Simm v. Dougherty

Me. Justice Gailor delivered the opinion of the Court. Under the provisions of sections 7098 through 7112 of the Code of Tennessee, complainant filed two applications with the State Board of Architectural and Engineering Examiners, seeking a license as an engineer. On account of false statements made about his school atten [358] dance in the first application, the license was both times refused, and thereafter complainant filed his original bill in the Chancery Court, in which he sought by certiorari to have a review of the action of the Board. The writ was granted, and in response to the bill, the defendants filed their answer and with it, exhibited a certified copy of the proceedings of the Board refusing application of the complainant for a license. There was no offer by the complainant of any additional evidence in the Chancery Court, and the Chancellor heard the case on the pleadings as they were thus made up and on the record which had been made before the Board. Since the bill was not specific in stating whether the complainant sought the common law writ or the statutory writ of certiorari, and since an allegation of the bill on which the writ was issued was that the action of the Board “. . . on both of his applications and particularly the last one is arbitrary, capricious, and is done in complete disregard of the rights and qualifications of your complainant . . . the Chancellor reasonably regarded the scope of his review as limited to that on the common law writ of certiorari, and after reviewing many Tennessee authorities, decided only: “This Court is unable to say that the defendant Board acted arbitrarily or illegally in denying complainant’s application for license, and is of the opinion that there was material evidence to justify the action by the Board.” This first opinion was handed down on June 24, and on the next day when the Chancellor was advised that the complainant was proceeding under Code, section 9008 et seq., and seeking a writ of certiorari in accord359 anee with those Code provisions, he handed down a supplemental opinion: “It will he noted in the original opinion, that this Court reached the conclusion that there was material evidence to justify the action of the Board in refusing to grant the complainant his license to practice engineering in this State. “It is inconceivable that one could be mistaken about the number of years he attended a particular college, especially where the discrepancy in the number of years is as great as in the case at bar. “It is argued that this was on an immaterial fact, because the educational requirements set forth in the application were not necessary to entitle the applicant to his license. “The application was sworn to, and false swearing certainly reflects on the integrity of the affiant. This Court is of the opinion that the Board was justified in refusing to grant complainant a license.” In accordance with this last opinion a decree was entered denying complainant the relief sought and dismissing the bill. From .this decree he has perfected the present appeal. By this appeal complainant seeks to have this Court reweigh the evidence contained in the record made before the Board and considered again by the Chancellor, and to determine that the evidence was insufficient to support the action of the Board in denying complainant’s application for a license. On this record we have no right to reweigh the evidence. The Board of Examiners and the Chancellor have concurred in holding as a fact, that on account of complainant’s false swearing in his application to the Board, complain [360] ant is not a person of “good character and repute”, Code, section 7106, and therefore, not entitled to have his application favorably considered and the license issued. In such case, we will only examine the record to.see that there was material evidence to support the concurrence. Ezell v. Hake, 184 Tenn. 319, 198 S. W. (2d) 809, 811; National Optical Stores Co., Inc. v. Bryant, 181 Tenn. 266, 181 S. W. (2d) 139. By the complainant’s own admission, there was such material evidence. In his application to the Board he swore falsely that he had been a pupil in an engineering school in New York for four years, when in fact, he- had been such student for only one year, and not only did he make this false representation to the Board, but he made it also to the Federal Government. We think this evidence was sufficient to support the action of the Board and the affirmance of that action by the Chancellor. It is argued that the Chancellor did not give complainant a hearing ele novo. On the contrary, we think it clear from the opinion on June 25, that he did. In view of the failure of complainant’s original bill to specify the nature of the writ and the scope of the review he sought, the Chancellor would have been warranted in confining* his review to that prescribed for the common law writ of certiorari, but the Chancellor went further and considered the only factual issue made, which was the effect of the false affidavit. This was then, and still is, the determinative factor in the case. The complainant had tendered no additional evidence at the hearing in the Chancery Court and there was, therefore, nothing for the Chancellor’s decision except [361] the determination of whether on the admitted evidence, the action of the Board was justified. Apparently the complainant contends that by its action the Board has permanently refused to pass favorably upon his application. This is a conclusion of the complainant which does not definitely appear in the record. The Chancellor makes no mention of this in his opinions. Though we are not in a position to make any recommendations, in view of the facts and punishment imposed in Prosterman v. Tennessee State Board of Dental Examiners, 168 Tenn. 16, 73 S. W. (2d) 687, it may he that the Board on application will specify a definite period during which the complainant may not apply for a license. For the' reasons stated we think the decree of the Chancellor must be affirmed. All concur.