Opinion
No. C-491.
January 22, 1963.
Appeal from the Circuit Court, Duval County, A.W. Graessle, Jr., J.
Richard W. Ervin, Atty. Gen., Robert C. Parker, Asst. Atty. Gen., and Jones Harrell, for appellants.
Norman F. Solomon and Howard A. Rose, Miami Beach, and Larkin, Lewis Decker, Jacksonville, for appellee.
On June 7, 1962, this court rendered its decision and judgment in this cause (Fla. App., 142 So.2d 301) reversing an order of the Duval County Circuit Court whereby the appellants (Sanitarians' Registration Board of the State of Florida and the several members of said board, who were respondents below in a mandamus proceeding brought by the appellee, Eugene L. Solomon, relator below) were peremptorily commanded to execute and furnish to relator a certificate of qualification as a sanitarian pursuant to Section 491.07, Florida Statutes, F.S.A. The appellee (relator) then filed in the Supreme Court of Florida a petition for a writ of certiorari to review our said decision on the ground that it conflicted with prior decisions of the Supreme Court on the same point of law.
In an opinion filed November 30, 1962, the Florida Supreme Court, 147 So.2d 132 delineated a problem confronting it in said proceeding, arising from the fact that while the majority of this court concurred in the judgment of reversal, the two members comprising the majority apparently did so for different reasons; and the Supreme Court thereupon temporarily relinquished jurisdiction of the cause to this court, with the request that the majority holding for reversal re-examine the views expressed by their former separate opinions and undertake to adopt a revised opinion eliminating the apparent ambiguities reflected by their said separate views in their former opinions.
Being agreeable to said request, the decision of this court filed June 7, 1962, is hereby recalled and the following is adopted and substituted as the revised decision and judgment of this court in said cause:
REVISED DECISION
On the petition of appellee, Eugene L. Solomon, hereinafter referred to as the relator, an alternative writ of mandamus was issued by the Circuit Court of Duval County commanding the appellants, Sanitarians' Registration Board of the State of Florida and its several members, hereinafter referred to as the respondents, to execute and furnish to appellee a certificate of registration as a sanitarian for the year 1959 and subsequent years, pursuant to the so-called "Grandfather" provisions of Section 491.07, Florida Statutes 1959, F.S.A., or on a date fixed to show cause for failure so to do. Respondents moved to quash said writ on the grounds, inter alia, that it failed to state a cause of action, that it failed to show facts demonstrating that the relator had a clear legal right to the coercive action sought, and that it does not allege facts showing that respondents owe any legal duty to the relator. Said motion was denied, the respondents answered the writ, testimony was adduced on the issues made, and thereupon a peremptory writ issued, commanding the respondents to execute and furnish to the petitioner a certificate of registration as a sanitarian; hence this appeal.
We have concluded that the trial court was in error in denying respondents' motion to quash the alternative writ of mandamus. It would serve no useful purpose, therefore, to review the evidence adduced pursuant to the denial of said motion.
The alternative writ of mandamus reflects that on September 30, 1959, the relator filed with the respondent board an application for certificate of registration pursuant to Section 491.07, Florida Statutes 1959, F.S.A.; that he submitted therewith the required fee of $10.00 and a photograph; that the statements contained in said application, a copy of which is attached to and made part of the writ, indicate that under the provisions of Sections 491.06-491.07, Florida Statutes 1959, F.S.A., the relator "has the qualification for registration" and "is entitled to registration as a sanitarian without examination." Specifically, the facts upon which such entitlement is predicated are stated to consist of the following:
"A) That he applied for such registration on, or before, October 1, 1959.
"B) That on June 30, 1959, he was employed as a sanitarian, and had the qualifications necessary to comply with Subsection (1) of Section 491.07, F.S.A., 1959, in the following respects:
"(i) That he had more than two years of college, and that he has an excess of 15 units in the study of the basic sciences, and more than one year's experience in environmental sanitation. That he was a graduate of the University of Florida, with a bachelor's degree, that his studies at the University of Florida covered a four-year college curriculum, and that he has been engaged as a sanitarian since January 1950. That he is a high school graduate and he has had post-graduate work at the University of Miami for two years.
