Opinion
Rehearing Denied April 26, 1928.
Hearing Granted by Supreme Court May 28, 1928.
COUNSEL
Appeal from Superior Court, City and County of San Francisco; James M. Troutt, Judge.
Application for writ of prohibition by H. A. Cavassa against E. T. Off and others, comprising and being the California State Board of Pharmacy, and another, to prevent revocation of petitioner’s pharmacist’s license. Judgment for defendants, and plaintiff appeals. Affirmed.
Pardini & Scampini, of San Francisco, for appellant.
U.S. Webb, Atty. Gen., and Charles A. Wetmore, Jr., Deputy Atty. Gen., for respondents.
OPINION
STURTEVANT, J.
The petitioner, herein called the plaintiff, commenced an action to obtain a writ of prohibition. The respondents, herein called the defendants, answered, and a trial was had before the trial court sitting without a jury. The trial court made findings in favor of the defendants, and the plaintiff has appealed, bringing up a judgment roll.
The findings of the trial court are very full and complete. From those findings the following facts appear: The plaintiff is a duly registered licentiate in pharmacy; the defendants include all the members of the board of pharmacy and the secretary of said board; on the 24th day of July, 1926, by order of the defendant board, the secretary served on the plaintiff a notice in writing which recited that the plaintiff had suffered three several convictions for violating the provisions of the Pharmacy Act (2 Deering’s Gen. Laws 1923, Act 5886, p. 2390), and directing the plaintiff to appear before the board at the time and place designated to show cause why his certificate No. 4146 should not be canceled, and that, in truth and in fact, the plaintiff had suffered said convictions. Other findings were made which it is not necessary to recite.
In attacking the judgment, the plaintiff claims that the proceedings contemplated by the defendants in the notice above mentioned were without and in excess of the jurisdiction of the board. The plaintiff cites and relies on Suckow v. Alderson, 182 Cal. 247, 187 P. 965; Imperial Water Co. v. Supervisors, 162 Cal. 14, 120 P. 780; Robinson v. Board, 16 Cal. 208; Hewitt v. Board of Medical Examiners, 148 Cal. 590, 84 P. 39, 3 L. R. A. (N. S.) 896, 113 Am. St. Rep. 315. Those authorities are not in point. If the defendants were adjudging, or about to adjudge, that the plaintiff was guilty of violating any statute, then such authorities might be in point. However, the guilt or innocence of the plaintiff had already been adjudged in the actions theretofore tried in the justice court of San Mateo county. In the governing statute, 2 Deering’s General Laws, p. 2390, it is provided that no person shall dispense drugs unless he be a registered pharmacist or a registered assistant pharmacist (section 1); that such persons may be registered after having passed an examination (section 3); and that the defendant board shall appoint a secretary (section 5). Then it is provided in section 6:
"It shall be the duty of the secretary to keep a book of registration open at the city of San Francisco, in which shall be entered under the supervision of the board, the names, titles, qualifications, and places of business of all persons coming under the provisions of this act. *** It shall be the duty of the secretary of the board to erase from the register the name of any registered pharmacist or assistant pharmacist who has died, or who in the opinion of the board has forfeited his right under the law to do business in this state. ***"
In section 12 it is provided:
"*** Any person convicted of violating the provisions of this act a third time shall in addition to the penalties hereinabove mentioned have his or her registration as a pharmacist canceled."
A comparison of the passages just quoted shows clearly that the receipt by the secretary of the judgments of conviction ascertaining that each is a final judgment, adding them up, and ascertaining that there are three or more, is but a ministerial act. Whether those functions are performed by him acting of his own volition or acting under the supervision of the board of pharmacy, the functions performed are but a ministerial act. Wood v. Strother, 76 Cal. 545, 18 P. 766, 9 Am. St. Rep. 249; Lorbeer v. Hutchinson, 111 Cal. 272, 43 P. 896; People v. Board of Supervisors of Contra Costa County, 122 Cal. 421, 55 P. 131; Matter of Carter, 141 Cal. 316, 322, 74 P. 997; Ham v. County of Los Angeles, 46 Cal.App. 148, 162, 189 P. 462.
