Gumbhir v. Kansas State Bd. of Pharmacy, 51935

• Decision Date: 01 November 1980
• Docket Number: No. 51935,51935
• Citation: 228 Kan. 579,618 P.2d 837
• Parties: Ashok K. GUMBHIR, Appellant, v. KANSAS STATE BOARD OF PHARMACY, Appellee.
• Court: Kansas Supreme Court

Page 837

618 P.2d 837

228 Kan. 579

Ashok K. GUMBHIR, Appellant, v. KANSAS STATE BOARD OF PHARMACY, Appellee.

No. 51935.

Supreme Court of Kansas.

Nov. 1, 1980.

Syllabus by the Court

1. Under Article 2, Section 1 of the Constitution of the State of Kansas the legislative power of this state shall be vested in a house of representatives and senate.

2. An unlawful delegation of legislative power is contrary to the public policy expressed in the Constitution.

3. The legislature may enact general provisions for regulation and grant to State agencies certain discretion in filling in the details, provided it fixes reasonable and definite standards to govern the exercise of such authority.

4. The legislative power of this State is vested in the legislature and the legislature is prohibited from delegating legislative powers to nongovernmental associations or groups.

5. The provision in K.S.A.1979 Supp. 65-1631(a ) which restricts approval of the necessary educational qualifications for examination and registration of pharmacists in this State to those individuals who have graduated from schools of pharmacy accredited by the American Council on Pharmaceutical Education, a nongovernmental agency, is constitutionally impermissible.

6. The provision of the statute referred to above constitutes an unlawful delegation of legislative authority to a nongovernmental association and is constitutionally impermissible under Article 2, Section 1 of the Constitution of the State of Kansas.

7. A legislative intention to uphold and retain a part of a legislative act, if a portion thereof is held to be unconstitutional and void, should be upheld when it appears the remaining portion of the act would have been enacted had such unconstitutional or invalid provisions not been included.

J. Nick Badgerow, of McAnany, Van Cleave & Phillips, P. A., Kansas City, argued the cause and was on the brief for appellant.

Robert E. Davis, of Davis, Davis, McGuire & Thompson, Chartered, Leavenworth, argued the cause, and John F. Thompson, Leavenworth, of the same firm, was with him on the brief for appellee.

FROMME, Justice:

This is an appeal from an order of a district court upholding the action of the Kansas State Board of Pharmacy (the Board) in refusing to permit Ashok K. Gumbhir either to take the examination for registration as a pharmacist or to be admitted by reciprocity. The claim of Mr. Gumbhir is that a certain provision in the pharmacist registration statute, K.S.A.1979 Supp. 65-1631, is constitutionally impermissible. The Board interprets the statute so as to permit no one to take the examination for registration as a pharmacist or to be admitted by reciprocity if such person does not have an undergraduate degree from a school in the United States accredited by the American Council on Pharmaceutical Education (ACOPE). ACOPE is a nongovernmental agency organized exclusively for educational and other nonprofit purposes. This nongovernmental agency attempts to approve and accredit only schools of pharmacy located in the United States. No pharmacist who has obtained his or her undergraduate degree from a school outside the United States can hope to become a registered pharmacist in the State of Kansas under the Board's interpretation of this statute.

The facts leading to the present appeal were stipulated by the parties. Mr. Gumbhir manages and is part owner of a pharmacy in Overland Park, Johnson County, Kansas. He is a citizen of the United States and a resident of the State of Missouri. He graduated and received a bachelor's degree in pharmacy from Punjab University in Chandrigarh, India, in 1960.

The plaintiff on coming to the United States graduated and received a master of science degree in pharmacy from the University of Minnesota in 1968. The undergraduate pharmaceutical program of the University of Minnesota is, and was at all times relevant, accredited by ACOPE and is recognized and approved by the Board, but not its graduate program.

The plaintiff graduated and received a Ph.D. degree in pharmacy administration from Ohio State University in 1971. The undergraduate program of Ohio State University is and was at all times relevant accredited by ACOPE and recognized and approved by the Board, but not its graduate program. ACOPE does not approve any graduate programs.

The plaintiff was registered as a licensed pharmacist in the State of Ohio by examination in 1970, and presently holds a license to practice pharmacy in the State of Ohio. He was registered as a pharmacist in the State of Missouri by reciprocity in 1974, and holds a license to practice pharmacy in the State of Missouri.

