Williams v. Board of Dental Examiners of Alabama

• Decision Date: 12 March 1931
• Docket Number: 6 Div. 700.
• Citation: 133 So. 11,222 Ala. 411
• Parties: WILLIAMS v. BOARD OF DENTAL EXAMINERS OF ALABAMA.
• Court: Alabama Supreme Court

133 So. 11

222 Ala. 411

WILLIAMS v. BOARD OF DENTAL EXAMINERS OF ALABAMA.

6 Div. 700.

Supreme Court of Alabama

March 12, 1931

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Petition of J. Hod Williams for mandamus to the Board of Dental Examiners of the State of Alabama. From a judgment sustaining a demurrer to the petition and dismissing it, petitioner appeals.

Affirmed.

Monette & Taylor, of Birmingham, and Dozier & Gray, of Mobile, for appellant.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellee.

THOMAS J.

The demurrer to the petition for mandamus being sustained, and petitioner declining to plead further, the petition as amended was dismissed.

The defendant is sued as the board of dental examiners of the state of Alabama; members of that board were not made parties, and the action was directed to no person in office. There are many grounds of demurrer, and, if any ground is well taken, the action of the trial court is sustained.

It is the rule in this jurisdiction that a writ of mandamus, civil remedy and a personal action, that must be directed against persons in office, and not alone against the office, board or commission as such, is to compel the performance of a duty resting upon such person to whom it is sent or directed. State ex rel. Denson v. Miller, Pres., etc., 204 Ala. 234, 85 So. 700, did not join other members and held demurrable; Home Guano Co. v. State ex rel. Pike, 193 Ala. 548, 69 So. 419; State ex rel. Smith, Treas., v White, Auditor, 116 Ala. 202, 23 So. 31; State of Alabama ex rel. Pinney v. Williams, 69 Ala. 311; Leigh v. State ex rel. O'Bannon, 69 Ala. 261; City Council of Eufaula v. Hickman, 57 Ala. 338; State ex rel. Roche v. Board of School Com'rs of Mobile County, 19 Ala. App. 528, 98 So. 654; Board of Education of Jefferson County v. State (Ala. Sup.) 131 So. 239. Such are the general authorities. Seminole County et al. v. State ex rel. Upper St. Johns River Nav. Dist., 93 Fla. 929, 112 So. 616; 38 C.J. 542; United States v. Boutwell, 17 Wall. 604, 607, 21 L.Ed. 721; United States v. Butterworth, 169 U.S. 600, 18 S.Ct. 441, 42 L.Ed. 873; Warner Valley Stock Co. v. Smith, 165 U.S. 28, 17 S.Ct. 225, 41 L.Ed. 621.

In City Council of Eufaula v. Hickman, 57 Ala. 338, 340, Mr. Chief Justice Stone said: "It is said that the ancient rule, in such cases, was to direct the writ to the city government by its corporate name, while the modern practice is to direct it to the several members of the municipal government, whose duty it is to levy the tax. The advantage in pursuing the latter course is shown in this: That while the duty can be as clearly commanded in the one form as in the other, yet, when it becomes necessary to compel obedience by attachment, such writ can not be enforced against the corporation in its corporate name. The names of the persons composing the governing body of the municipality must be brought before the court that they, in their official capacity, may, by the mandate of the court, be compelled to perform the required function. They are required to act officially and collectively, but for failing to act, they can only be attached and punished as individuals. Hence, the preference given to the modern practice, which proceeds against the governing members of the corporation in their several names as such.-Moses on Man. 126-7-8; Dillon on Mun. Corp. §§ 665, 686, et seq.; High. Ex. Legal Rem. 337; City of Louisville v. Kean, 18 B. Mon. [Ky.] 13; Mayor v. Lord, 9 Wall. 413, 19 L.Ed. 704; Lindsey v. Auditor, 3 Bush. (Ky.) 235; Soutter v. City of Madison, 15 Wis. 30; State ex rel. v. Gates, 22 Wis. 213; Regina v. Mayor, 4 Eng. Law and Eq. 194."

This modern rule has been adhered to in this jurisdiction. Farson, Son & Co. v. Bird, Treas., 197 Ala. 384, 387, 72 So. 550; J. B. McCrary Co. v. Purvis, 208 Ala. 53, 93 So. 827; Graham v. City of Tuscumbia, 146 Ala. 452, 42 So. 400.

It may be further stated that the demurrer raises the question of authority of the board to restore a license theretofore revoked. In Wright v. Aldridge et al., 219 Ala. 632, 123 So. 33, the observation was made that the statute clearly confers no authority on the board, expressly or by implication, to reinstate one whose certificate has been canceled for unprofessional conduct, or to revive and restore such revoked and canceled certificate; that mandamus will not issue to compel the doing of a useless act, and, if appellant desired to practice in his said profession, he may apply to the board for the issuance of a certificate as provided by statute. The demand served on the instant board of date of June 24, 1928-prior to the filing of this petition-was for reinstatement of his license revoked in December, 1923; the amendment seeking to compel the board to set aside and vacate the order of cancellation made and entered in December, 1923, after due notice. Section 334, Code. Petitioner's letter of date of October 25, 1923, acknowledgment to the board, denies the "jurisdiction of the court in this case," etc., and makes no question that the notice as to time was sufficient. The status of the petitioner in this respect is set out in his amended petition of the filing date of the 16th day of May, 1930. The decision in Naro v. State, 212 Ala. 5, 101 So. 666, as to notice of time for establishing a bill of exceptions cannot be applied here, as mandamus will not issue on the demand that the Board do what it had not the authority to ordain, enact, or revoke.

The case of Smith v. Woolfolk, 115 U.S. 143, 5 S.Ct 1177, 29 L.Ed. 357, said of notice that a party relying on the service of notice by mail must show a strict compliance with the...