Hatfield v. New Mexico State Board of Registration for Professional Engineers and Land Surveyors, No. 5875

Docket NºNo. 5875
Citation1955 NMSC 67, 290 P.2d 1077, 60 N.M. 242
Case DateJuly 29, 1955
CourtSupreme Court of New Mexico

Page 1077

290 P.2d 1077
60 N.M. 242
C. R. HATFIELD and L. W. Hitchcock, Petitioners-Appellees,
v.
NEW MEXICO STATE BOARD OF REGISTRATION FOR PROFESSIONAL
ENGINEERS AND LAND SURVEYORS,
Respondent-Appellant.
No. 5875.
Supreme Court of New Mexico.
July 29, 1955.
Rehearing Denied Sept. 13, 1955 and Jan. 3, 1956.

[60 NM 243] Richard H. Robinson, Atty. Gen., Fred M. Standley, Asst. Atty. Gen., Charles D. Harris, Spec. Asst. Atty. Gen., for appellant.

Wilson & Whitehouse, Albuquerque, for appellees.

SADLER, Justice.

The question for decision is whether L.1935, c. 45, Sec. 23, 1953 Comp. Sec. 67-21-21, purporting to confer power on the State Board of Registration for Professional Engineers and Land Surveyors to revoke the certificate of registration of any registrant who is found guilty by the board after trial before it of gross negligence, incompetency, or misconduct in the practice of professional engineering or land surveying, is unconstitutional as an unlawful attempt to delegate legislative powers to an administrative board.

The appeal is from a judgment of the district court of the first judicial district, the Honorable David W. Carmody presiding, sitting within and for Santa Fe County

Page 1078

wherein, after hearing on a writ of certiorari to the New Mexico State Board of Registration for Professional Engineers and Land Surveyors, he entered a judgment annuling and holding for naught the order of the respondent board (appellant here) canceling the licenses of appellees (petitioners below) as professional engineers and ordering the appellant board to reinstate their licenses, so cancelled.

So much of the order of the State Board, omitting the specific findings, as it is presently important to recite reads, as follows:

'This case coming on to be heard upon the sworn complaints of Don Johnstone and William Mooney and L. W. Hitchcock and C. R. Hatfield being represented by Mr. Fred Wilson and Mr. J. G. Whitehouse and the Board being represented by Mr. Richard Robinson, Attorney-General, and Mr. Charles D. Harris, Special Assistant Attorney-General, and the Board having considered the motions, complaints and having heard the evidence, finds:

'I. That the complaints heretofore filed with this Board by Don Johnstone and William Mooney are not trivial and are not unfounded.

* * *

* * *

'XVI. That the actions of L. W. Hitchcock and C. R. Hatfield, and each [60 NM 244] of them, as set out in the complaints heretofore filed, constitute misconduct in the practice of professional engineering within the meaning and under the provisions of Chapter 130, Laws of 1933, being Section 1-2421, New Mexico Statutes 1941, Annotated.

'XVII. That the actions of L. W. Hitchcock and C. R. Hatfield, and each of them as set out in the complaints heretofore filed, constitute incompetency in the practice of professional engineering within the meaning and under the provisions of Chapter 130, Laws of 1933, being Section 51-2421, New Mexico Statutes 1941, Annotated.

'XVIII. That the actions of L. W. Hitchcock and C. R. Hatfield, and each of them, as set out in the complaints heretofore filed, constitute gross negligence in the practice of professional engineering within the meaning and under the provisions of Chapter 130, Laws of 1933, being Section 51-2421, New Mexico Statutes 1941, Annotated.

'Wherefore, It Is Ordered, Adjudged and Decreed that the certificate of registration of C. R. Hatfield for the practice of the profession of engineering be, and the same hereby is, revoked.

'It Is Further Ordered, Adjudged and Decreed that the certificate of registration of L. W. Hitchcock for the practice of the profession of engineering be, and the same hereby is, revoked.'

Thereafter and in due course the matter came on for hearing before the district court, all parties appearing by counsel and the hearing having been concluded, the court entered the judgment now complained of, holding the challenged portion of L.1935, c. 45, Sec. 23, 1953 Comp. Sec. 67-21-21, to be an unlawful delegation of legislative power to the governing board of Professional Engineers and Land Surveyors, contrary to the prohibition to be found in Const., Art. 3, Sec. 1. Accordingly, the court in the decretal portion of its judgment vacated the action of appellant's governing board in the following language, to-wit:

'It is, Therefore, Ordered, Adjudged, and Decreed by the Court that said statute is unconstitutional, and the proceedings of said Respondent Board, based upon such statute, were without authority or jurisdiction and are void and of no force or effect; and that the Motion of Respondent Board to quash said Writ be and the same is hereby overruled.

