Kendall v. Beiling

• Decision Date: 01 October 1943
• Citation: 175 S.W.2d 489,295 Ky. 782
• Parties: KENDALL et al. v. BEILING.
• Court: Kentucky Court of Appeals

175 S.W.2d 489

295 Ky. 782

KENDALL et al. v. BEILING.

Court of Appeals of Kentucky

October 1, 1943

Rehearing Denied December 17, 1943.

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division; Churchill Humphrey, Judge.

Action by Harry G. Beiling against Richard M. Kendall and others seeking a declaration of plaintiff's right to practice optometry and to enjoin the Board of Health from revoking plaintiff's license. From an order of the circuit court vacating an order of revocation and enjoining the Board of Health from canceling plaintiff's license, the defendants appeal.

Reversed.

Lee Hamilton, of Louisville, and Hubert Meredith, Atty. Gen., for appellant.

Charles W. Morris and Morris, Garlove & Goldsmith, all of Louisville for appellee.

STANLEY Commissioner.

The State Board of Health revoked the license of Harry G. Beiling to practice optometry upon the ground that he had aided and abetted a person not holding such a license to practice that profession. Sections 2615, 2618a-6, 2618a-9, now KRS 311.210. The Governor affirmed the decision and action of the Board. Section 2615, Ky.Stats., now KRS 311.120, 311.210. The circuit court, however, found there was no evidence to support the conclusion. The order of revocation was vacated and the Board of Health, its members and successors, were enjoined from cancelling the respondent's license. The appeal is from that judgment.

The facts are not in dispute. Beiling was employed by the Kay Jewelry Company, a corporation, whose charter does not, as it could not, authorize it to practice optometry. He has been paid a specified salary and bonus. He had the exclusive control of this department of the company's business and his professional judgments and acts were not interfered with. He made examinations and tests of patients and prescribed lenses as needed, which were manufactured by another company for the Kay Jewelry Company. Beiling fitted the glasses which were sold for the company. All fees and charges, whether any merchandise was sold or not, have been paid directly to the company which keeps the records and accounts. It advertises this department of business as "Our modern Optical Department," sometimes naming its employed optometrist and sometimes not. It gives a credit of $1 to each patient or customer who brings in $10 of additional business to this department. Its charges include fees for Dr. Beiling's professional services. This practice and the relationship is regarded by the State Board of Health as within the statute now KRS 311.210 (c), authorizing the revocation of a license for aiding or abetting an unlicensed person to practice optometry.

The authority of the court as well as the propriety of the procedure is questioned. When the Board of Health had notified Beiling to appear for a hearing of the charges that he had violated this provision of the statutes, he filed a petition praying for a declaration of rights in the premises and appropriate injunctive protection. The court overruled special and general demurrers to the petition and the Board of Health filed an answer. The special demurrer challenged the jurisdiction of the court upon the ground that the statutes place the power to determine such cases in the Board of Health initially and the Governor on appeal. The answer denied allegations of a prevailing custom, recognized by the Board as being legitimate, and traversed certain charges and legal conclusions. It averred that the defendant had received his license as an optometrist after the effective date of the statute invoked, namely, in 1938; described his relationship to his employer, and alleged the intention and legal interpretation of the statute in respect thereof. The Board of Examiners in Optometry followed the answer of the Board of Health and by a cross petition called upon that body to enforce the optometry law.

After the court had heard evidence, he ruled that the case was not a proper one for a declaratory judgment, since the plaintiff was seeking to have the court lay down "a code of conduct." The court recognized that the statute contemplates hearing and decision by the Board of Health and appeal to the Governor; also that the right to resort to the courts by any aggrieved party thereafter is inherent in the law, although the statute is silent in respect thereof. Being reluctant to interfere prior to completion of the administrative action. the court referred the record to the Board of Health for determination of the facts and decision. A temporary injunction issued restraining any final act of revocation of the plaintiff's license pending a disposition of the case. Jurisdiction was reserved for further consideration if the plaintiff should be dissatisfied with the decision of the Board and of the Governor.

