133 So. 11 | Ala. | 1931
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.,
In City Council of Eufaula v. Hickman,
This modern rule has been adhered to in this jurisdiction. Farson, Son Co. v. Bird, Treas.,
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.,
The case of Smith v. Woolfolk,
The notice here was by registered mail of date of October 20, 1923, and received by petitioner October 25, 1923, acknowledged October 25, 1923, and denying jurisdiction of the board of dental examiners, and saying further that "as soon as it is practicable for us to be in Alabama we will accept service and appear before your tribunal," and that he only called upon that body in July, 1927, requesting the reissue of his license "to practice dentistry in the State of Alabama on account of the fact that his license to practice dentistry in the State of Alabama had been revoked by the said Board on, to-wit, the 3rd day of December, 1923."
It is true the writ of mandamus has been employed to prevent an abuse of discretion by inferior tribunals, and to prevent a failure of justice where there is a clear right and "there is an absence of any other adequate remedy, or to correct an arbitrary action outside of the exercise of a reasonable discretion." Wilson v. Duncan,
In a matter touching the police power of government, as this does, we will not award the writ on the averred facts of the petition. The federal question as to due process was the subject of discussion in Quill v. Carolina Portland Cement Co.,
Appellant had, and acknowledged the notice by mail, declined its invitation of a hearing at the designated time and place, and more than thirty days thereafter the board acted in the revocation of its certificate of authority to further practice that profession within the state. Sections 9431, 9432, Code.
The court did not err in sustaining demurrer to the petition and dismissing the same on failure of amendment.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.