sense could apply. So we reach the conclusion that tbe legislature used it in its restrictive sense,' — - tbe one which commonly occurs to tbe mind when tbe words are spoken. Courts elsewhere, in similar circumstances, have said that, as a general rule, it applies only in that sense. State ex rel. Stearns v. Smith, 6 Wash. 496, 33 Pac. 974.

Appellants’ counsel question the right of respondent to the remedy accorded, insisting that tbe latter is neither interested in nor a party to tbe proceeding complained of. If tbe premises are correct tbe conclusion itself cannot well be questioned.

Obviously tbe very life of respondent, as to .its dental department, depends upon whether its certificates of graduation, in themselves, constitute an efficient password, so to speak, at the door which the law-making power has seen fit to erect between the outside and the inside of tbe dental profession. It is no answer to respondent’s position to say that a graduate is not by a sentence of nonreputability passed upon bis alma mater precluded from approaching tbe bar of tbe official board on bis merits, and, by showing actual qualifications for tbe profession of dentistry, obtain tbe coveted license. A college cannot exist without revenue. It cannot have revenue without patrons. It cannot have patrons unless it can send its finished students out, in due course, to enter into tbe activities of tbe profession with tbe requisite character to secure admission thereto on that alone. It cannot have essential competency in that regard, unless it possesses in fact, and in tbe judgment of tbe official state board, reputability; character as an institution of learning satisfactory to such board. Tbe board is tbe sole judge in tbe matter, subject to a revision of its decision for reasonableness. It bolds in its bands, under tbe present system, tbe destiny of tbe college. In ease of tbe latter having done all that is reasonable to satisfy tbe legislative idea of reputability, whether it shall “live or die, survive or perish,” is within the province of tbe appellants to determine, subject to such review of its decision as tbe law of tbe land may afford, in case of an abuse of its authority either in respect to tbe standard required or failure to reasonably observe established rules, precedents, and methods in arriving at its conclusion. State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587.

Prom what has been said we need not spend much time supporting disaffirmance of tbe proposition that respondent bad no interest in tbe decision of tbe board as to its reputability. Whether we view tbe case upon tbe theory that tbe decision occurred incidental to tbe primary matter of passing upon applications for licenses, or tbe theory that tbe primary matter was tbe status of tbe college, makes no difference with tbe final result as we shall see. If the action of tbe board was a mere incidental decision, nevertheless tbe college was an interested party on principle and under tbe decisions of this coul’t in the case cited. It wás there held that such a decision may be regarded as settling the status of the college until subsequent events shall reasonably require re-investigation of the matter. So the incidental decision'here, if that be its character, had all the force, as regards injurious effects upon the college, of one rendered in a direct proceeding against it.

The failure of the premises upon which the logic of appellants’ counsel rests involves a concession, it seems, that if the decision of the board was one which it might properly have made under any circumstances, it was subject to be reviewed upon certiorari, if respondent was competent to sue out the writ. It is not an absolute essential to competency in such cases that the petitioner should be a party to the record in the proceeding sought to be reviewed, nor necessary that he should be the party wronged, as regards a proper citation being essential to jurisdiction of the subject matter. A good illustration of that is found in State ex rel. Graef v. Forest Co. 74 Wis. 610, 43 N. W. 551, where certiorari at the instance of a-taxpayer — injuriously affected by the determination of his-county board changing the boundaries of two towns and organizing a new one — was sustained to test the validity of the board’s action. Analogous to that-case are State ex rel. Wood v. Goldstucker, 40 Wis. 124, and State ex rel. Hallauer v. Gosnell, 116 Wis. 606, 93 N. W. 542.

Authorities may readily be found to the effect that no one is entitled to a writ of certiorari to review a proceeding to which he is not a party, but a careful examination thereof will •show that they do not go to the extent of limiting the use of the writ to parties to the record. The essential of competency' to use the writ, if the court in its discretion sees fit to permit it, is that the applicant is a party to the record or a party, in that the decision is directed against him or his property, or a party constructively, in that the enforcement of the decision would involve special, immediate, and, in effect at least, a direct injury to his interests. In such circumstances, if he has no other remedy reasonably available, the court may in its discretion, and must if in tbe exercise of sound discretion it ought to, give him the us© of its original writ of certiorari to vindicate his right. The law is quite comprehensively stated in respect to the matter in 4 Eney. FI. & Pr. 167, thus:

“The writ will not be issued on the application of one who has no ground of complaint, whether the applicant therefor is a party to the proceedings or not. Where, however, the applicant for the writ has, been actually aggrieved by the proceedings of which he complains, and the proceedings are reviewable by certiorari, he is entitled to the writ.”

“In considering whether or not the person is the proper party to apply for the writ, the court frequently exercises its discretion.”

“The court should be satisfied before allowing or acting upon the writ, that the issuance of the writ is essential to prevent some substantial injury to the applicant; and it devolves upon the applicant to show his right to prosecute the writ.”

“The applicant must have grievances of ..his own, and must not base his right to the writ on the ground that the rights of .others have been infringed.”

The following are good applications of the foregoing stated 'doctrine: People ex rel. Sheridan v. Andrews, 52 N. Y. 445 ; People ex rel. Youmans v. Wagner, 7 Lans. 467; Palmer v. Circuit Judge, 83 Mich. 528, 47 N. W. 355; Strong v. County Comm’rs, 31 Me. 578; People ex rel. Allen v. Knowles, 47 N. Y. 415; Stone v. Miller, 60 Iowa, 243, 14 N. W. 781; Groves v. Richmond, 53 Iowa, 570, 5 N. W. 763; Welch v. County Court, 29 W. Va. 63, 1 S. E. 337; Miller v. Jones, 80 Ala. 89; Tallon v. Hoboken, 60 N. J. Law, 212, 37 Atl. 895; Wood, Mandamus (2d ed.) 151.

It may be that some of the cases cited are on rather extreme lines. Certain it is that some of them go much further than is necessary for the purposes of this one. We are not unmindful that the writ of certiorari is not issuable for purpose of reviewing the exercise of legislative discretion (People ex rel. Jamaica v. Queens Co. 131 N. Y. 468, 30 N. E. 488), or a mere administrative matter (State ex rel. Anderson v. Timme, 70 Wis. 627, 36 N. W. 325), or proceedings in form judicial of a mere usurper (State ex rel. Schaefer v. Schroff, 123 Wis. 98, 100 N. W. 1030).

Tbe true rule deducible from tbe authorities is this: In tbe exercise of its discretionary authority a court of general jurisdiction, — upon tbe application of any party to -a judicial proceeding, or person interested in a proceeding of a judicial or qutosi-judieial nature, because of some special or peculiar injury to himself in person or property, for which he had no other reasonably available remedy, — may grant the use of its writ of certiorari to review the same for jurisdictional error, and upon reasonably clear prima facie showing in that regard discretionary authority should be so exercised. This treatment, in the main, relates only to injury where the proceeding is not against the person or property of the applicant for the writ. It does not include to the fullest extent the right to the writ where the proceeding is direct, — those cases where citation to the person in some reasonable way is requisite to jurisdiction of the subject matter.

Counsel for respondent go further than to merely answer the contention of counsel for appellants on the proposition that the writ was improvidently issued because the decision challenged was merely incidental to passing on applications for licenses, and that the college had no such interest in the matter as to warrant the court in permitting a judicial' review thereof in the manner attempted; claiming that the decision did not relate solely to a mere incidental matter involved in an issue between the board and applicants for licenses, but was in the nature of a proceeding directly against the college itself; a decision intended to have a general effect, and that as the proceeding was in rem, the college, as the possessor of the res, was not only a proper but a necessary party, rendering essential some reasonably efficient notice to it and opportunity to be beard, as a condition of jurisdiction of tbe subject matter.

We incline to tbe view that tbe decision of tbe board cannot be construed as a mere incidental conclusion. Tbe proceedings leading up to it strongly, if they do not conclusively, indicate that, in form and purpose, they were direct, tbe people at large being on tbe one side and tbe college, or it and those bolding its certificates of graduation, on tbe other. There were applications for licenses on file, but they bad not been taken up for consideration prior to tbe making of tbe decision, nor were they at tbe time thereof, so far as appears, specially or even incidentally under consideration. No notice was given to tbe applicants, as was done on former occasions, to appear and make proof. It does not appear that tbe applications in band were specially thought of. Tbe attention of tbe board was directed solely to tbe situation of tbe students who bad not yet received their diplomas and tbe attitude of tbe college in respect thereto. So little attention was paid to tbe applications for licenses, that tbe matter was not called to mind when tbe return was made and it became necessary, in order to make a complete showing in tbe return, to bring in the facts in that regard by amendment. Tbe entire history of tbe matter, as indicated in general terms by the statement, and as will appear in more detail hereafter, shows pretty clearly that at least tbe primary matter involved was tbe character of tbe college. The decision went directly against it and incidentally, if at all, against pending or anticipated applications for licenses. Doubtless, whether tbe proceedings were directly against tbe college by itself, or against it and applicants for licenses as uniting two primary matters, is not material since tbe rule as to notification to tbe former and opportunity to be beard before condemnation would be tbe same in one case as in tbe other.

