Opinion
April 25, 1949.
1. Veterinarians — license to practice.
The existing statute regulating the licensing of veterinarians which provides that any person who has practiced as a veterinarian in this state for a period of ten years prior to the passage of the statute shall be granted a license to practice upon his application therefor and upon showing that he has so practiced and is of good moral character, does not require that he shall also show that his practice has been a lawful practice. Chap. 371, Laws 1946, repealing Title 32, Chap. 13, Code 1942.
2. Administrative law — arbitrary action contrary to law — power of court to grant relief.
It is not within the province of courts to supervise the discretion of administrative boards so long as they act within the scope of the powers vested in them, and without arbitrariness or clear abuse of discretion, but when a licensing board, arbitrarily and without warrant of law refuses to grant a license to an applicant entitled thereto, under the law and undisputed facts, a court of equity will be upheld in taking jurisdiction to grant mandatory relief.
Headnotes as approved by Montgomery, J.
APPEAL from the chancery court of Scott County, ROY P. NOBLE, Chancellor.
Nichols Huff, and Barnett, Barnett Jones, for appellant.
The action of appellant board in denying appellee's application for license was within the jurisdiction granted it by the legislature and since there is no evidence that said board abused its discretion or acted unlawfully or arbitrarily in denying said application, the court will not interfere with its actions.
It is an established policy of this court, of long standing and strongly supported by logic and decisions of other jurisdictions, that it will not undertake to substitute its judgment for that of a board which is vested by the legislature with discretionary powers. Only the gross abuse of that discretion or official misconduct or corruption has moved our court to interfere with the judgments of administrative boards.
Chief Justice Woods' vigorous statement in Rotenberry v Board of Supervisors, 67 Miss. 470, 7 So. 211, placed our court solidly on that proposition when it was sought by injunction in chancery to prevent the board from contracting to tear down the court house to rebuild at another site.
The specially concurring opinion of Justice Truly in the case of Henry v. State, 87 Miss. 1, 30 So. 856, approved by the court in State v. Henry, 87 Miss. 125, 40 So. 152, restated the proposition forcefully when the court had before it the question whether the Board of Control of the State Penitentiary could be enjoined upon the suit of the Governor from contracting to lease lands upon which convicts were to work.
In the case of McLeod v. State, 154 Miss. 468, 122 So. 737, the court found that a certain regulation adopted by the school board of Moss Point was arbitrary and unreasonable in that the regulation was not within the jurisdiction of the board. The court again laid down the rule as follows: "The court will not interfere with the exercise of discretion of the school trustees in matters confided by law to their discretion, unless there is a clear abuse of discretion or the violation of law. The court will not consider whether such rules and regulations are wise and expedient, but merely whether they are a reasonable exercise of the authority conferred upon the trustees by law." See also American Jurisprudence, Vol. 42, Public Administrative Law, Sec. 216.
Did the appellant Board abuse its discretion or violate the law in rejecting appellee's application? The proviso of Section 6 of the 1946 Practice Act permits the licensing of any person who had practiced the profession in this state for a period of ten years before the passage of the Act, of good moral character, upon satisfactory evidence furnished appellant Board as to such practice and of such character. The legislature thereby delegated to appellant Board, a group composed of men highly qualified in the profession, as the Practice Act requires, the responsibility of determining these qualifications. It rested in the discretion of the Board to determine whether the applicant had practiced as required and whether he was of good moral character.
The Board was not satisfied with the appellee's evidence. The statute required him to furnish it — the Board cannot be said to have acted in abuse of discretion merely because appellee, under the burden of the law, failed to produce satisfactory evidence. And why was the Board not satisfied? Because the appellee boldy proclaimed on every occasion that the question arose that his practice was in violation of the law. We do not believe the court will hold that a group of honest citizens of our great state brought together as the appellant Board by a most careful selection from their profession violated the law or abused their discretion, particularly when they refused to be satisfied with appellee's claim of good moral character and professional experience when he based his claims upon a wilful and continued disregard for the law.
Even if appellant Board were required to take at face value the affidavits furnished by appellee, the testimony of the latter at the June 1947 hearing injected conflicting evidence; sufficiently substantial to support the finding of appellant Board. The court in Magee Truck Lines, Inc. v. Bond, 190 Miss. 428, 200 So. 586, held that it was not authorized "to substitute its judgment for that of the Commission where there is substantial (that is, more than a scintilla of) evidence to support the finding complained of, or unless the judgment is manifestly against the evidence." This holding is followed in cases appealed from rulings of the Public Service Commission, notably Tri-State Transit Co. of La., Inc. v. Gulf Transport Co., 201 Miss. 744, 29 So.2d 825, and the cases therein cited.
