Eslin v. Collins

• Decision Date: 21 January 1959
• Citation: 108 So.2d 889
• Court: Florida Supreme Court
• Parties: Melville P. ESLIN, Jr., Appellant, v. Charles J. COLLINS et al., Appellees.

Page 889

108 So.2d 889

Melville P. ESLIN, Jr., Appellant, v. Charles J. COLLINS et al., Appellees.

Supreme Court of Florida.

Jan. 21, 1959.

Rehearing Denied Feb. 27, 1959.

Jones & Foerster, William D. Jones, Jr., Jacksonville, J. H. Rolfs, Miami, and J. Lewis Hall, Tallahassee, for appellant.

William S. Walker and Chester Bedell, Jacksonville, for appellees.

ROBERTS, Justice.

The sole issue here is the constitutionality vel non of Ch. 57-129, Laws of 1957, which amended the Naturopathy Act, Ch. 462, Fla.Stat.1955, F.S.A., in respects hereafter related. The 1957 amendatory Act was attacked in a suit brought by the appellant, a licensed naturopath, against the appellees, who are the members and the secretary of the Florida State Board of Health, on the ground that it denied to him the equal protection of the law guaranteed by the Declaration of Rights of the Florida Constitution and the Fourteenth Amendment to the United States Constitution. His complaint was dismissed in the lower court upon the motion of the appellees, and this appeal followed.

The practice of that school branch of medicine known as naturopathy was first regulated in this state in 1927. By Ch. 12286, Laws of 1927 (appearing, with a 1943 amendment, as Ch. 462, Fla.Stat.1955, F.S.A.) the Legislature defined the practice of naturopathy, provided for the examination and licensing of persons to engage in the practice in this state, and created the State Board of Naturopathic Examiners to carry out the provisions of the Act. A 1943 Act amended the 1927 Act in respects not material here.

The 1957 Act abolished the State Board of Naturopathic Examiners and repealed the sections of the old Act providing for the examination and licensing of new applicants to practice naturopathy. It provided, in effect, for the classification of presently licensed naturopaths as follows: (1) those who had been licensed and had practiced for at least fifteen years prior to the effective date of the Act, October 1, 1957; (2) those who had been licensed and had practiced for not less than two years prior to such date; and (3) those who had been licensed for less than two years as of such date. These three classes will be referred to hereafter as Class One, Class Two, and Class Three naturopaths, respectively.

Under the 1957 Act only Class One and Class Two naturopaths are entitled to renew their licenses annually; Class Three naturopaths can no longer practice under their existing licenses nor renew the same; and no new naturopathy licenses can be issued. Obviously, then, the net effect of the Act is to abolish naturopathy as a specially licensed branch of medicine at some uncertain date in the future when all presently licensed Class One and Class Two naturopaths have ceased to practice their profession because of death, disability or disinclination. At the same time it created a closed class of persons entitled to practice naturopathy as a specially licensed profession and, even, a closed class within a closed class, discussed hereafter.

It might be noted that the provision for the continuation of practice by Class One and Two naturopaths is not a 'grandfather clause' of the usual type. In fact the statute here involved appears to be unique in this respect. Ordinarily, as applied to the regulation of a profession, a grandfather clause exempts from the examination pre-requisite to obtaining a license, those who were already bona fide engaged in the practice of a profession being regulated for the first time. See State ex rel. Garrison v. Reeve, 104 Fla. 196, 139 So. 817, 79 A.L.R. 1119; Doller v. Reid, 1948, 308 Ky. 348, 214 S.W.2d 584; Watson v. State of Maryland, 1910, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed 987; Dent v. State of West Virginia, 1889, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. 'Such exception proceeds upon the theory that those who have acceptably followed the profession in the community for a period of years may be assumed to have the qualifications which others are required to manifest as a result of an examination before a board of medical experts.' Watson v. State of Maryland, supra, 218 U.S. 173, 30 S.Ct. 644, 646, 54 L.Ed. 987. Since naturopaths licensed under the 1927 Act were expressly forbidden to practice medicine in any except the limited field prescribed by the Act, it is indeed whimsical to assume that their experience in the practice endows them with the same qualifications as those who, in the future, will be required to take an examination and qualify as general practitioners in order to practice naturopathy.