Tbe foregoing leads to tbe interesting question of whether notice to tbe college was necessary to jurisdiction of tbe subject matter by tbe board. That tbe decision affects its material interests bas been sufficiently shown. If that resulted from a mere exercise of legislative discretion, it would not be remediable by certiorari, as we bave seen. Neither would it be if it resulted from tbe reasonable exercise of judicial discretion, or a decision judicial in form, which was wholly a usurpation, i. e. one which tbe board would not bave jurisdiction to make under any circumstances, waiving constitutional and other questions. It bas been suggested that tbe latter is more nearly its character than any that can be suggested; that it was a mere “fulmination” which did not and could not injure tbe college because tbe board bad no jurisdiction, under any circumstances, to act generally upon tbe subject of tbe status of tbe college. That suggestion, if any going to tbe character of the decision, is at this point entitled to consideration.

Manifestly, if tbe board bad any function in tbe matter it was of a judicial nature. That was distinctly held, in conformity to elementary principles and decisions in similar cases, in State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 581. Every court that bas passed upon a similar law bas so held, so far as we can discover. Tbe following language in Williams v. Dental Examiners, 93 Tenn. 619, 21 S. W. 1019, is in line with expressions of this court:

“It is evident that it was tbe purpose of tbe legislature to lodge it in tbe board of examiners created by tbe act. ... In performing their duties, tbe board is exercising a gmsi-judi- * cial function, and, so long as it does not act arbitrarily and illegally, its determination cannot be coerced.”

In People ex rel. Sheppard v. Dental Examiners, 110 Ill. 180, tbe court spoke likewise, as follows:

“These questions of fact,” relating to reputability, “are, by tbe act, submitted to tbe decision of tbe board, — not in so many words, but by tbe plainest and most necessary implication. Their action is to be predicated upon the existence of the requisite facts, and no other tribunal is authorized to investigate them, and of necessity, therefore, they must do so. The act of ascertaining’ and determining' what are the facts, is in its nature judicial. It involves investigation, judgment, and discretion.”

To the same effect are State ex rel. Granville v. Gregory, 83 Mo. 123; State ex rel. Powell v. State Med. Exam. Board, 32 Minn. 324, 20 N. W. 238; France v. State, 57 Ohio St. 1, 47 N. E. 1041. All courts which have considered the matter have rejected the ideas sometimes advanced that such delegations of authority contravene the constitution vesting legislative authority in the senate and assembly and judicial authority in the courts. The authority conferred is neither legislative nor judicial in a constitutional sense. It is authority to determine questions of fact required to be solved by the exercise of judgment preliminary to performance of purely administrative duties. The constitutional authority vested in the legislature appertains wholly to the making of law. That vested in such boards as we have here appertains wholly to the administration of law. The judicial power vested by the constitution in courts relates to that administration of remedies for remediable rights formerly exercised exclusively by courts. The discretionary, denominated quasi-judicial, authority vested in such boards as the one in question' is a necessary incident of purely administrative duties. The two, in many branches of civil government, are inseparable, and have no similarity to authority exercisable by courts through the instrumentality of judicial remedies. The following citations are but a few which might be mentioned where this subject has been treated in cases similar to the one in hand: State v. Heinemann, 80 Wis. 253, 49 N. W. 818; State ex rel. Kellogg v. Currens, 111 Wis. 431, 87 N. W. 561; State v. Dent, 25 W. Va. 1; Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231; Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390; France v. State, 57 Ohio St. 1, 47 N. E. 1041; State v. Harmon, 31 Ohio St. 250; Elmore v. Overton, 104 Ind. 548, 4 ; Ex parte Whitley, 144 Cal. 167, 77 Pac. 879; Los Angeles Co. v. Spencer, 126 Cal. 670, 59 Pac. 202; State v. Hathaway, 115 Mo. 36, 21 S. W. 1081; Flournoy v. Jeffersonville, 17 Ind. 169; Wilkins v. State, 113 Ind. 514, 16 N. E. 192; State ex rel. Burroughs v. Webster, 150 Ind. 607, 50 N. E. 750; State Board of Health v. Roy, 22 R. I. 538, 48 Atl. 802; People v. Hasbrouck, 11 Utah, 291, 39 Pac. 918.

May tbe board, in anticipation of necessity for tbe exercise of its administrative functions, and upon being invoked to do so by tbe party on tbe one side chiefly interested (tbe college), investigate and pass judicially upon its reputability, establish its status for purposes past and future, subject to reasonable revision of tbe matter upon any change occurring fairly calling therefor ? True, there is no express delegation of such authority in tbe written law, there was no express delegation of such authority in tbe law prior to tbe act of 1903, nor to pass upon tbe matter of reputability at all, nor is there in any of tbe many similar laws in other states, where it has been held that tbe latter authority exists by necessary implication. As stated by tbe Illinois court:

“The establishment of tbe reputability of tbe college seems to be one of tbe primary duties of tbe board. It is essential to tbe exercise of its administrative functions. It is tbe sole tribunal to determine tbe matter. Its determination once made is prima facie binding. It is binding absolutely in all courts and places, subject to review for jurisdictional error until changed reasonably by tbe board itself.”

Tbe rule applies that “when the existence of a person, a personal relation, or a state of things is once established by proof, tbe law presumes that tbe person, relation, or state of things continues to exist as before, until tbe contrary is shown, or until a different presumption is raised, from tbe nature of tbe subject in question.” Those principles were all definitely laid down in State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587. Tbe law as there construed, not only does not require but does not permit tbe college to be challenged, as regards its reputability, upon every occasion of tbe board being called upon to perform its administrative function of issuing a license to one of tbe former’s graduates. It contemplates that tbe status of tbe institution being once regularly established tbe decision in that regard will be reasonably permanent, so that applicants for licenses, and persons desiring to be matriculated at tbe college as well, can rely thereon, conditions not efficiently changing. It would seem that to confer on tbe board jurisdiction so that, upon every occasion of its administrative function being set in motion, regardless of its having previously determined tbe status of tbe institution-involved, and no change in the meantime, tbe reputability of such institution may be inquired into, — would so shock tbe reason as to cause hesitancy, at least, to believe the legislature could so have intended.

Our conclusion is that under tbe present system of legislative regulation of tbe profession of dentistry and of tbe character of educational institutions preparing candidates therefor, tbe status of such an institution, as to whether reputable • or not, is a matter of public importance in which the candidates holding certificates of graduation and the institution and the public at large are independent parties, and the official board is the sole tribunal to adjudicate in regard thereto; and that it may be set in motion, respecting the matter, by an application for a license, or may on its own motion, in anticipation of the fact becoming essential to the execution of its administrative functions, or for the benefit of all whom it may concern, move in such matter, or it may be set in motion by the college and required to so act, to the end that the corporation may act advantageously and justly to the public in soliciting patronage and in sending its graduates out on the pretense, evidenced in the usual way, of their being qualified to enter successfully into the profession of dentistry. Whenever the thing denominated status is a matter of public importance by principles of common law or by the letter or spirit of the written law, such as the condition of marriage, citizenship, parentage, residence, legal settlement, and many other matters that might be mentioned, the question in respect thereto is a legitimate matter for judicial determination by a tribunal having jurisdiction of the res. Proceedings of that sort are regarded as in rem, the same in all respects as if the thing were of a tangible character. The whole world, so to speak, is regarded as a party. The person directly affected is deemed to be so specially interested as to be entitled, under constitutional guaranties, as regards due process of law, the equal protection of the laws, and the general principles of free government, to some reasonable opportunity to be heard. There are •many cases on this subject. The following are a few of them: State ex rel. Kickbush v. Hœflinger, 35 Wis. 393; State ex rel. Atkinson v. McDonald, 108 Wis. 8, 84 N. W. 171; Spratt v. Spratt, 4 Pet. 393; McCarthy v. Marsh, 5 N. Y. 263; Cabot v. Washington, 41 Vt. 168; Hood v. Hood, 110 Mass. 463; Smith v. Smith, 13 Gray, 209; Pittsford v. Chittenden, 58 Vt. 49, 3 Atl. 323; Ross v. Ross, 129 Mass. 243. Judge Elliott in his work on Practice (vol. 1, §§ 245, 246) treats ■this matter at considerable length, and states the general proposition thus:

“Where a court is empowered to investigate the law or the ■facts of a particular matter respecting the status of a person, or of a thing, it necessarily acts in a judicial capacity and its judgment or decree is the product of judicial power. In determining the status of a person, where by law it is required to investigate and determine that question, the court exercises judicial functions. . . . With the res before it, the capacity to proceed, and a right or duty to decide, the decision must, ■certainly, be something more than an impotent declaration or a mere collection of meaningless words. The denial that there is power in a decision in such a matter is an affirmation that the court’s proceeding is idle, — in truth a mere shallow pretense, — but the concession that there is vitality in it is an affirmation that it is entitled to faith and credit as the adjudication of a court.”

