State ex rel. Rhodes v. Indiana Bd. of Pharmacy

• Decision Date: 15 November 1900
• Citation: 155 Ind. 414,58 N.E. 531
• Parties: STATE ex rel. RHODES v. INDIANA BOARD OF PHARMACY.
• Court: Indiana Supreme Court

155 Ind. 414

58 N.E. 531

STATE ex rel.RHODES

v.INDIANA BOARD OF PHARMACY.

Supreme Court of Indiana.

Nov. 15, 1900.

Appeal from superior court, Marion county; John L. McMaster, Judge.

Application for mandamus by the state, on the relation of John Milton Rhodes, against the Indiana board of pharmacy. From a judgment in favor of defendant, relator appeals. Affirmed.Brown, Holmes & Brown, for appellant. W. L. Taylor, Atty. Gen., Merrill Moores, and Cassius C. Hadley, for appellee.

BAKER, C. J.

On relator's petition an alternative writ of mandate was issued to compel appellee to grant relator a license as a registered pharmacist under the act of March 1, 1899 (Acts 1899, p. 159). Appellee's demurrer to the alternative writ was sustained. On relator's refusal to plead further, final judgment was rendered. Sustaining the demurrer to the writ is assigned as error.

Relator first insists upon a reversal because the demurrer was addressed to the alternative writ, and not to the writ and petition. Even if relator were correct in urging that the demurrer presented no question, the judgment would not be reversed, unless the facts exhibited in the petition and alternative writ entitled relator to the relief sought. Garrett v. Plow Works, 154 Ind. 319, 56 N. E. 667.

Relator next contends that the facts required the court to order the issuance of a license to him. It is averred that on June 19, 1899, relator was over 18 years of age, and was the proprietor of a pharmacy in which physicians' prescriptions were compounded and sold; that on June 22, 1899, relator applied to appellee for a license as a registered pharmacist; that his application was made under the first qualification in section 3 of the pharmacy act, which became a law by its terms on July 1, 1899; that he paid the fee prescribed in the act, and demanded a license; and that appellee has failed and refused to issue him a license. The first section of the act directs “that on the taking effect of this act the governor of Indiana shall appoint five pharmacists * * * who shall constitute a board to be styled the Indiana board of pharmacy.” The second section provides for the organization and meetings of the board. The third section, to the end of the first qualification, reads: “Upon the payment of such fee or fees as hereinafter provided, said board shall grant and issue a license as registered pharmacist, or as registered assistant pharmacist, to any person not less than eighteen years of age, as hereinafter provided, for two years or the unexpired portion thereof prior to the next regular date for re-registration, upon producing evidence satisfactory to said board of one of the following qualifications, to wit. For registered pharmacist. First. He shall, at the time of the taking effect of this act, be the proprietor or manager of a store or pharmacy in which physicians' prescriptions are compounded.” The fourth, fifth, sixth, and seventh sections relate to the fees to be paid by applicants for license, rules and regulations, and compensation of members of the board. The eighth section declares that “on and after July 1st, 1899, it shall be unlawful for any person to conduct a store or pharmacy in which,” etc., “unless there be in charge a registered pharmacist, or a registered assistant pharmacist,...