Alabama State Board of Pharmacy v. Peterson

252 So. 2d 319, 47 Ala. App. 201, 1971 Ala. Civ. App. LEXIS 450
CourtCourt of Civil Appeals of Alabama
DecidedAugust 4, 1971
Docket1 Div. 19, 19-A, 19-B
StatusPublished
Cited by2 cases

This text of 252 So. 2d 319 (Alabama State Board of Pharmacy v. Peterson) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alabama State Board of Pharmacy v. Peterson, 252 So. 2d 319, 47 Ala. App. 201, 1971 Ala. Civ. App. LEXIS 450 (Ala. Ct. App. 1971).

Opinion

BRADLEY, Judge.

David Martin Peterson, John L. Lee and Gerald F. Rhea, Sr., (hereinafter referred to as applicants) submitted applications to the Alabama State Board of Pharmacy (hereinafter referred to as the Board) for licensure as assistant pharmacists, as is authorized by Act No. 205, Section 9, Acts of Alabama 1966, Extra Session, p. 231, also found in the pocket parts of Title 46, Code of Alabama 1940, Recompiled 1958, as Section 257 (a9).

After an interview by the Board with these applicants, a consideration of the affidavits submitted with the applications, and a reconsideration of the testimony and exhibits, the Board refused to grant licenses as assistant pharmacists to these applicants.

From the refusal to license them, the applicants appealed said Board’s decision to the Circuit Court of Mobile County.

To each notice of appeal there was a plea in abatement filed by the Board.

The Board also filed an answer in each appealed case.

Without ruling on the pleas in abatement, and without an objection being interposed by the Board raising this point, the trial court proceeded to hear the appeals de novo.

At the conclusion of the hearing, the trial court entered an order requiring the Board to grant licenses as assistant pharmacists to these applicants.

From these orders, the Board appealed to-this court and assigned seven grounds of error.

The assignments of error raise principally two issues: (1) that the trial court erred in failing to decide whether applicants’ right to review of the Board’s decision denying them licenses as assistant pharmacists was by appeal or by writ of certiorari; and (2) that the trial court erred in ordering the Board to grant a license, as an assistant pharmacist to each of the applicants.

The attorney for the applicant Gerald F. Rhea, Sr. has informed this court that subsequent to the filing of his appeal in this-court, Gerald F. Rhea, Sr. died. The attorney for the said Gerald F. Rhea, Sr. now moves this court to dismiss this appeal. We will grant the motion. The appeal of Gerald F. Rhea, Sr. is dismissed.

As to issue number 1, the Board says that the licensing of. persons as assistant pharmacists is a .legislative function and not a. judicial function. It also contends that [204]*204where court review is sought of an agency-exercising such legislative powers, it must be done by the writ of certiorari rather than by a trial de novo. As authority for this position, the Board cites us to the case of Ball v. Jones, 272 Ala. 305, 132 So.2d 120.

The applicants counter by saying that the Board waived its pleas in abatement when it failed to object to going to trial on the merits' without a prior ruling on its said pleas, and citing us to Oliver v. Dudley, 267 Ala. 87, 100 So.2d 327.

The applicants also say that the decision of the Board denying their request for licensure . was a quasi-judicial act or function and that the procedure for reviewing such an act is set out in Section 22 of Act No. 205, supra.

Section 22 of Act No. 205, supra, provides,:

“Judicial review of orders of board. From any order of the Board any party affected thereby may appeal such ruling to the circuit court of the county where the party aggrieved resides within thirty (30) days from the receipt of such order or ruling. The trial in the circuit court shall be de novo.”

The Board responds to this argument by saying that Section 22 of Act No. 205 provides a review method for disciplinary matters only, i. e., situations where the Board is seeking to suspend or revoke a license already granted for some infraction of the statute or rules promulgated thereunder. In the instant case the Board contends that the controversy is over the refusal to grant a license, not the suspension or revocation of an existing license.

The Board asserts that the method of review provided in Section 22 does not apply to a decision denying a license to an applicant.

We must agree with the applicants that the Board’s pleas.in abatement are not before this court for review for the reason that there was no ruling on the pleas in the trial court. In the absence of an. adverse ruling by the trial court, an appellant brings nothing to an appellate court for review. Cash v. Usrey, 278 Ala. 313, 178 So.2d 91; and Evans v. Evans, 264 Ala. 2, 84 So.2d 337.

In the instant case the Board failed to obtain a ruling on its pleas from the trial court, and, therefore the issues raised by said pleas are not before us for review.

However, the question of whether or not the trial court was acting within its power and authority in reviewing the decisions -of the Board denying licenses to the applicants as assistant pharmacists by using the review procedure provided in Section 22 of Act No. 205, or whether it should have used a different review procedure is before us.

Jurisdictional issues can be considered at any step of the proceedings, whether it be at the trial or appellate level; and, the court can take cognizance of such a question either at the suggestion of the parties or ex mero motu. City of Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606; and Bond’s Jewelry Co. v. City of Mobile, 266 Ala. 463, 97 So.2d 582.

The Board, in brief, has said that Section 22, supra, is not appropriate for use by the courts in reviewing its denial of the licenses to the applicants. Instead, it says, the applicants should have sought review of its action by way of writ of certiorari.

The rationale of its contention is that the denial of a license is in the nature of a quasi-legislative act and can be reviewed only to the extent of ascertaining whether its decision was arbitrary, capricious, or exceeded its authority.

The case of Ball v. Jones, supra, cited by the Board in its brief, was decided on the theory that the enactment of zoning ordinances is a legislative function that has been delegated to a municipality by the legislature, and judicial review of such enactments is limited to constitutional issues and wheth[205]*205er or not the enactments are arbitrary, unreasonable, or unlawful.

In that case the statute giving a municipality zoning power also provided that review of the adoption of zoning ordinances by said municipality will be by trial de novo in the Circuit Court.

The Supreme Court there held that such a statutory provision was unconstitutional in that it was invasive of the legislative branch of government since the enactment of a zoning ordinance was a legislative function.

The court then said that, although the judiciary had the right to review an arbitrary, unreasonable or unlawful exercise of such authority, the effect of the review procedure set out in the zoning statute was to invade the legislative branch of government and clothe the courts with the power to legislate. This, it said, could not be done.

Our view of the present controversy is that the question presented to the Board for answer was more in the nature of a judicial function than a legislative function.

As a matter of fact, the Board was only required to apply the statutory requirements to the facts contained in each man’s application, and then decide whether to license or not. This certainly has more of the overtones of the adjudicatory process than it does the legislative process.

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252 So. 2d 319, 47 Ala. App. 201, 1971 Ala. Civ. App. LEXIS 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alabama-state-board-of-pharmacy-v-peterson-alacivapp-1971.