Heldenbrand v. Montana State Bd. of Registration for Professional Engineers and Land Surveyors, 10917
| Decision Date | 25 February 1966 |
| Docket Number | No. 10917,10917 |
| Parties | Willard Bruce HELDENBRAND, Plaintiff and Appellant, v. The MONTANA STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS, J. H. Morrison, A. E. Adami, E. H. Dodge, D. T. Hoenshell, H. E. Murdock, as Members of said Board, Defendants and Respondents. |
| Court | Montana Supreme Court |
Sandall, Moses & Cavan, John J. Cavan (argued), Billings, for appellant.
Drysdale & Anderson, McKinley T. Anderson, Jr. (argued), Boseman, for respondents.
Appellant, Willard Bruce Heldenbrand, petitions this court to review the denial of his application for a writ of mandate ordered by the Honorable Guy C. Derry, presiding judge of the Yellowstone County District Court. Appellant applied for the writ on July 22, 1963, requesting the court to direct the respondent, Montana State Board of Registration for Professional Engineers and Land Surveyors, (hereinafter called the Board) to register him as a professional engineer or to show cause why it had not doen so. The respondent Board by a return and answer to the writ stated that Mr. Heldenbrand applied for registration under subd. (1)(c) of section 66-2336, R.C.M.1947, and that it determined that he was not qualified for registration and denied his application. By way of defense, respondent alleged that appellant had plain, speedy and adequate remedy at law by appeal under section 66-2345, R.C.M.1947, and that a writ of mandate was, therefore, improper procedure under the circumstances of this case. Respondent alleged further that appellant had failed to establish his qualifications to its satisfaction and that it was within its authority under subd. (1)(c) in refusing to register him.
Commencing May 29, 1964, the district court heard evidence on the application for the wirt of mandate, and briefs were submitted by the parties on the issues raised by their pleadings. After carefully evaluating the evidence and considering the law, the court denied the application for the writ on July 17, 1964, ruling that the only remedy available to appellant was by appeal under section 66-2345, and that by virtue of the requirements of section 66-2336, the respondent Board as a matter of law had discretion to decide whether an applicant for registration as a professional engineer had qualified for registration under subd. (1)(c).
Appellant's specifications of error may be stated by the following two questions:
(1) Does the appellant have a plain, adequate, or speedy remedy at law by appeal?
(2) Does the respondent Board have discretion under the provisions of section 66-2336, subd. (1)(c), R.C.M.1947, to require an applicant for registration thereunder to take the Professional Engineer Examination to qualify for registration as a professional engineer in Montana?
The story behind this case began with Mr. Heldenbrand's application under subd. (1)(b) of section 66-2336 for permission to take the December 1960, Professional Engineer Examination administered by the Montana State Board of Registration for Professional Engineers and Land Surveyors. His application was accepted. He scored 55.5; a passing grade was 70 and above. After a personal interview with the Board in November 1961, he agreed to retake the examination in December 1961, and the Board agreed to re-evaluate the examination he had written in 1960. A few days before the 1961 examination was to be given, however, Mr. Heldenbrand advised the Board by letter that his business required him to be out of the state on the date the test was to be given. He did not take the 1961 examination. On January 24, 1962, the Board reviewed Mr. Heldenbrand's application for registration on the basis of its re-evaluation of his 1960 examination and of other material he had subsequently submitted for its consideration. Again it refused to register hin, but certified him to take the December 1962, examination.
We observe from the record that the Board acted with courteous regard for the applicant, agreeing to re-evaluate his examination paper. At this point the applicant was satisfied and agreed to retake the examination. We are not aware of what, to a professional applicant to take an examination, is more important than his presence in the state at the time the examination is given. In early June 1962, Mr. Heldenbrand made written application to the Board for registration under subd. (1)(c) of section 66-2336, which allows the Board to consider as 'minimum evidence satisfactory to the board that the applicant is qualified for registration as a professional engineer * * * a specific record of twelve years or more of lawful practice in engineering work of a character satisfactory to the board and indicating that the applicant is competent to practice engineering and has had responsible charge of important professional engineering work for at least five years, and provided applicant is not less than thirty-five years of age.' Mr. Heldenbrand had reached thirty-five in April 1962. The Board in late July 1962, considered this new application and again refused to register Mr. Heldenbrand as a professional engineer, but affirmed his admittance to the December 1962, examination. Mr. Heldenbrand then secured legal assistance and had his attorney present his case before the Board asking it to reconsider his application under subd. (1)(c). At its meeting in October 1962, the Board reaffirmed its action taken on the application at its previous July meeting. Its position has been and continues to be that Mr. Heldenbrand qualify himself for registration by retaking the examination. Following the denial of this final request for registration, Mr. Heldenbrand brought the matter to court by filing his application for a writ of mandate in mid-July 1963.
The first question to which we will direct our attention concerns the appropriateness of the remedy of mandamus in this case. That writ 'must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law' by appeal. Section 93-9103, R.C.M.1947. The final paragraph of section 66-2345 outlining procedure for revocation of registration, hearings, reissuance of certificates, and appeal in matters concerned with the registering of professional engineers, provides that 'Any person who shall feel aggrieved by any action of the board in denying or revoking his certificate of registration may appeal therefrom to the district court of the county in which such denial or revocation was made, and, after full hearing, said court shall make such decree sustaining or reversing the action of the board as to it may seem just and proper.'
The appellant questions whether this procedure for appeal applies generally, arguing that it could be maintained He then cites the case of Skelton v. Lees, 8 Utah 2d 88, 329 P.2d 389, and the problem with which Mr. Justice Worthen wrestled in his special concurring opinion under the Utah statute strikingly similar in language to our section 66-2345. 'How can the committee deny his certificate', the learned justice queries, The other members of the court were not convinced that this logical difficulty existed. The majority opinion, written by Mr. Justice Crockett, concluded that the 'language * * * would seem meaningless' unless it applied generally--to appeals from the denial of an initial application for a certificate as well as to the revocation and reissuance problems. '(I)t seems that most reasonable interpretation thereof is that its purpose was to provide the method of review by the courts for all matters arising under the chapter.'
We note, as did the Utah court with the Utah statute, that this final paragraph of section 66-2345 is the only part of entire chapter concerning the registration of professional engineers which provides a registrant with a remedy from any Board action. It was placed by the compilers, it is true, in a section of the chapter outlining procedure for revocation and reissuance of certificates once registered. But its location in the chapter or in a particular section is not determinative of its meaning and purpose. The language used is all inclusive. To read 'any action' of the Board in 'denying or revoking' a certificate of registration as limited only to the revocation and reissuance situations is qualifying that language unduly and reading modifiers into the statute not placed there by the legislature. The fact that inclusive language is used, that fact that the right to appeal is granted in a paragraph separate and apart from the provisions on revocation and reissuance, and the fact that no other provision is made in the entire chapter to give relief for capricious and arbitrary action of the Board in denying an initial application for a certificate of registration, persuades us that the right to appeal applies to 'any action' of the Board. With such a right of appeal by statute, an applicant for registration has improperly determined his remedy in asking for a writ of mandate.
Appellant then argues tht even if it is determined that he has a right of appeal, the court could not grant him the relief for which he has asked. For the court to rehear his case on appeal and to order that the Board register him, he contends, would be an unconstitutional exercise of power by the judiciary of an administrative function. He argues that the statute...
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