We think it will hardly be contended that the secretary of the defendant board exercises judicial functions when, pursuant to the provisions of section 6, supra, he examines a death certificate and compares its contents with the provisions of the statute and the names on the registration book to ascertain whether a licentiate is dead, and, having determined the licentiate is dead, the secretary proceeds to cancel the registration of such deceased person. By the same reasoning it cannot be seen that he exercises judicial functions when, pursuant to the provisions of another section of the statute, he examines a certified copy of a judgment of conviction, or several of them, adds them up and compares the provisions thereof with the provisions of the statute and the names on the registration book, and proceeds to cancel the registration. If, in performing the functions last recited, part of the work is done by the defendant board, and part is done by the secretary, acting under the advice and direction of the defendant board, the same conclusion must be reached.
The statute provides that the secretary shall keep a registration book in which "shall be entered" the names, etc., of all persons who have qualified under the provisions of the statute. It is made the duty of the secretary to "erase" the names of registrants who have died. If a registrant defaults in the payment of his annual license fee the statute provides that his registration may be "revoked" by the board. Upon the payment of the fee and the penalty "the board must reinstate the delinquent’s registration." It thus appears that "revoke" was used as synonymous with "suspend." It also appears that when the board "revokes," the secretary to keep his records clear will "erase," as that word was used above; and when he receives an order for reinstatement he will again enter a formal registration. Finally, the statute provides that when a registrant has suffered a third conviction, etc., he "shall have his registration as a pharmacist canceled." By whom? Nothing to the contrary appearing, it will be done by the secretary, the one who keeps the registration book. True it is that the statute authorizes the secretary of his own volition to erase the name of dead registrants and limits his power regarding other erasures to the names of those "who in the opinion of the board has forfeited his right under the law to do business in this state." But the word "forfeited" cannot, at all times, be given the broad meaning which this plaintiff contends for. It means "loss of right"-whether permanent or temporary. As to some instances it means permanent, and as to some instances it means temporary. That it means temporary in some instances is demonstrated by an examination of section 9. That section provides that the registration certificate must be renewed annually and a fee not to exceed two dollars must be paid. If it is not paid the board is authorized to revoke the registration of the defaulting licentiate. But upon the payment of the fee and penalty the board is directed to reinstate the delinquent’s registration. However, the duties of the secretary under such facts rest solely upon that portion of section 6 which provides:
"It shall be the duty of the secretary of the board to erase from the register the name of any registered pharmacist or assistant pharmacist who has died, or who in the opinion of the board has forfeited his right under the law to do business in this state."
Clearly the revocation for nonpayment of fees is not necessarily a permanent forfeiture. But permanent forfeitures are provided for. The state board of pharmacy has power (section 7, subd. 1, par. [i]) "to provide by proper rules and regulations for the revocation by said board of licenses issued under the provisions of this act, whenever the holder of such license shall be guilty of habitual intemperance or addicted to the use of narcotic drugs, or shall have been convicted of a felony." Again the duties of secretary as to these revocations rest solely on the same passage, section 6, supra. That the forfeitures designated in section 7, supra, presuppose a judicial proceeding on the part of the board, may be conceded, but it is equally clear that the case under consideration does not fall within the provisions of the section last referred to. Because certain forfeitures may be determined judicially (section 7) does not argue that there are not, and cannot be, other forfeitures under the same statute. That death works a forfeiture is clear beyond dispute. That suffering a third conviction operates to the same effect we think is equally clear. That the Legislature has the power to so provide, and when it has done so the courts do not hesitate to follow the statute, has been decided several times. Kaiser Land & Fruit Co. v. Curry, 155 Cal. 638, 649, 654, 103 P. 341.
We find no error in the record. The judgment is affirmed.
We concur: KOFORD, P. J.; NOURSE, J.