"(ii) That he has taken an examination and has been qualified by the Florida Merit System as a sanitarian since 1950, which qualification would qualify the Petitioner for registration pursuant to Section 491.07(2), F.S.A., 1959. Attached hereto is a letter from the Honorable ANGUS LAIRD, Director of the Florida Merit System, certifying to this registration, a copy of which is attached hereto and marked Exhibit `C'."
Under the heading "REMARKS (other experience)", as contained in the application for registration, the relator stated: "Took examination and qualified as Sanitarian under Florida Merit System 1950." And incorporated in the writ is a letter received by relator from the Director of the Florida Merit System reflecting that on August 21, 1950, relator's name was placed on the "Sanitarian I register" but that no record was found of his "ever taking the Sanitarian II examination." The writ does not indicate what significance, if any, is to be given to the fact that the relator took an examination and qualified as a sanitarian under the Florida Merit System, or to the fact that his name was placed on the "Sanitarian I register", or to the fact that there is no record of his having taken the "Sanitarian II examination"; and there is no showing that the relator ever engaged in public employment pursuant to any such qualification or registration under the Florida Merit System. These recitations, therefore, lend no force to the issuance of the writ.
In answer to the question in the application form, "For whom did you first work as a sanitarian?", the relator replied, "Dade County Anti-Mosquito District, Miami, Dade County, Florida," without stating the date or the nature of the work performed. The application reflects that from January 1950 to the filing of the application the relator (applicant) was self-employed as a "Certified P.C.O., Sanitation Advisor, Entomologist", without further elaboration; and further reflects that he is a graduate of Miami Beach Senior High, Miami Beach, Florida, of the University of Florida with degree of B.S.A., and that he had two years of post-graduate work at the University of Miami.
Attached to and made a part of the writ is a letter from the respondent Sanitarians' Registration Board to the relator, dated May 20, 1960, advising that the board in regular session reviewed his application in the light of the applicable law, determined that he did not "meet the requirements for registration as a Sanitarian under the Grandfather clause of said Act", and further advised him that he appeared to qualify to take an examination for registration as a sanitarian, but that before providing same it would be necessary for him to furnish the board with a transcript of his college credits, whereupon, if the same were found to be in order, he would be notified of the time and place of examination.
Having stated the sum and substance of the showing made by the relator in his application for a certificate of registration as a sanitarian under the so-called "Grandfather" provisions of F.S. § 491.07, F.S.A., by which one possessing the required qualifications is entitled to become registered without necessity for taking a technical examination, we now take note of the applicable statutes:
Section 491.04(3) provides:
"(3) It shall be the duty of this board to carry out the provisions of this Act, except appoint members thereto, review applications for registration, conduct written and oral examinations, keep records of its transactions, conduct hearings, make an annual and financial report and record all matters which appropriately may come before it. These records shall at reasonable times be open to examination by the public. Copies of the annual and financial reports shall be mailed to all registered sanitarians. Laws 1959, c. 59-191, § 4."
Section 491.07, Florida Statutes, F.S.A., provides:
"491.07 Registration of certain persons prior to October 1, 1959. The board shall register as a sanitarian and shall furnish certificate of registration for the year 1959, to any person who applies for such registration on or before October 1, 1959, and who, on June 30, 1959, is employed as a sanitarian and meets the qualifications for a sanitarian, as set forth by one of the following:
"(1) [a] Two years of college (15 units of basic sciences) plus one year experience in environmental sanitation,
"[b] Two years of college (15 units in basic sciences) plus special training course for sanitarians plus six months experience in environmental sanitation,
"[c] College graduate in science or engineering plus one year of experience in environmental sanitation or a special training course,
"[d] A bachelor's degree or a master of public health degree in sanitation from an approved school of public health.
