Industrial Acc. Bd. v. O'Dowd

• Decision Date: 12 June 1957
• Docket Number: No. A-6264,A-6264
• Citation: 157 Tex. 432,303 S.W.2d 763
• Parties: INDUSTRIAL ACCIDENT BOARD, Petitioner, v. E. H. O'DOWD et al., Respondents.
• Court: Texas Supreme Court

Page 763

303 S.W.2d 763

157 Tex. 432

INDUSTRIAL ACCIDENT BOARD, Petitioner, v. E. H. O'DOWD et al., Respondents.

No. A-6264.

Supreme Court of Texas.

June 12, 1957.

Rehearing Denied July 17, 1957.

Will Wilson, Atty. Gen., John H. Minton, Jr., and John Reeves, Asst. Attys. Gen., for petitioner.

Richard Critz, F. L. Kuykendall, Austin, for respondents.

NORVELL, Justice.

The Court of Civil Appeals held on authority of Francisco v. Board of Dental Examiners, Tex.Civ.App., 149 S.W.2d 619, wr. ref., that that portion of Article 8307, § 4, Vernon's Ann.Tex.Stats. purporting to authorize the barring of persons guilty of unethical of fraudulent conduct from practicing before the Industrial Accident Board was unconstitutional and void for failure to provide for notice and hearing as required by the due process clauses of the state and federal constitutions. Article 1, § 19, Texas Constitution, Vernon's Ann.St. Fourteenth Amendment to the Constitution of the United States. See Industrial Accident Board v. O'Dowd, Tex.Civ.App., 298 S.W.2d 657.

Being of the tentative opinion (which has since been confirmed) that the Francisco case does not control this appeal, we granted the writ of error. In their reply to the application for the writ, respondents say that the opinion of the Court of Civil Appeals does not discuss all the grounds urged by them in support of the trial court's order enjoining the Board from enforcing its suspension order. Under the view taken by the Court of Civil Appeals a discussion of additional bases to support its decision was patently unnecessary. However, being of the opinion that the order cannot be supported upon the grounds considered by the Court of Civil Appeals it becomes our duty to examine all contentions properly brought forward by respondents as the prevailing parties in the Court of Civil Appeals which they say would support the trial court's judgment. Vanover v. Henwood, 136 Tex. 348, 150 S.W.2d 785.

We shall first consider the holding of the Court of Civil Appeals. That portion of Article 8307, § 4 now under attack reads as follows:

'Process and procedure shall be as summary as may be under this law. The Board or any member thereof shall have the power to subpoena witnesses, administer oaths, inquire into matters of fact, examine such parts of the books and records of the parties to a proceeding as relate to questions in dispute, punish for contempt in the same manner and to the same extent as a District Court may do, and to bar persons guilty of unethical or fraudulent conduct from practicing before the Board. All rulings and decisions of the board relating to disputed claims shall be upon questions of fact and in accord with the provisions of this law.'

The Court of Civil Appeals has held that this statutory provision is invalid because of a failure to provide for a notice of hearing as required by the due process clauses of the state and federal constitutions.

The essential facts may be briefly stated. Respondents E. H. O'Dowd and M. M. O'Dowd are practicing attorneys residing in Waco, McLennan County, Texas. On April 30, 1955, the Board notified respondents that on May 16, 1955, a hearing would be held pursuant to complaints received as to their alleged unethical and fraudulent conduct in connection with workmen's compensation cases before the Industrial Accident Board. Such hearing was held on the date set and on May 20, 1955, the Board entered an order finding respondents guilty of unethical conduct in seven cases and guilty of fraudulent conduct in fourteen cases pending before the Board and suspended them from practicing before the Board for a period of three years from and after May 20, 1955.

The trial court by temporary injunction restrained the Board from enforcing this order and this action was affirmed by the Court of Civil Appeals.

It seems that under the statute it is contemplated that a hearing be had before action is taken. We have provisions relating to process and procedure, the subpoenaing of witnesses, inquiries into facts and the like, all of which are pertinent to a hearing or examination. The statute does not explicitly provide for a notice of hearing. Does this render the statute void?

To our minds, Francisco v. Board of Dental Examiners, Tex.Civ.App., 149 S.W.2d 619, 622, wr. ref. does not reach the point. There the statute provided that the Board of Dental Examiners should revoke a dental license upon receipt of a certified copy of the record showing that a licensee had been convicted of insanity or a felony involving moral turpitude. There was no requirement for a hearing and hence none for notice. In fact the statutory direction to the Board was to proceed without hearing and without notice. As pointed out by the Court, 'the order operates instanter, and the licensee is at once deprived of the right lawfully to practice his profession.'

