This appeal is from a judgment which affirmed the findings of fact and conclusions of law entered by the State of Wisconsin Optometry Examining Board on April 23, 1970. The review to the circuit court was by writ of certiorari. The applicant for the writ was Dr. Ben LeBow, a licensed optometrist with twenty years' experience. He has been employed for the last eight years by an optical service which leases office space from the Sears, Roebuck and Company in Milwaukee.

The Wisconsin Optometry Examining Board is an administrative agency of the state which has been given statutory authority and rule-making power by the legislature to supervise certain areas of the practice of optometry. The powers and duties of the Optometry Examining Board are outlined in ch. 449, Stats. 1969. Sec. 449.07 provides that the Examining Board may deny, suspend, or revoke any license or certificate of registration if the licensee is guilty of unprofessional conduct.

Dr. LeBow was charged in a complaint with failing to perform the minimum procedures required by what is referred to in the practice as a 14-point examination. In April of 1969, Dr. LeBow had been called before an informal meeting of the Optometry Board and warned in respect to his failure to perform the 14-point examination. Subsequently, the Board decided that a further investigation of Dr. LeBow should be made. A member of the Board, Dr. M.J. Wischoff, was designated to see that the investigation was carried out. Dr. Wischoff directed Dr. David Eberhardt, his associate and partner, to make the investigation. Dr. Eberhardt was twenty-three years old, a licensed optometrist who had graduated from optometry school in June 1969.

Dr. Eberhardt called Dr. LeBow's office and told the receptionist that he was from out of town and that he had broken his glasses. He stated he was a resident of Prairie du Sac and that Dr. LeBow had been recommended to him. All these statements were false. Dr. Eberhardt was given prompt service, and an examination was performed.

Dr. Eberhardt's report stated that seven of the 14 tests were omitted. A complaint was made to the board by the attorney general on the basis of the information furnished by Dr. Eberhardt. The assistant attorney general assigned as counsel to the Optometry Examining Board signed the complaint and represented the state at the subsequent hearing.

At the hearing, testimony was taken wherein Dr. Eberhardt stated that seven of the required tests were omitted. Dr. LeBow testified that all tests were given with the exception of those tests which he considered to be unnecessary. For example, Dr. LeBow took the position that he did not use an ophthalmometer for the purpose of determining corneal curvature, because his previous finding that the patient had 20-20 vision was indicative of the fact that there was no abnormality of the cornea. In general, however, Dr. LeBow took the position that all the tests were performed and an effort was made to show that he made the required tests, but by methods other than those for which Dr. Eberhardt had been trained in his recent optometry education.

The Optometry Examining Board rendered its findings of fact and conclusions of law, and issued its order on April 23, 1970. It found that Dr. LeBow failed to administer the minimum 14-point examination as required by the rules and no compelling circumstances excused such failure. The order of the Examining Board provided:

"That the license of the Respondent . . . is, suspended for a period of thirty (30) days, or until he shall have satisfied two examiners provided by the Board that he is capable of performing the minimum 14 point examination required by sec. OPT 7.04, but in no event shall this suspension be less than fifteen (15) days."

At the very outset of the proceedings, counsel for Dr. LeBow objected to the Board's jurisdiction on the grounds that all of the members were biased and prejudiced due to their legislative activity and because they had prejudged the issue. The Board permitted an offer of proof which attempted to show that the Board members could not fairly judge Dr. LeBow because he was an optometrist employed by a corporation and that recently the Wisconsin Optometric Association, with which all the members of the Board were affiliated, had been active in advocating legislation to outlaw the employment of optometrists in a mercantile establishment. There was evidence to show that two members of the Board were responsible for obtaining legislators as authors of a bill that would outlaw such practice of optometry. There was also evidence to show that other members of the Board had appeared before a legislative committee and urged passage of the bill. The Board considered this offer of proof and on the merits denied the disqualification of the Board. In addition, Dr. LeBow objected to the fact that the assistant attorney general was the complainant, the prosecutor, and legal advisor to the Board.

Objection was also made on the grounds that Dr. Eberhardt was unable to conduct an independent investigation, inasmuch as he was an employee of a Board member. Dr. Wischoff, Dr. Eberhardt's employer, disqualified himself, and the decision was made without his participation.

Following the issuance of the order of suspension, the circuit court on a writ of certiorari upheld the Board's action.

Appeal has been taken from the judgment of the circuit court.

HEFFERNAN, J.