That language, as will be seen, was used witb reference to judicial action by courts, but, obviously, it applies tbe same wherever tbe action is of a judicial nature. It applies necessarily in a case of tbe exercise of gmsi-judicial authority as well as judicial authority, strictly so called, to the extent of the binding effect of any quasi-judicial decision.

That supports the position of counsel for respondent,— that regarding the proceedings in rem, as they essentially were, tbe college was an indispensable party thereto, and reasonable citation to at and opportunity to know tbe precise points to be investigated, to meet the evidence produced' against it with some reasonable semblance of a judicial inquiry, and to produce evidence in its own behalf according to-the ordinary course for such proceedings, was essential to-jurisdiction to make any determination whatever.

It would seem that the proposition stated needs no further-discussion. Granted that the proceeding was in rem, it follows that notice and opportunity to the possessor of tbe res should have been given as claimed. One of tbe fundamental, principles of our system of government is that no one shall be condemned, as to his person or property, without due process of law. That is well within tbe letter, and, manifestly, within the spirit of the fourteenth amendment to the national' constitution, with our constitutional guaranty as to a firm adherence to tbe fundamental principles of justice, sec. 22, art. I, Const, of Wis., and that comprehensive, basic guaranty making the constitution as a whole a recognition and pledge for tbe preservation of the rights to life, liberty, and tbe pursuit of happiness. Sec. 1, art. I, Const, of Wis.

Due process of law does not mean merely according to the-will of the legislature, or the will of some judicial or quasi-judicial body upon, whom it may confer authority. It means-according to the law of the land, including the constitution with its guarantees and the legislative enactments and rules duly made by its authority, so far as they are consistent with.. constitutional limitations. It excludes all mere arbitrary dealings with persons or property. It excludes all interference not according to tbe established principles of justice, one of tbe most familiar of them being tbe right and opportunity for a bearing, to meet opposing evidence and oppose with evidence, according to the established principles of fair investigation to determine tbe justice of tbe case, before judgment affecting personal or property rights shall be pronounced. Siefert v. Brooks, 34 Wis. 443; State ex rel. Flint v. Fond du Lac, 42 Wis. 287. In tbe first case cited, in tbe language of DixoN, C. J., tbe court stated tbe doctrine thus:

“If the whole proceeding be ex parte or without notice, where notice should be given, or if such be tbe character of tbe determinatory act, tbe law condemns it in toto, and disregards it from the beginning. That every man is entitled to bis day in court, and must have it, and cannot be affected in bis person or bis property, unheard or without tbe privilege secured to him of appearing or being represented in bis own defense, if be so desires, is a maxim the force and importance of which every good lawyer appreciates, and one which no court ever surrenders.”

These circumstances are essential to jurisdiction in all actions in rem: 1. Tbe res must be within tbe jurisdiction of tbe court. That is satisfied in case of tangible things by their physical location within tbe scope of the court’s authority. It is satisfied in case of intangible things, such as status, by jurisdiction of the person whose relations to the public are to be established. 2. There must be personal notice to the possessor of the res and opportunity for him to have his day in court, where the statute requires it, and also in case of its being silent on the subject, when such notice can reasonably be given, and in other cases there must be reasonable constructive notice.

From the foregoing it seems quite clear that whether we view the position of the board as that of having decided on the reputability of respondent incidental to the exercise of purely administrative duties, or having determined the status of the college in a general way as in a direct proceeding solely in rem, or having determined the matter as involving two primary matters, still it was competent for the court to permit the use of its writ of certiorari for a review of the decision to ■some extent at least; that in the first situation notice to the ■college was not essential to jurisdiction of the subject matter, so the writ could reach only error proper to be considered irrespective thereof; that in either of the other two the legitimate ■scope of the inquiry included that which would be excluded in the first situation and all included in it as well. The claim of counsel as to such scope, suggested on the argument, is somewhat extraordinary, especially in view of the course of decisions in this state, but it was made with such confidence as to challenge somewhat more than a mere passing notice.

It is said that the writ of certiorari under the constitutional grants to circuit courts should be given the full scope of a writ of error, supplementing the appeal statute where necessary to reach the real justice of the case, all errors assigned, whether jurisdictional or judicial, being examined, and if it is thought that such Extraordinary scope cannot be recognized, though the writ has been denominated in the cause one of cer-tiorari, it should be deemed to be one of those new writs which it has been suggested a court may properly issue where the ends of justice cannot otherwise be attained.

In support of the proposition stated, our attention is directed earnestly to this language in sec. 8, art. VII, of the state constitution:

“Circuit courts shall have . . . appellate jurisdiction from •all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of habeas corpus, mandamvus, injunction, quo warranto, cer-tiorari, and all other writs necessary to . . . give them a general control over inferior courts and jurisdictions.”

That, it is argued, grants appellate jurisdiction and by necessary implication the right of review as upon an appeal. Counsel fail to distinguish between appellate jurisdiction and the right of appeal. The former only is granted by the constitution, the latter is a mere legislative creation. The legislature is supreme in the matter. It may grant the right of appeal from some inferior courts and not from others, or from courts only, or from courts and tribunals exercising quasi-judicial authority as well; or may grant the right in some cases and not in others, and having granted it take it away. Without legislative action creating the right in any given casein plain language, or by necessary implication, it would be usurpation for the court, on the mere faith of its constitutional grant of appellate jurisdiction, to entertain an appeal.. The appellate power of circuit courts must remain in abeyance, except just in so far as it has been, or shall be, given vitality by legislative authority. Mitchell v. Kennedy, 1 Wis. 511; Lancaster v. Barr, 25 Wis. 560; Eureka S. H. Co. v. Sloteman, 67 Wis. 118, 30 N. W. 241; State ex rel. Tewalt v. Pollard, 112 Wis. 232, 87 N. W. 1107.

The constitutional provision in question was taken verbatim-from Michigan, where the holdings before and since its adoption are in harmony with our own. People ex rel. Jeschly v. Police Justice, 7 Mich. 456; Demaray v. Little, 17 Mich. 386; Maxfield v. Freeman, 39 Mich. 64; Kundinger v. Saginaw, 59 Mich. 355, 26 N. W. 634; Sullivan v. Haug, 82 Mich. 548, 553, 46 N. W. 795; Messenger v. Teagan, 106 Mich. 654, 64 N. W. 499. Champlin, C. J., in Sullivan v. Haug, supra, said:

There is no “inherent right to appeal from a judgment of' an inferior to a court of superior jurisdiction for the purpose of securing a second trial upon the merits. The right of appeal is and always has been statutory, and does not exist at: common law. It is a remedy which the legislature may in its-discretion grant or take away . . . and unless the statute . . . provides for an appeal . . . none can be taken.”

But it is said that the constitutional grant'of “general .control over inferior jurisdictions,” such as that of boards like-■the one in question, with the right to issue certain writs, including that of certiorari> “and all other writs necessary to carry into effect their orders, judgments and decrees,” is sufficient to afford circuit courts power to review proceedings of an inferior tribunal to the fullest extent. Here comes in the idea that if some one of the writs mentioned is not appropriate for a full review the court may invent a new one. We are not unmindful that the learned chief justice who wrote the •opinion in Att’y Gen. v. Railroad Cos. 35 Wis. 425, 515, suggested that such power of invention existed as “a secret in law,” quoting from Lord Coke. That suggestion has led to more than one urgent appeal to this court, and probably others to circuit courts, to give vitality to such secret, but without success so far as we are aware. If there be such a secret, the fact that during the more than a century which has elapsed since Lord Coke so suggested, it has never been called into requisition, renders strikingly significant the inventive genius •of the early architects of the common-law system. The so-called secret has slept so long as to raise doubts as to whether the framers of the constitution had in mind in using the term “'all other writs,” etc., any others than those that were then known, though not mentioned specifically, which were appropriate to render efficient the jurisdiction conferred. Certainly, as remarked in State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 615, 79 N. W. 1081, those which are mentioned are sufficient for all ordinary situations, liable to occur where the constitutional authority of superintending control may be called into activity. No event has heretofore occurred, so far as appears from the records of the court, where constitutional instrumentalities, without resort to invention, have not been entirely adequate for the supervisory control of inferior courts and jurisdictions. What may have appeared some time, as is the case now, to be a need for some new writ ■or a new function for an old one, originated in misconception •of the jurisdiction contemplated by the term “general control over inferior courts and jurisdictions” as it was understood by the framers of tbe constitution.