Equity will not entertain appellee's bill to enjoin the Board to reconsider appellee's application or issue a license unto him in view of the fact that appellee does not come into court with clean hands.
The equitable principle "He who comes into equity must come with clean hands" is clearly applicable in this case. That maxim is discussed in 19 Am. Jur. Equity (Sec. 471 at page 325).
A Mississippi case cited by that section, Moss, et al v. Mississippi Livestock Sanitary Board, 154 Miss. 765, 122 So. 776, originated as a suit by the appellants praying among other things for an injunction against the appellee to prevent the latter from enforcing rules and regulations of said Board adopted pursuant to statute. The appellants attacked the validity of a provision of the law in question which involved the entering of the premises of person in the quarantine area to inspect and disinfect livestock. The facts showed that the appellants had failed and refused to comply with the law with respect to the dipping of their livestock. The court invoked the maxim.
More recently, the court refused to adjudicate rights of occupancy upon bill for injunction in chancery where it appeared that the complainant, appellee, had broken into the house involved in order to obtain possession. Hutchins v. Rounds et al, 33 So.2d 622. Quoting the equitable maxim above set out the court stated that the appellee, being guilty of a crime, "was in no position to seek the aid of equity to secure her in the fruits of her acts."
Applying the principle to the case at bar, we find the appellee, an admitted law violator, seeking the aid of equity to secure him in the fruits of his illegal acts. The 1914 Act, Chapter 130, Laws of 1941, plainly defines the crime of, and establishes the penalty for, practicing veterinary medicine, surgery or dentistry without compliance with the act.
Appellee, upon cross-examination in the trial below, very frankly admitted that his practice was in violation of the law. Again he stated that he always had charged for his services, and his answers to direct examination brought him squarely into conflict with the criminal provisions of this act.
The evidence of appellee's qualifications presented to appellant Board was within the statute not "satisfactory evidence" and the Board was therefore justified in refusing the appellee's application.
Though we believe the court will not interfere with appellant Board's finding of insufficient and unsatisfactory evidence of appellee's qualifications, the wisdom of the Board should be emphasized by a review of the evidence before it. Numerous affidavits were presented, in all of which the affiants stated the conclusion of fact which only the Board could determine. The identical affiants in the identical affidavits stated appellee is of good moral character. No other evidence was offered at the hearing — and it must be remembered that appellee was then and there represented by legal counsel — except the testimony of appellee. That testimony nullified the effect of the affidavits mentioned as to good moral character because appellee freely admitted that he violated the law. We urge that though it may be popular in some circles of society to violate the law, no person is less a criminal merely because in his own opinion it is permissible to break the particular law involved. We believe the court will uphold appellant Board in the just result of rejecting any evidence of good moral character upon appellee's admission of repeated violations of the law.
The court certainly is not called upon to determine the particular persons within the class covered by the proviso of Section 6 of the 1946 Practice Act — whether they be practitioners whose licenses had formerly been revoked, county agents whose practice without charge has served our citizens so well, or even some young contemporary of appellee's father who had failed to obtain a license under the proviso of Section 4 of the 1914 Act — in order to find that the legislature did not intend to include and reward a class of law violators, particularly when the legislature scheme since 1914 to date has been designed to punish those without license who charge for the treating, operating on or prescribing for any domesticated animal. To exclude appellee from the intended class would be consistent with principles of interpretation of statutes laid down by this court. The court, believing in the integrity and reasonableness of the legislature, will avoid any absurd or ridiculous interpretation of statutes. Kennington v. Hemingway, 101 Miss. 259, 57 So. 809.
We submit that the lower court was in error in finding that the legislature intended to include or provide for a class of law violators, and in particular for appellee, in its passage of the proviso to Section 6 of the 1946 Practice Act, or that it condoned violations of the 1914 Act by that proviso or any other portion of the later statute, or that the repeal of the 1914 Act, simultaneously with the passage of the 1946 Act, erased the criminal nature of the appellee's practice without a license. We further submit that if said proviso is to be so construed, the only alternative thereafter is a declaration of the invalidity of the proviso. It is unconstitutional and void in that it denies equal protection under the laws, if it be found that the legislature intended to include appellee's group within the class, or to set up appellee's group as a class.
