Vineberg v. . Day

The case is stated in the opinion of the Court. This action was brought by the plaintiff against the defendants, who constitute the Board of Examiners in Optometry in this State, for the purpose of obtaining a peremptory writ of mandamus, compelling the defendants to issue to him a license to practice optometry in the State, without undergoing an examination as to his qualifications, by virtue of the provisions of Laws 1899, ch. 444. Section 5 of the said act provides for an examination by the board, in order to ascertain whether the applicant is qualified, by learning or experience, to practice optometry. The purpose of the act is to protect the people of the State against quacks and empirics. It is further provided (356) by the act as follows:

"SEC. 6. Every person who has been engaged in the practice of optometry in the State of North Carolina for two years prior to the date of the passage of this act shall, within six months thereafter, file an affidavit as proof thereof with said board. The secretary shall keep a record of said person and shall, upon payment of $3, issue to said person a certificate of registration without the necessity of an examination.

"SEC. 7. All persons entitled to a certificate of registration under the full provisions of section 6, shall be exempt from the provisions of section 5 of this act.

"SEC. 8. All recipients of said certificate of registration shall present the same for record to the clerk of the Superior Court of the county in which they reside, and shall pay a fee of fifty cents for recording the same. Said clerk shall record said certificate in a book to be provided by him for that purpose.

"SEC. 9. Any person entitled to a certificate as provided for in section 6 in this act who shall not, within six months after the passage of this act, make written application to the board of examiners for a certificate of registration, accompanied by a written statement, signed by him and duly verified before an officer authorized to administer oaths in this State, fully setting forth the ground upon which he claims such certificate, shall be deemed to have waived his right to a certificate under the provisions of said section. Any such person may obtain a certificate thereafter by successfully passing examination and paying a fee as provided for in this act.

"SEC. 10. Every person to whom a certificate of examination or registration is granted shall display the same in a conspicuous part of his office wherein the practice of optometry is conducted."

The plaintiff presented to the board an affidavit which was defective, and afterwards he presented an amended affidavit, in which he stated that he had practiced optometry in this State continuously for two years next preceding the passage of said act. It appeared in the said affidavit that he had practiced optometry in other States occasionally, when called upon to do so. The affidavit was taken in the form of questions and answers, and many questions were propounded to the applicant, for the purpose of ascertaining his qualifications to practice the profession of optometry, which were answered by him. The board refused to issue the certificate, and he then brought this action to compel them to do so.

(357) It was agreed at the hearing that the judge should find the facts, and, among others, he found the following: First, that the petitioner has not been a resident of this State, and, second, that the defendants duly considered the affidavit first filed by the petitioner and the second affidavit, or written application, and passed upon the same, the board finding as a fact that the petitioner had not been engaged in the practice of optometry in this State for two years prior to the passage of said act, and that the grounds set forth in his application were not such as, under the law, entitled him to a certificate; third, that the petitioner had not been engaged in the practice of optometry in this State for two years prior to and next preceding the date of the passage of the act of 1899.

It will be observed that the act of 1899, in section 6 thereof, requires that the applicant for a certificate without examination shall offer proof showing that he is entitled thereto. It is true that this proof may be made in the form of an affidavit, for the words in the act are that he shall "file an affidavit as proof (of the facts) with said board." The evident purpose of the act is that the applicant should be required to file an affidavit in order to prove to the board, or, in other words, to the satisfaction of the board, that he had practiced optometry in the State within two years next preceding the passage of the act. Why should the Legislature require proof of the fact that he had so practiced in this State, unless the board had the authority to pass upon the proof and to find whether he had so practiced or not? The requirement that the proof should be in the form of an affidavit should make no difference in the construction of the act.

But assuming that the board had no discretion in the matter, and no right to pass upon the proof or to find the facts, one way or another, the act clearly requires that its provisions should apply only to a resident of this State, for in section 8 it provides that, "any recipient of a certificate of registration shall present the same for record to the clerk of the Superior Court of the county in which he resides, and shall pay a fee of fifty cents for recording the same, and the clerk shall record the certificate in a book to be provided by him for that purpose." How can the certificate be filed with the clerk of the court in the county of the plaintiff's residence, if the plaintiff has no residence there? And the court below has expressly found as a fact that the plaintiff has not been a resident of this State. The parties agreed that the judge might find the facts and declare his conclusions of law arising thereon.

If we should hold that the act conferred judicial power upon the board to pass upon the facts stated in the application, or to exercise a sound legal discretion in the matter, the remedy by mandamus could not be invoked for the purpose of compelling the board to issue the (358) certificate. In Board of Education v. Commissioners, 150 N.C. 116, this Court, quoting from High on Extra-legal Remedies (2 Ed.), sec. 24, said: "`An important distinction to be observed in the outset, and which will more fully appear hereafter, is that between duties that are peremptory and absolute, and hence merely ministerial in their nature, and those which involves the exercise of some degree of official discretion and judgment upon the part of the officers charged with their performance. As regards the latter class of duties, concerning which the officer is vested with discretionary powers, while the writ may properly command him to act or may set him in motion, it will not further control or interfere with his action, nor will it direct him to act in any specific manner.' The doctrine so stated by Mr. High is in accord with the uniform decisions of this Court on the subject. Ward v. Commissioners,146 N.C. 534; Glenn v. Commissioners, 139 N.C. 412; Burtonv. Furman, 115 N.C. 166." See Barnes v. Commissioners,135 N.C. 27.

We are of the opinion that, upon the facts as found by Judge W. J. Adams in the court below, the judgment refusing the writ of mandamus was correct. It is unnecessary that we should refer to the cases cited in the brief of the appellant, as in the view we take of the case they have no application to the facts as found by the court.

Affirmed.