Some of the older cases decided by this court conclude that extrinsic evidence to show bias and prejudice are not admissible. Clark v. Blochowiak (1942), 241 Wis. 236, 5 N.W.2d 772. However, since that time the scope of review in certiorari has been considerably broadened. In State ex rel. Wasilewski v. Board of School Directors (1961), 14 Wis.2d 243, 255, 111 N.W.2d 198, we said:

". . . that a court in reviewing the action of an administrative board or agency in certiorari will go no further than to determine: (1) Whether the board kept within its jurisdiction, (2) whether it acted according to law, (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment, and (4) whether the evidence was such that it might reasonably make the order or determination in question."

While there is no statutory provision for disqualification in ch. 449, Stats., nonetheless we have recently stated in Kachian v. Optometry Examining Board (1969), 44 Wis.2d 1, 13, 170 N.W.2d 743, "The common-law duty of disqualification applies where no statutory provisions for disqualification are spelled out." We cannot conclude that the fact that members of the Board had been active in encouraging legislation that would outlaw Dr. LeBow's kind of employment proves bias and prejudice. The 14-point minimum examination was equally applicable to persons who are in their own independent practice. The record also shows that Dr. LeBow had been warned previously of the violation of the 14-point-examination rule. The general rule in respect to the common-law disqualification of administrative officers has been stated as follows:

"An interest to disqualify an administrative officer acting in a judicial capacity may be small, but it must be an interest direct, definite, capable of demonstration, not remote, uncertain, contingent, unsubstantial, or merely speculative or theoretical. There is some indication that bias must be such as to render a tribunal incapable of fair judgment." 1 Am. Jur. 2d, Administrative Law, p. 861, sec. 64.

There is no evidence to show any direct demonstrable interest on the part of any board member as required by the common-law rules of disqualification. A review of the record shows that Dr. LeBow was represented by counsel and the Board went to great lengths to insure that he received a fair and impartial hearing. A member of the Board disqualified himself even prior to objection, and the Board allowed Dr. LeBow to submit in evidence exhibits which were intended to show bias and prejudice. We are satisfied that the Optometry Examining Board properly concluded that the showing was not sufficient to show any disqualifying prejudice on the part of any member of the Board.

In addition, objection was made to the fact that the assistant attorney general appeared as the prosecutor, as well as being the complainant and advisor to the Board. A similar contention was disposed of in Kachian, supra, and rejected by this court:

"`There is authority from several jurisdictions that disqualification for bias or interest will not result where the hearing body or its subordinates, acting within the scope of their proper ministerial functions, participated in the origination of charges against the licensee.'"

Nor do we conclude that it was fatal to the Board's proceedings to have hired an associate or partner of one of the Board members. Under the Kachian holding a member of the Board could have initiated the charges himself and could have made the investigation. It would not have been feasible for any of the Board members to have made the investigation, since they were well known to the members of the profession. It is obvious that the investigation would have had to be made by one who was proficient in the practice of optometry. While the, petitioner contends that the Board should have hired an independent investigator, we find no bias that arises as a matter of course where the Board determined to use an associate of one of its members. It should be pointed out in the instant case that the investigator's employer, Dr. Wischoff, disqualified himself from sitting on the case. There is no evidence to show that such disqualification was legally necessitated by virtue of the fact that the investigator was an employee.

We are satisfied also that the findings of fact by the Board must be upheld on review. On certiorari the question is whether the evidence was such that the Board might reasonably make the order or determination in question. State ex rel. Ball v. McPhee (1959), 6 Wis.2d 190, 94 N.W.2d 711. In the instant case, Dr. Eberhardt testified that Dr. LeBow did not perform the required procedures. Dr. LeBow testified he did perform them and offered in evidence his record card to substantiate his testimony. The issue is one of the credibility of the witnesses. The test is whether reasonable minds could have arrived at the same conclusion reached by the Board. As a trier of fact, the Board was compelled to choose between the testimony of Dr. LeBow and Dr. Eberhardt. Having concluded, as they did, to believe Dr. Eberhardt, no other result was possible. There was substantial credible evidence to support the Board's finding of fact.

Dr. LeBow also objects to the form and substance of the order. He takes the position that under the statute the Board has authority only to insist on examinations of applicants and cannot compel a re-examination of a licensee. He contends that if he takes the examination and fails it, he would be unable to have his license restored. We do not so read the order. Even were he to fail to perform the examination to the satisfaction of the Board, he nevertheless would be restored to his prior status at the end of thirty days. The order in our opinion provides for a suspension of thirty days only. The option is given to Dr. LeBow to reduce the period of suspension in the event he passes the 14-point examination to the satisfaction of the examiners. We held in Kachian, supra, that failure to perform the 14-point examination was unprofessional conduct. There is no contention that a suspension for the period of thirty days was arbitrary, oppressive, or unreasonable. Therefore, it would surely not appear to be unreasonable for the Board to give Dr. LeBow the opportunity of reducing a reasonable period of suspension by taking an examination.

By the Court. — Judgment affirmed.