The whole scope of superintending control is, with reasonable accuracy, defined by the quoted words of the constitution. The supplementary grant of authority to issue certain and other specified writs does not enlarge it in any particular. As said in Att’y Gen. v. Railroad Cos., while the use of certain writs was granted to this court in aid of, and for jurisdiction as well, the grant to the circuit courts is an appurtenance to jurisdiction “with power to put the writs to all proper uses that is tti say: each writ, it was contemplated, should be recognized as having its ordinary function according to the course of the common law, as a mere instrumentality in the exercise of jurisdiction granted independently thereof. It will be observed that the want of error, the one best known and most commonly used under the old system, — the one appropriate to appellate jurisdiction, — was not mentioned in the grant of authority to circuit courts. It was not appropriate to the jurisdiction of superintending control. The function thereof, as .regards the circuit court, was rendered unnecessary by the grant of appellate jurisdiction with legislative power to make the same active in its discretion. It is elsewhere held under a similar statutory system^ and the one upon which ours was mainly modeled, that the writ of error cannot be used by a circuit court. That approved would answer the suggestion made by counsel at the bar that jurisdiction in that regard exists as to our circuit courts and should have weight in determining the scope of authority exercisable at the circuit in this case, as to deciding the cause upon the merits. However, there is no need to determine that question here, though it might well be said in passing that the records furnish no precedent for the use of a writ of error by a circuit court.

The exact scope of the jurisdiction denominated “general control over inferior courts and jurisdictions” as to such courts lias never been, so far as we can discover, defined authoritatively. The term or its equivalent may be found in most of the written constitutions of the land. The idea cam© to us from the judicial system of England. Doubtless in giving to circuit courts an equivalent to the jurisdiction of the English courts of King’s Bench, Common Pleas, Exchequer and Chancery, it was designed to construct a system with the three grand divisions, original jurisdiction, appellate jurisdiction, and jurisdiction for supervisory control, the latter being coextensive with the similar jurisdiction formerly exercised by the court of King’s Bench. The system for circuit courts'is similar, as regards their legitimate field of operation, to that for this court, within its sphere of action, the latter being conferred by the term “general superintending - control.” That was defined for the first time by this court, speaking through Mr. Justice WiNSLow, in State ex rel. Fourth Nat. Bank v. Johnson, supra. As to circuit courts it is fenced about, so to speak, by the functions, in the aggregate, of the ancient writs used to exercise it prior to the constitution, and preserved thereby for the same purpose. It was not given, as such authority was to this court, without instrumentalities essential to its activity, but was given with its appropriate “appurtenances,” some being mentioned and others described generally. The scope of the former, as defined by Blackstone (3 Comm. ch. 4, p. 42), referred to as the most reliable source for authority on the question in State ex rel. Fourth Nat. Bank v. Johnson, is this: 1. To keep inferior courts within the boundaries of their authority. 2. To coerce the performance of .duty where there is no other specific remedy. 3. To interfere for summary and speedy relief when necessary to protect the liberties of the subject. All apply, as will be seen, to matters within the field of jurisdiction. The scope of authority might perhaps be better understood with reference to present conditions if defined thus: 1. To prevent action, usurping jurisdiction, the writ of prohibition being the proper judicial weapon, notwithstanding the legislative attempt to invade the constitutional authority of the court, on the subject, by sec. 3457, Stats. 1898. State ex rel. Tewalt v. Pollard, 112 Wis. 232, 87 N. W. 1107. 2. To quicken judicial action in case of unreasonable delay, to set the same in motion-in case of refusal to act at all and to compel action within the limits of jurisdiction, in ease of inexcusable excursion beyond such limits, — with the writ of mcmdamus as its appropriate “appurtenance.” Formerly the writ of ‘procedendo ad judicium was also usable in this field. The two performed substantially the same function but came from different courts, the former from that of the King’s Bench and the latter from that of Chancery. Since the merger of jurisdictions in one court a single writ suffices for all situations, and the old1 chancery writ has become practically obsolete. 3. To reverse-determinations void for jurisdictional error, the writ of cer-tiorari being its proper instrumentality. It has been suggested, and is not now denied, that there may be other writs-appropriate to this field of judicial activity. Suffice it to say that Blackstone, to whom all turn for definite information on the subject, does not mention any others, and it is difficult to see why any should he needed. These outlines of the great power of superintending control make the boundaries as definite as they can well be, except by the application of principles to cases as they arise. Experience will demonstrate that where the right is plain superintending control will reach far enough to suit the necessities of the case.

From the foregoing it will be seen that this case comes under the third subdivision of the circuit court’s constitutional jurisdiction. The proper writ was sued for and obtained. It •could perform its appropriate function and no other. That, was limited to removal of the record, as to the matter in hand, into the circuit court for examination as regards jurisdictional! error only. The writ has other functions, but none other in-vocable for the direct purpose of supervisory control. Upon the certified record, and that alone, the tribunal’s decision must stand or fall. The ordinary common-law function of the writ has not been extended in this state. The writ, as the framers of the constitution found it, was given to circuit courts solely in aid of, not for jurisdiction. Therefore, if the functions thereof were extended that would neither add to nor take from the jurisdiction of the court under its mere power of supervisory authority. It would still reach only jurisdictional matters.

Courts elsewhere, in some cases, and some text-writers as well, have said that the function of the writ of certiorari has been extended in recent years far beyond its ancient field. Counsel often contend for that view here, as was done in this case, with much persistence, assurance, and disposition to mildly, at least, criticise the court for holding to notions which are “unfitted to modern conditions” as it is said, quite unmindful, it seems, that “such persistent adherence” is only sl sturdy maintenance of the plain limitations of the constitution. That this court has spoken often and in no uncertain terms on this question, so that it cannot reasonably be 'Considered an open matter, is evidenced by the following: State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N. W. 188; State ex rel. Vilas v. Wharton, 117 Wis. 558, 94 N. W. 359; State ex rel. N. C. Foster L. Co. v. Williams, 123 Wis. 61, 100 N. W. 1048. A very pressing and futile appeal to this (Court to accord the writ of certiorari a wider scope than that of its common-law function was made in the last case cited, and the court upon due consideration of the matter responded:

“Boards of review up to the dividing line between what is jurisdictional error, error in the exercise of discretion, and judicial error, have ample opportunity to make erroneous decisions from which the aggrieved party has no opportunity for relief. If a remedy should be afforded in such cases the only source from which it can legitimately spring is legislative power. The court cannot give it by changing the scope of the common-law -writ of certiorari, and has never attempted to.”

We will now take np the two phases of jurisdictional error which the foregoing suggests in view of the assignments of error, assuming for now that the condemnation in question was incident to the performance of administrative duties. The first matter in order relates to the constitutionality of the law creating the board and defining its authority. Counsel’s propositions on that we will take up and treat in their order.

First. “It is not a law, but an enactment attempting to confer upon the board power to make law and pronounce a decision in any particular case without restraint of rule.”

That has been to some extent already answered. It is one thing to delegate power to make a law, and quite another to make one and delegate authority to a governmental agency to determine, in cases as they arise, whether the same is applicable thereto, or to administer the law in such cases, determining necessary questions of fact appertaining thereto. The act does not empower the board to prescribe the conditions upon which a person may practice the profession of dentistry; otherwise counsel’s contention would have merit. The legislature prescribed such conditions, creating a board to execute, its will, in that regard: to determine as to each candidate the existence or nonexistence of essential requisites, and in case of a favorable decision to award him evidence thereof. All there is which can properly be denominated “law” came from the legislature. The board cannot, without usurpation, do more than 'to execute the law. Legislation of that sort, in many fields of human endeavor and in relation to many matters, has been sustained and generally without controversy, as the numerous cases cited in this opinion will bear witness. “The true distinction,” it is said, is “between the delegation of power to make the law, which necessarily involves discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first caniiot be done. To the latter no valid objection can be made.” Dowling v. Lancashire Ins. Co. 92 Wis. 63, 70, 65 N. W. 738; Adams v. Beloit, 105 Wis, 363, 368, 81 N. W. 869.

Second. “It is unconstitutional, as conferring power to decide on reputation and property rights without notice or hearing to the person or corporation whose rights are injuriously affected.”

We assume that counsel do not claim that a grant of authority to decide upon the reputability of a college incidental to granting a license to one of its graduates, without notice thereto, would violate any constitutional provision. Certainly no citation referred to so holds, and we do not know of any. TJpon principle it would seem none would be essential without legislative requirement. It was never supposed that, in the trial of an action respecting any particular primary matter,, it was essential to jurisdiction that a person concerned in an evidentiary matter in respect thereto should be cited or allowed to appear as a party. There is no express grant of authority to the board to determine the status of a dental school by a proceeding in rem without notice, so far as we can discover. No legislative purpose to that effect can be read out of the law by reasonable implication, as in Dietz v. Neenah, 91 Wis. 422, 64 N. W. 299, 65 N. W. 500. The law confers jurisdiction to determine the matter, making no provision for proceedings to be followed. By necessary implication they must be reasonable. By fair construction that is embodied in the law as unmistakably as if words of the clearest import were used to express it. The court so held, in effect, in State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587. That requires procedure in harmony with fundamental principles of justice. Notice to the possessor of the res, actual in case of reasonable opportunity therefor, and constructive otherwise, with fair opportunity to appear and be heard, satisfies the essentials of due process of law, that of equal protection of the laws and other constitutional guaranties bearing on the-question.