"[e] High school graduate plus three years experience in environmental sanitation plus special training course in sanitation,
"[f] High school graduate plus four years experience in environmental sanitation or
"(2) The merit system, or
"(3) An accredited civil service board of Florida.
"At the time of making application, such applicant shall pay to the board a fee of ten dollars."
Section 491.02, captioned "Definitions", provides:
"In this act, unless the context otherwise requires:
"(1) `Sanitarian' means a person whose education and experience in the biological and sanitary sciences qualifies him to engage in the promotion and protection of the public's health. He applies technical knowledge to solve problems of a sanitary nature and develops methods and carries out procedures for the control of those factors of man's environment which affect his health, safety, and well being.
* * * * * *
"(4) `Environment sanitation' means the sanitary control of man's physical surroundings and within it those factors which may adversely influence and affect his health, safety and welfare. Nothing herein shall conflict with the practice of professional engineering or the provisions of chapter 20621, laws of 1941 (§§ 471.01-471.33)."
The alternative writ of mandamus herein is in all respects the relator's complaint and is subject to the same rules of pleading as are complaints in ordinary legal proceedings. Bradenton v. State (1953), 118 Fla. 838, 160 So. 506, 100 A.L.R. 400.
Mandamus is a harsh and extraordinary remedy. It is available to enforce a legal right that has already been clearly established, but not to establish a legal right. State ex rel. Topp v. Bd. of Electrical Examiners (Fla.App. 1958), 101 So.2d 583. The writ is not awarded as a matter of right, but in the exercise of a sound judicial discretion, subject always to established rules of law; and the complaining party must show that he has a clear legal right to the performance of the particular duty sought to be enforced. Eldredge v. Evans (Fla.App. 1958), 102 So.2d 403; State ex rel. Flagler Kennel Club, Inc. v. Florida State Racing Commission (Fla. 1954), 74 So.2d 691; State ex rel. Holland v. Eau Gallie (Fla. 1953), 65 So.2d 877; State ex rel. Brown v. Dewell (1938), 131 Fla. 566, 179 So. 695, 115 A.L.R. 857. When anything remains to be done, or fact to be ascertained, relief cannot be afforded by mandamus. Howell v. State (1907), 54 Fla. 199, 45 So. 453. The same rule obtains where the right depends on determination of controverted questions of fact. State ex rel. H.W. Metcalf Co. v. Martin (1908), 55 Fla. 538, 46 So. 424.
Boards and officers charged with the duty or power of issuing a license or permit to persons wishing to engage in a particular business, calling, or profession, usually exercise a discretionary function in the matter; and where such is the case courts will not interfere with their judgment or discretion unless there is an arbitrary abuse thereof amounting to a virtual refusal to perform the duty involved or to act at all in contemplation of law. While mandamus will lie in a proper case to compel a judicial or quasi-judicial tribunal to exercise an existing jurisdiction, the remedy has never been extended to control the discretion and judgment of such tribunal acting within the scope of its judicial power. State ex rel. North St. Lucie River Drainage Dist. v. Kanner (1943), 152 Fla. 400, 11 So.2d 889. As said by the Florida Supreme Court in Hunter v. Solomon, Fla., 75 So.2d 803 (1954):
"Mandamus in proper cases may be used to compel a public agency to exercise a discretion vested in it but generally it cannot be used to direct the public agency to act only in a certain manner. This is especially true when investigation and a determination of qualifications of the applicant is involved and the determination of qualifications is vested in such public agency."
Applying the above concepts of law to this case, we think the crux of this appeal lies in the fact that mandamus is not the proper remedy here because the acts commanded concern not a ministerial duty but involve judicial discretion to a certain extent. State ex rel. Trustee Realty Co. v. Atkinson, 97 Fla. 1032, 122 So. 794 (1929), Gamble v. State, 61 Fla. 233, 54 So. 370 (1911). In the early case of Towle v. State, 3 Fla. 202 (1850), it was held that when the person against whom mandamus is prayed is invested with judicial power or acts in a deliberative capacity, or has the power and right of deciding, the writ of mandamus will not lie, except to compel him to proceed to the discharge of his duties according to his best judgment.
