Watkins v. Mississippi State Board of Pharmacy

• Decision Date: 16 April 1934
• Docket Number: 31182
• Citation: 154 So. 277,170 Miss. 26
• Court: Mississippi Supreme Court
• Parties: WATKINS v. MISSISSIPPI STATE BOARD OF PHARMACY

154 So. 277

170 Miss. 26

WATKINS v. MISSISSIPPI STATE BOARD OF PHARMACY

No. 31182

Supreme Court of Mississippi

April 16, 1934

Division B

1 DRUGGISTS.

Issuance of license as assistant pharmacist by board of pharmacy was recorded adjudication that licensee was of good moral character, as respects his right to license as registered pharmacist, where statute required that, before issuing license as assistant pharmacist, board must find that applicant was of good moral character (Code 1930, sections 5827, 5831).

2 JUDGMENT.

In second action between same parties or their privies, although causes of action may be different, judgment in first action is res judicata in second as to any question actually litigated and determined in first.

3 JUDGMENT.

Rule which forbids reopening of matter once judicially determined by competent authority applies as well to judicial and quasi-judicial acts of public, executive, or administrative officers and boards acting within their jurisdiction as to judgments of courts.

4. DRUGGISTS.

Board of pharmacy could not refuse license as registered pharmacist on ground that examination as to applicant's moral character when board had issued license as assistant pharmacist was superficial (Code 1930, sections 5827, 5831; Laws 1932, chapter 277).

5. EVIDENCE.

Records which are judicial in their nature cannot be collaterally contradicted by parol testimony.

6. JUDGMENT.

Judicial officer or one performing judicial functions as to question at issue cannot impeach judgment rendered by him by testimony that he failed to perform his duty in rendition of that judgment.

7. DRUGGISTS.

Board of pharmacy could not refuse license as registered pharmacist on ground that there might have been change in applicant's moral character, since board had issued license as assistant pharmacist, where statute authorized review only where licensee was convicted of unlawfully selling habit forming drugs or intoxicating liquor, and record did not show change in moral character (Code 1930, sections 5827, 5831, 5844; Laws 1932, chapter 277; Laws 1934, House Bill No. 155).

8. MANDAMUS.

Mandamus held to lie to compel board of pharmacy to issue license as registered pharmacist to applicant who has been granted license as registered pharmacist in Louisiana on November 17, 1927, and who on March 27, 1931, was granted license as assistant pharmacist by Mississippi board of pharmacy (Code 1930, sections 5827, 5831; Laws 1932, chapter 277; Laws 1934, House Bill No. 155).

HON. W. J. PACK, Judge.

APPEAL from circuit court of Jones county HON. W. J. PACK, Judge.

Mandamus proceeding by H. E. Watkins against the Mississippi State Board of Pharmacy. From a judgment refusing to issue the writ of mandamus, the applicant appeals. Reversed and remanded, with directions.

Reversed and remanded with directions.

Gardner & Backstrom, of Gulfport, for appellant.

Section 277 of the Laws of 1932 provides two and only two conditions precedent to the issuance of license to practice pharmacy in this state to persons who have been granted license to practice pharmacy in another state prior to December 31, 1927. These conditions precedent are, first, that such licence was issued on an examination duly held in such other state prior to December 31, 1927, and, second, the applicant must be a person of good character.

The right to practice, pharmacy is a valuable right.

Brown v. Owen, 75 Miss. 319; Moreau v. Grandich, 114 Miss. 560, 75 So. 434; Clark v. Loper, 117 Miss. 234, 78 So. 145.

The board of pharmacy is charged with certain specific duties, by a particular statute, all of which it is enjoined by the Legislature to perform as written, and not as the board may think wise. There is no discretion granted to the board of pharmacy in any manner, but its sole duty is to enforce the laws as written.

38 C. J. 598, sec. 73; Anderson v. Napa County, 187 Cal. 95, 200 P. 963; Stephens v. Jones, 24 S.D. 97, 123 N.W. 705; Marcum v. Lincoln County, 42 W.Va. 263, 26 S.E. 281, 36 L. R. A. 296.

No appeal lies from the action of the state board of pharmacy, and no provision is made in any of the statutes dealing with that board or any of its acts to be reviewed by any court or tribunal or by any administrative body. In other words, so far as the statutes themselves are concerned, the action of the state board of pharmacy, whether arbitrary, unlawful, in violation of the Constitution, or corrupt, are final. In such a case, the only remedy known to the law is a petition for a writ of mandamus, under the provisions of section 2348 of the Code of 1930.

