Lehmann v. State Board of Public Accountancy

Decision Date29 June 1922
Docket Number3 Div. 567.
Citation208 Ala. 185,94 So. 94
CourtAlabama Supreme Court

Rehearing Denied Oct. 12, 1922.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill by J. Harrod Lehmann against the State Board of Public Accountancy and others for injunction. From a decree dissolving temporary injunction and sustaining demurrer to the bill, complainant appeals. Affirmed.

Thomas J., dissenting.

Erle Pettus, of Birmingham, for appellant.

James J. Mayfield, of Montgomery, for appellees.


Appellant is a certified public accountant by virtue of an act of the Legislature approved February 17, 1919 (Gen. Acts 1919, p 124 et seq.). He seeks to enjoin the appellee board from hearing charges preferred against him by other public accountants, and to prevent appellee from revoking or canceling his certificate as a certified public accountant or from revoking and canceling the registration of such certificate. The bill also seeks to enjoin two other accountants, J. A. Kastner and Francis B. Latady, from preferring or prosecuting charges against the appellant as a certified public accountant. On the filing of the bill the trial court issued a temporary injunction. The respondents filed demurrers to the bill for want of equity and a motion to dissolve the temporary injunction, and from decree sustaining the demurrer and dissolving the temporary writ the complainant prosecutes this appeal.

The sole equitable relief sought is injunction. The only personal or property right with which the complainant claims the respondents are attempting to interfere is the statutory right conferred upon him by the respondent board, acting under and by virtue of the act of the Legislature above referred to. The statute which confers this right upon the complainant also provides how it may be taken away. No constitutional, natural, or inalienable right of the complainant is threatened to be interfered with. If the Legislature had the power to confer this right upon the complainant, it had the right and power to take it away, or to prescribe the terms and conditions upon which it may be forfeited.

A court of equity will not allow the complainant to enjoy the benefits or privileges conferred by that statute without also bearing the burdens and inconveniences imposed by it. Appellant's contention overlooks the fact that the sole wrong of which he complains is a threatened disturbance of a right or privilege conferred by statute.

The main contention of appellant is that section 7 of the act in question is unconstitutional and void: First, because it offends against section 45 of the Constitution, in that the provisions of section 7 are not germane to the title of the bill; and, second, that it is void for indefiniteness and uncertainty as to the grounds or causes which will justify the revocation or cancellation of certificates or licenses issued under or by virtue of the act. There is no merit in either of these contentions, as Justice THOMAS, in his dissenting opinion, has aptly pointed out.

If it could be conceded, however, that section 7 of the act, providing for revocation or cancellation of the certificates when once issued, is void, because of indefiniteness and uncertainty as to its provisions, then the whole act, of course, would fall, because the court could not say that the Legislature would have passed the bill without some provision for revoking or canceling a certificate when once issued. The title of the act was to regulate the practice of public accountancy by creating a state board of public accountancy. Very clearly the practice of public accountancy cannot be properly regulated without some provisions for revoking or canceling a license or certificate when once issued. We are not willing to hold that the Legislature would have provided for issuing a certificate or license to practice public accountancy with no provision whatever for revoking, canceling, or terminating such license or certificate; and, if section 7 should be held to be void, then there would be no authority to revoke or cancel the certificate when once issued.

We do not understand that Mr. Justice THOMAS, in his dissenting opinion, differs from the majority in this holding, but that he concurs to this extent. So, if the act in question be unconstitutional, then the certificate which appellant holds and seeks to protect is absolutely void, and his right thereto is worthless; and the board, having issued a void certificate, would very clearly have a right to cancel or revoke it. If the act in question be void, as contended by appellant, then, of course, there is no equity in the bill.

However, if the act in question be valid, still the bill is without equity, since neither the trial court nor this court can know in advance of the hearing of the charge preferred that the board will revoke or cancel appellant's certificate or license. The statements in the allegations and prayer of the bill that the board will revoke or cancel the certificate unless enjoined or restrained by the court is of necessity not only a mere conclusion, but an unwarranted apprehension of the pleader. So far as the courts can know from the allegations of the bill, the board may decline to revoke or cancel appellant's certificate, and may allow him to continue to practice his profession thereunder. Hence there is no equity in the bill, for the reason that a court of equity will not enjoin a board or commission vested with quasi judicial and administrative authority from acting as to matters within their jurisdiction and power merely because it is apprehended that they may decide erroneously. This is not a bill to restore to complainant his right to a certificate or license of which he has been unlawfully deprived, nor to compel the issuance to him of a license or certificate to which he is entitled, but it is, essentially, a bill to prevent the hearing of charges preferred against complainant.

The rights of complainant in this case are unlike the rights of a physician, surgeon, dentist, lawyer, or school-teacher to practice their callings or professions. Under the law, they cannot practice without a certificate or license; and, when their license or certificate is revoked, they are thereby prevented from practicing their profession at all. In the case of accountants, however, this is not true. They are not required to obtain a certificate or license to practice their calling, but obtaining the license or certificate is purely voluntary on their part. Nor does the revocation or cancellation of the license or certificate, when once issued, bar or deprive them from further or longer practicing their chosen calling. The license in their case is but a certificate of the board issuing it as to their competency and fitness. It is not at all a requisite to the practice of their calling, though it may be true, and doubtless is, that the certificate of license, being an authoritative recommendation or certification of a legally constituted board as to efficiency and qualifications, has some value. The qualifications an applicant should have in order to entitle him to hold a certificate and to the registration of that certificate as a certified public accountant the law has wisely left to the judgment of a board of experienced accountants. Likewise, in a large measure, the law has placed the discretion in the same experienced accountants who constitute the board to determine when a license or certificate once issued can be revoked or canceled. The law, however, does contain the necessary provision that no license or certificate shall be revoked or canceled unless written notice shall have been mailed to the holder thereof 20 days before any hearing thereon, stating the cause for such contemplated action, and appointing a day for a full hearing thereon by the board.

The bill in this case shows that the statutory notice was given and that the hearing was continued so as to give the complainant further time to prepare for his defense. But, instead of appearing and defending, he seeks to have a court of equity enjoin the board from doing what the law has authorized it to do. Hence there can be no equity in such a bill, and none of the authorities relied upon by appellant or cited by Mr. Justice THOMAS in his dissenting opinion can be properly considered as authority to the contrary.

The Legislature has the undoubted power to delegate to officers, boards, or commissioners of its own creation and appointment certain governmental powers for the more efficient administration of the law, subject, however, to certain limitations of the Constitution. Parke v. Bradley, 204 Ala. 455, 86 So. 28; Railroad Commission v. A. N. Railway Co., 182 Ala. 357, 62 So. 749.

Courts of equity rarely interfere by injunction with proceedings and determinations of inferior boards, commissions, or tribunals which are clothed by the Legislature with special governmental powers, though such powers be quasi judicial as well as administrative. While there are some cases in which courts of equity will grant injunctive relief against such proceedings, the instances are rare; and this is not one of these exceptional cases. Ewing v. St. Louis, 5 Wall. 413, 18 L.Ed. 657; Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563.

It is held by the Supreme Court of the United States that in creating such boards state Legislatures do not exercise or confer powers not authorized by the Constitutions, state or federal.

Mr. High, in his valuable work on Injunctions, has thus stated the law on the subject:

"It is important to observe that courts of equity do not interfere by injunction for the purpose of controlling the action of public officers

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