Opinion
No. 30167
Decided April 4, 1945.
Mandamus — Writ not issued to command performance of implied power — State Medical Board not ordered to restore revoked license.
IN MANDAMUS.
This cause is before the court upon a petition in mandamus, an answer and a reply.
The answer admits the following facts which are pleaded, inter alia, in the petition:
The relator obtained a license on January 4, 1916, which enabled him to practice hydrotherapy, a limited branch of medicine and surgery. His license was revoked by the State Medical Board and he appealed to the Common Pleas Court of Cuyahoga county, which court dismissed his appeal. Relator applied for a reinstatement of his license and the board refused his request, but advised him he would be permitted to take an examination for a license to practice hydrotherapy under the present rules and regulations of the State Medical Board.
The petition prays for a writ of mandamus commanding the State Medical Board to restore the license theretofore held by the relator, with all the rights and privileges theretofore held under such license.
The reply denies all allegations in the answer except those which admit averments of the petition.
Mr. George M. Brown and Mr. Charles Auerbach, for relator.
Mr. Thomas J. Herbert and Mr. Hugh S. Jenkins, attorneys general, Mr. Clemens R. Frank and Mr. Ralph H. Klapp, for respondents.
Counsel for relator cite no statute requiring the State Medical Board to restore or reinstate a license which has been revoked. It is stated in the brief for relator: "The question then is this: Granted that the Legislature failed expressly to endow the medical board with the powers of restitution of license after revocation, has the board implied or cognate power to do so? We believe and respectfully submit that it has."
The writ of mandamus will not issue to command performance of "implied or cognate power." Section 12283, General Code, defines mandamus as "a writ issued * * * to * * * a * * * board * * * commanding the performance of an act which the law specially enjoins as a duty resulting from an office. * * *." (Emphasis ours.)
We are asked to issue a writ of mandamus to command the performance of an act which is not specially enjoined by law upon the board. The writ will not issue for that purpose.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.