Attwood v. State ex rel. Newman
| Decision Date | 07 August 1951 |
| Citation | 53 So.2d 825 |
| Parties | ATTWOOD et al. v. STATE ex rel. NEWMAN. |
| Court | Florida Supreme Court |
Richard W. Ervin, Atty. Gen. and Murray Sams, Jr., Asst. Atty. Gen., for appellants.
Robert H. Givens, Jr., Miami, for appellee.
On December 19, 1949, Abraham Newman filed, in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, a Bill for Declaratory Decree, praying that the Circuit Judge decree that Abraham Newman was entitled to a reciprocal certificate of registration as a pharmacist in this state or that he was entitled to take the pharmacy examination in this state.
On January 18, 1950, the Florida State Board of Pharmacy filed its Answer to the Bill for Declaratory Decree.
On May 23, 1950, Abraham Newman filed an amended Bill for Declaratory Decree and on May 30, 1950, the Board of Pharmacy filed its amended Answer to the amended Bill for Declaratory Decree.
On July 14, 1950, the Circuit Court entered a final order decreeing that the plaintiff Abraham Newman was not entitled to a receiprocal certificate of registration in this State, nor was he entitled to take the examination in this State. This decree declared that plaintiff was not entitled to receive a reciprocal certificate under the provisions of either paragraph (2) or paragraph (5) of Section 465.02, F.S.A., and also that he was not entitled to take the examination for registration as a pharmacist under the provisions of either of said paragraphs.
On August 1, 1950, Abraham Newman filed a Petition for an Alternative Writ of Mandamus and on August 1, 1950, the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, issued the Alternative Writ of Mandamus. This suit was brought to obtain relief under the provisions of paragraph (1) of Section 465.02, Florida Statutes.
On November 17, 1950, the respondents filed their Answer to the Alternative Writ of Mandamus.
On November 24, 1950, the petitioner filed a Motion for a Peremptory Writ Notwithstanding the Answer, an on February 9, 1951, the Circuit Judge issued a Peremptory Writ of Mandamus and held that the petitioner, Abraham Newman, was entitled to take the pharmacy examination in the State of Florida.
On March 9, 1951, the respondents filed their Notice of Appeal.
In conjunction with the granting of the Peremptory Writ of Mandamus the learned Circuit Judge entered an Order wherein he set forth very clearly his reasons for issuing said Peremptory Writ of Mandamus. The Order thus entered reads as follows:
'On petitioner's motion for a preemptory (sic) writ of mandamus requiring Respondents to examine him as to his qualifications to practice pharmacy in this State the following facts are admitted:
'Petitioner is over the age of 21 years and is of good moral character. He is licensed to practice pharmacy in New York and Connecticut. He graduated from Fordham College of Pharmacy in 1930. At that time Fordham was not a member of the American Association of Colleges of Pharmacy but it became a member in 1939 and has remained a member since that time.
'The sole question presented for determination is whether petitioner has complied with Section 465.02, F.S.A., by showing that he is '* * * a graduate of an accredited school or college of pharmacy holding membership in the American Association of Colleges of Pharmacy and accredited by said board of pharmacy.'
'A construction of this language presents some difficulty. It is the duty of the court to, if possible, ascribe to the language used a meaning which will not cause the statute to be unconstitutional.
'The word 'accredited' and the phrase 'accredited by said board of pharmacy' cannot be held to vest in the Florida State Board of Pharmacy an unlimited and uncontrolled discretion in determining which schools will and which will not be accepted as 'accredited', without rendering the act invalid. Pridgen v. Sweat, 170 So. 653. The statute provides no standard that a college must attain to be accredited by the Board, unless such standard be found in the phrase 'such school or college of pharmacy holding membership in the American Association of Colleges of Pharmacy.'
'Membership in a voluntary association which may be denied at the whim of the association or declined at the pleasure of the school is in no sense a reasonable basis for determining the...
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