Gregory v. McInnis

• Decision Date: 10 September 1926
• Docket Number: 12065.
• Citation: Gregory v. McInnis, 140 S.C. 52, 134 S.E. 527 (S.C. 1926)
• Parties: GREGORY v. McINNIS et al.
• Court: South Carolina Supreme Court

134 S.E. 527

140 S.C. 52

GREGORY v. McINNIS et al.

No. 12065.

Supreme Court of South Carolina

September 10, 1926

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.

Action for mandamus by H. L. Gregory against Benjamin McInnis and others, members of State Board of Veterinary Examiners. From an order allowing the writ, respondents appeal. Reversed, and petition dismissed.

The following is the order appealed from:

This matter came before me twice. First, on application for writ of mandamus in May, 1921, to compel the board to issue a license to the petitioner, H. L. Gregory, to practice veterinary medicine in the state of South Carolina. Upon that hearing, I was of opinion that the affidavits which had been filed within the six months period, as required by the act and which were intended to comply with the terms thereof, did not, in fact, comply with the terms thereof, and refused to issue the mandamus, but passed an order permitting the petitioner to renew application to this court for the mandamus. Thereafter the petitioner filed with the board five affidavits which were admitted to be in compliance with the terms of the act, said affidavits having been filed on June 1, 1921. Thereafter the petitioner was notified by the respondents, in November, 1922, that his application had been refused, and that a license would not be issued him. Accompanying the affidavits of petitioner were the fees required to be paid by the act.

Upon this refusal the petitioner, in compliance with the order of this court, renewed his application for the issuance of mandamus against the respondents, and a rule to show cause was issued by the court, and the matter was continued from time to time and was finally heard on March 19, 1925.

The respondents took three positions before the court: First that the court was without jurisdiction to hear and determine the matter on account of the fact that none of the members of the board resided in Richland county and maintained no office there, and that the matter was not therefore properly triable in Richland county; second, that the affidavits not having been filed in the 6-months period, the board was compelled to refuse the issuance of a license, under the provisions of the act, without the petitioner stood an examination; third, that the petitioner having been convicted of a violation of the Harrison Narcotic Act and sentenced to serve the term of one year in the federal prison constituted such gross immorality or gross malpractice, as would warrant the board in refusing to issue the license to the petitioner.

The first contention of the respondents is untenable for the reason that the board of which they are members is a public created office by statute, and each member of the board is a public officer, within the terms of the statute. Section 377, subd. 2, Code of 1922, vol. 1, provides that the following causes of action must be tried in the county where the cause or some part thereof, arose: "2. Against a public officer, or person especially appointed to execute his duty, for an act done by him in virtue of his office, or against a person who, by his command or his aid, shall do anything touching the duties of said officer."

It will be clearly seen from the above that the only question before the court is as to where the cause of action arose in the above matter. It is admitted that the petitioner is a resident of the county of Richland, and it is further shown by respondent's letter that the respondents had a meeting in the Jefferson Hotel at Columbia, S. C., on November 22 and 23, 1922, and refused to issue to petitioner the license to practice veterinary medicine in the state of South Carolina. It therefore clearly appears that the cause of action which is one against a public officer, arose within the county of Richland, and therefore the matter is triable in the county of Richland. The court is, therefore, of the opinion that the matter is properly triable in the County of Richland where the cause of action arose, the same being against a public officer and included in the above-quoted section.

The second contention of the respondents is that the petitioner failed to file within the six months period affidavits in compliance with the statute, and therefore that they have no discretion except to refuse petitioner the license to practice. It was shown that the petitioner filed with the board affidavits within the six months, which I find complied in a measure with the act, but not completely. It is further admitted that some time thereafter, the exact time not appearing, the board refused to issue the license upon the affidavits filed, and then petitioner applied to the court for relief.

Under the order of the court, above recited, petitioner filed affidavits which respondents admitted complied with the act, except as to the six months period. The clear intention of the Legislature was to permit all persons who had been practicing veterinary medicine for five years next before the passage of the act to be permitted to practice without the necessity of standing an examination.

The petitioner attempted to comply with the provisions of the act, and there is no serious contention that he was not within the terms thereof. It would be a very harsh rule which would prohibit the petitioner from filing additional affidavits as to his qualifications, when preliminary affidavits had been filed well within the time. The board, upon receiving affidavits which were not in proper form, could hold the same, if they so desired, for the 6 months' period and absolutely bar any person from obtaining the license under the act. The power of the board under section 4 of the act is limited, and the act says that the board shall issue the license upon the act being complied with. The duty of the board was and is purely ministerial upon the terms of the act being complied with. The terms of the act have been complied with in this case.

The third contention of the board is that petitioner having been convicted under the Harrison Act of a violation thereof and having been sentenced to serve one year in the federal prison, and having duly served his sentence thereunder, this conviction would constitute such gross immorality or gross malpractice as would warrant the refusal of the license.

To hold that the mere conviction of a violation of a police regulation would constitute gross immorality or gross malpractice, as contemplated under the act, in the opinion of the court would be unreasonable. The sole evidence of gross immorality or gross malpractice was based upon such conviction, which, in the opinion of the court, is totally insufficient to warrant such conclusion.

It is therefore ordered, adjudged, and decreed that the respondents herein, constituting the board of veterinary examiners of the state of South Carolina, do forthwith issue to the petitioner herein a license to practice veterinary medicine under the said act.

W. H. Townsend, Resident Judge of the Fifth Judicial Circuit.

Columbia,...