There is language in Stuart v. Palmer 74 N.Y. 183, 30 Am.Rep. 289, ¹ decided in 1878 which lends some support to the proposition that a statute of the species now before us must contain an express provision for notice otherwise it will be held invalid, viz.: 'It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice to them and give them a right to a hearing and an opportunity to be heard.' A holding that a statute must expressly provide for notice or it is invalid is patently unsound. It is a common thing for a court to recognize and enforce implied or implicit clauses in both statutes and contracts. To hold that implied provisions could not be afforded validity when a constitutional due process clause is involved would be to reverse the general rule of construction that a statute must be construed so that it will be constitutional and hence valid if the language thereof is reasonably susceptible to such construction.

Obviously if the explicit provisions of a statute direct and administrative board to proceed without notice in contravention of the constitutional due process requirements (as in the Francisco case) there would be no room for a presumption that the Legislature intended that a notice be given. However, on the other hand, we must assume that the Legislature intended to enact a valid law, and in the absence of express language to the contrary, intended that the administrative board should proceed in accordance with constitutional requirements. The Board here construed the statute as requiring notice and notice was actually given. Under these circumstances the following language from American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 67 S.Ct. 133, 143, 91 L.Ed. 103, seems applicable:

'That the statute does not expressly insist upon what in fact has been given the security holders is without constitutional relevance under these circumstances. Wherever possible, statutes must be interpreted in accordance with constitutional principles. Here, in the absence of definite contrary indications, it is fair to assume that Congress desired that § 11(b)(2) (15 U.S.C.A. § 79k(b)(2)) be lawfully executed by giving appropriate notice and opportunity for hearing to all those constitutionally entitled thereto. And when that assumption is added to the provisions of § 19 (15 U.S.C.A. § 79s), it becomes quite evident that the Commission is bound under the statute to give notice and opportunity for hearing to consumers, investors and other persons whenever constitutionally necessary. See The Japanese Immigrant Case (Yamataya v. Fisher) 189 U.S. 86, 100, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721 (725, 726).'

Another statement of the prevailing rule upon the subject is found in Caughman v. Columbia, Newberry & Laurens Ry. Co., 82 S.C. 418, 64 S.E. 240, 242, viz.:

'A statute is invalid which requires something to be done which is forbidden by the Constitution, but it cannot be essential to the validity of a statute that it should enjoin obedience to the Constitution. The great weight of authority is to the effect that while notice of a special burden or duty which a board such as this proposes to impose must be extended, and an opportunity to be heard on the rightfulness of the exactions must be given, it is not necessary that the statute under which the board acts should expressly provide notice.'

Likewise in McManus v. Industrial Commission, 53 Ariz. 22, 85 P.2d 54, 56, the Supreme Court of Arizona said:

'It is, * * * true that notice and opportunity to defend must be a matter of right and not a matter of grace, but we think that such right may be implied from the terms of a statute without being expressly and explicitly set forth in detail therein. * * * We think that when the word 'hearing' is used in a statute which attempts to confer jurisdiction to determine whether the property of one person shall be taken and given to another, it necessarily implies, as a matter of law, that the hearing shall be one of which reasonable notice is given to the parties and at which they have an opportunity to appear and present any defense which they may have against such taking, and that any proceeding which does not comply with these two conditions is not a 'hearing' within the meaning of the law, and any order made in pursuance of such proceeding is void for lack of jurisdiction. This general principle of implied notice has been upheld in a number of cases where the statute was not as explicit in regard to the necessity of a hearing of some kind as is the law under consideration at the present time.'

See, also, Kennard v. Louisiana, ex rel. Morgan, 92 U.S. 480, 23 L.Ed. 478; Kentucky Railroad Tax Cases (Cincinnati, New Orleans & Texas Pacific R. Co. v. Commonwealth of Kentucky), 115 U.S. 321, 6 SCt. 57, 29 L.Ed. 414; Shealey v. Seaboard Air Line Ry. Co., 131 S.C. 144, 126 S.E. 622; Smith v. State Board of Medical Examiners, 140 Iowa 66, 117 N.W. 1116; Hecht v. Monaghan, 307 N.Y. 461, 121 N.E.2d 421; Tatlow v....