I concur in that part of the majority opinion which holds that no one is eligible for appointment to the State Board of Accountancy unless when appointed he shall have been actively engaged in the practice of accounting on his own account for three years or more preceding the date of his appointment.
I dissent however from the finding that Mr. Comery has been so "actively engaged" for the required period of three years. He was appointed by the Governor on January 13, 1923, and the senate gave its advice and consent to said appointment on February 2, 1923.
Mr. Comery testified that in May 1921 he became associated with two gentlemen under the firm name of Comery, *Page 272 Davison and Jacobson and that since that time said firm has carried on the business of accounting.
It will be seen by a comparison of these dates that the connection of Mr. Comery with this firm had not, at the time of his appointment, continued for a period of three years and therefore was not sufficient to make him eligible for the position.
In this dilemma Mr. Comery undertakes to piece out the term of his activities as an accountant on his own account, and attempts to show that previous to the establishment of his firm and while in the employ of Mr. Rex he rendered, to several parties, some service in the way of accounting and that he received compensation therefor to his own use.
I think that a brief examination of the testimony of Mr. Comery is sufficient to show that his claim in that regard is nothing more than a shallow pretense.
He says he was engaged by two parties in the making of income tax returns, which he characterizes as accounting work. One of these parties was an uncle of his wife and the other a concern in which his sister was employed and in which he, at one time, had been employed as a bookkeeper.
He gives the names of nine other concerns, which he claims sought his services as an accountant, prior to the establishment of his firm in May 1921, but in each case he turned the business over to Mr. Rex in whose employ he was. As he expressed it "I brought it home." He never had any letterheads or billheads. His name, as a certified public accountant, had never appeared in any telephone or other directory. He kept no books of account, no books of his private affairs. He had no office other than his place in the office of Mr. Rex. He stated that he did some work at his home but he admitted that he had no sign on window or door indicating that a certified public accountant abided there.
It seems clear to me that Mr. Comery, upon his own testimony, has signally failed to show that prior to the establishment of his firm in May 1921 he was actively *Page 273 engaged in the practice of accounting on his own account and therefore he was not eligible for membership on the State Board of Accountancy.
"Actively engaged" means something more than a sporadic service. It implies a reasonable continuity of action, a frequently recurring activity. The situation is not met by an occasional or unimportant service even assuming that Mr. Comery on his testimony is entitled to that concession.
The question of eligibility is one which should be determined by this court upon its merits irrespective of what may be the opinions or findings of others. If upon the testimony presented there is even a reasonable doubt as to the qualification of the person seeking the position the state and not the aspirant should be given the benefit thereof.
I think the prayer of the writ should have been granted.