Marks v. Frantz, 40892

• Decision Date: 10 May 1958
• Docket Number: No. 40892,40892
• Citation: 183 Kan. 47,325 P.2d 368
• Parties: Manuel M. MARKS, Appellant, v. Wayne E. FRANTZ, Edwin C. Cathers, and J. C. Rust, as members of the Kansas State Board of Examiners in Optometry; and Wayne E. Frantz, Edwin C. Cathers and J. C. Rust, individually, Appellees.
• Court: Kansas Supreme Court

Page 368

325 P.2d 368

183 Kan. 47

Manuel M. MARKS, Appellant, v. Wayne E. FRANTZ, Edwin C. Cathers, and J. C. Rust, as members of the Kansas State Board of Examiners in Optometry; and Wayne E. Frantz, Edwin C Cathers and J. C. Rust individually, Appellees.

No. 40892.

Supreme Court of Kansas.

May 10, 1958.

Syllabus by the Court

1. The license to engage in the practice of a profession such as optometry, in conformity with the laws, rules and regulation pertaining thereto, is a statutory right conferred by the state, and it is within the police power of the state to prescribe the qualifications of one desiring to practice the profession and also to provide for the creation of a board to determine whether an applicant for a license to practice possesses the required qualifications. It naturally follows that the state also may confer upon the same board the power and authority to revoke such license if it should thereafter be found that the license should not have been issued, or, if for any reason the holder thereof, after its issuance, has become disqualified.

2. While, in the nature of things, an administrative body, such as the optometry board, has wide discretion in determining its orders, such discretion cannot be abused and must actually be exercised reasonably in view of all of the facts and circumstances involved.

3. Despite the fact an administrative body, such as the optometry board, cannot be the final judge of the reasonableness of its own orders, and despite the fact that courts are not permitted to substitute their judgment for that of such administrative body, nevertheless, courts are charged with the solemn duty of determining whether the procedure employed in reaching the decision, or whether the decision itself as rendered, is unreasonable, arbitrary or oppressive under all of the circumstances of each particular case.

4. The true test of the validity of an order of an administrative body, such as the optometry board, revoking a license to practice the profession in this state, is whether the findings of the board are supported by competent and substantial evidence, and, further, whether, in view of all of the facts and circumstances of the case, the order of revocation is unreasonable, arbitrary or oppressive.

5. In an action by an optometrist to enjoin the enforcement of an order of the Kansas State Board of Examiners in Optometry revoking his license because of his violation of certain laws and regulations pertaining to the practice of the profession, the record is examined and considered, and it is held: (1) The findings of the board are supported by competent and substantial evidence; (2) under all of the facts and circumstances of the case the order of revocation was not unreasonable, arbitrary or oppressive, and (3) the trial court did not err in denying injunctive relief.

T. M. Lillard, Topeka, argued the cause, and O. B. Eidson, Philip H. Lewis, James W. Porter, Charles S. Fisher Jr., E. Gene McKinney and William R. Stewart, Topeka, were with him on the briefs for appellant.

Wendell L. Garlinghouse, Topeka, argued the cause, and Warren W. Shaw and William Hergenreter, Topeka, were with him on the briefs for appellees.

PRICE, Justice.

Plaintiff is an optometrist. His license was revoked by the Kansas State Board of Examiners in Optometry. He brought this action to enjoin the board from enforcing its order of revocation. His petition for an injunction was denied and he has appealed.

For a proper understanding of the overall issue and questions involved it is necessary that the background of the case be related.

The plaintiff, Dr. Manuel M. Marks, a resident of Wichita, was duly licensed to practice optometry in Kansas in July, 1949. Commencing in the spring of 1952 he conducted his practice in the Zale Jewelry Company store in Wichita. As early as May 25, 1954, a complaint was filed with the board against plaintiff charging him with a number of violations of the statutes (G.S.1949, 65-1501 et seq.) relating to the practice of optometry. On June 10, 1954, he was served with a copy of the complaint and was advised by the board that he had ten days in which to file his answer; that he was entitled to a public hearing and an opportunity to produce testimony and to confront the witnesses against him, and that the hearing would be held in the Sedgwick County district courtroom on July 8, 1954.