It is said that the statute leaves the reputability of the college absolutely to the judgment of the official board without any remedy for review whatever; that the moment a court undertakes to investigate the matter it will be met by implied prohibition. Not so, as we understand it. The law leaves the matter to the board, acting reasonably, the same as similar matters are commonly left to such agencies exercising quasi-judicial authority. It contemplates, that the members of. the board will proceed with the dignity and fairness commonly ■expected of tribunals exercising judicial or quasi-judicial authority; that they will act as a body; that they will act upon proof of some sort reasonably appropriate to the case and made a matter of record, not necessarily that they will in all cases act regardless of personal investigation, but that in case of reliance thereon the result of the investigation will be made a matter of record; that opportunity will be afforded to the party affected, as to the primary right involved, to know of and to rebut the evidence produced against him if he so desires. In short, that they will exercise their jixdicial function judicially and that their decisions will be open to review by the courts for jurisdictional error, including that involving the-question of whether the basis for the decision indicated by the record constitutes reasonable ground therefor. That was distinctly held in State ex rel. Coffey v. Chittenden, supra, in harmony with decisions under similar statutes in this and other courts. Every suggestion on this branch of the case is fully covered in the one cited and in State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964, and others heretofore cited.

Third. “It is unconstitutional in providing that the foregoing powers shall be conferred on a board, a majority of whom shall be members of a guild or society named, and all of whom may be selected by the governor from persons recommended by that guild or society.”

This giving over, as it is said, of control of the official board to a private association, largely interested in restricting membership in the profession so that it may determine who shall and who shall not belong thereto, transcends the uttermost limits of police power. Counsel’s argument on that point suggests an inviting field for-exploration, but we shall forego doing more in that regard now than is necessary to decide the proposition presented and make some general observations showing, as we think, that the danger from the supposed modem trend of legislation to invade private rights, is more imaginary than real in view of constitutional limitations.

It is not without warrant, in view of expressions sometimes found in the books, that the claim is made as regards some features of such regulations as the one we have here, that there is a dangerous tendency, without any constitutional check thereon, under the guise of police power to invade, if not supersede, some of the most cherished principles supposed to be firmly intrenched in the constitution. However, it is not believed but what the vigilant, independent, and courageous judiciary contemplated by the constitution, will prove amply sufficient to prevent any such calamity. One need not grow pessimistic in face of the numerous and peculiar legislative regulations of personal liberty, which seem to be thought expedient by the law-making power. The known necessity of charter restraints to prevent the people in their sovereign capacity from turning upon themselves in their individual capacities to the injury or destruction of natural rights, gave rise to written constitutions as the most significant weapon to guard against it, with an independent branch of the government, the judiciary, to wield that weapon. So long as it properly performs its functions in defense of those fundamental rights of “life, liberty, and the pursuit of happiness,” legislative power cannot efficiently violate them.

The police power, with necessary limitations upon it, was contemplated by the framers of the constitution. Such limitations, and means of defining and of making them effective^ were amply provided for. How any one could bave tbongbt to the contrary, or considerately written for tbe guidance of others, or as grounds for judicial action anything inconsistent therewith, after Marbury v. Madison, 1 Cranch, 137, is not perceived. The police power may be extended disastrously, or restrained and administered beneficially, according as the judiciary shall fully perform its constitutional function. Confined within its legitimate field as to subjects, and to its function of mere regulation, it is essential for the full accomplishment of the purposes of civil government. It is commonly said that it extends to and permits legislation “regulating” reasonably “all matters appertaining to the life, limbs, health, comfort, good morals, peace and safety of societyin short, to all which promotes the public welfare. Baker v. State, 54 Wis; 368, 372, 12 N. W. 12; State ex rel. Larkin v. Ryan, 70 Wis. 676, 681, 36 N. W. 823; State v. Heinemann, 80 Wis. 253, 49 N. W. 818; Bittenhaus v. Johnston, 92 Wis. 588, 66 N. W. 805; State ex rel. Kellogg v. Currens, 111 Wis. 431, 87 N. W. 561.

The significant word “reasonable,” as above used, is not often found in defining police power. It should never be omitted in defining the constitutional scope thereof. The legislature has no unlimited authority in this field. Its scope has a complete encirclement of constitutional limitations, with the judiciary to stand guard at the boundary. The idea that it is “a sovereign power in the state, to be exercised by the legislature, which is outside, and in a sense above, the constitution” (Donnelly v. Decker, 58 Wis. 461, 17 N. W. 389), or that a police regulation which is clearly a violation of express constitutional inhibition is legitimate, subject to a judicial test as to reasonableness, in other words that there is such a thing as a legitimate, reasonable violation of an express constitutional prohibition (People v. Jackson & Mich. P. R. Co. 9 Mich. 285; Tiedeman, State and Federal Control, § 3), or that no police regulation, not condemned by some express constitutional prohibition, is illegitimate, or that legislation not so condemned is legitimate if tbe law-making power so wills, though it plainly violates some fundamental principles of justice, or that the reasonableness of a police regulation, and whether it unjustly deprives the citizen of natural rights, is wholly of legislative concern (Hedderich v. State, 101 Ind. 564, 1 N. E. 47), and others of a similar character now and then found in legal opinions and text-books, are highly misleading. They are attributable to failure to appreciate the far-reaching purpose of the general constitutional declarations, the necessity contemplated by the constitution makers of a broad rather than strict construction of those general terms necessarily adopted in drafting such a charter-, and the feature making the court the supreme judge as to the extent of limitations. If it were true that all police regulations are legitimate which are reasonable, and all are reasonable which the legislature so wills, the constitution as to very much of the field of civil government would be of no use whatever.

The idea that the general declared purposes of the constitution Were incorporated therein as mere embellishments; that they are only meaningless “glittering generalities,” .“high-sounding phrases,” “signifying nothing”, in particular, was condemned, it seems, sufficiently for all time in Marbury v. Madison, supra. This court has spoken decisively in respect thereto. In State ex rel, Jones v. Froehlich, 115 Wis. 32, 42, 91 N. W. 115, 118, it was said:

“The police power has been wittily defined as the power to pass unconstitutional laws, and some utterances of courts have seemed to justify such conception. It is nevertheless erroneous. An act which the constitution clearly prohibits is beyond the power of the legislature, however proper it might be as a police regulation but for such prohibition.”

Repeatedly it has been said here, that the declared purposes of the constitution are among the most valuable restraints upon legislative authority, and should be given all the force which, they were intended to hare. State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 90 N. W. 1098; State ex rel. Kellogg v. Currens, 111 Wis. 431, 435, 87 N. W. 561.

So legislation referring to police authority for legitimacy, like any other exercise of the law-making power, must bear the test of constitutional limitations, which will be found upon all sides. On the one side it may meet the barrier of an express prohibition; on another the implied prohibition of any law not in harmony with the all-prevailing purposes of the constitution ; on another the implied inhibition involved in the declaration that “the blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles” (sec. 22, art. I, Const.), and at last the limitation of reasonableness springing from the whole constitutional scheme. At that point, as before indicated, the judiciary holds the scales. The legislature is the sole judge of what is expedient, but the judiciary is the judge as to what is beyond the boundaries of reasonable regulation and in the domain of destruction, reasonable doubts in all cases being sufficient to sustain the former. Here is found the last, and intended to be impregnable, line of defense against abuse of police power. It has been well said that without it constitutional guaranties would be of no value. Marbury v. Madison, 1 Cranch, 137; State v. Namias, 49 La. Ann. 618, 21 South. 852; State v. Vandersluis, 42 Minn. 129, 43 N. W. 789; 22 Am. & Eng. Ency. of Law (2d ed.) 936.

Now with full appreciation, it is thought, of the way the law squares itself with reference to the foregoing, it seems that the court would not be justified in holding the same to be utterly unreasonable, or that without reasonable doubt its ostensible purpose to promote the public welfare is a mere cloak to shield a real purpose to promote the interests of members •of a voluntary association of professional gentlemen. That the proper training of candidates for the dental profession, the exclusion therefrom of incompetents, and the protection of the public against incapables being allowed to occupy an attitude rendering them liable by false pretenses to gain an opportunity to do injury, appertains to the public good in a most significant degree, is universally held. Such a law, to be sure,, might be administered so as to work mischief. The mainspring of its enactment might be one tiling and the ostensible purpose another. It is true, however, that similar laws are in force and have passed the test of constitutionality in at least thirty-eight states of the Union.

