Alabama State Bd. of Pharmacy v. Peterson
| Decision Date | 04 August 1971 |
| Docket Number | 1 Div. 19 |
| Citation | 252 So.2d 319,47 Ala.App. 201 |
| Parties | ALABAMA STATE BOARD OF PHARMACY v. David Martin PETERSON, John L. Lee and Gerald F. Rhea, Sr. , 19--A, 19--B. |
| Court | Alabama Court of Civil Appeals |
MacDonald Gallion, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for appellant.
Diamond & Lattof, Mobile, for appellee David Martin Peterson.
Caffey, Gallalee & Edington, and Horace Moon, Jr., Mobile, for appellee John L. Lee.
David Martin Peterson, John L. Lee and Gerald F. Rhea, Sr., (hereinafter referred to as applicants) submitted applications to the Alabama State Board of Pharmacy (hereinafter referred to as the Board) for licensure as assistant pharmacists, as is authorized by Act No. 205, Section 9, Acts of Alabama 1966, Extra Session, p. 231, also found in the pocket parts of Title 46, Code of Alabama 1940, Recompiled 1958, as Section 257(a9).
After an interview by the Board with these applicants, a consideration of the affidavits submitted with the applications, and a reconsideration of the testimony and exhibits, the Board refused to grant licenses as assistant pharmacists to these applicants.
From the refusal to license them, the applicants appealed said Board's decision to the Circuit Court of Mobile County.
To each notice of appeal there was a plea in abatement filed by the Board.
The Board also filed an answer in each appealed case.
Without ruling on the pleas in abatement, and without an objection being interposed by the Board raising this point, the trial court proceeded to hear the appeals de novo.
At the conclusion of the hearing, the trial court entered an order requiring the Board to grant licenses as assistant pharmacists to these applicants.
From these orders, the Board appealed to this court and assigned seven grounds of error.
The assignments of error raise principally two issues: (1) that the trial court erred in failing to decide whether applicants' right to review of the Board's decision denying them licenses as assistant pharmacists was by appeal or by writ of certiorari; and (2) that the trial court erred in ordering the Board to grant a license as an assistant pharmacist to each of the applicants.
The attorney for the applicant Gerald F. Rhea, Sr. has informed this court that subsequent to the filing of his appeal in this court, Gerald F. Rhea, Sr. died. The attorney for the said Gerald F. Rhea, Sr. now moves this court to dismiss this appeal. We will grant the motion. The appeal of Gerald F. Rhea, Sr. is dismissed.
As to issue number 1, the Board says that the licensing of persons as assistant pharmacists is a legislative function and not a judicial function. It also contends that where court review is sought of an agency exercising such legislative powers, it must be done by the writ of certiorari rather than by a trial de novo. As authority for this position, the Board cites us to the case of Ball v. Jones, 272 Ala. 305, 132 So.2d 120.
The applicants counter by saying that the Board waived its pleas in abatement when it failed to object to going to trial on the merits without a prior ruling on its said pleas, and citing us to Oliver v. Dudley, 267 Ala. 87, 100 So.2d 327.
The applicants also say that the decision of the Board denying their request for licensure was a quasi-judicial act or function and that the procedure for reviewing such an act is set out in Section 22 of Act No. 205, supra.
Section 22 of Act No. 205, supra, provides:
The Board responds to this argument by saying that Section 22 of Act No. 205 provides a review method for disciplinary matters only, i.e., situations where the Board is seeking to suspend or revoke a license already granted for some infraction of the statute or rules promulgated thereunder. In the instant case the Board contends that the controversy is over the refusal to grant a license, not the suspension or revocation of an existing license.
The Board asserts that the method of review provided in Section 22 does not apply to a decision denying a license to an applicant.
We must agree with the applicants that the Board's pleas in abatement are not before this court for review for the reason that there was no ruling on the pleas in the trial court. In the absence of an adverse ruling by the trial court, an appellant brings nothing to an appellate court for review. Cash v. Usrey, 278 Ala. 313, 178 So.2d 91; and Evans v. Evans, 264 Ala. 2, 84 So.2d 337.
