Edmunds v. Board of Examiners in Optometry
Opinion of the Court
Review is asked of an order denying a petition for a writ of mandamus, wherein it was sought to compel appellees to issue an annual registration certificate to appellant.
In 1933 the Territory of Alaska enacted an Optometry Act. It provides for the issuance of two certificates: (1) a license, or original registration certificate; and- (2) .an annual renewal certificate. Comp.Laws of Alaska, §§ 2720, 2721, 2715. It further provides that the secretary of the Optometry Board created by the act “shall issue” the annual certificate upon receipt of an application from
“* * * Where the certificate of any person has been revoked, or his registration has been annulled as herein provided, the board may, after the expiration of one year, entertain an application for a new certificate, in like manner as original applications for certificates are entertained * * *.”
Appellant was issued a license in 1934, and several annual renewal certificates thereafter, including one for the year 1938. Charges were filed against him on September 24, 1938, and his annual renewal certificate for the year 1938 was revoked by the Board on November 25, 1938. Appellant thereafter applied for, and was denied, an annual renewal certificate for the year 1939, and on January 3, 1939, filed this action to compel issuance of such certificate by mandamus. Appellant has appealed from the order denying the writ.
With respect to the power to issue writs of mandamus, the courts have frequently spoken. “Mandamus issues to compel an officer to perform a purely ministerial duty., It cannot be used to compel or control a duty in the discharge of which by law he is given discretion. * * *» Work v. United States ex rel. Rives, 267 U. S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561. “Mandamus is employed to compel, the performance, when refused, of a ministerial duty, this being its chief use. It also is employed to compel action, when refused, in matters involv
Appellant contends that the revocation of the 1938 renewal certificate merely suspended his right to practice optometry in the Territory during the remainder of the year 1938; that since the original registration certificate was not annulled, he had the right to make application for a renewal certificate for the year 1939 and upon the filing of his application and the payment of the required fee, no discretion as to the issuance of such renewál certificate was vested in the Board, because by § 2715 it was provided that such renewal certificate "shall issue". This contention assumes that § 2715 is applicable to the exclusion of § 2719. The latter section provides that where "the certificate of any person has been revoked, or his registration has been annulled as herein provided, the board may, after the expiration of one year, entertain an application for a new certificate * * The section (~ 2715) relied on by appellant was obviously intended not to apply to a case of revocation or annullment of certificates, because a specific section (~ 2719) made provision for such a case.
Affirmed.
Reference
- Full Case Name
- EDMUNDS v. BOARD OF EXAMINERS IN OPTOMETRY FOR TERRITORY OF ALASKA
- Cited By
- 1 case
- Status
- Published