The feature of the law permitting the voluntary association to dictate in a controlling degree the make-up of the board, — ■ the one particularly pointed out by counsel as fatal, — has been sustained by this and other courts on many occasions. A similar feature is found in most all of a multitude of similar laws upon the various statute books of this country. This court, in State v. Heinemann, 80 Wis. 253, 49 N. W. 818, approved a law restricting all appointments to the board to nominees of the voluntary association. The following are other significant instances of approvals of such laws: Wilkins v. State, 113 Ind. 514, 16 N. E. 192; Overshiner v. State, 156 Ind. 187, 59 N. E. 468; Ex parte Frazer, 54 Cal. 94; Ex parte Gerino, 143 Cal. 412, 77 Pac. 166; Ferner v. State, 151 Ind. 247, 51 N. E. 360. The legislative idea is, doubtless, this: It is of great importance to the dental profession that competent candidates therefor only shall be admitted thereto. Such interest is, at least, second only to that of the public. Distinguished members of the profession are of all men the best equipped to conserve the common good. The profession at large may reasonably be trusted to point out such members. Ordinarily none but such would be permitted to stand for the whole. Therefore the surest means of obtaining men of that class to execute the law is to look to the profession at large for nominations. That, certainly, is not unreasonable.

Fourth. “The law is void, because it denies the right to study dentistry to persons not possessing qualifications there-mentioned, which requirements cannot be upheld under the police power.”

We are unable to see that the law has the effect suggested. Eor aught that appears therein one can study dentistry regardless of his qualifications to compete for a diploma entitling him to a license without examination. He may even be graduated regardless of his accomplishments. He can, however, not have a license to practice except upon condition of’ showing requisite qualifications. In case of his alma mater being reputable and having all other statutory requisites such qualifications are provable by his certificate of graduation; otherwise they must be shown by examination. No one under the law is required to attend a dental college at all, in order to enter the profession. He may acquire the essential qualifications by serving under any dentist conducting a reputable practice. Ch. 411, Laws- of 1893, at sec. 4.

The following citations, in addition to those heretofore given, cover favorably to the appellants all questions raised as to the constitutionality of the law: Hewitt v. Charier, 16-Pick. 353; Ex parte Spinney, 10 Nev. 323; State v. Call, 121 N. C. 643, 28 S. E. 517; People v. Phippin, 70 Mich. 6, 37 N. W. 888; State v. Creditor, 44 Kan. 565, 24 Pac. 346; State v. Randolph, 23 Oreg. 74, 31 Pac. 201; State v. Knowles, 90 Md. 646, 45 Atl. 877; State v. Bair, 112 Iowa, 466, 84 N. W. 532; State v. Heath, 125 Iowa, 585, 101 N. W. 429; Gosnell v. State, 52 Ark. 228, 12 S. W. 392; State ex rel. Granville v. Gregory, 83 Mo. 123; Harding v. People, 10 Colo. 387, 15 Pac. 727; Williams v. People, 121 Ill. 84, 11 N. E. 881; People v. Blue Mountain Joe, 129 Ill. 370, 21 N. E. 923; Driscoll v. Comm. 93 Ky. 393, 20 S. W. 431; State ex rel. Kellogg v. District Court, 13 Mont. 370, 34 Pac. 298; Craig v. Board of Med. Exam. 12 Mont. 203, 29 Pac. 532; C. Gee Wo v. State, 36 Neb. 241, 54 N. W. 513; Barmore v. State Board, 21 Oreg. 301, 28 Pac. 8; People v. Moorman, 86 Mich. 433, 49 N. W. 263; State v. Forcier, 65 N. H. 42, 17 Atl. 577; People ex rel. Nechamcus v. Warden, 144 N. Y. 529, 39 N. E. 686; Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564; State v. Gazlay, 5 Ohio, 14; Goldthwaite v. Montgomery, 50 Ala. 486.

We now turn to tbe official record kept by tbe board as returned in response to tbe writ. In any view of tbe case, upon that and that alone appellants must rely to sustain its jurisdiction upon tbe merits. Here we must take note of tbe difference between jurisdictional error as to a court proceeding according to tbe course of tbe common law and sucb error as to •a mere, tribunal exercising quasi-judicial authority. In tbe former, jurisdiction of tbe party and subject matter being established, tbe determination cannot be successfully challenged for sucb error though tbe basic questions of fact rest upon insufficient evidence, or have no foundation whatever therein. The judgment in sucb circumstances may be erroneous but not reversible upon writ of certiorari for jurisdictional defect. In tbe latter, a clear violation of law in reaching a result within tbe power of, the tribunal to reach proceeding properly, is jurisdictional error. In tbe former, tbe evidence is not reviewable at all. In tbe latter, it may be reviewed, but only to tbe ■extent of determining whether there is evidence upon which tbe tribunal could reasonably and honestly have reached tbe ■conclusion which it did. Tbe evidence cannot be weighed for tbe purpose of determining whether tbe same clearly preponderates against tbe decision. It may be looked into only to see whether there was competent evidence-sufficient, in reason, to incline the mind efficiently to tbe conclusion reached. In the first a conclusion without any credible evidence to support 'it, or any evidence at all, is mere judicial error. In tbe sec-end, want of credible evidence which, in case of tbe verdict of ■a jury, would be sufficient upon appeal to require a reversal is jurisdictional error: error committed outside of jurisdiction instead of in tbe exercise of jurisdiction, where tbe writ takes bold, performing its function of returning tbe tribunal to its-proper sphere of action. State ex rel. Durner v. Huegin, 110 Wis. 189, 237, 85 N. W. 1046; State ex rel. Heller v. Lawler, 103 Wis. 460, 79 N. W. 777; State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N. W. 188.

In examining tbe evidence we may well start witb tbe decision of tbe board June 15, 1903, establishing tbe reputability of tbe college. In all reason that should have put all questions respecting the matter at rest, subject only to something coming to the attention of the board fairly calling for a new investigation. It would be intolerable for a college after having its status deliberately established, especially in a direct proceeding, to be compelled from time to time thereafter,, regardless of any change of conditions, to submit to a new investigation, or for its patrons to be so compelled. That was-definitely proclaimed in State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587. However, since the action referred to was accompanied by a censure for violating rule 23 prohibiting the admission of students for less than the advertised fees, it will be assumed that the proceedings jn the whole were in the nature of such a condonation of past offenses that subsequent transgressions, if there 'were any, furnished some justification for considering the same and the past and forgiven offenses as well.

Commencing at the beginning and tracing the history down-to the issuance of the writ, in brief, we find these circumstances relied upon by appellants:

(1) June 8, 1903, the board in effect held the college for suspension as to reputability unless the negative appeared satisfactorily as to the following: Is it guilty—

(a) Of having violated rule 23 prohibiting the acceptance- or retention of students at less than the advertised fees ?

(b) Of having matriculated students without the certificates of the official examiner as to sufficiency of entrance qualifications ?

(c) Of having unjustly and intentionally aspersed the •character of the official examiner as to fitness and honesty as a public servant ?

(d) Of having unreasonably failed to confront the official examiner before the board as to charges made against him ?

(2) The college permitted six students who failed in the entrance qualifications for the session of 1902-1903 to be matriculated, nevertheless, and continue in attendance mating up their deficiencies during the year, contrary to the 'board’s rule on the subject.

(3) The college catalogued the six students for the session of 1903-1904 as “juniors,” counting the year partly spent in ■preparatory studies as satisfying the first year of the course, •contrary to the board’s command in respect to the matter. ■

(4) The college elected to submit to the decision of the •court, — unless ordered to the contrary by the board, — requiring it to give the six students full credit for the year partly •spent in the work of preparation, contingent upon whether •such action would be regarded by the board as rendering it not reputable.

Aside from the foregoing the college was regarded as reputable, the judgment of the board in that regard having been certified September 15, 1902. It and its graduates were in all reason entitled to rely thereon till the occurrence of something inconsistent therewith. Once established, the status of reputability would be presumed to continue until reasonably rebutted. Time would have no effect thereon except to weaken the presumption, if even that.

The determination of June 15, 1903, settled in favor of the college the alleged misconduct in respect to matters mentioned ■in No. 1 other than that respecting violation of rule 23. There were then in the institution six students who matriculated for 1902 — 1903, though failing in some respects in entrance qualifications, and spent the full year in study, partly, however, in making up deficiencies.