O.B. Triplett, Jr. and Roy N. Lee, for appellee.
The sole issue involved in this appeal is: Did the Act of 1946 provide that a license might be obtained by any person who had practiced veterinary medicine in Mississippi for 10 years prior to the passage of the act in violation of the law which then existed, if he submitted satisfactory evidence of his good moral character and paid the prescribed fee of $10.00?
To state the question differently: Did proof that the applicant had violated the old law constitute evidence of bad moral character upon which the appellant Board could deny a license without any other evidence except overwhelming and undisputed testimony of the applicant's good moral character?
The legislature, by this act, granted the right to practice veterinary medicine to three classes: —
1. Those already licensed under State laws.
2. Those who successfully pass an examination by the Board and are veterinary college graduates.
3. Those who had practiced veterinary medicine in Mississippi for 10 years prior to the passage of the Act, who were of good moral character.
It is, therefore, perfectly clear that the legislature did not intend to require that those who had practiced 10 years must also produce a license; for, if this had been the legislative intent, the proviso would have been unnecessary. Without the proviso two classes existed: 1. Those already licensed; and 2. Those who pass examination.
The proviso excepts from these two classes all persons who had practiced without license for more than 10 years prior to the passage of the Act. Any other interpretation strikes the proviso completely out of the Act; and as this court held in McKenzie v. Boykin, 111 Miss. 256, 71 So. 382: "A statute should not receive such a construction as would render any of its provisions vain and useless." Martin v. O'Brien, 34 Miss. 21; Swann v. Buck, 40 Miss. 268; Adams v. Y. M.V.R.R. Co., 75 Miss. 275, 22 So. 824.
In 59 C.J. 595, page 995, it is said: — "Provided always that the interpretation is reasonable and not in conflict with the legislative intent, it is a cardinal rule of construction of statutes that effect must be given, if possible, to the whole statute and every part thereof. To his end, it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. Just as an interpretation which gives effect to the statute will be chosen instead of one which defeats it, so an interpretation which gives effect to the entire language will be selected as against one which does not."
The Mississippi Act of 1946 repealed all other existing acts on the subject and then said in effect: "All persons who do not already have a license shall obtain a license by successfully passing examination except that those who have practiced in this state for the past 10 years may also obtain a license if they are of good moral character and present satisfactory evidence of these facts to the Board."
There is nothing unconstitutional about such a provision; and this observation is supported by 16 C.J.S. Sec. 510, page 1013, and note on page 1013, in which it is said: "Furthermore, within proper limitations, the legislature may, without denial of equal protection of the laws, classify businesses and occupations for purposes of regulation, provide different rules for classes, limit a regulation to a particular kind of business, extend to some persons privileges denied to other, or impose restrictions on some but not on others, where the classification or discrimination is based on real differences in the subject matter and is reasonable, and the legislation affects alike all persons pursuing the same business under the same conditions. The legislature has a large measure of discretion in making such classifications or discriminations, and a statute will not be declared void where it does not clearly appear that the enacting body has exceeded its powers."
"Exceptions of prior practioners. Statutes requiring conditions and qualifications for certain trades and callings, particularly those closely concerned with the public health, may except from their requirements persons engaged in practicing their profession prior to legislative enactment, on the theory that those who have acceptably followed the profession in a community for a period of years may be presumed to have the qualifications which others are required to make manifest by taking an examination. State v. Bays, 47 P.2d 50, 100 Mont. 125; State ex rel. Ford Hopkins Co. v. Mayor and Common Council of Watertown, (Wis.), 276 N.W. 311."
Appellant and appellee are apparently agreed as to the law governing the action of a board which possesses discretionary powers; for we both rely upon the same authorities.
In Tri State Transit Co. of La., Inc. v. Gulf Transport Co., 201 Miss. 744, 29 So.2d 825, the court observed that the judgment of the Public Service Commission could not be disturbed unless it is "not supported by substantial evidence or is arbitary and capricious".
In Magee Truck Lines, Inc. v. Bond, 190 Miss. 428, 200 So. 586, this court did reverse the decision of the Public Service Commission because "the record contains no substantial evidence to sustain the finding of the Commission. . .".
In McLeod et al, Trustees Moss Point Public Schools v. State, 154 Miss. 468, 122 So. 737, this court held that school trustees in exercising discretion must not commit "a clear abuse of discretion or a violation of law," observing that "their reasonableness, however, is a question of law for the courts".
