218 Miss. 342 | Miss. | 1953
Appellee, Marshall Austin Sistrunk, complainant below, filed this action in the Chancery Court of the Second Judicial District of Jones County, against Dr. B. S. Houston and four other members of the Mississippi Board of Veterinary Examiners, appellants. The bill charged that Miss. Laws 1946, Ch. 371, Sec. 6, Code of 1942, Sec. 8914-06, provides that all persons who are not already licensed under Mississippi law to practice veterinary medicine, surgery, and dentistry shall be required to take an examination and pay a fee of $25.00. This statute further states:
“Provided, however, that any person who has practiced veterinary medicine, veterinary surgery and veterinary dentistry in this state for a period of ten years prior to the passage of this act shall be granted a license upon his*344 application therefor and upon satisfactory evidence furnished the board as to such practice, and of his good moral character, and payment to the board of a license fee of ten ($10.00) dollars.”
Complainant averred that he is fifty-four years of age and has lived in Leake County all of his life; that his father before him was a practicing veterinarian who for many years administered to sick and injured animals of all kinds; that complainant had studied the standard book on veterinary medicine, surgery, and dentistry, and from such study and his wide experience he had acquired knowledge and “satisfactory proficiency” in this field; that for two years during World War I he served in the United States Army Veterinary Corps, and for eight months had attended an army veterinary school, and that for more than twenty-seven years prior to the effective date of the 1946 statute, complainant had practiced veterinary medicine, surgery, and dentistry in this state.
Complainant charged that on June 14, 1946, he applied to the defendant board under the 1946 statute for a license to practice veterinary medicine, surgery, and dentistry, attaching to his application affidavit showing that he had practiced such profession for more than ten years prior to the stated term, that he was of good moral character, and tendering the ten-dollar license fee. Complainant appeared before the board, which failed and refused to grant complainant a license, and postponed the matter until the next regular meeting, one year away, June 17, 1947. On that date complainant again appeared before the board and renewed his request for a license. There was no evidence in contradiction of his qualifications under the statute, but the defendant again postponed action. On August 8, 1947, without further evidence, and with no evidence disputing complainant’s right to the license, the bill charged that the board arbitrarily, willfully, and in disregard of complainant’s rights and the law, denied him a license.
The bill of complaint had attached to it as exhibits a number of affidavits of citizens of complainant’s home community, attesting to his good moral character and his practice of his profession for more than ten years prior to the effective date of the 1946 statute, a transcript of the proceedings before the board on June 20, 1950; and a transcript of the proceedings before the board on June 19, 1951.
To this bill of complaint the defendants filed a general demurrer averring that complainant has a full, plain, adequate, and complete remedy at law, and that no grounds for equitable relief are alleged in the bill. This demurrer was overruled by the char cerv court and appellants-defendants were allowed an interloeutc"’v appeal.
Appellants say that appellee has a plain, adequate and complete remedy at law by mandamus under the provisions of Code of 1942, Secs. 1109-1118. They rely upon Madison County v. Mississippi Highway Commission, 191 Miss. 192, 198 So. 284 (1941), in which Madison County sought to obtain a mandatory injunction against the Highway Commission to compel it to appraise the pavement on two highways in that county and to pay the county for it, as provided by statute. It was there held that the chancery court had no jurisdiction to compel the highway commission to perform a legal duty enjoined upon it by statute. Code Sec. 1109 provides for a petition for writ of mandamus to the circuit court to compel an officer to do or order him not to do an act especially enjoined by the law. Compare State Highway Commission v. McGowen, 198 Miss. 853, 23 So. 893, 24 So. 2d 330 (1946); State Highway Commission v. Coahoma County, 203 Miss. 629, 32 So. 2d 555, 37 So. 2d 287 (1948). The court thought Madison County had a plain, adequate, and complete remedy at law by mandamus.
In Mississippi State Board of Veterinary Examiners v. Watkins, 206 Miss. 330, 40 So. 2d 153 (1949), in an action very similar to the present one, the court affirmed a final decree directing the board by mandatory injunction to issue a veterinary license to complainant, under the proviso of the quoted statute. It was undisputed in that case that the complainant was of good moral character, had practiced for more than ten years in this state before the 1946 statute, and had paid his license fee. Under such proof it was held, therefore, that the board’s refusal of a license was arbitrary and without substantial evidence to support it. Assuming for present purposes the correctness of the averments in the instant bill of complaint, appellee is entitled to a license. Appellants attempt to distinguish this Watkins case by stating that the complainant there also sought to enjoin a criminal prosecution of him for unlawfully practicing veterinary
In Watkins v. Mississippi State Board of Pharmacy, 173 Miss. 26, 154 So. 277 (1934), a petition for mandamus was sustained by the court for a license to practice pharmacy, but in that case there was no issue of fact of any kind, including whether the plaintiff was of good moral character, since the board had already adjudicated that he was. Here, apparently, that or other questions may be issues of fact. But the board’s action must be supported by substantial evidence and must be within its statutory powers. The chancery court correctly overruled appellants’ general demurrer, and the case will be affirmed and remanded for further proceedings consistent with this opinion.
Affirmed and remanded.