The duty and power vested in the respondent board by F.S. § 491.04(3), F.S.A. to "review applications for registration" is meaningless if it is to be construed as compelling the board to issue a certificate of registration under F.S. § 491.07, F.S.A. upon the basis of an application of the character in suit, a cursory examination of which reveals that it is altogether too indefinite, uncertain and incomplete to form a competent basis for the use of mandamus to compel the respondents to issue the certificate applied for. This is especially so when, as here, it is based entirely upon applicant's unsupported statements of such a general nature as not to be construable to a definite intendment. It may be that the relator in this case is eminently qualified by training and experience to become registered as a sanitarian. This, however, has no bearing on the adequacy of the application. We interpret the statute as placing on the board the duty and quasi-judicial power of initially determining the sufficiency of the application, and we indulge the presumption that the members of the board are competent to make that determination. The alternative writ of mandamus herein does not show a clear right in the relator to have the court coerce the respondents in the manner indicated. It was error to deny the motion to quash the alternative writ of mandamus herein.
We are cognizant of the legislative trend to establish administrative agencies in the field of fact determination, and that this trend is looked on askance by many courts across the nation. The concept of the rule of law requires us to acknowledge, however, that this is a matter for the legislative rather than the judicial branch of government to determine, reserving always to the courts their power to review judicially the findings made by such agencies. The motion to quash the alternative writ of mandamus herein was well taken and its denial was error.
The order appealed from is reversed and this cause is remanded with directions to discharge the peremptory writ.
Reversed and remanded with directions.
Having complied with the request contained in the first-mentioned opinion of the Supreme Court of Florida, this court no longer has jurisdiction, and the cause is forthwith returned to the Supreme Court for further consideration.
It is so ordered.
CARROLL, DONALD K., C.J., and STURGIS, J., concur.
WIGGINTON, J., dissents.
I regret that I am unable to agree with the majority opinion rendered by my colleagues in which it is concluded that the trial court erred in refusing to quash the alternative writ of mandamus issued in this case for the reason that (a) mandamus is not the proper remedy to obtain the relief sought by appellee Solomon in that appellant Board's act in rejecting Solomon's application for registration involved the exercise of judicial discretion which cannot be controlled by mandamus; and, (b) the statement of Solomon's qualifications for issuance of the disputed certificate as contained in his application are so indefinite, uncertain and incomplete that the Board was justified in rejecting the application and refusing to issue the certificate, which rejection and refusal cannot be questioned by mandamus.
The facts revealed by the record before us established without conflict that Solomon filed his written application with the Board for issuance to him of a certificate of registration as a sanitarian under the provisions of F.S. Sec. 491.07, F.S.A. The application was on a form furnished by the Board and contained all the information called for therein. The chairman of the Board admitted in his testimony before the trial court that no investigation was made for the purpose of determining the correctness or incorrectness of any statement made by Solomon in his application. No hearing was held by the Board for the purpose of enabling Solomon to supplement his application with such additional information or proof as may have been required in order to establish his entitlement to the certificate which he sought. Solomon's only notification of the action taken by the Board on his application was a letter received from the Board's secretary in which Solomon was advised that after a review of his application it was determined that he did not meet the requirements for registration as sanitarian under the Grandfather Clause of the Act pursuant to which his application was filed. This notification contained no reasons why the Board considered Solomon unqualified to receive the disputed certificate, nor did it contain any findings by the Board in support of its conclusion. Upon receipt of such notification Solomon instituted this action in mandamus seeking a peremptory writ commanding the Board to issue him a certificate as sanitarian under the provisions of the Sanitarians' Registration Act. His petition for alternative writ contained a copy of his application and alleged facts, which, if true, entitled him to the certificate in question. Upon denial of the Board's motion to quash the alternative writ an answer was filed and extensive testimony was taken before the court. At the conclusion of the trial the court issued its peremptory writ of mandamus containing extensive findings of fact based upon the evidence adduced by the parties, together with the conclusion that Solomon had established the requisite qualifications entitling him to a certificate as sanitarian, and commanding the Board to execute and furnish the certificate for which Solomon had applied. It is from the peremptory writ of mandamus that this appeal has been taken.