When the appellant board acted in this case the appellee could secure no further relief in his mandamus proceeding. City of Greenwood v. Provine, 143 Miss. 42, 108 So. 284; City of Clarksdale v. Harris, 188 Miss. 806, 196 So. 647; Thomas v. Price Auditor, 171 Miss. 450, 158 So. 206.
Therefore, appellee was forced to bring suit in equity for relief.
As we have shown — and as the chancellor found — there was absolutely no evidence before appellant Board that appellee was not a man of good moral character. There was overwhelming proof before the Board to the contrary. The evidence was furnished not only on the form prescribed by the Board, but by affidavits of a multitude of citizens from Scott and Leake counties. All of the affidavits established that appellee had practiced veterinary medicine in these Mississippi counties for more than 10 years prior to April 4, 1946.
Appellant also paid the required fee, and in his testimony asked the Board: "What else does it take, Dr. Gates?"
That question was never answered, except by a statement that the Board wished to secure an opinion from the Attorney General. What the Board asked the Attorney General was whether it was mandatory upon them to issue a license to persons of good moral character with 10 years of practice in this state. The Attorney General advised them that it was. In spite thereof, the Board arbitrarily refused the license with no evidence to support them and their action was a clear abuse of discretion.
The learned trial court was eminently correct in finding that the Board of Veterinary Examiners abused its discretion in arbitrarily denying complainant a license to practice veterinary medicine, veterinary surgery and veterinary dentistry, and in holding that the legislature has the power to grant a license to 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 the act, upon satisfactory evidence furnished as to such practice, and as to good character of the applicant. The authorities support the learned trial court in its judgment. Practice during the effective period of the 1914 Act did not constitute a violation of law in the eyes of the 1946 Act, since the old act when repealed "is considered as a law which never existed", Stone v. McKay Plumbing Co., 200 Miss. 792, 30 So.2d 91. The section is constitutional and valid under authority cited supra, and under authority of Watson v. State of Maryland, 30 S.Ct. 644, and Dent v. West Virginia, 9 S.Ct. 231, Clark v. State, 169 Miss. 369, 152 So. 820, and does not deny equal protection under the laws.
Dewey L. Watkins filed his bill of complaint in the Chancery Court of Scott County, Mississippi, seeking injunctive relief against the Mississippi State Board of Veterinary Examiners on the ground that they had arbitrarily and willfully abused their discretion in refusing to award him a license for the practice of veterinary medicine, surgery and dentistry. From a decree of the lower court granting the injunctive relief and mandatorily enjoining the Mississippi State Board of Veterinary Examiners to grant him such license, the Board appeals here.
Chapter 371 of the Laws of Mississippi of 1946 provides for the regulation of the practice of veterinary medcine, veterinary surgery and veterinary dentistry, provides for a Board of Examiners and their duties and qualifications and provides a method for the granting of licenses to practice veterinary medicine, veterinary surgery and veterinary dentistry. The Act was approved on April 4, 1946.
Section 6 of this Act reads as follows:
"All persons who are not already licensed under the laws of Mississippi to practice veterinary medicine, veterinary surgery, and veterinary dentistry in this state prior to the passage of this act shall be required to take an examination and pay a fee of twenty-five dollars therefor when applying for permission to take the examination. Said fee shall not be returned to applicant whether or not he passes the examination. 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 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."
At the time of the passage of this act of 1946, Chapter 13 of the Code of 1942, Title 32, was in effect and therein was embraced the provisions of Chapter 130 of the Laws of 1914, which also provided for the regulation of the practice of veterinary medicine, veterinary surgery and veterinary dentistry in this state. Section 8917 of the Code of 1942 required an examination before a license to practice should issue to an applicant. Section 8922 made it unlawful to practice veterinary surgery, medicine and dentistry in this state without first having complied with all of the provisions of Chapter 130 of the Laws of 1914. This Code Section reads as follows:
"Any person who practices or attempts to practice veterinary surgery, medicine or dentistry in this state without first having complied with all the provision of this chapter, shall for each and every offense be guilty of a misdemeanor and upon conviction thereof shall be fined not less than twenty-five dollars nor more than two hundred dollars."
In passing let it be noted that Chapter 371 is complete in itself. It is not an amendment of Chapter 130 of the Laws of 1914, but this act is a new act completely occupying the field of the subject matter and by the provision of Section 13 thereof all of the above mentioned Code sections and Chapter 130 of the Laws of 1914 were repealed.
