Husband v. Cassel, 30884
| Decision Date | 05 May 1961 |
| Docket Number | No. 30884,30884 |
| Citation | 130 So.2d 69 |
| Parties | Richard W. HUSBAND, Daniel W. Soper, Ralph M. Dreger, Theodore H. Blau and Carroll Truss, as and constituting the Florida State Board of Examiners of Psychology, Appellants, v. Abraham M. CASSEL, Appellee. |
| Court | Florida Supreme Court |
Richard W. Ervin, Atty. Gen., Gerald Mager and Wilson W. Wright, Asst. Attys. Gen., for appellants.
Keen, O'Kelley & Spitz, Tallahassee, for appellee.
John H. Mariano, New York City, as amicus curiae.
Appellee, Abraham M. Cassel whose vocational pursuit is as a 'psychologist', was threatened with criminal prosecution by the appellant, the Florida State Board of Examiners of Psychology, hereinafter referred to as the 'Board', on the ground that appellee had not been issued a certificate permitting him to use the title 'Psychologist' in conformity with Chapter 490 Florida Statutes, F.S.A., originally being Chapter 57-419. By reason of the threatened prosecution and appellee's claim of a right to pursue his vocation notwithstanding said law, appellee as plaintiff brought a suit seeking a declaratory decree. The appellant Board filed an answer to appellee's complaint, whereupon appellee moved for a summary decree. The Chancellor, upon a hearing of said motion by final decree held F.S. Chapter 490, F.S.A. unconstitutional, whereupon this appeal was prosecuted. We affirm.
F.S. Chapter 490, F.S.A. confers upon the board discretionary powers without definite limitations. This conclusion is clearly demonstrated by reference to Section 490.04(1) and 490.04(1)(c). Section 490.04 1 specifically provides that before the board may issue a certificate to one as a 'Psychologist' the 'board shall require any applicant therefor to pass a representative assembled written, and an oral or practical examination in psychology or both * * * oral and practical examinations * * *.' The board is empowered to rate the applicant and its decision is final in any examination.'
An examination of this section reveals that the only limitations imposed by the legislature upon the board with reference to the examination to be give is that it must be on the field of psychology. This subject is extremely broad and the legislature has failed completely to define or delimit the field either expressly or by implication. As a consequence the board has it within its sole judgment and discretion to determine the nature and scope of the field to be encompassed in the examination determining applicants qualifications as psychologists. The board is thus authorized to examine without limitation or restraints and without benefit of legislative safe guards in the form of limitations.
Section 490.04(1)(c) is objectionable for the same reason as that applicable to F.S. Section 490.04(1), F.S.A. All applicants according to this former section are required to obtain a degree of Doctor of Philosophy with a major in Psychology. This degree must be obtained from a university approved by the board. The legislature has failed to provide any standards to guide the board in its approval of a university. In fact the board is also empowered to determine what constitutes an equivalent degree in the field of psychology without limitations imposed by the legislature. It is thus evident that the board has the unbridled discretion to determine all qualifications of applicants as well as all requirements for the establishment of their competency in order to be certified as psychologists and to practice that profession in the state of Florida.
The legislative power of the State is vested in the Legislature and this power it may not delegate. Section 1 of Article III of the Constitution, F.S.A, provides:
The Legislature may perform its function by laying down policies and establishing standards while leaving to selected ministeral agencies the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. Spencer v. Hunt, 109 Fla. 248, 147 So. 282; Pridgen v. Sweat, 125 Fla. 598, 170 So. 653; Attwood v. State, Fla., 53 So.2d 825; 11 Am.Jur. Constitutional Law § 240; Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947.
In recognition of the foregoing principles the Supreme Court in Pridgen v. Sweat, 125 Fla. 598, 170 So. 653, 655 stated:
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State v. Cain
...to enact a law or to declare what the law shall be or to exercise an unrestricted discretion in applying the law. E. g., Husband v. Cassel, 130 So.2d 69 (Fla.1961). Here, however, we are dealing with the long-standing responsibility vested in a prosecutor, as a member of the executive branc......
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