Opinion
37720.
DECIDED DECEMBER 2, 1959.
Revocation of license. Fulton Superior Court. Before Judge Pharr. March 30, 1959.
Eugene Cook, Attorney-General, J. R. Parham, Assistant Attorney-General, James P. Groton, Sutherland, Asbill Brennan, for plaintiffs in error.
Wotton, Long Jones, Grigsby H. Wotton, contra.
1. ( a) The sustaining of a certiorari by a superior court judge has the effect of a first grant of a new trial and unless a verdict is demanded, the superior court judge's decision will not be disturbed.
( b) To revoke an architect's certificate to practice under the provisions of Code (Ann.) § 84-319, it is necessary to show the alleged misrepresentation was material to issuance of the certificate.
2. The superior court judge did not err in directing that the defendant be exonerated as a matter of law.
DECIDED DECEMBER 2, 1959.
This case first appeared before this court in Dougherty County Council of Architects v. Beckanstin, 100 Ga. App. 84 ( 110 S.E.2d 85), which held that the superior court erred in granting the certiorari to review a hearing of the State Board of Architect Examiners which had revoked the certificate of the defendant in error, hereinafter called the defendant, to practice architecture. This judgment was reversed by the Supreme Court in Beckanstin v. Dougherty County Council of Architects, 215 Ga. 543 ( 111 S.E.2d 361), and the case is now before this court to be decided on the merits.
Under the provisions of Code § 84-320, the Dougherty County Council of Architects, hereinafter referred to as the plaintiff, prepared charges against the defendant before the State Board of Architect Examiners, hereinafter referred to as the board, as follows: "The Dougherty County Council of Architects and Engineers, Inc., wishes to charge that the certificate of registration of Mr. Harry Hyman Beckanstin as architect was obtained through misrepresentation in that Mr. Beckanstin states on his application for registration that he attended Massachusetts Institute of Technology 1915-1917." A hearing was held in regular order. Upon advice of counsel and other grounds the defendant refused to testify. Thereupon Mr. Parham of the Attorney-General's office and Mr. James O. Skrine were sworn and testified that the defendant had stated at a prior hearing that he had attended Massachusetts Institute of Technology for six months in 1915; that the defendant had stated he attended Massachusetts Institute of Technology two months in 1916, being January and February; that the defendant had stated that he did not attend this institute up to the beginning of the school year 1917. The defendant's application for an architect's certificate was placed in evidence, the pertinent section under the heading "Schooling and Experience . . ."; "Hartford Public Highschool — Hartford Connecticut — 1911-1915. Mass. Inst. of Technology (then Boston, Mass., now — Cambridge, Mass.) 1915-1917."
After argument of counsel the board found the defendant guilty as charged and revoked the license of the defendant to practice architecture. The defendant filed a certiorari to the Superior Court of Fulton County which was granted. After a hearing the superior court judge passed the following order on March 18, 1959: "The foregoing certiorari coming on for hearing before me and after argument and review of the record, the court finds that there is no evidence of a material misrepresentation and it is ordered that the writ of certiorari is sustained and the action of the Georgia State Board of Examination, Qualification and Registration of Architects in revoking the license and certificate of H. H. Beckanstin is reversed and set aside."
On March 30, 1959, the court entered a further order as follows: "It is the judgment of the court that petitioner, H. H. Beckanstin, is exonerated of the charge made against him in the complaint in this case."
It is to these orders that the plaintiff in error excepts and assigns as error for this court to review.
1. (a) The first question to be decided is to determine if the superior court judge erred in sustaining the certiorari. The effect of sustaining a certiorari is the same as the first grant of a new trial. Jeffers v. Central of Ga. R. Co., 1 Ga. App. 331 ( 57 S.E. 923); Folds v. Harris, 34 Ga. App. 445 ( 129 S.E. 664); Peacock v. American Plant Co., 49 Ga. App. 267 ( 175 S.E. 262). As the plaintiff in error's counsel in his excellent brief concedes that the granting of a certiorari is discretionary with the trial judge, and as there is no showing of an abuse of discretion, this court will not interfere with the first grant of a new trial. Stalnaker v. Beach, 18 Ga. App. 172 ( 88 S.E. 991). However the trial judge was correct in sustaining the certiorari for another reason as discussed below.
(b) The board was proceeding under the provision of Code (Ann.) § 84-319 (a): "When it is shown that the certificate was obtained through fraud or misrepresentation." It was necessary to show the alleged misrepresentation which caused the certificate to be issued. This is true because the statute uses the phrase " obtained through fraud or misrepresentation." Therefore a misrepresentation which was not regarded by the board in issuing the certificate can not be a basis for revoking the certificate. The misrepresentation must be material to the issuing of the certificate.
To determine whether or not there is a material misrepresentation, the statements are measured by the qualifying section, Code § 84-303: "Any citizen of the United States, or any person who has declared his or her intention of becoming such citizen, being at least 21 years of age and of good moral character, may apply through the Joint-Secretary, State Examining Boards, to the State Board for the Examination and Registration of Architects for a certificate of registration, or for such examination as shall be requisite for such certification under this Chapter; but before receiving such certificate the applicant shall submit satisfactory factory evidence of having completed the course in a high school or the equivalent thereof, and of having subsequently thereto completed such course in mathematics, history and language as may be approved or prescribed by the said Board. The examination for the above academic requirements shall be held by the said Board. In lieu of such examination the said Board may accept satisfactory diplomas or certificates from institutions approved by the said Board, covering the course or subject-matter prescribed for examination." Thus if the board prescribes four years of academic work in an accredited college and an applicant states upon his application that he has six years of college credit, when in fact, he has only four, the misstatement would not be material because the applicant would have met the academic requirement. However, in the instant case there is no showing of prescribed requirement of any additional education prerequisite subsequent to high school. By express permission of the statute, the board may require additional academic work in mathematics, history, and languages, but the record does not show such requirements by the board. The defendant's high school qualifications are not questioned. In the absence of a board requirement of college credit, there is a total failure to show a material misrepresentation in order to revoke the defendant's certificate.
2. By the trial judge's order dated March 30, 1959, he went further than sustaining the certiorari and granting a new trial. It was a finding that a verdict was demanded for the defendant as a matter of law. Dobson v. Ferguson, 62 Ga. App. 561 ( 8 S.E.2d 705); Munford v. Solomon, 8 Ga. App. 286 ( 68 S.E. 1075). The only evidence to show a material misrepresentation from his application is the defendant's oral statements that he attended the Massachusetts Institute of Technology 6 months in 1915, 2 months in 1916, being January and February, and that he did not attend this institute up to the beginning of the school year 1917. Assuming that under the holding of Faulkner v. Brown, 92 Ga. App. 602 ( 89 S.E.2d 583), such admission of the defendant is evidence, would the defendant's own statements differ from his application to make a material misrepresentation as a matter of law? We do not think so. The figure "1915-1917" could have several meanings, one of which would be consistent with the defendant's oral statement. The figures do not disclose whether the first or last year is included or excluded, nor do the figures state a scholastic year within the meaning of Smith v. Board of Education of Washington County, 153 Ga. 758 ( 113 S.E. 147). About all that can be said concerning these figures is that sometime between the years of 1915 through 1917 inclusive, the defendant attended Massachusetts Institute of Technology. The board has the power to prescribe that definite terminal dates be given, i.e., September 1, 1951, through June 30, 1952. Therefore, there is no showing that the defendant's oral statements were in conflict with his application. Without the showing of a material misrepresentation the defendant is entitled to be exonerated.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.