Roberts v. United States, 176 U.S. 219, 44 L.Ed. 443; United States ex rel. Dunlap v. Black, 128 U.S. 40, 32 L.Ed. 354, 9 S.Ct. 12.

The rule is that if a ministerial body vested with discretionary power abuses that discretion, its acts can be controlled by mandamus.

St. Louis v. Meyrose Lamp Manufacturing Co., 139 Mo. 560, 41 S.W. 244, 64 Am. St. Rep. 474; State v. Shreveport, 124 La. 178, 50 So. 3, 134 Am. St. Rep. 496; Mauldin v. Matthews, 81 S.C. 414, 62 S.E. 695, 128 Am. St. Rep. 919.

W. W. Pierce, Assistant Attorney-General, for the appellee.

A privilege is a right peculiar to an individual or body. It is in the nature of a special right not enjoyed by the masses.

Moore v. Fletcher, 16 Me. 63, 33 Am. Dec. 633; Guthrie Daily Leader v. Cameron, 41 P. 634; Ripley v. Knight, 123 Miss. 515; Lonas v. State, 50 Tenn. 515, 519.

The determination of the question by the state board of pharmacy of whether or not appellant was of good character is judicial or quasi-judicial act.

Shipman v. State Live Stock Sanitary Commission, 73 N.W. 817; People v. Board of Commissioners of Cook County, 54 N.E. 164.

A writ of mandamus will not issue to direct an officer, board or commission to act in a particular way where the act to be performed is a judicial act, or an act to be performed within the discretion of the officer, board or commission.

Robinson et al. v. Board of Supervisors, 105 Miss. 90; State Board of Education v. City of West Point, 50 Miss. 638; 38 C. J. 691, sec. 261; State ex rel. v. Lamb, 237 Mo. 437; State ex inf. v. Kansas City Gas Co., 254 Mo. 515; People v. Attorney-General, 41 Mich. 728; Lewright v. Bell, Attorney-General, 63 S.W. 623; State ex rel. v. Hudson, 226 Mo. 265; "Redfield v. Windom, 137 U.S. 643; State ex rel. v. City of Willow Springs, 208 Mo.App. 4; 36. C. J. 691; Ex parie Thompson, 52 Ala. 98; U. S. v. Gruthrie, 17 How. 285; State ex rel. v. Cook, 174 Mo. 118.

As pointed out in the foregoing authorities writ of mandamus never lies against a public officer, or board, or department to control his or its conduct in matters where discretion and judgment is vested in the officer, board or department.

Marcum v. Ballot Commission, 42 W.Va. 263; Ferris on Mandamus, page 238; State ex rel. v. City of Willow Springs, 208 Mo.App. 4; Redfield v. Windom, 137 U.S. 643.

Under the provisions of chapter 277 of the Laws of 1932 it became the duty of the state board of pharmacy to determine as a matter of fact that appellant was of "good character." This duty was imposed upon the state board of pharmacy by the Legislature; therefore, the act of the board in determining this fact was a judicial, or at least a quasi-judicial act; that being true, the court will not require the state board of pharmacy to determine that question in any particular way. Therefore, we most humbly submit that there was no error committed by the court in refusing to order a writ of mandamus to issue directing the state board of pharmacy to issue a license to appellant.

The appellant and cross-appellant does not allege in his declaration or show by the evidence introduced that he has or will suffer any special injury or damage by reason of the failure of the state board of pharmacy to issue to him a license to practice pharmacy in this state.

Haskins v. Scott County, 51 Miss. 406; Trahan et al. v. State Highway Commission, 151. So. 178; State ex rel. Trahan et al. v. Price, 151 So. 566.

OPINION

Griffith, J.

On November 17, 1927, appellant Watkins, having duly passed the pharmaceutical examination before the Louisiana state board of pharmacy, was granted a full license to practice pharmacy in that state. On the 27th day of March, 1931, the Mississippi state board of pharmacy granted to appellant then and now a resident of this state a license in this state as an assistant pharmacist. On March 14, 1932, there was approved an act of the Legislature of this state, chapter 277, Laws 1932, which, when construed in connection with the previous laws on that subject, made it obligatory on the Mississippi board to issue a license as a registered pharmacist to any person of good moral character who, prior to December 31, 1927, had duly passed the pharmaceutical examination in another state and in consequence had been licensed there. Soon after the passage of the statute last mentioned, appellant applied to the Mississippi board for license as a registered pharmacist in this state, exhibiting his...