The majority opinion holds that mandamus is not the proper remedy for obtaining the relief sought by Solomon in this proceeding, and the motion to quash the alternative writ should have been granted.
The proper remedy for seeking judicial review of an order entered by an administrative agency depends upon the nature of the order in question, and the type of relief which would be appropriate under the circumstances. This subject was discussed by the Supreme Court in De Groot v. Sheffield. In De Groot it is pointed out that if the act of the administrative agency is in the performance of a quasi-judicial duty, the action is considered quasi-judicial in character. In order for the agency's order to constitute a quasi-judicial act, it must represent a judgment based upon competent substantial evidence adduced at a hearing held before it in which the affected party has been given reasonable notice and an opportunity to be heard. Such was the conclusion reached by this court in the Bloomfield case, and accords with the holding of the Supreme Court in De Groot. Such quasi-judicial acts by administrative agencies may be reviewed only by appeal, if such remedy is provided by law. In the absence of such provision, the review must be by certiorari. As said by the Supreme Court in De Groot:
De Groot v. Sheffield, (Fla. 1957) 95 So.2d 912.
Bloomfield v. Mayo, (Fla.App. 1960) 119 So.2d 417, 421.
"In certiorari the reviewing court will not undertake to re-weigh or evaluate the evidence presented before the tribunal or agency whose order is under examination. The appellate court merely examines the record made below to determine whether the lower tribunal had before it competent substantial evidence to support its findings and judgment which also must accord with the essential requirements of the law. It is clear that certiorari is in the nature of an appellate process. It is a method of obtaining review, as contrasted to a collateral assault."
From the foregoing it is evident that had the Board in this case afforded Solomon a hearing on his application for registration as a sanitarian, and after notice and hearing reached the decision that he did not possess the qualifications entitling him to the certificate for which he had applied, the Board's order would have been quasi-judicial in nature, and the only appropriate method of questioning its legality would have been by petition for writ of certiorari filed in the appropriate court of competent jurisdiction. Although the statute which created and controls the actions of the Board includes the right to conduct hearings on applications for issuance of certificates under the provisions of the act, the Board held no hearing nor did it reach its decision upon evidence touching Solomon's qualifications, or a lack thereof. Its action was unilateral in character, and was not the result of even a cursory investigation of the statement concerning Solomon's qualifications as set forth in his application. It follows that the Board's action in this case was not susceptible of review by certiorari, as there was no record of any proceedings forming the basis of the Board's order which could have been reviewed by a court of law for the purpose of determining whether the Board's rejection of the application was based upon substantial evidence and accorded with the essential requirements of law.
F.S. 491.04(3), F.S.A.
If the order of an administrative agency is not quasi-judicial as hereinabove defined, but constitutes action taken by the agency in the discharge of a statutory duty, the order is subject to direct attack in a collateral proceeding. Several methods are provided by law for assaulting the validity of a non-judicial administrative act, the remedy depending upon the nature of the act and the type of relief sought by the affected party. The validity of administrative acts may be questioned in a court of law by the remedy of prohibition where the agency proposes to exceed its jurisdiction or exercise jurisdiction which it does not have. Injunction may be employed to assault administrative action when such action allegedly impinges on some constitutional right. In addition to the foregoing remedies, mandamus is recognized as the appropriate remedy for seeking judicial determination as to the validity of an administrative act taken in the performance of a statutory duty. As said by the Supreme Court in De Groot, supra:
"As contrasted to certiorari, mandamus is an original proceeding to enforce a clear legal right to the performance of a clear legal duty. It is not an appellate writ. As in any original proceeding the record and evidence are made and offered in that proceeding. While it is by nature discretionary it is not an appropriate process to obtain a review of an order entered by a judicial or quasi-judicial agency acting within its jurisdiction. When thus analyzed it is obvious that certiorari and mandamus serve two entirely different functions."