At the first annual meeting of the new board set up under the Acts of 1946, Mr. Watkins made application for a license to practice under the provisions of the latter part of Section 6, which is set out above. He filed his application with the Board and supported it by the affidavit of reputable citizens of his community to the effect that he is a man of good moral character and had been practicing veterinary medicine, dentistry and surgery in the state for a period of more than ten years prior to the passage of the Act of 1946. At the June meeting the Board took no action upon his application but continued it until the annual meeting in June 1947. At that meeting Mr. Watkins appeared before the Board with his attorney and there renewed his request that a license be issued to him to practice in this state. This application was supported by new and additional affidavits presented at that time. The Board heard Mr. Watkins and his attorney and there was no evidence introduced showing or tending to show that Mr. Watkins was not of good moral character or that he had not practiced for a period of more than ten years in this State. The Board, however, again declined to take any action on his application, but suggested that they desired to make an investigation.
On July 28, 1947, Mr. Watkins filed an application for a writ of mandamus to compel action by the Board upon his application for a license. They then started an investigation, but it is admitted that the facts ascertained by them on this investigation were not considered by them in their subsequent order denying the granting of a license to him. The day before the mandamus was heard the Board met and denied the application. This order was introduced on the hearing of the mandamus petition and the Board having acted the Court dismissed the petition. It was then that Mr. Watkins filed this suit in the Chancery Court praying for injunctive relief.
(Hn 1) The Board takes the position that the "grandfather" clause contained in Section 6 in providing 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 the act shall be granted a license upon his application therefor and upon satisfactory evidence furnished the Board as to such practice and of his good moral character must have read into it the word "lawful" showing that such practice had been a lawful practice instead of an unlawful one. They contend that Mr. Watkins during the ten years of his practice had been constantly violating the provisions of Section 8922, and consequently is not entitled to a license. We cannot agree with this contention.
(Hn 2) It is a well established rule in this state that a power in the courts to supervise the discretion of executive bodies legislatively created with power to act has never been maintained where the action complained of was within the scope of the powers vested in them, and where the exercise of such powers by the Board was a reasonable exercise of its discretion in regard to a matter within the powers of the Board and not marked by any clear abuse of discretion. It is manifest that this must be true, for if the discretion vested in a Board be subject to review and control by the courts the result would be the substitution of the judgement of the court for the judgement of the legislatively chosen power. Rotenberry v. Board of Supervisors, 67 Miss. 470, 7 So. 211; Henry v. State, 87 Miss. 1, 39 So. 856; State v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A., N.S., 340; McLeod et al., Trustees Moss Point Public Schools v. State ex rel. Colmer, Dist. Atty., 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161; Tri-State Transit Co. v. Gulf Transport Co., 201 Miss. 744, 29 So.2d 825; Magee Truck Lines, Inc., v. Bond, 190 Miss. 428, 200 So. 586; Dixie Greyhound Lines, Inc., v. Public Service Commission, 190 Miss. 704, 200 So. 579, 1 So.2d 489.
However, it is clear here that Section 6 of Chapter 371, Laws of 1946, repealed the provisions of Section 8922 which had theretofore made it an offense to practice veterinary medicine in the state, and the mandate of the act did not vest in the board any discretion in the granting of the license to practice as it appeared beyond dispute that the appellant was of good moral character and had practiced for more than ten years in this state and had paid to the board his license fee of ten dollars. The proof is undisputed that this showing was made to the Board and there is no evidence in this record showing that Mr. Watkins was not of good moral character, nor that he had not practiced for more than ten years in the state, or that he had not paid the required fee of ten dollars. We are of the opinion that the board had no discretion in the matter and that it was the duty of the board to grant the license, and its refusal to do so was arbitrary and in violation of the provision of Section 6 of Chapter 371, Laws of 1946.
Our attention has been called to State v. Ohio State Medical Board, 60 Ohio St. 21, 53 N.E. 298; State v. Board of Dental Examiners, 31 Wn. 492, 72 P. 110; and In re Christensen et al., 59 Wn. 314, 109 P. 1040, but we do not deem it necessary to comment here upon these cases since it is clear that the board refused to obey the mandate of Section 6 in their refusal to grant the license.
The lower court was correct in awarding the injunctive relief prayed for in the bill and the decree of the lower court will be affirmed.
Affirmed.