We are not here concerned, however, with the propriety of the purported grandfather clause, as a whole, in its impact on the practice of naturopathy in general. The appellant is a Class Two naturopath; he is thus entitled to renew his license annually under the provisions of the 1957 Act. His complaint is directed to the special privileges given by the Act to Class One naturopaths, allegedly denying to him the equal protection of the law. He bases his contention on the following matters:

Under the 1927 Act, as construed by this court in In re Melser, 160 Fla. 333, 32 So.2d 742, and State Department of Public Welfare v. Melser, Fla.1954, 69 So.2d 347, licensed naturopaths were authorized to prescribe and administer drugs, including narcotics. The 1957 amendatory Act specifically prohibited licensed naturopaths from prescribing or administering any drug or medicine 'included within materia medica or listed in United States pharmacopoeia.' Other limitations on the practice of naturopathy, as previously defined in the 1927 Act, were made by the 1957 Act. But these new limitations and prohibitions applied only to Class Two naturopaths, since a further proviso expressly stated that licensed naturopaths in practice for fifteen years (Class One naturopaths, in our terminology) 'shall, as long as they may continue to renew their licenses, have the authority to practice naturopathy as defined by this section prior to this amendment, with the exception of prescribing narcotic drugs which they shall only be permitted to administer directly in cases of emergency justifying their use.'

Thus, the 1957 Act not only created a closed class of specially licensed naturopaths who had been practicing for more than two years on October 1, 1957; it also created a closed class within that class, consisting of naturopaths who had been licensed and practicing for at least fifteen years as of that date. There can be no doubt that the treatment of Class One and Class Two naturopaths is unequal, and appellees concede as much. It is well settled that a legislative classification should 'have some just relation to, or reasonable basis in, essential differences of conditions and circumstances with reference to the subject regulated, and should not be merely arbitrary; and all similarly situated * * * should be included in one class, at least where there are no practical differences that are sufficient to legally warrant a further or special classification in the interest of the general welfare.' Seaboard Air Line Ry. v. Abe Simon & Co., 56 Fla. 545, 47 So. 1001, 1003, 20 L.R.A., N.S., 126. See also Di Lustro v. Penton, 1932, 106 Fla. 198, 142 So. 898; State ex rel. Coleman v. York, 139 Fla. 300, 190 So. 599.

We can conceive of no reasonable basis for the classification here attempted to be made. Both classes of naturopaths were required to take the same training and pass the examination required as a condition of obtaining a license to practice naturopathy. Since the requirement of fifteen years of practice for Class One naturopaths is tied to a definite date, October 1, 1942 (15 years prior to the effective date of the 1957 Act) the attainment of this qualification by Class Two naturopaths who continue in the practice for another thirteen years will be of no avail. No provision is made for Class Two naturopaths to be examined in the field of prescribing drugs in order to prove that they are equally qualified in this field with Class One naturopaths.

The purpose of the purported 'grandfather clause' of the Act was to save the right of naturopaths licensed for more than two years to continue in the practice. Assuming without deciding that the Legislature could validly create such a closed class, we can conceive of no reasonable basis for the attempt here made to grant special privileges to a limited group, itself a closed class, within the larger closed class. Accordingly, it must be held that the legislative classification is arbitrary and unreasonable and thus a denial to the appellant of the equal protection of the law. See Riley v. Lawson, 106 Fla. 521, 143 So. 619; State ex rel. Vars v. Knott, 135 Fla. 206, 184 So. 752; Morey v. Doud, 1957, 354 U.S. 457, 469, 77 S.Ct. 1344, 1 L.Ed.2d 1485; 11 Am.Jur., Constitutional Law, § 285, p. 1046.

The 1957 Act did not contain a 'severability' clause, and the parties apparently concede that the entire Act must fall if the appellant's contention is sustained. We agree. Reference to the legislative history of the Act reveals that it was originally introduced as House Bill 75, which would have repealed the entire Naturopathy Act. A Committee Substitute for House Bill 75 repealed only a portion of the 1927 Act and added the provisions authorizing naturopaths who had been licensed and practicing for more than two years to continue in the practice. The provisions relating to naturopaths who had been licensed and practicing for fifteen years was added, by amendment, in the Senate. On the question of severability it has been said that '(t)he test is whether this court can say that the Legislature would not have enacted the law under scrutiny except for the provision which is herein held unconstitutional and invalid.' State ex rel. Limpus v. Newell, Fla.1956, 85 So.2d 124, 128. Obviously, it cannot be said with any degree of certainty that the Senate would have concurred in the Bill approved by the House without...