Dr Beiling appeared with counsel before the Board, and though it was agreed that other testimony could be offered, only the record made in the court was presented. Upon that record the Board ordered the license revoked. When the Governor had affirmed the decision he sent the record to the circuit court. The court again considered the case after a hearing and rendered the judgment stated.

The appellants argue that the court was without jurisdiction, first, because the legislature has conferred the exclusive power to revoke licenses of medical practitioners, including optometrists, upon the State Board of Health, and confined the right of appeal to the Governor; and, secondly, no appellate jurisdiction could be acquired by bringing the case before the court by a writ of certiorari.

It is settled that it was proper for the legislature to commit to the State Board of Health the authority to investigate and try a licensee coming under its authority and, acting justly, reasonably and fairly, to revoke his license under a statute sufficiently definitive in its regulation. Forman v. State Board of Health, 157 Ky. 123, 162 S.W. 796.

Although there has been a phenomenal expansion of regulatory law administered through boards and bureaus in the past 35 or 40 years, it is not a new branch of jurisprudence, and from time immemorial courts have been reviewing administrative decisions, principally as to tax assessments. Constitutional courts are not subservient to statutory boards of administration. Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387. The right to resort to the courts is implicit in the terms of Section 14 of the Constitution of Kentucky, declaring that all courts shall be open and every person shall have a remedy by due course of law for any injury to his person or property or reputation. It is the inherent power of the courts to scrutinize the acts of such administrative tribunals wherein the person or property rights of an individual have been adjudicated, and no special provision of a statute is necessary to confer authority already possessed by them under the constitution. However, it is generally recognized that the legislative branch of the government may vest considerable discretion in administrative boards and declare to what extent their findings of fact shall be accepted, and, in a limited degree, may prescribe the terms upon which recourse to the courts may be had. Commonwealth v. Frost, 295 Ky. 137, 172 S.W.2d 905. But where no question of fact is at issue and only questions of law are involved, the arm of the court may not be shortened, except perhaps in a matter of limitations of time in which to bring the case to the court. Dougherty v. Kentucky Alcoholic Bev. Control Board 279 Ky. 262, 130 S.W.2d 756. It is a question of law whether a board has acted arbitrarily or capriciously, such as without having competent evidence to support its finding or decision. In such a case, as it is in all questions of law, the courts will intervene and exercise the judicial power without restriction to protect private rights. Matthews v. Murphy, 63 S.W. 785, 23 Ky. Law Rep. 750, 54 L.R.A. 415; Webster v. State Board of Health, 130 Ky. 191, 113 S.W. 415; Forman v. State Board of Health, supra; Kentucky State Board of Dental Examiners v. Crowell, 220 Ky. 1, 294 S.W. 818. Certainly, where the facts are undisputed, it is peculiarly a judicial matter to interpret and apply the law in relation thereto.

Most of our statutes empowering various administrative boards and officers to exercise quasi judicial power make special provision for an appeal or review by the courts at the instance of an aggrieved party. For example, a dentist dissatisfied with the action of the State Board of Dental Examiners in relation to his license may appeal to a court within thirty days. KRS 313.340. But the statutes relating to the licensing or suspension or revocation of licenses of optometrists and of physicians and surgeons is silent in this respect. There is, therefore, no curb of any kind placed upon the power of the courts to adjudge the rights of the parties after final action by the Board and Governor, although due regard for the spirit and purpose of the statute in lodging the primary power in a competent board of the medical profession, with which the practice of optometry has been classed, will be observed, and their decision upon questions of fact will be given very high consideration.

As to procedure. Since the allegations of the petition seem to have been sufficient in relation to the charges of unlawful discrimination and threats by the State Board of Health, with resulting irreparable injury to the plaintiff, we think the court properly overruled the special and general demurrers. But the evidence submitted to the court did not sustain those particular charges. It did disclose a condition within the power of the Board to investigate and dispose of. Out of regard for that statutory power we think the court at that stage...