I am in accord with that portion of the majority opinion which holds that the writ of mandamus may not be used for the purpose of directing or controlling the discretion of an administrative agency acting within the scope of its statutory power. It is equally established, however, that mandamus is the appropriate remedy for assaulting the validity of an administrative act if the act in question is arbitrary, capricious or constitutes an abuse of discretion. In this connection, it is immaterial whether the administrative act in question was taken in the performance of a discretionary or ministerial function.
The case of State v. Willis involved a situation wherein a taxpayer applied to the Florida Industrial Commission for refund of a tax unlawfully exacted of it. The commission rejected the application for refund without conducting a hearing or affording the applicant an opportunity to present evidence regarding his right to the refund which he sought. The applicant thereafter instituted an action in mandamus for the purpose of seeking a judicial determination as to the legality of the commission's action, and for an adjudication of its entitlement to the questioned refund. The commission applied to this court for a writ of prohibition to restrain the circuit court from exercising jurisdiction in the case on the principle ground that the taxpayer's appropriate remedy for review of the commission's order was by certiorari. In denying prohibition this court said:
"The citizen in a case like this has no right of appeal or certiorari to obtain a review by the court, for no hearing has been provided by the legislature which would permit the making of a record that would allow an appellate court judicially to review the agency's order. Without such a record the only court proceeding which would seem to be available is the Writ of Mandamus, in which proceeding the court would have an opportunity to make the determination as to whether an applicant for an adjustment or refund was entitled to one or the other under the law and the facts. This is exactly what the Respondent in these prohibition proceedings has assumed jurisdiction to do in the instant case."
State ex rel. Florida Industrial Commission v. Willis, (Fla.App. 1960) 124 So.2d 48, 51.
In State v. Hollingsworth a medical doctor brought a mandamus action against the State Board of Medical Examiners to require that his name be restored to the Board's roll of doctors legally licensed to practice their profession in Florida. The Statute creating the Board provided that for certain specified reasons the name of a licensed practicing physician may be stricken from the rolls of the Board. The statute prescribed the procedure to be followed by the Board before such action could be lawfully taken. Among other things the statute required that the affected doctor be given notice of the charges against him, and a hearing for the purpose of determining whether his name should be stricken, at which hearing the doctor was granted the opportunity of presenting evidence and being fully heard on his objection to the contemplated action. In that case the Board did not follow the requirements of the statute relative to notice of hearing, but by unilateral action struck the doctor's name from the roll. In response to an alternative writ of mandamus commanding the Board to restore the doctor's name to the roll of doctors entitled to practice their profession in Florida, the Board filed a motion to quash on the ground that mandamus was not the proper remedy to review their quasi-judicial act, contending that the appropriate method of review was by appeal as provided in the statute. In disposing of this contention, the Supreme Court said:
"Under the circumstances, there is nothing for the circuit court to review on which it could predicate its judgment. We think, therefore, that, under the allegations of the petition for the alternative writ, the relator is entitled to have his name restored to the roll as prayed for in his petition subject to proper proceedings under the statute.
"The motion to quash is accordingly overruled, and respondents given ten days to answer as they may be advised."
State ex rel. Tullidge v. Hollingsworth, et al., 103 Fla. 801, 138 So. 372.
In the Greenberg case a petitioner in mandamus sought a peremptory writ to coerce the County to issue him a certificate of competency as an electrician. The Act directed the issuance of such certificate to anyone possessing the minimum qualifications set forth in the Grandfather Clause of the Act. The Board was required to consider the application, the proof submitted in support thereof, and to satisfy itself that the applicant possessed the minimum qualifications specified. The County, upon investigation, did not consider that the applicant possessed the necessary qualifications and therefore rejected his application for certificate. The Third District Court of Appeal held that the County's duties were ministerial rather than discretionary, and that the proof was adequate to show that the applicant relator possessed the necessary qualifications to entitle him to the certificate. It was held that mandamus was the proper remedy, and the court reversed the trial court's judgment of dismissal and directed that the peremptory writ issue. Review of the District Court's decision was sought in the Supreme Court by certiorari on the ground of conflict, but certiorari was denied.