On June 25, 1954, plaintiff commenced an action in the district court of Sedgwick County to have G.S.1949, 74-1501 to 1504, creating the board of examiners in optometry, and G.S.1949, 65-1501 et seq., providing for the examination and registration of optometrists, with amendments thereto, declared unconstitutional and void. Defendant board's demurrer to his petition, on the ground it did not state facts sufficient to constitute a cause of action, was sustained. Plaintiff appealed and this court affirmed in Marks v. Frantz, 179 Kan. 638, 298 P.2d 316, the effect of our decision being to uphold the validity of the statutes under attack. The opinion was filed on June 9, 1956.

Prior to the filing of the above action, and on April 16, 1953, the State of Kansas, on the relation of the attorney general, filed in this court an action in quo warranto against the Zale Jewelry Company seeking to oust that corporation from engaging in the practice of optometry. The action also sought forfeiture of Zale's charter and the appointment of a receiver. Allegations of the petition in that case will not be repeated here, and neither will we summarize the evidence heard by our commissioner. Both are to be found in this court's opinion hereinafter cited. It should be stated, however, that the entire case against Zale was based on and grew out of the business arrangement, dealings and relationship among Zale, Douglas Optical and Dr. Marks. Our commissioner found that neither Dr. Marks nor Douglas Optical had violated the laws relating to the practice of optometry; that Zale had at no time been engaged in the practice of optometry, and concluded that judgment should be entered in favor of Zale. We refused to follow the commissioner's findings and conclusions, and rendered judgment ousting Zale from the practice of optometry in this state. Our decision is found in State ex rel. Fatzer v. Zale Jewelry Co., 179 Kan. 628, at page 638, 298 P.2d 283, at page 289, appears the following:

'At any rate, we find as a matter of fact that the relationship between defendant and Dr. Marks is that of employer and employee. Dr. Marks is practicing optometry. He is employed to do so by defendant--hence defendant is practicing optometry, which it cannot do.'

The opinion, as was the one in Marks v. Frantz, above, was filed on June 9, 1956.

Following the announcement of those two decisions, the board, in September, 1956, held a hearing on the complaints filed against Dr. Marks. The complaints, proceedings thereon, and the findings and order of the board, are set out in

'The Decision and Order of the Board Cancelling Dr. Marks' License to Practice Optometry,'

which is attached as an appendix to, and by reference made a part of, this opinion.

The order revoking, setting aside and cancelling Dr. Marks' license was dated February 21, 1957, and on March 15, 1957, he brought this action in the district court of Shawnee County to enjoin the board from enforcing its order. The petition alleges that the order of defendant board is an abuse of discretion, unwarranted, capricious, unreasonable, arbitrary, oppressive and discriminatory; that until the final decision in the Zale case, above, was rendered, plaintiff believed in good faith that his business arrangement with Zale was entirely proper, and that his optometry practice was being carried on in full compliance with the laws governing the practice of optometry. The prayer seeks a permanent injunction enjoining the board from enforcing its order. At the time the action was filed plaintiff was granted a temporary restraining order against the board. The trial court had before it the transcript of proceedings before the board, and in addition some further oral evidence was received. Following a full hearing the trial court, on June 24, 1957, found that the decision and order of defendant board cancelling plaintiff's license to practice optometry was not unreasonable, arbitrary and oppressive, and dissolved the restraining order and denied plaintiff's petition for a permanent injunction against the board. His motion for a new trial being overruled, plaintiff has appealed. On July 15, 1957, this court ordered that the judgment be stayed pending disposition of the appeal.

The specifications of error are that the court erred in (1) finding that the decision of the defendant board of examiners in optometry was not unreasonable, arbitrary or oppressive; (2) denying the injunction against the enforcement of the order of the board, and (3) overruling the motion for a new trial.

We first take note of the board's motion to dismiss the appeal based on a technicality with reference to the filing of a transcript of the evidence and proceedings before the trial court. We have considered the motion. Under all of the facts and circumstances, it is conceded that no one has been prejudiced. Without further discussion, the motion to dismiss is denied.

G.S.1949, 74-1504 (amended in 1953, see same section in G.S.1957 Supp.), provides that the board of examiners in optometry (defendant board here) is authorized, empowered and directed to grant all certificates of registration as to it shall seem just and proper and to revoke any such certificates granted for any of the causes specified in G.S.1935, 65-1504, as amended, that is, G.S.1949, 65-1504, 1504a. and 1504b. The three last-mentioned sections list thirteen acts which are declared to be unlawful. Because it is desired to keep this opinion within reasonable length, those sections, together with other sections of the optometry act, will not...