The plaintiff applied for registration in the State of Kansas by examination, by submitting the required application and fee in accordance with K.S.A.1979 Supp. 65-1631(b ). The plaintiff also applied for registration in Kansas by reciprocity by submitting the required application and fee in accordance with K.S.A.1979 Supp. 65-1631(d ), (g ) based on prior registrations in both Ohio and Missouri.

The Board denied both applications for registration on the basis the statute, K.S.A.1979 Supp. 65-1631, requires every applicant in Kansas to be a graduate of a college accredited by ACOPE. ACOPE accredits only undergraduate schools in the United States. Punjab University is not in the United States. Plaintiff filed this action in the district court after all administrative remedies had been exhausted and all prerequisites to the jurisdiction of that court had been fulfilled.

The statute regulating the registration of pharmacists, K.S.A.1979 Supp. 65-1631, in pertinent part provides:

"(a ) It shall be unlawful for any person to practice as a pharmacist in this state, unless such person is registered by the board as a pharmacist. Every applicant for examination and registration as a pharmacist shall be of good moral character and temperate habits, a graduate of a school or college of pharmacy or department of a university accredited by the American council on pharmaceutical education and recognized and approved by the board, and shall file proof satisfactory to the board, substantiated by proper affidavits, of a minimum of one year of pharmaceutical experience, acceptable to the board, under the supervision of a registered pharmacist and shall pass an examination by the board. Pharmaceutical experience as required in this section shall be under the supervision of a registered pharmacist and shall be predominantly related to the dispensing of prescription medication, compounding prescriptions preparing pharmaceutical preparations, and keeping records and making reports required under the state and federal statutes." Emphasis supplied.

The portions of the statute which relate to applications for registration on both examination and on reciprocity require, as a condition precedent to taking the examination or to receiving registration by reciprocity, that the applicant have the required education prescribed in subsection (a ), i. e., graduation from a school of pharmacy accredited by ACOPE.

The primary attack launched against the constitutionality of this statute is based upon the claim that 65-1631(a ) of the Kansas Pharmacy Act constitutes an unlawful delegation of legislative authority to a nongovernmental agency, ACOPE, which delegation is impermissible under the Constitution of the State of Kansas.

Article 2, Section 1 of the Constitution of the State of Kansas provides:

"The legislative power of this state shall be vested in a house of representatives and senate."

This constitutional provision presents usurpation of legislative authority by other departments of government as well as by a nongovernmental agency or a private individual. The authority to make obligatory rules and provide penalties for breach of said rules belongs to the legislature. An unlawful delegation of legislative power is contrary to the public policy expressed in the Constitution. State v. Crawford, 104 Kan. 141, 177 P. 360, 2 A.L.R. 880 (1919).

The Crawford case dealt with a statute which provided that all electrical wiring shall be in accordance with the national electric code. The court found the code could be changed sporadically by the National Fire Protective Association which met only occasionally, and even then might meet anywhere in North America. It was held the statute was constitutionally impermissible as amounting to an unlawful delegation of legislative power to the National Fire Protective Association, a nongovernmental association. The Crawford court stated:

"If the legislature desires to adopt a rule of the national electrical code as a law of this state, it should copy that rule and give it a title and an enacting clause and pass it through the senate and the house of representatives by a constitutional majority and give the governor a chance to approve or veto it, and then hand it over to the secretary of state for publication." 104 Kan. at 144, 177 P. 360.

In Quality Oil Co. v. duPont & Co., 182 Kan. 488, 322 P.2d 731 (1958), the court dealt with a fair trade statute. The statute authorized a trademark owner and a retailer to agree upon a price for an article which was then to be binding between not only the parties agreeing but also any other persons who later were notified of said price. The court held this statute to be an unconstitutional delegation of legislative power, saying that the power to fix rates or prices upon all citizens is a legislative power and the legislature may not abdicate its function and delegate its legislative powers to others.

In State, ex rel., v. Mermis, 187 Kan. 611, 358 P.2d 936 (1961), it is pointed out that legislative authority in limited cases may be delegated to governmental agencies if, and only if, adequate guidelines are set out in the statute to clearly limit and define the conditions and the nature of the authority to be exercised. In Mermis a statute which delegated to the director of...