'It Is Further Ordered That the Findings of Fact and Order revoking the licenses of said Petitioners as professional engineers is hereby annuled, and Respondent is ordered to reinstate the licenses of said Petitioners.'

This appeal followed and on it the main and only error assigned by respondent [60 NM 245] board is that the trial court erred in ruling that L.1935, c. 45, Sec. 23, 1953 Comp. Sec. 67-21-21, represents an unlawful delegation of

Page 1079

legislative power to the governing board of respondent. This claim of error is argued under a single point, reading as follows:

'The delegation to an administrative board of the power to issue licenses and revoke licenses of professional engineers is a constitutional delegation of legislative authority.

'A. The laws of 1935, Chapter 45, being section 51-2404 N.M.S.A.1941 Compilation, creates a sufficient definite legislative standard to guide the action of the New Mexico State Board of Registration for Professional Engineers and Land Surveyors in revoking the licenses of registered professional engineers.'

Counsel for appellant begin their argument with the statement that the order as made is susceptible of an interpretation that any attempted delegation by the legislature of the power to license and revoke would fall under interdiction of the constitutional provision invoked. They quickly dispel the suggested interpretation, however, and wisely so, by an assumption that appellees' objection to the challenged statute is the claimed absence of a definite standard to guide the board in revoking licenses. The governing board of appellant was created by L.1935, c. 45, Sec. 4, its personnel to be named by the Governor and various and sundry powers were conferred upon the board, among others, the power to license and regulate the business in which members of the profession regulated were members. Incident to regulation of the profession the board was authorized, after charges and a hearing before it, to revoke the license, or certificate of registration as it is called in the statute, of any registrant found guilty of specified acts. So far as material the pertinent section of the statute, Comp.Laws, 1953, Sec. 67-21-21, L.1935, c. 45, Sec. 23, reads:

'The board shall have the power to revoke the certificate of registration of any registrant who is found guilty of:

'(a)--The practice of any fraud or deceit in obtaining a certificate of registration;

'(b)--Any gross negligence, incompetency, or misconduct in the practice of professional engineering or land surveying as a registered professional engineer or land surveyor.

'Any person may prefer charges of fraud, deceit, gross negligence, incompetency, or misconduct against any registrant. Such charges shall be in writing, and shall be sworn to by the person making them and shall be filed with the secretary of the board.'

Since there was no charge against appellees that they, or either of them, had been [60 NM 246] guilty of any fraud or deceit in obtaining the certificate of registration held by each, the basis of revocation is confined to the grounds listed in 1953 Comp. Sec. 67-21-21(b), namely, 'gross negligence, incompetency, or misconduct.' We may safely assume these words were employed by the legislature in the sense in which they are commonly understood. Then, what is the generally understood meaning of these words and phrases?

Webster defines negligence as failure to exercise the care that the circumstances justly demand; omission of duty of doing or forbearing. Webster defines gross as plain, manifest, obvious, flagrant, shameful. 1 Bouv. Law Dict., Rawles Third Revision p. 1383 defines gross negligence as:

'The omission of that care with which even the inattentive and thoughtless never fail to take care of their own property. Jones, Bailm.; Neal v. Gillette, 23 Conn. 437; 3 Hurlst. and C. 337.

'Such as evidences wilfulness; such a gross want of care and regard for the right of others as to justify the presumption of wilfulness and wantonness, 2 Thomp.Neg. 1264, Sec. 52; such as implies a disregard of consequences or a willingness to inflict injury. Deering, Neg., Sec. 29; Lake Shore & M. S. Ry. Co. v. Bodemer, 139 Ill. 596, 29 N.E. 692.'

Incompetence is defined in Webster as being the quality, state or fact of being incompetent; inadequate; specific lack of legal

Page 1080

qualification or fitness. 1 Bouv. Law Dick., Rawles Third Revision p. 1528 defines incompetency as being the lack of ability or fitness to discharge the required duty.

Webster defines misconduct as to conduct amiss; to mismanage; wrong or improper conduct. 27 Words and Phrases, p. 309, in defining misconduct states:

"Misconduct' is wrong or improper conduct; bad behavior; unlawful behavior or conduct; malfeasance. Sanford v. Grady, 1 Cal.App.2d 365, 36 P.2d 652; Surgan v. Parker, La.App., 181 So. 86, 89. * * * 'Misconduct' is defined as 'wrong conduct; bad behavior; mismanagement.' The synonyms are 'misbehavior; misdemeanor; mismanagement; misdeed; delinquency; offense.' The verb 'misconduct' is defined: 'to conduct amiss; to mismanage.' Bailey v. Examining and Trial Board of Police Department, City of Helena, 45 Mont. 197, 121 P. 572, 574.'

