Opinion
No. 29642
Decided June 13, 1945.
Board of Registration for Professional Engineers and Surveyors — Mandamus to compel registration as professional engineer — Sections 1083-1 to 1083-26, General Code — Burden on relator to support allegations of petition by competent evidence — Writ of mandamus not issued unless clear legal right shown — Relator to have been practicing professional engineering when registration act became effective — Or prove previous engineering experience and required qualifications — Section 1083-12, General Code.
IN MANDAMUS.
This action originated in this court. The relator, Frank H. Miller, seeks to be registered as a professional engineer in Ohio under the provisions of the act to regulate the practice of professional engineering (Sections 1083-1 to 1083-26, General Code). The respondents are the members of the State Board of Registration for Professional Engineers and Surveyors.
The case is before this court upon the amended petition of the relator, the answer of the respondents and the reply of the relator to respondents' answer, no evidence having been offered.
The amended petition alleges that on the 18th day of June 1934, relator filed with the respondent board, an application, together with the required fee, to be registered as a professional engineer under the provisions of Sections 1083-1 to 1083-26, General Code, particularly Section 1083-12, General Code. Relator alleges that he submitted evidence of his good character; that at the time of the application he had been a resident of the state of Ohio for more than one year immediately preceding the date of the application; that he was practicing professional engineering at and before the time Sections 1083-1 to 1083-26, General Code, became effective; and that he had previously practiced professional engineering and at the effective date of the act was and had been prior thereto in responsible charge of engineering work.
Relator then says that on January 15, 1936, the board refused his registration and gave him opportunity to submit further evidence of his qualifications; that, thereafter, together with other evidence of his service, he submitted statements from registered engineers and others to the effect that on the date of application relator was practicing professional engineering and surveying, and had responsible charge of such work at the time the act became effective. Extracts from these statements are set forth in the amended petition.
Relator then states that several hearings were had before the board on the matter of his registration; that on October 9, 1942, the board "illegally arbitrarily and capriciously refused and still refuses to issue to plaintiff his registration as a professional engineer"; and that the decision of the board was a gross abuse of discretion in the light of all the oral and written evidence on file with the board.
The answer of the respondent board contains three defenses.
The first defense admits the filing of the application as alleged in the petition, admits that on January 15, 1936, the respondent board refused to register relator as a professional engineer and gave him opportunity to furnish further evidence of his qualifications, admits that evidence as alleged was submitted to the board by the relator, but denies all other allegations not admitted to be true.
The second defense alleges in substance that for relator to be able to render professional engineering services, he must have a knowledge of mathematics, the physical sciences and the principles of engineering, and that relator's professional education was not of such a nature or sufficiently complete to vest him with an adequate knowledge of mathematics and the physical sciences to perform the duties expected of and performed by a professional engineer.
This defense also claims that "from the evidence submitted by relator in support of his application and by reason of its investigation to determine the precise nature of the work engaged in by relator prior to the date of said application, it was ascertained that relator had not had previous practice and responsible charge of work of a character satisfactory to defendant board."
The third defense of the respondent board alleges that the relator had been guilty of laches by reason of his delay in the institution of this action.
The relator filed a reply denying these allegations generally and the case is before this court on the pleadings.
Mr. Alexander L. Hyzer, for relator.
Mr. Thomas J. Herbert and Mr. Hugh S. Jenkins, attorneys general, and Mr. Daronne R. Tate, for respondents.
Section 1083-12, General Code, provides as follows:
"At any time within eighteen months after this act becomes effective, upon due application therefor and the payment of the registration fee of fifteen ($15) dollars for professional engineers, or ten ($10) dollars for surveyors, the board shall issue a certificate of registration, without oral or written examination, to any professional engineer or surveyor who shall submit evidence, under oath, satisfactory to the board that he is of good character, has been a resident of the state of Ohio for at least one year immediately preceding the date of his application, and was practicing professional engineering if an engineer, or surveying if a surveyor, at the time this act became effective, or has had previous practice and responsible charge of work of a character satisfactory to the board.
"After this act shall have been in effect eighteen months, the board shall issue certificates of registration only as provided for in Section 13 or Section 21 [Section 1083-13 or 1083-21, General Code] thereof."
The requirements of two classes of applicants for registration were thus provided: First, those applicants who were practicing professional engineering at the date this law became effective; and, second, those who were not then practicing professional engineering but who claimed to be qualified by reason of previous experience.
The term "professional engineering" is defined in Section 1083-2, General Code, as follows:
"The term 'professional engineer' as used in this act shall mean a person who, by reason of his knowledge of mathematics, the physical sciences, and the principles of engineering, acquired by professional education and practical experience, is qualified to engage in engineering practice as hereinafter defined.
"The practice of professional engineering within the meaning and intent of this act includes any professional service, such as consultation, investigation, evaluation, planning, design, or responsible supervision of construction or operation, in connection with any public or privately owned public utilities, structures, buildings, machines, equipment, processes, works or projects, wherein the public welfare, or the safeguarding of life, public health or property is concerned or involved, when such professional service requires the application of engineering principles and data."
Concerning the second basis or ground for registration, the act clearly conferred upon the board the authority to determine whether the previous practical experience of the applicant has been of a character sufficient to establish his qualifications for registration.
The relator attempts in his amended petition to bring his case within each of these classes. The answer denies that at the effective date of such act relator was practicing professional engineering, and also denies that he had previous experience and responsible charge of work of a character satisfactory to the board. Under the state of the pleadings, then, the right of the relator to a certificate of registration upon either ground is challenged and squarely placed in issue.
Although the answer admits that certain papers and statements were filed with the board, it in effect denies the truthfulness or accuracy of such statements. If the answer contain an admission that the relator had been engaged in the performance of engineering work as claimed, there would be no issue.
This cause was originally submitted to this court upon a demurrer to the answer, which was overruled December 13, 1944, for the obvious reason that the allegations of the answer, coupled with the denials therein, made issues of fact and not of law. In the state of the pleadings before us, no question of law is directly presented for decision. Upon the issues made, the burden is upon the relator, and he is required to support the allegations of his pleading and sustain his claim by competent evidence.
The issuance of a certificate of registration as a professional engineer or surveyor without oral or written examination is authorized only upon compliance by the applicant with the requirements of Section 1083-12, General Code.
To be entitled to a writ of mandamus, the relator must show a plain dereliction of a duty specially enjoined by law upon the State Board of Registration for Professional Engineers and Surveyors; he must establish either that he was practicing professional engineering at the time the act to regulate the practice of professional engineering (now Sections 1083-1 to 1083-26, General Code) became effective, and by reason thereof was entitled to registration, or that he had previous engineering practice and responsible charge of engineering work of a character sufficient to establish his qualifications for registration; and that the board abused its discretion in refusing to grant such certificate. A clear legal right thereto must be shown before a writ of mandamus will issue. No evidence having been adduced, it follows that the writ must be denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.