At tbe time of tbe adjudication tbe board bad on its files a communication from tbe college requesting tbe status of tbe six students as to competency for tbe second year’s study of a three years’ course to be determined, and tbat tbey might be accorded an examination as to entrance qualifications prior to tbe commencement of such year, and, if found satisfactory, tbat tbey might have credit for baying taken one full year’s study of such three years’ course. Tbe grounds for tbe request were these: Up to the commencement of tbe session of 1902— 1903 tbe board permitted entrance qualifications to some extent to be made up during tbe first year of tbe course. Negotiations with students leading up to their admission were conducted upon tbat basis without knowledge, until shortly before tbe commencement of tbe session, tbat tbe custom in tbat regard bad been abrogated. Tbe students who failed bad, under the circumstancés, some moral claim on tbe college which it endeavored to discharge by making them special in tbe freshman year and entering them in tbe academic department as well, and requiring them to spend three hours in study each day in respect to tbe subjects wherein tbey were deficient. Tbe request was not responded to. Tbe institution on a previous occasion, — January 29, 1903, — earnestly requested tbe board to define tbe status of tbe six students, which was replied to, in effect, tbat tbe matter would be considered upon tbe board being put in motion “in the usual way to act upon tbe character and management of your school.” Tbe only reference to this matter found in tbe board’s disposition of tbe subjects investigated as aforesaid is contained in a companion resolution to tbe one of censure. . Tbe two may well be restated at this point.

“Resolved, Tbat tbe Wisconsin State Board of Dental Examiners, after careful investigation, find that tbe Milwaiücee Medical College, Dental Department, has violated sec. 23 of the rules and regulations of said board, relating to tbe admission of students for less than the advertised fees. It is tbe sense of tbe majority of this board tbat tbe offense is not of sufficient gravity to warrant the withholding of licenses on diplomas issued to the class of 1903, and therefore the secretary is hereby instructed to issue licenses on application to members of said class according’ to law.

"And further resolved, That the Milwaukee Medical College, Dental Department, is hereby censured for its conduct in this matter, and we therefore give the college fair warning that any further violation of the rules of this board will not be tolerated and all rules of the board will be strictly enforced.”

That left the college in some doubt as to how the infraction of rule 23 was disposed of. The past was at least excused, but how about the future ? The specific request that the students might have credit for one full year of a three years’ course was not responded to. Both the college and the students were left in suspense in regard thereto except as they might imagine the attitude of the board from the second resolution. The college was held reputable, notwithstanding its sin in respect to the matter, but it was not determined clearly that, it would be consistent with reputability for it to graduate the six students after two more years of study. The resolution was suggestive to the contrary. The students, however, were catalogued for the session of 1903 — 1904 as “juniors.” The board having changed the reputable standard for graduation from a three years’ to a four years’ course, the new order of things to commence with the session of 1903-1904, it will be' seen that if the matriculation of the six students for the previous session was to be deemed regular they wei*e in the former class, otherwise in the latter.

Soon after the commencement of the session of 1903 — 1904 the board, through its president, successfully sought advice from the National Association of Dental Faculties as to whether the six students should be regarded as having taken one year of a three years’ course contingent upon their showing proper entrance qualifications to commence the study of dentistry, or in such contingency to be regarded as having taken one full year of a four years’ course. A controversy, however, soon arose as to the nature of such advice. Appellants insisted that it was to tbe effect that tbe students should show proper entrance qualifications and take three years more of successful study, while Dr. Gray, one of the active members of such association, who participated in the matter, insisted that only two years more of study should be required, the young men to be regarded, upon showing proper entrance qualifications, to have taken one year of a three years’ course. The controversy was settled in favor of the former 'theory, Dr. Gray however insisting, “My opinion is that the young men should be permitted to go on and graduate in two more years. I think it is outrageous upon these boys that they are not permitted to do this. However, if it is against the law I will submit.”

About the time of the initiation of the transaction last related, the official examiner reported four of the six students to have presented to him teachers’ second grade certificates apparently showing proper entrance qualifications. January 23d thereafter, — by a resolution, in general terms, but which was given peculiar significance as to the conduct of respondent respecting its having catalogued the six students as three-year students, by its being sent by special direction thereto, — colleges were admonished that no such institution would be recognized as reputable in which students were allowed to continue in attendance upon any conditions other than those required of regular matriculants whose credentials were duly approved, and who had in all respects complied with the requirements of the published rules and regulations of the board regarding the conduct and reputability of colleges desiring recognition of their diplomas.

Notwithstanding such admonition, respondent permitted! the students to continue through the junior course, and cata-logued them for the session of 1904-1905 as “seniors,” thus indicating defiance of the board’s ruling that they should be permitted to graduate, if at all, only in the class of 1906. As tbe time approached for the coming out of the class of 1905, the attitude of the board was that of threatening respondent with condemnation if it permitted the six students to graduate as members of that class, and the attitude of respondent was that of endeavoring to avoid giving cause, voluntarily, therefor. In that situation one of the students commenced a mandamus action to compel the respondent to recognize him as possessing the requisite standing for graduation with the class of 1905, setting forth most of the facts herein detailed appertaining thereto. Respondent submitted, without objection, to the matter being thus brought before the court for adjudication, giving appellant full opportunity to maintain, in the former’s name, its own position in resjieet to the matter. The fender was declined. Respondent, in its own behalf, made return to the first writ, setting forth all facts'in regard to the ^controversy not already appearing in the proceedings. Such •action was thereafter had in respect to the matter that a de-cisión was rendered in favor of the student June 22, 1905, a •peremptory writ being ordered.

The result of the mandamus action was in due time brought fo the attention of the board. Thereupon it held a meeting and adopted, seemingly without time for consideration or effort in that regard, a resolution condemning respondent as not reputable, but subsequently the same was reconsidered and further action in respect thereto was postponed, as the record states, “to obtain further information on toe subject.”

The subject referred to in the foregoing was that of whether respondent purposed submitting to the decision of the court without further contesting the matter. That is evidenced by the fact that on the day after the proceedings the board caused inquiry to be made of respondent as to whether it “had taken or contemplated taking any steps to graduate the six students.” Reply was made thereto the next day, to the effect that no such steps had been taken or were contemplated and that respondent would not issue to the students diplomas except under’eoru-p-ulsion, that the action to test the matter had been defended in good faith, and that in any event appellants should have the fullest opportunity in respondent’s name to further defend. Eesponse was made thereto on the same day demanding to know what steps respondent intended to take,- if any, to- avoid the court’s decision. To that answer was made the following day that respondent would be obliged to defer to the court’s order “unless you now order us in writing not to issue such diploma, or else give us a notice in writing that in the event of our issuing such diploma you will declare our college not reputable. In that case we shall not issue the diploma. We are much perplexed, and would like an answer today.” That seemingly humble submission did not secure an answer in advance of the act complained of. The next day the board reconvened. The correspondence mentioned, together with information of the issuance of the peremptory writ, was before it. The resolution theretofore laid over, “to gain further information on the subject,” was, as it appears, promptly taken up and the final act sought to be reviewed occurred by unanimous vote. The modest request of respondent as aforesaid was thus answered without previous notice that such a calamity to it was impending. On the contrary, it had every reason to believe its attitude of submission contingent on receiving positive information of appellants’ requirements, would at least prevent any hasty action, and probably any action whatever, in advance of due notice to it and opportunity to be heard.

So, in brief, the transgressions of respondent for which the sentence of nonreputability was pronounced were three in number, namely: (1) Violation of rulé 23'prohibiting concessions to students from advertised fees; (2) violation of the rule prohibiting colleges from- accepting students with, permission to make up'deficiencies in entrance qualifications the first year of their course; (3) violation of the board’s order that the six students should be denied credit for tbe year partly spent in making up entrance qualifications. Did such transgressions furnish any reasonable basis for the condemnation complained of ?

The question suggested must be tested having regard to the meaning of the word “reputable” as used in the law under consideration, and whether in view thereof the standard set by the board can be regarded as reasonable. As said in State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 187, the board in respect to such matters has a wide discretion. It would require a strong case against it to warrant condemnation for abuse of authority, yet there is a limitation beyond which it cannot go. That limit is the boundary between that which is substantial and therefore reasonable, and that which is purely arbitrary or trifling and therefore unreasonable. The board’s action cannot properly be condemned because some or even most persons cannot discover any reasonable ground therefor. To warrant that it must be so violative of reason as to evince a total absence of that fair judgment which should distinguish action of a judicial nature: in short, as to seem baseless when tested by reason and common sense.

The meaning of the word “reputable,” as used by the legislature in the instance in question, has not been-judicially defined with that exactness which it seems the importance thereof demands. In State ex rel. Coffey v. Chittenden, the definition found in an early edition of Webster’s Unabridged Dictionary was quoted and given first place, namely, “worthy of repute or distinction; held in esteem; honorable; praiseworthy.” Second place was given to the phrasing found in the Century Dictionary, namely, “being in good repute; held in esteem; consistent with good taste.” The Ulinois court, in State Board v. People ex rel. Cooper, 123 Ill. 227, 13 N. E. 201, adopted the first definition. It will readily be observed that in some respects it is erroneous, while in the whole it has a double meaning. It is erroneous in that it fails to suggest whether it is requisite that the repute or distinction must be good or bad; there is a double meaning in that the first part of the definition, when corrected, would signify a condition of being entitled to a good reputation; while the second part suggests the existence of good repute or reputation in fact. The one relates to actual character; the other to supposed character according to common understanding. As it has been said, one relates to the internal and the other to the external, the former being the substance and the latter the shadow. In re Spenser, 7 Cent. Law J. 84, 85.