In resolving the question before us, we should not overlook the fact that the...

To continue reading

Request your trial
14 practice notes
  • State ex rel. Hovey Concrete Products Co. v. Mechem, No. 6264
    • United States
    • New Mexico Supreme Court of New Mexico
    • August 30, 1957
    ...v. Jernigan, supra; Harris v. State Corporation Commission, 46 N.M. 352, 129 P.2d 323; Hatfield v. New Mexico State Board of Registration, 60 N.M. 242, 290 P.2d 1077; McCormick v. State Board of Education, supra. Although by no means intimating that counsel for respondent and amici curiae a......
  • State ex rel. State Park and Recreation Commission v. New Mexico State Authority, No. 7650
    • United States
    • New Mexico Supreme Court of New Mexico
    • February 28, 1966
    ...beyond that it does not delegate to any one any of the powers of the State. * * *' In Hatfield v. New Mexico State Board of Registration, 60 N.M. 242, 290 P.2d 1077, we considered the question of unlawful delegation of legislative authority and quoted with approval from 11 Am.Jur., Sec. 214......
  • Safeway Stores, Inc. v. City of Las Cruces, No. 9117
    • United States
    • New Mexico Supreme Court of New Mexico
    • April 26, 1971
    ...41 N.M. 219, 67 P.2d 240; State v. Spears, supra (57 N.M. 400, 259 P.2d 356); Hatfield v. New Mexico State Board of Registration etc., 60 N.M. 242, 290 P.2d 1077; Johnson v. Sanchez, 67 N.M. 41, 351 P.2d 449, to cite a 'In State ex rel. Sofeico v. Heffernan, supra, is language to the effect......
  • State ex rel. Holmes v. State Bd. of Finance, No. 7033
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 19, 1961
    ...ex rel. Sofeico v. Heffernan, 41 N.M. 219, 67 P.2d 240; State v. Spears, supra; Hatfield v. New Mexico State Board of Registration etc., 60 N.M. 242, 290 P.2d 1077; Johnson v. Sanchez, 67 N.M. 41, 351 P.2d 449, to cite a In State ex rel. Sofeico v. Heffernan, supra, is language to the effec......
  • Request a trial to view additional results
14 cases
  • State ex rel. Hovey Concrete Products Co. v. Mechem, No. 6264
    • United States
    • New Mexico Supreme Court of New Mexico
    • August 30, 1957
    ...v. Jernigan, supra; Harris v. State Corporation Commission, 46 N.M. 352, 129 P.2d 323; Hatfield v. New Mexico State Board of Registration, 60 N.M. 242, 290 P.2d 1077; McCormick v. State Board of Education, supra. Although by no means intimating that counsel for respondent and amici curiae a......
  • State ex rel. State Park and Recreation Commission v. New Mexico State Authority, No. 7650
    • United States
    • New Mexico Supreme Court of New Mexico
    • February 28, 1966
    ...beyond that it does not delegate to any one any of the powers of the State. * * *' In Hatfield v. New Mexico State Board of Registration, 60 N.M. 242, 290 P.2d 1077, we considered the question of unlawful delegation of legislative authority and quoted with approval from 11 Am.Jur., Sec. 214......
  • Safeway Stores, Inc. v. City of Las Cruces, No. 9117
    • United States
    • New Mexico Supreme Court of New Mexico
    • April 26, 1971
    ...41 N.M. 219, 67 P.2d 240; State v. Spears, supra (57 N.M. 400, 259 P.2d 356); Hatfield v. New Mexico State Board of Registration etc., 60 N.M. 242, 290 P.2d 1077; Johnson v. Sanchez, 67 N.M. 41, 351 P.2d 449, to cite a 'In State ex rel. Sofeico v. Heffernan, supra, is language to the effect......
  • State ex rel. Holmes v. State Bd. of Finance, No. 7033
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 19, 1961
    ...ex rel. Sofeico v. Heffernan, 41 N.M. 219, 67 P.2d 240; State v. Spears, supra; Hatfield v. New Mexico State Board of Registration etc., 60 N.M. 242, 290 P.2d 1077; Johnson v. Sanchez, 67 N.M. 41, 351 P.2d 449, to cite a In State ex rel. Sofeico v. Heffernan, supra, is language to the effec......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT