Moore v. Robinson, 55 S.E.2d 711

Moore v. Robinson

55 S.E.2d 711 | Ga. | 1949

1. Where the question involved is one of public right, and the purpose of the suit is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that the plaintiff is interested in having the laws executed and the duty in question enforced. *28

(a) Injunction will lie, and it is the appropriate remedy to be employed, to prevent the commission of a wrongful act by an officer or agent of this State, even when acting under color of his office but without lawful authority, and beyond the scope of his official power.

2. Where suit is brought against an officer of this State, even where acting under color of his office but beyond the scope of his authority, either to prevent the commission of a wrongful act or to redress one which has been committed while so acting, he can not claim immunity from suit upon the ground that the suit is in effect one against the State.

3. "The superior courts, on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, and apply on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require." Code, § 37-901.

4. A petition is duplicitous when it contains in the same count, for the recovery of a single demand, more than one fact or set of facts, any one of which would justify the recovery.

(a) When tested by the above rule, the petition in the instant case is not duplicitous, and the court properly overruled a special demurrer attacking it upon the ground of duplicity.

(b) The other grounds of special demurrer, being without merit, were properly overruled.

5. A judgment construing a statute will not be reversed because of the exclusion of evidence which would not, if admitted, authorize a different interpretation.

6. It is the duty of a court in construing a statute to ascertain and give full effect to the legislative intent, and in doing so the sources of enlightenment are not limited; interpretation is a matter addressed solely to the intelligence, information, and learning of the judge, and he is not restricted as to the means by which he may enlarge those faculties. In the present case, and for reasons stated in the corresponding division of the opinion, the trial judge properly construed the words, "Four-year standard college course," as they are used in the act of 1939 (Ga. L. 1939, p. 252), which amended the original Chiropractic Act of 1921 (Ga. L. 1921, p. 169), to mean a four-year college course of nine months each.

7. The Board of Chiropractic Examiners may, in its discretion, admit by comity any person licensed to practice chiropractic under the laws of another State having requirements equal to those required in this State. Code, § 84-510. In the instant case, neither the evidence nor the law authorized the trial judge to order the Board of Chiropractic Examiners to admit by comity all persons applying therefor who have had a four-year college course of nine months each. The board may, in its discretion, admit by comity non-resident applicants who qualify under the provisions of the Georgia Chiropractic Act as amended, but its discretion will be controlled only when abused.

8. The evidence fully authorized the trial judge to grant an interlocutory injunction restraining the Board of Chiropractic Examiners from receiving applications from persons who are not authorized under the *29 act as amended to take the examination provided for thereby; and also from admitting by comity those non-resident applicants for a license to practice chiropractic in this State who likewise do not possess the required educational qualifications.

(a) But when a permanent injunction is granted on an interlocutory hearing, as in this case, direction will be, and is, given that the judgment be so changed as to be operative only until the final hearing, or the further order of the court. Pullen v. Meadors, 196 Ga. 796 (27 S.E.2d 655).

No. 16733. OCTOBER 11, 1949. On March 29, 1949, Dr. Howard E. Robinson, alleging himself to be a duly licensed and practicing chiropractor, and a citizen and resident of the State of Georgia, filed a petition in the Superior Court of Crisp County, in which he prayed for injunctive and general relief against the Georgia Board of Chiropractic Examiners, officially as such, and its individual members. He alleged: that the laws of Georgia prescribe certain qualifications which a person who desires to take the chiropractic examination and to practice chiropractic in the State of Georgia must have, among which is one requiring him to be a person "of good moral character, and a graduate of a chartered chiropractic school or college which teaches only attendance courses and requiring four standard college years of nine months each"; that the defendants, individually and in their official capacity as members of the Georgia Board of Chiropractic Examiners, have accepted applications, and are preparing to issue licenses to persons with a scholastic attainment of less than that prescribed by law; that the board is preparing to meet, give examinations, and issue licenses, both as a result of examination and by comity, during the first week in April, 1949, all in violation of the chiropractic laws of Georgia; that the practice of chiropractic is the practice of one of the learned professions, namely, that of healing the sick, and as such a profession it is of vital interest to the members of the profession and to the public in general to see that the profession of chiropractic maintains the highest educational standards possible; that the right to practice chiropractic is a valuable right which is entitled to protection under the Constitution and laws of the State of Georgia; that the public, the chiropractic profession generally, and the petitioner *30 particularly are entitled to be protected from the practice of chiropractic by ignorant pretenders, charlatans, unskilled and unlearned persons; that the petitioner, both as a citizen and resident of the State of Georgia, and as a practicing chiropractor, will be irreparably injured and will suffer economic loss if persons other than those qualified under the laws of Georgia are permitted to take the chiropractic examination and become licensed and practicing chiropractors, either as a result of the examination or by comity; that the reputation of the chiropractic profession generally, and the petitioner's professional reputation particularly, will likewise be damaged; that if the board, and the individual members thereof, are not restrained and enjoined from permitting persons with educational qualifications of less than those set out in the Chiropractic Act as amended, from taking the examination and from being licensed to practice that profession, either as a result of the examination or by comity, there will be an influx of unskilled and improperly trained persons and charlatans admitted to practice chiropractic in Georgia, to the detriment of the public in general, the Georgia chiropractic profession, and the petitioner in particular; that such improperly licensed persons will place in danger the life and limb of citizens of the State of Georgia; and that the petitioner has no adequate remedy at law. On presentation of the petition an interlocutory hearing was set for April 9, 1949, and an order was granted restraining the Board of Chiropractic Examiners, the individual members thereof, and their successors in office, from permitting any person or persons to take the chiropractic examination, or to be licensed to practice chiropractic in the State of Georgia, either as a result of examination, by comity, or otherwise, with educational attainments of less than those prescribed by the Georgia Chiropractic Act as amended by the act of 1939, to wit: graduates of a chartered chiropractic school or college which teaches only attendance courses and requires a course of study of at least four years of nine months each, or persons who had completed thirty-six months attendance in such an institution. On March 31, 1949, the restraining order was modified so as to authorize and permit the Board of Chiropractic Examiners to hold the examination scheduled for April 1 and 2, 1949, but the order of modification provided that *31 the board should not issue any license to any applicant as a result of the examination until further ordered. On April 5, 1949, for reasons stated in the order, the interlocutory hearing which had been originally set for April 9, 1949, was postponed and a hearing was set for April 16, 1949, at Cordele, Georgia. In the same order the original restraining order was further modified so as to authorize and permit the board to grade immediately the examination papers of those who had taken the examination and who possessed the educational attainments set out in the restraining order and issue a license to such of them as had successfully passed the examination. The sufficiency of the petition to state a cause of action for any of the relief prayed was attacked by general demurrer, and special demurrers were also interposed. The demurrers were all overruled, and that judgment is properly excepted to. The defendants filed a joint answer on April 16, 1949. They admitted that the several individuals named as defendants in the petition constitute the present membership of the Board of Chiropractic Examiners for the State of Georgia. For want of sufficient information, they would neither admit nor deny that the petitioner is a resident and citizen of the State or a duly licensed and practicing chiropractor. They denied all of the other allegations of the petition, and said that the requirements for applicants who desire to take the examination for and be licensed to practice the chiropractic profession in Georgia are fully set out in the laws of this State.

On the hearing, the petitioner introduced in evidence and read to the court the caption of the Georgia Chiropractic Act of 1921 (Ga. L. 1921, p. 166); also section 5 of the act, which is as follows: "Be it further enacted by the authority aforesaid, that any person wishing the right to practice chiropractic in this State shall make written application to said Board of Chiropractic Examiners through the Secretary-Treasurer thereof in such form as may be adopted and directed by the board. Each applicant shall be a graduate of a resident course of three years of six months each, from a chartered chiropractic school or college which teaches only attendance courses, and did not teach any of its courses by mail during attendance." He also introduced as evidence and read to the court both the caption and section 1 of the amendment of 1939 to the Georgia Chiropractic Act, as follows: *32 "An Act to amend an act entitled `An Act to authorize and regulate the practice of chiropractic in the State of Georgia, etc.,' providing for four years of nine months each college course of study as a prerequisite of eligibility for examination." Section 1. "By striking the words, `Course of three years of six months each,' of Section Five of said act and substituting in lieu thereof the following: `Four-year standard college course.'" Mr. Bell, one of the attorneys for the defendants, stated, for purposes of the record, that the board construed the term, "Four-year standard college course," to mean four years of six months each.

Dr. Howard E. Robinson, the plaintiff, testified in his own behalf; and while we do not think that it is necessary to set out his evidence, it may be stated that it fully supported all the allegations of his petition.

Dr. R. C. Coleman testified for the plaintiff; that he was Secretary of the Georgia Chiropractic Board during the first week in April, 1949; that it was his duty to accept applications from persons desiring to take the examination and be licensed to practice the science of chiropractic in the State of Georgia; that 52 applications were received from persons who desired to take the April examination to be given by the board; and that only 18 of the applicants were graduates of a chiropractic school or college teaching only attendance courses and requiring four years of nine months each, or a total of 36 months attendance for graduation; that all of the applicants were permitted to take the April examination, which the board held; that none of the papers had yet been graded; and that no applicant had been licensed as a result of the examination. He further testified that 11 applications were received, to be passed on during the first week in April, 1949, from those who desired to be admitted and licensed by comity; but that only 2 of the applicants applying for a Georgia license by comity were graduates of a chiropractic school or college teaching only attendance courses and requiring four years of nine months each, or a total of 36 months attendance at such college; and that none of those applicants had been granted a license.

Dr. John J. Nugent also testified for the plaintiff that he had been practicing chiropractic since his graduation in 1922; that he *33 is now Director of Education of the National Chiropractic Association, had previously served as Secretary to the Connecticut Board of Chiropractic Examiners, and is the author of several pamphlets and books of chiropractic and chiropractic education. He further testified that he and Dr. Cecil Straight, who was then the National Chiropractic Association delegate for Georgia, had a part in drawing the 1939 amendment to the Georgia Chiropractic Act, and at that time the majority of the chiropractic colleges offered a course of four years of nine months each and he thought that was the standard. At that time there were 25 chiropractic schools, 16 of which offered four-year courses of nine months each, and 9 which gave courses covering a less period of time. He further testified that presently there are 21 chiropractic colleges in the United States, and these all now teach four-year courses of either nine or eight months each, or both, with the exception of one.

Mrs. Kathleen Davis testified for the plaintiff, that she made an application to take the chiropractic examination in 1948, but was not permitted to do so, because the board at that time required that all applicants have four years of college training of nine months each, or its equivalent; that she had returned to college and finished her four years, of nine months each, training; and that after doing this she was allowed to take the April, 1949, examination.

Mr. Parham, also an attorney for the defendants, admitted in open court that the board had received applications which show that the person desiring to take the April chiropractic examination had not attended a chiropractic school or college giving a course of four years of nine months each; and some applications showing that they had.

It is recited in the bill of exceptions that, upon the trial of the case, and after the plaintiff had rested his case, the defendants offered in evidence the affidavits of Dr. Mattie C. Stephens, Dr. Earl R. Bebout, Dr. George M. O'Neil, and Dr. Frank E. Dean; that they were objected to upon the ground that the plaintiff had not been served with a copy of the same; and that the objection thus made was sustained by the court. A copy of each affidavit, so offered, is attached to and made a part of *34 the bill of exceptions. There is an exception directly made to the ruling which excluded them from evidence.

The court then rendered a final decree permanently restraining and enjoining the Board of Chiropractic Examiners from examining the papers of those applicants taking the April examination who had not previously prepared themselves for the chiropractic profession by taking a college course of four years of nine months each as a prerequisite for the examination, or those of any future applicants who did not possess such educational attainments; also from issuing a license to practice the profession to any such applicant who had taken the April examination, or any subsequent examination. He directed the board to admit, by comity, all persons applying for license to practice the chiropractic profession in Georgia who had a college course in that profession of four years of nine months each, as to both pending and future applications. He further directed the board to examine, and grade, not later than May 2, 1949, the examination papers of those applicants taking the April examination who have the qualifications of four years of nine months each college course, and to issue a license to such of those applicants who had successfully passed the examination. The final decree further stated: "Let it be understood by all parties concerned in this litigation that this court construes the act of 1939 to mean just what it says — that is, it required four years of college course of nine months each, and this court is of the opinion that the act was made and passed and enacted for the purpose of raising the standard of this profession, and this court is in sympathy with the movement on the part of the profession to elevate its standard of ethics and practices." On April 25, 1949, the decree of April 16, 1949, was amended. The amending order recited that it had been brought to the court's attention that there was some confusion with reference to the meaning of the court's ruling because of the immediately above quoted portion of the same. The amendment to the decree added these words: "This court construes the act of 1939 to mean that it requires `four years of college course of nine months each or thirty-six months' in a chartered chiropractic school or college." To the order of April 16, 1949, to the amendment thereof, and to the order as amended, respectively, the defendants, *35 individually and officially as members of the Georgia Board of Chiropractic Examiners, excepted, and by direct bill of exceptions, complaining of the rulings herein mentioned, brought the case to this court for review. The plaintiffs in error contend that this case is controlled by the ruling made in Brown v. Lawrence, 204 Ga. 788 (51 S.E.2d 651), which was decided on January 10, 1949. We do not think so. The facts are different. The Brown case, supra, was an action for declaratory relief, and we held that the pleaded facts did not show an actual justiciable controversy ripe for declaratory relief. Mr. Chief Justice Duckworth dissented. The facts differentiating the two cases may be seen from the opinions, and they will not be set out here.

Before dealing with any other questions made by the record, we will first examine the petition to see if it is subject to the assault made upon it by the demurrers. These three questions are raised by the general demurrer, and are insisted upon by the plaintiffs in error: (1) The allegations of the petition are not sufficient to show that any right of the plaintiff, either as a citizen or as a duly licensed and practicing chiropractor, has been violated, so as to authorize a court of equity to grant the relief prayed in an action of this character. (2) The present proceeding is in essence a suit against the State, instituted without its consent, which is not permissible under the law. And (3) the principle upon which the plaintiff bases his right to equitable relief is a disputed question of law, and the general rule is well settled that, when the principles of law upon which the right to injunctive relief rests are disputed, and will admit of doubt, a court of equity will grant no relief until a decision of a court at law is first rendered establishing such principles, although satisfied as to what is a correct conclusion of law on the facts. The petition is demurred to specially upon the ground that it is duplicitous, in that the plaintiff seeks to assert thereby two inconsistent theories, and is seeking by his petition to take advantage of such inconsistent theories of law. And certain *36 specified allegations of the petition are also specially demurred to upon the ground that they are mere conclusions of the pleader, where the facts upon which they are based are not alleged. These questions, as thus raised by the demurrers, will be disposed of in the order of their statement.

1. We are of the opinion that the plaintiff had a right to maintain his action for injunctive relief. Prevention of the alleged unlawful practices by the Board of Chiropractic Examiners is essentially injunctive in character, and the relief prayed was the only appropriate remedy available to him. Atlanta Title Trust Co. v. Tidwell, 173 Ga. 499, 511 (160 S.E. 620, 80 A.L.R. 735). The right to practice chiropractic in this State is, like the right to practice any other profession, a valuable right, which is entitled to protection under the Constitution and laws of this State. Hughes v. State Board of MedicalExaminers, 162 Ga. 246 (134 S.E. 42). "Where the question is one of public right, and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that plaintiff is interested in having the laws executed and the duty in question enforced." Code, § 64-104;Board of Commissioners of Manchester v. Montgomery, 170 Ga. 361 (153 S.E. 34); Thomas v. Ragsdale, 188 Ga. 238 (3 S.E.2d 567). And we do not think that it would be seriously contended by any one that the members of the Board of Chiropractic Examiners were not under a duty to the public generally, including, of course, the members of that profession, to administer the laws regulating the practice of chiropractic, as they have been enacted by the self-same authority which created the board itself. The principle is thoroughly established that injunction will lie and is the appropriate remedy to prevent the commission of a wrongful act by an officer or agent of this State, even when acting under color of his office but without lawful authority, and beyond the scope of his official power. 43 C. J. S., § 9; Atlanta Title Trust Co. v. Tidwell, supra;Cannon v. Montgomery, 184 Ga. 588 (192 S.E. 206). If this were not the rule, our State examining boards would be free to fix the rules and prescribe the qualifications for the admission of persons who desire to practice our several professions, and there would be nothing the citizen could do to prevent it; and this is true for the reason that mandamus is an *37 available legal remedy which may be employed only for the purpose of compelling an officer to perform a specific act where his duty to do so is clear and well defined. Jackson v. Cochran,134 Ga. 396 (67 S.E. 825, 20 Ann. Cas. 219). In the instant case, the petition alleges that the members of the Board of Chiropractic Examiners are performing their official duties in an unlawful manner, and beyond the scope of their authority. For purposes of the demurrer, this is admitted, and applying the principles announced above, we hold that the plaintiff had a right to enjoin such unauthorized practices.

2. Following the rule announced in Patten v. Miller,190 Ga. 105 (8 S.E.2d 776), there is no merit in the contention that the present suit is in effect one against the State, instituted without its consent, and consequently not maintainable. Mr. Justice Grice, who delivered the opinion for this court in the Patten case, supra, in speaking for the court said: "The principle is thoroughly established, that an officer of the State, even where acting under color of his office but beyond the scope of his authority, whether sued to prevent the commission of a wrong or to redress one which has been committed while so acting, cannot claim immunity from suit on the ground that the suit is one against the State." It is well settled by the decisions of this court that a suit may be brought and maintained against officers or an agency of the State, without violating the prohibition against suing the State without its statutory consent, if the sole relief sought is to redress a wrong or an injury that they have committed upon the person or property rights of the complainant, either without right or authority or contrary to the statute under which they purport to act. Cannon v. Montgomery, supra. It is very clear to us that, if the relief prayed in the present case is granted, it will not operate to control the action of the State or subject it to liability, and this is the test for determining whether or not a suit is in reality one against the State, though not named as a party. Musgrove v. Georgia Railroad Banking Co., 204 Ga. 139 (49 S.E.2d 26).

3. Another question raised by the demurrer, and insisted upon in the brief for the plaintiffs in error, is that the plaintiff's right to have the equitable relief prayed is dependent upon a disputed or doubtful question of law, and that equity can grant *38 no relief in these circumstances until that question is settled in a court of law. There is no merit in this. Whatever may be the rule in other jurisdictions respecting this contention, it may be safely asserted that it does not obtain in Georgia, for the purpose of our Uniform Procedure Act of 1887 (Ga. L. 1887, p. 64) was to vest authority in the superior courts of this State to settle in one suit the controversy between the parties without reference to the question whether the plaintiff's cause of action was legal or equitable, or both, or whether the defendant's defense was one which a court of law will recognize or one which, under the old procedure, would have required the interposition of a court of equity in order to give effect to equitable remedies, ordinary or extraordinary. McCall v. Fry, 120 Ga. 661 (48 S.E. 200); Delaney v. Sheehan, 138 Ga. 510 (75 S.E. 632). In other words, by § 37-901 of the Code it is declared: "The superior courts, on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, and apply on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require."

4. The petition is demurred to specially upon the ground of duplicity. It is not subject to this criticism. A petition or declaration is duplicitous when it contains in the same count, for the recovery of a single demand, more than one fact or set of facts, any one of which would justify the recovery. 7 Enc. Pl. Pr. 237; Orr v. Cooledge, 117 Ga. 195 (43 S.E. 527);Smith v. McWhorter, 173 Ga. 255 (160 S.E. 250). In the present case, the facts alleged state only one theory upon which the plaintiff predicates his right to the relief sought, and there is a prayer that the members of the Board of Chiropractic Examiners, both in their respective official capacity, and individually, be enjoined from doing the act complained of in the petition; and clearly this is not duplicitous pleading. Allen v. Allen, 196 Ga. 736 (27 S.E.2d 679).

The remaining grounds of special demurrer attack certain allegations of the petition upon the ground that they are mere conclusions of the pleader. Standing alone and without reference to other facts alleged in the petition, the criticism lodged against them might be well founded, but when they are considered in connection with the petition as a whole, the attack upon them is without merit. *39

5. The defendants offered in evidence a number of affidavits in support of their defense. They were objected to by counsel for the plaintiff on the ground that the opposite party had not been previously served with a copy of the same. The trial judge refused to admit them. Copies of the rejected affidavits are attached to and made a part of the bill of exceptions. They have been carefully examined and considered by us, and whether or not their exclusion from evidence was erroneous, as the plaintiffs in error contend, this will not require a reversal of the judgment, because the facts testified to by the affiants would not have authorized an interpretation of the amended act different from that placed upon it by the trial judge.