State ex rel. Greenberg v. Dade County, (Fla.App. 1960) 120 So.2d 625; Dade County v. State ex rel. Greenberg, (Fla. 1961) 126 So.2d 147.
Even should it be conceded, as held by the majority opinion, that the issuance of a certificate under the Grandfather Clause of the Act involved the exercise of a discretion by the Board, mandamus would nevertheless be the appropriate remedy to coerce the issuance of the certificate if it is shown that the Board's refusal was arbitrary, capricious or constituted an abuse of discretion. That was exactly the situation that was present in the Topp case which this court reviewed on appeal. In Topp an applicant sought by mandamus to coerce the respondent Board of Electrical Examiners to issue to him a certificate of competency as an electrician. The petition alleged that the applicant had taken and actually passed the examination required of him under the terms of the Act, but that the Board had capriciously and wilfully failed to pass him. It was contended that in doing so the Board abused its discretion and peremptory writ was prayed requiring the Board to issue the certificate applied for. On issue joined by the return to alternative writ, testimony was taken from which the chancellor concluded that the petitioner had failed to demonstrate that the Board had acted wilfully and capriciously in grading his examination paper, or had in any other manner abused its discretion. The trial court denied the peremptory writ and dismissed the petition. In affirming the trial court we held that mandamus was a proper remedy to procure the relief sought by the alternative writ, but that petitioner had failed to carry the burden of proving an abuse of discretion.
State ex rel. Topp v. Board of Electrical Examiners For Jacksonville Beach, (Fla.App. 1958) 101 So.2d 583.
In the case we now review the trial court found from the evidence that petitioner Solomon possessed the requisite qualifications entitling him to issuance of a certificate of registration under the Grandfather Clause of the Act. If it is to be held that the Board's action in denying petitioner the certificate of registration was in the exercise of a lawful discretion, implicit in the trial court's judgment is the conclusion that the Board abused its discretion for which relief was afforded by the peremptory writ. Under this view of the case the relief granted by mandamus is in accordance with the procedure approved by this court in the Topp case. It is my conviction that the majority holding with which I am unable to agree does not accord with the decisions of this or the other courts of this state as cited above.
Secondarily the majority opinion holds that the motion to quash the alternative writ of mandamus in this case should have been granted for the reason that the statement of Solomon's qualifications as contained in his application are so indefinite, uncertain and incomplete that the Board was justified in rejecting the application and refusing to issue the certificate. An examination of Solomon's application convinces me that it states facts which fully comply with the requirements of the Grandfather Clause of the Act entitling him to the certificate he sought. Even if the application should be considered insufficient and indefinite, this alone was not valid grounds for rejecting it. A duty devolved upon the Board to advise Solomon specifically wherein his application failed to adequately demonstate the qualifications required of him by the Act, and in the event of a dispute to afford Solomon a hearing on this issue. As stated above, no investigation was made of Solomon's application, nor were any findings made by the Board specifying the particulars in which his application was considered deficient. The Board's action in rejecting Solomon's application as shown by this record does not accord with my conception of due process, nor is it legally sufficient to deprive Solomon of the right granted him by the statute in question. Any deficiencies in Solomon's application were adequately overcome by the proof adduced by him during the trial before the circuit court. The trial court found that Solomon possessed the qualification prescribed by the Act entitling him to a certificate of registration, which findings are amply supported by the evidence in the record. If the trial court's denial of the motion to quash the alternative writ because of the vagueness or indefiniteness of the statements contained in Solomon's application constituted error, it was harmless and forms no basis for a reversal of the judgment appealed in view of the evidence establishing Solomon's qualifications.
For the foregoing reasons I would affirm the judgment here assaulted.