McNair v. North Carolina Board of Pharmacy

CONNOR, J.

It is provided by statute in this State that “if any person, not being licensed as a pharmacist or assistant pharmacist, shall compound, dispense, or sell at retail any drug, medicine, poison, or pharmaceutical preparation, either upon a physician’s prescription or otherwise, and any person, being the owner or manager of a drug store, pharmacy, or other place of business, who shall cause or permit any one not licensed as a pharmacist or assistant pharmacist to dispense, sell at retail, or compound any drug, medicine, poison, or physician’s prescription contrary to the provisions of this article, he shall be deemed guilty of a misdemeanor, and fined not less than twenty-five nor more than one hundred dollars.” N. 0. Code of 1931, sec. 6668.

Prior to the enactment of chapter 206, Public Laws of North Carolina, 1933, it was provided by statute that “every person who shall desire to be licensed as a pharmacist or assistant pharmacist shall file with the secretary of the Board of Pharmacy, an application, duly verified under oath, setting forth the name and age of the applicant, the place or places at which and the time he has spent in the study of the science and art of pharmacy, the experience in the compounding of physician’s prescriptions which the applicant has had under the direction of a legally licensed pharmacist, and such applicant shall appear at a time and place designated by the Board of Pharmacy and submit to an examination as to his qualifications for registration as a licensed pharmacist or assistant pharmacist. The application referred to above shall be prepared and furnished by the Board of Pharmacy.

“In order to become licensed as a pharmacist, within the meaning of this article, an applicant shall be not less than twenty-one years of age, he shall present to the Board of Pharmacy satisfactory evidence that he has had four years experience in pharmacy under the instruction of a licensed pharmacist, and that he is a graduate of a reputable school or college of pharmacy, and he shall also pass a satisfactory examination by the Board of Pharmacy: Provided, however, that the actual time of attendance at a reputable school or college of pharmacy, not to exceed two years, may be deducted from the time of experience required.” N. 0. Code of 1931, sec. 6658.

By chapter 206, Public Laws of North Carolina, 1933, the foregoing statute was amended by adding thereto the following:

“Provided, that any person legally registered or licensed as a pharmacist by another state board of pharmacy, and who has had fifteen years continuous experience in North Carolina under the instruction of a licensed pharmacist next preceding his application, shall be permitted to stand the examination to practice pharmacy in North Carolina upon application filed with said board prior to the first day of July, 1933.”

The plaintiff in the instant case filed his application to be examined for license as a pharmacist by the defendant Board of Pharmacy prior to 1 July, 1933. At the time said application was filed, the plaintiff was more than twenty-one years of age; he had been licensed as a pharmacist by the Board of Pharmacy of the State of South Carolina; and he had had fifteen years continuous experience as a pharmacist in North Carolina under the instruction of a licensed pharmacist. He was therefore, under the provisions of the statute as amended, entitled to stand and was permitted by the defendant board to stand its examination of applicants for license to practice pharmacy in this State. This examination was held during the month of June, 1933. The plaintiff failed to pass the examination, and on 21 June, 1933, again applied to the defendant board for an examination. This application was filed prior to 1 July, 1933, and for that reason the plaintiff was entitled under the provisions of the statute, as amended, to stand and was permitted by the defendant Board of Pharmacy to stand its examination held next after the filing of the application. This examination was held during the month of June, 1934. The plaintiff again failed to pass, and on 31 October, 1934, again applied to the defendant board for an examination. This application was denied because it was made after 1 July, 1933. The plaintiff was not entitled under the provisions of the statute, as amended, to stand the examination, and for that reason is not entitled to a writ of mandamus directed to the defendant Board of Pharmacy, commanding the said board to permit him to stand an examination for license to practice pharmacy in this State.

The fact that the defendant Board of Pharmacy has permitted applicants for license to practice pharmacy in this State, who have failed to pass its examination, to stand a subsequent examination without filing a new application, is immaterial in this case. On the facts found by the judge, the plaintiff was entitled to an examination only because he had filed both the original and the subsequent application prior to 1 July, 1933. He was not entitled to an examination on the application filed subsequent to 1 July, 1933. His request for a “reexamination” was in legal effect an application for an examination de novo, and tbe examination made on tbe first request after tbe original application was a new examination, and not a “reexamination.”

There is error in tbe judgment directing a writ of mandamus to be issued in tbis action, and for tbat reason tbe judgment is

Reversed.