Opinion
August 7, 1951. Rehearing Denied August 29, 1951.
Appeal from the Circuit Court, Leon County, Hugh M. Taylor, J.
Richard W. Ervin, Atty. Gen. and Murray Sams, Jr., Asst. Atty. Gen., for appellants.
Robert H. Givens, Jr., Miami, for appellee.
On December 19, 1949, Abraham Newman filed, in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, a Bill for Declaratory Decree, praying that the Circuit Judge decree that Abraham Newman was entitled to a reciprocal certificate of registration as a pharmacist in this state or that he was entitled to take the pharmacy examination in this state.
On January 18, 1950, the Florida State Board of Pharmacy filed its Answer to the Bill for Declaratory Decree.
On May 23, 1950, Abraham Newman filed an amended Bill for Declaratory Decree and on May 30, 1950, the Board of Pharmacy filed its amended Answer to the amended Bill for Declaratory Decree.
On July 14, 1950, the Circuit Court entered a final order decreeing that the plaintiff Abraham Newman was not entitled to a reciprocal certificate of registration in this State, nor was he entitled to take the examination in this State. This decree declared that plaintiff was not entitled to receive a reciprocal certificate under the provisions of either paragraph (2) or paragraph (5) of Section 465.02, F.S.A., and also that he was not entitled to take the examination for registration as a pharmacist under the provisions of either of said paragraphs.
On August 1, 1950, Abraham Newman filed a Petition for an Alternative Writ of Mandamus and on August 1, 1950, the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, issued the Alternative Writ of Mandamus. This suit was brought to obtain relief under the provisions of paragraph (1) of Section 465.02, Florida Statutes.
On November 17, 1950, the respondents filed their Answer to the Alternative Writ of Mandamus.
On November 24, 1950, the petitioner filed a Motion for a Peremptory Writ Notwithstanding the Answer, and on February 9, 1951, the Circuit Judge issued a Peremptory Writ of Mandamus and held that the petitioner, Abraham Newman, was entitled to take the pharmacy examination in the State of Florida.
On March 9, 1951, the respondents filed their Notice of Appeal.
In conjunction with the granting of the Peremptory Writ of Mandamus the learned Circuit Judge entered an Order wherein he set forth very clearly his reasons for issuing said Peremptory Writ of Mandamus. The Order thus entered reads as follows:
"On petitioner's motion for a preemptory (sic) writ of mandamus requiring Respondents to examine him as to his qualifications to practice pharmacy in this State the following facts are admitted:
"Petitioner is over the age of 21 years and is of good moral character. He is licensed to practice pharmacy in New York and Connecticut. He graduated from Fordham College of Pharmacy in 1930. At that time Fordham was not a member of the American Association of Colleges of Pharmacy but it became a member in 1939 and has remained a member since that time.
"The sole question presented for determination is whether petitioner has complied with Section 465.02, F.S.A., by showing that he is `* * * a graduate of an accredited school or college of pharmacy holding membership in the American Association of Colleges of Pharmacy and accredited by said board of pharmacy.'
"A construction of this language presents some difficulty. It is the duty of the court to, if possible, ascribe to the language used a meaning which will not cause the statute to be unconstitutional.
"The word `accredited' and the phrase `accredited by said board of pharmacy' cannot be held to vest in the Florida State Board of Pharmacy an unlimited and uncontrolled discretion in determining which schools will and which will not be accepted as `accredited', without rendering the act invalid. Pridgen v. Sweat, [ 125 Fla. 598] 170 So. 653. The statute provides no standard that a college must attain to be accredited by the Board, unless such standard be found in the phrase `such school or college of pharmacy holding membership in the American Association of Colleges of Pharmacy.'
"Membership in a voluntary association which may be denied at the whim of the association or declined at the pleasure of the school is in no sense a reasonable basis for determining the proficiency of the graduates of an institution. If the phrase be construed as ambulatory the statute to that extent is unconstitutional. Spencer v. Hunt, [ 109 Fla. 248] 147 So. 282. Respondents admit that the statute cannot be construed as ambulatory in prospect but urge that it should be so construed as to relate to those institutions which were members of the association when the act became effective and were also members of the association at the time this particular applicant received his diploma. This would make the statute more logical but there is nothing in the language used by the Legislature which would justify the court in holding this statute ambulatory in retrospect and not ambulatory in prospect.
"The only construction which this court can place upon the statute as written which does not offend the constitution is that the phrase `such school or college of pharmacy holding membership in the American Association of Colleges of Pharmacy' constitutes a definition of an `accredited' school and must be construed as being fixed as of the date of the enactment of this statute, so that, in reality the statute constitutes a Legislative determination that those schools which were on the membership rolls of this association at that time are designated as `accredited' just as if each such school had been designated by name in this statute.
"Adopting this construction, the statute, as applied to petitioner, could be paraphrased so as to require an applicant to be `a graduate of one of the following schools * * * Fordham College of Pharmacy * * *'.
"Since petitioner is admittedly a graduate of Fordham, his right to take the examination is clear.
"The conclusion here reached may not make the statute the wisest possible. Some institutions now accredited may have been of low standing in the past, and some of their graduates may have inferior training. The evils that might flow from this fact are less than the evils which would follow from the alternatives which suggest themselves (1) a determination that the whole diploma requirement is invalid because of the attempted delegation of legislative power to the American Association of Colleges of Pharmacy and/or the State Board of Pharmacy. (2) For the court to attempt to write into the statute that which the Legislature did not include so as to make it conform to the court's idea of what the Legislature should have done or (3) For the court to approve a delegation of the Sovereign power of Legislation of the State of Florida to the American Association of Colleges of Pharmacy and to the State Board of Pharmacy thereby repudiating the decisions above cited.
"With respect to the contention that the petitioner's right to the writ here sought is res adjudicata against him by reason of the decision of this court in case No. 11016, an examination of the pleadings in that case discloses that the issues here presented were not presented in that case and were not there adjudicated. The court is of the opinion that the act of the petitioner in seeking a declaratory decree as to his rights under one phase of the law resulting in an adverse decision does not preclude him from seeking relief under another phase of the law.
"The Preemptory (sic) writ will issue.
"This memorandum of the reasons for the issuance of this preemptory (sic) writ signed this 9 of February 1951 as of January 26th 1951. N.P.T.
"Hugh M. Taylor "Circuit Judge."
We approve and adopt the construction placed by the Circuit Judge upon subsection (1) of Section 465.02, F.S. 1941, F.S.A. Appellants have failed to make reversible error clearly apparent.
Affirmed.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.