In re Marks

Heffernan, J.

(concurring). The protection of the health and welfare of its citizens is one of the duties devolving on the State as the sovereign power. It has the right and it is its duty to prescribe such rules and regulations as may be necessary to protect its people from the consequences of ignorance or incapacity. While a citizen has the right to follow any chosen profession, the State on the other hand is charged with the duty of protecting the public. The right of respondent to practice osteopathy, like the right to practice any other profession, is a valuable property right in the pursuit of which respondent should be protected and secured by the laws of the State. He has the right to continue the practice of his profession under his original license. His application for an extension of his license in order to practice surgery and to administer anesthetics was addressed to the discretion of the Board of Regents. With that discretion the courts, unless in extreme cases, should never interfere. A license by the Board of Regents granting respondent the privileges which he desires would in effect be a certification by them as to his competency to do the things which the license would permit him to do. To my mind it would be highly dangerous to permit one handicapped as is respondent to perform surgical operations or to administer anesthetics. It is unthinkable that a blind person could with safety do those acts, and the Regents would be remiss in their duty if they issued to him a license for that purpose. The argument is made that, of course, respondent would not attempt to perform a surgical operation or to administer an anesthetic. If that be true then why does he insist upon a license? Neither the Special Term nor this court has any authority to override the discretion of the Board of Regents on the facts in this record. The order should be reversed and the proceeding dismissed.