In the instant case the Board failed to obtain a ruling on its pleas from the trial court, and, therefore the issues raised by said pleas are not before us for review.
However, the question of whether or not the trial court was acting within its power and authority in reviewing the decisions of the Board denying licenses to the applicants as assistant pharmacists by using the review procedure provided in Section 22 of Act No. 205, or whether it should have used a different review procedure is before us.
Jurisdictional issues can be considered at any step of the proceedings, whether it be at the trial or appellate level; and, the court can take cognizance of such a question either at the suggestion of the parties or ex mero motu. City of Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606; and Bond's Jewelry Co. v. City of Mobile, 266 Ala. 463, 97 So.2d 582.
The Board, in brief, has said that Section 22, supra, is not appropriate for use by the courts in reviewing its denial of the licenses to the applicants. Instead, it says, the applicants should have sought review of its action by way of writ of certiorari.
The rationale of its contention is that the denial of a license is in the nature of a quasi-legislative act and can be reviewed only to the extent of ascertaining whether its decision was arbitrary, capricious, or exceeded its authority.
The case of Ball v. Jones, supra, cited by the Board in its brief, was decided on the theory that the enactment of zoning ordinances is a legislative function that has been delegated to a municipality by the legislature, and judicial review of such enactments is limited to constitutional issues and whether or not the enactments are arbitrary, unreasonable, or unlawful.
In that case the statute giving a municipality zoning power also provided that review of the adoption of zoning ordinances by said municipality will be by trial de novo in the Circuit Court.
The Supreme Court there held that such a statutory provision was unconstitutional in that it was invasive of the legislative branch of government since the enactment of a zoning ordinance was a legislative function.
The court then said that, although the judiciary had the right to review an arbitrary, unreasonable or unlawful exercise of such authority, the effect of the review procedure set out in the zoning statute was to invade the legislative branch of government and clothe the courts with the power to legislate. This, it said, could not be done.
Our view of the present controversy is that the question presented to the Board for answer was more in the nature of a judicial function than a legislative function.
As a matter of fact, the Board was only required to apply the statutory requirements to the facts contained in each man's application, and then decide whether to license or not. This certainly has more of the overtones of the adjudicatory process than it does the legislative process.
The judicial or adjudicatory process always envisions the application of the law, be it statutes or rules, to the facts gleaned from fact-finding efforts.
Hence, we do not believe that Ball v. Jones, supra, is controlling in the matter now before us.
We would also point out that where the Legislature has provided a method of review (Section 22, supra) of the judicial and quasi-judicial orders of an administrative agency, and the aggrieved parties have undertaken to follow this statutory method of review, the court will not be placed in error by permitting such method of review.
It was said in Carter v. Board of Trustees of Policemen and Firemen's Retirement Fund of City of Gadsden, 42 Ala.App. 99, 154 So.2d 43, that:
Also, in Stark v. Christie, et al., 179 Md. 276, 19 A.2d 716, the Court of Appeals of Maryland said:
'* * * It has been decided by this Court that, when an appeal is prescribed by the Legislature from the action of any administrative body, the procedure, whatever it is, must be observed.'
So far as the present controversy is concerned, we believe that the Legislature has provided a method of review for persons who have been denied licenses to practice as assistant pharmacists, and, should these aggrieved persons pursue this remedy, the trial court will not be placed in error for allowing it.
The Legislature, in Section 22, supra, specifically said:
(Emphasis supplied.)
The word 'any' is very broad. Webster's Third International Dictionary gives the following definition:
'* * * unmeasured or unlimited in amount, number or extent. * * *'
We give to the phrase, 'From any order of the board * * *' its literal meaning. We believe that was the intention of the Legislature, i.e., to require review of any or all judicial or quasi-judicial orders of the Board by the method provided in its statute.
We further consider the language of the statute to be plain and lucid and not requiring...
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