In our discussion in the former'case it was said that “the law does not attempt to define reputability but uses the term in its ordinary sense.” It is used “to convey its common meaning, the meaning generally ascribed thereto in everyday ordinary expression calling for its use.” What that common, ordinary meaning is as between worthy of good repute and good repute in fact, was not said expressly, but the grounds considered and upon which the board acted, and which were challenged for insufficiency, appertained to true worth, not reputation therefor. Therefore, it is now considered by the court, that it was then held, the legislature used the term reputable, as indicative of worthy of good repute; and that since the legislature shortly after that decision was made, and presumably with regard thereto, amended the law into the form in which we now find it, and which guided the board at the time of the transactions in question, it is too late to reconsider the matter. Eor the court it is desired to make this as emphatic as may be, and to that end reference is again made to the fact that the primary signification of the words “worthy of repute or dis-. tinction” as found in the early edition of Webster, regarded as meaning worthy of good repute or distinction, was in the former case given first place, and that the discussion in detail of the facts proceeded to a conclusion in the light thereof. However, for myself, I reserve the privilege of dissenting on this point.

Now wbat is there so ver y wrong about conceding to students some deduction from advertised fees, as seems to have been done, by tbe respondent, that it should be regarded as suggesting nonreputability. No light is shed on that question by counsel for appellants. If there is any reasonable basis for the board’s rule 23, or its rule 36, fixing the minimum charge to students at $100 per term, which seems to be inseparable from the former rule, we are unable to discover it. Reputability has reference to those things which go to the proper preparation of candidates for the dental profession. We venture to say that, all other things being equal, the institution that takes worthy young men, making concessions in their favor to meet their financial needs, thereby assisting them to attain the object of their ambition, is no less worthy of good repute than one which holds to an arbitrary schedule in that regard,- tending to exclude much of the very best material for the profession therefrom. Without any -extended discussion, it is considered that rule 23, and other rules upon which it is based, are highly unreasonable.

The system of legislative control under consideration was not designed to enable a licensing board to interfere with the mere business management of dental colleges by making laws regarding their charges for instruction, and their treatment of students in respect to their schedule of fees. The power conferred was limited to reasonable protection of the public against danger of incompetent practitioners securing patronage, and is wholly of an administrative character. If the legislature were to go further than to conserve the public welfare, its action in that regard would be destructive, not regulative, of rights and so would be outside of constitutional authority. What interest is it to the people whether a dental college maintains its fees up to a published standard or not, or what particular sum it demands of students as a consideration for the advantages it affords to them. None whatever, as it seems. Tbe board went entirely outside of its legitimate sphere of action in respect to those matters.

The second ground of the board’s action has as little to justify it as the first. We search the law in vain for anything in its letter or spirit justifying the board in taking charge of the subject of passing upon entrance qualifications through its representatives, and making submission to such interference with the business of the college a condition of reputability. There seems to be as little support for the board’s third ground of action; its prohibition to the making up, to any extent, of entrance qualifications during the first year of a student’s course, and making submission to that regulation a condition of reputability. As well might the board assume authority to regulate any one of many mere administrative features of dental colleges, such as the ordinary examinations during the course, or the particular persons to be employed as instructors, or the test to be applied as to their capability, or the particular person to' apply such test, or the compensation to be paid to members of the instructional force.

The law requires, not as a condition of reputability of a college, but as a condition of the board’s issuing to its graduates licenses upon the faith of their diplomas alone, preliminary-education, as to matriculants, equivalent to that for entrance to the junior class of an accredited high school. By necessary implication, tbe language of the law leaves the college unhampered as regards the examination in respect to that requirement. By necessary implication as well, it clothes the board with ample authority to determine as occasion may require, whether such duty has been performed in good faith. The board in this matter, as well as in fixing minimum charges and prohibiting variations from advertised fees, invaded the functions of the legislature, if such power exists at all. In the particular case the interference was peculiarly oppressive in that it was not brought to the attention of the respondent until too late for compliance therewith for the session, of 1902-1903 without embarrassment to itself and great injustice to its patrons.

The arbitrary character of the board’s action is further evinced by the fact that the standard of admission at the time it was created was wholly of the board’s invention. The statute, prior to 1903, did not contain any regulation on the subject. In the amended act of that year a feature was added to the existing law in accordance with the rules which the board had theretofore prescribed for the government of colleges, no authority, however, being given to the board, expressly or by implication, to take charge of that branch of the colleges’ business.

The statutory requirement as to entrance qualifications must be presumed to have been enacted with reference to the common practice of educational institutions as to allowing, in a reasonable degree, deficiencies in entrance qualifications to be made up during the early part of the school course, and contemplated a continuance of that custom. Any other construction of the law would render it such an oppressive and unreasonable interference with the ordinary business of schools as to require its rejection as absurd if not its condemnation as unconstitutional. The language requiring “a preliminary education equivalent to,” etc., is not wholly inconsistent with liberty to allow such education, in some reasonable degree, to be made up within a reasonable time after commencement of the course. Some unmistakable prohibition would be required in order to indicate a legislative purpose to abrogate the custom in that regard which has prevailed generally throughout the country. Entrance qualifications are required for admission to the courses of study universally, in reputable institutions of learning. The regulations in that regard are as universally published for the benefit of all whom it may concern, and yet, commonly, they are regarded as satisfied, though the student falls somewhat below the required standard as to some mattters not very essential, if be makes up tbe deficiency witbin a brief period after bis matriculation.

Tbe last ground of tbe board’s action bas been, perhaps, sufficiently condemned without further discussion. It-was a very natural climax to tbe misconception of authority evinced ■by tbe adoption of tbe arbitrary rules before mentioned. Mere assumed authority, if not checked, will ultimately run wild, as it did somewhat in this case, in condemning respondent as not reputable because of its determination to obey tbe judgment of tbe circuit court without further contesting tbe matter, unless seasonably notified that such a course would lead to its being condemned as not reputable. Nothing said herein should be construed as casting any reflection whatever upon tbe motives of tbe gentlemen composing tbe board, or their advisers. They doubtless, in tbe best of good faith, acted throughout according to their honest judgment respecting the power vested in them by the law. The. fact that they were seriously mistaken only emphasizes the .common saying that men, however distinguished and' conscientious, are nevertheless liable to make great mistakes.

The foregoing disapproval of the board’s action is emphasized by the .fact that the law regards reputability to be something separate and distinct from other requirements essential to the graduation certificate of a college constituting an efficient basis for a license to practice the profession of dentistry. It requires: (1) That the college shall be duly incorporated; (2) that the entrance qualifications shall be as indicated ; (3) that the period of study shall include seven months in each of four years; (4) and that the college shall be reputable. It may have all of the specific requirements except the last, and be infirm in respect thereto. Again it may have the last essential and not the rest, since the former has reference to general equipment to accomplish in fact good work and send out graduates for the profession of dentistry fully trained therefor, so that the public may safely trust them. There might- be tbe equipment and sucb result, entitling the institution not only to be called reputable, but to special distinction, and it might actually achieve such distinction, and yet not have some of the other statutory essentials to the admission of its graduates into the profession without examination. The mere failure to comply with the statute, a fortiori with the-regulations made by the board with respect to its internal affairs, would not justify sentencing the college, as in this case. Reputability has no reference whatever to mere submission to-rales of the state official board or any other board. It has reference, as before indicated, to the actual facilities it possesses-for good work as regards preparing candidates for the dental profession, and the actual use of such facilities so as to accomplish good work.

What has been said exhausts the subject of whether the-, board, assuming that it had jurisdiction of the subject matter of the reputability of respondent, incidental to the determination of the rights of waiting applicants for licenses, exceeded' its authority by passing judgment without any reasonable-basis therefor, answering the question in the affirmative.

Turning to the situation presented, assuming the character-of the proceeding as being directly against the college to adjudicate its status, the sole party on the one side being the respondent, the result is the same, since, as we have seen, no notice was given to it with opportunity to be heard, no reason, existed for neglect in that regard, and the proceeding to a finality in face of such neglect was not due process of law. So, in any way we can view the record, the board committed jurisdictional error fatal to its action, warranting the-judgment appealed from. In one aspect the error was excess-of jurisdiction; in the other, it was total want of jurisdiction^

By the Court. — The judgment is affirmed.

Dodge, J., dissents.