6. By section 5 of the original Chiropractic Act of 1921 (Ga. L. 1921, p. 169), no person was eligible to take the chiropractic examination provided for therein, except "a graduate of a chartered chiropractic school or college which teaches only attendance courses and requires a course of study of at least three years of six months each." The act was amended in 1939 (Ga. L. 1939, p. 252) by striking from section 5 these words, "course of three years of six months each," and substituting in lieu thereof the following words, "Four-year standard college course." Consequently, as to educational requirements, the statute now reads: "Each applicant shall be of good moral character and shall be a graduate of a chartered chiropractic school or college which teaches only attendance courses and requires a four-year standard college course." Code (Ann. Supp.), § 84-507. Just what the legislature intended for the substituted words to mean when written into the original chiropractic act is, after all, the main question involved in this litigation. The plaintiff contends that the words, "A four-year standard college course," mean a four-year course of nine months each, and the defendants insist that they mean a four-year course of six months each. Undoubtedly, the act as amended is ambiguous, and being so, it was necessary for the judge in the present case, in order to grant any of the relief prayed, to construe it and by his interpretation give it the meaning which the legislature intended for it to have. After a rather lengthy hearing, he held that it meant that only those graduates of a chartered chiropractic school or college, which teaches only *40 attendance courses and requires a four-year course of nine months each, are eligible to take the examination and be licensed to practice the chiropractic profession in this State. Concededly, by the amendment the legislature intended to, and did, increase the educational requirements for membership in this profession, and we think it may be safely stated that, if the legislature had written into the act itself that which appears in its title or caption, this litigation, in all probability, would never have arisen. It is always the duty of a court, in construing a statute, to ascertain and give full effect to the legislative intent, and this case turns upon what the legislature intended for the words, "standard college course," to mean. To accomplish this end, the sources of enlightenment are not limited; interpretation is a matter addressed solely to the intelligence, information, and learning of the judge, and he is not restricted as to the means by which he may enlarge these faculties.Georgia, Fla. c. Ry. Co. v. Sasser, 4 Ga. App. 285 (61 S.E. 505). The defendants earnestly insist that the trial judge has erroneously construed the act in question and placed the wrong interpretation upon its meaning. We do not think so. The title or caption of the act — which, while no part thereof, may always be examined by the court when the act is doubtful, for the purpose of finding the legislative intent thereof (Thomas v. Board ofCommissioners of Chattooga County, 196 Ga. 10,25 S.E.2d 647) — expressly states that the purpose of the act is to provide for a four-year college course of nine months each as a requirement for taking the examination to practice the profession of chiropractic; and as we understand the rules to be followed in construing a doubtful statute, there is no better source to which a court may go for the purpose of finding the legislature's meaning of an act passed by it. The words, "standard college course," were employed and used by the legislature in the amending act for the purpose of prescribing its educational requirements for taking the examination to practice chiropractic, after this court had said in Smith v. Board of Education ofWashington County, 153 Ga. 758 (5) (113 S.E. 147), that "The term, `scholastic year,' is one of common use, and is generally understood to mean a term of about nine months"; and it is judicially known that the colleges of this State when this act was passed in 1939 had *41 regular terms of about nine months, usually running from early in September until the latter part of the following May. And on the hearing of this case, the plaintiff, in an effort to be helpful to the trial judge in properly construing the act, brought up witnesses, holding high positions in the field of chiropractic education, who testified to facts which we think clearly show that a standard college course in chiropractic education means a course, given by a college teaching that science, for a regular scholastic year of nine months; and in the circumstances of this case, it is not unreasonable to presume that the legislature had these facts before it when the amending act was passed. Finally, and with propriety we think, it may be said that the meaning which the trial judge gave to the act by his construction of it is the same interpretation which the Board of Chiropractic Examiners had placed upon it until very recently.

7, 8. Headnotes 7 and 8 do not require elaboration.

Judgment affirmed in part with direction, and reversed inpart. All of the Justices concur.