Marks v. Frantz

• Decision Date: 09 June 1956
• Docket Number: No. 39823,39823
• Parties: Dr. Manuel M. MARKS, Appellant, v. Dr. Wayne E. FRANTZ, Dr. J. C. Rust, Dr. Edwin C. CATHERS, individually and as members of the Kansas State Board of Examiners in Optometry and Wendell D. Waldie, Dean L. Babb and Warner Moore, Appellees.
• Court: Kansas Supreme Court

Page 316

298 P.2d 316

179 Kan. 638

Dr. Manuel M. MARKS, Appellant, v. Dr. Wayne E. FRANTZ, Dr. J. C. Rust, Dr. Edwin C. CATHERS,

individually and as members of the Kansas State Board of

Examiners in Optometry and Wendell D. Waldie, Dean L. Babb

and Warner Moore, Appellees.

No. 39823.

Supreme Court of Kansas.

June 9, 1956.

Syllabus by the Court.

1. The general rule that courts may not interfere with administrative agencies and boards in the lawful performance of their duties and substitute the court's judgment for that of the administrative tribunal, and that such tribunals should not be enjoined from performing their duties, does not apply to or prevent an action by one whose conduct is the subject of inquiry by such administrative agency or board from maintaining an action to have determined the constitutionality of the act under which the administrative agency or board purports to act.

2. Constitutionality of a statute is presumed, doubts as to its constitutionality are resolved in favor of legality, and before a statute may be stricken down it must clearly appear it offends applicable constitutional provisions.

3. In determining constitutionality, the court's duty is to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.

4. Constitutionality of a statute will be considered only where necessarily involved and particular parts thereof may not be questioned by one not affected by their operation.

5. The fact that various sections of the original optometry law as enacted by Laws 1923, Ch. 220, were separated and later printed in R.S.1923 as Ch. 65, Art. 15, anc Ch. 74, Art. 15, and as later amended appearing in G.S.1935 and G.S.1949 as Ch. 65, Art. 15, and Ch. 74, Art. 15, and in subsequent supplements under the same numbers, did not have the effect of making two separate statutes, but all are considered as constituting 'the optometry law'. See Laws 1923, Ch. 220, § 16, later appearing in the general statutes as 65-1512.

6. The record examined in an action to have the optometry law declared unconstitutional and the board of examiners in optometry enjoined from proceeding to hear charges preferred against the plaintiff, and held, that the allegations of the petition did not state facts sufficient to constitute a cause of action.

W. A. Kahrs, Wichita, argued the cause, and Robert H. Nelson, Wilbur D. Geeding, and Julian H. Zimmerman, Wichita, were with him on the briefs for appellant.

Wendell L. Garlinghouse, Topeka, argued the cause, and Dale M. Bryant, and Glenn, J. Shanahan, Wichita, were with him on the briefs for appellees.

THIELE, Justice.

This was an action in which the plaintiff sought a determination that G.S.1949, Ch. 74, Art. 15, creating the board of examiners in optometry and G.S.1949, Ch. 65, Art. 15, providing for the examination and registration of optometrists, with amendments thereto, be declared unconstitutional and void and that pending a determination the defendants be restrained from proceeding with a hearing by the board on a complaint seeking revocation of his certificate of registration as an optometrist, and upon final hearing, for a permanent injunction. At the time the petition was filed the district court made its order restraining the defendants from prosecuting plaintiff on the charges brought until further order of the court.

The defendants demurred to the petition on three grounds, that: 1. the petition did not state facts sufficient to constitute a cause of action; 2. several causes of action were improperly joined; and 3. the petition was not drawn upon a single and definite theory and there was such a confusion of theories it was impossible to determine upon which of several theories relief was sought. The court heard the demurrer and on January 7, 1955, sustained it as to ground 1 and overruled it as to grounds 2 and 3, and dissolved the restraining order issued on June 25, 1954.

On January 13, 1955, plaintiff served his notice of appeal to this court from the rulings adverse to him, and on the same day applied to the district court for a stay and an order fixing bond, as a result of which the trial court found the order of June 25, 1954, was in effect a temporary injunction, and it fixed a bond, terms of which need not be noted, and ordered the temporary injunction of June 25, 1954, remain in force until plaintiff's appeal be determined. Appellant's specifications of error are sufficient to cover his contentions later discussed.

We note that the defendants served notice of cross-appeal from the ruling adverse to them, but in their brief they make no contention and present no argument with respect to such rulings, and we therefore consider the cross-appeal as abandoned.

It appears from the petition and exhibits attached thereto that on or before June 10, 1954, an amended complaint was made by Waldie and Babb to the board of examiners in optometry charging, in substance, that plaintiff Marks: 1. had practiced optonetry in an unethical manner; 2. was guilty of grossly unprofessional conduct of a nature likely to deceive or defraud the public; 3. had an arrangement with Zale's Jewelers to eollect his accounts, and with Dr. Ellis Carp, not licensed to practice optometry within this state, and such arrangement was unlawful and unethical; 4. had committed acts for which the board might refuse to admit him as a candidate to its examination; 5. had caused and permitted advertisements, details of which will not be set forth; and 6. had failed and refused to notify the board of the place or places where he engaged or intended to engage in the practice of optometry, in violation of the laws of Kansas, particularly G.S.1949, 65-1509, and asking that Marks' certificate of registration be revoked.

Under date of June 10, 1954, a copy of the complaint was served on Marks and he was advised in writing that he had ten days of file his answer, and that he was entitled to a public hearing, an opportunity to produce testimony and to confront witnesses against him and that the hearing would be held in the Sedgwick county district court room on July 8, 1954.

The instant action was commenced on June 25, 1954, by Marks. The petition is lengthy and must be summarized.

In his petition Marks alleged he practices the 'quasi-profession' of optometry in Wichita; that defendants Frantz, Cathers and Rust are members of the board of examiners in optometry and also members of the Kansas Optometric Association, a corporation; that other defendants reside in Wichita; that defendants Waldie and Babb, members of the Kansas Optometric Association, filed the complaint against plaintiff and pursuant thereto, Rust, without authority, directed a letter to plaintiff enclosing a copy of the complaint and informed plaintiff of the hearing thereon on July 8, 1954. Plaintiff then alleged that G.S.1949, Ch. 74, Art. 15, and Ch. 65, Art. 15, and supplements thereto, were unconstitutional and void, and any complaint filed with the board of examiners in optometry was without force for the following reasons: (A) Under the state constitution the governor is empowered to see that the laws are faithfully executed, and the legislature cannot delegate its powers to the governor or to any board and cannot usurp the constitutional power of the executive; that in creating the defendant board the legislature in fact delegated legislative powers to the governor and directed that the governor appoint specified individuals to carry out the act, which legislation usurped the power extended to the governor under the constitution; that the legislature in directing the governor to appoint members of the board from a list of names supplied him by the Kansas Optometric Association, a corporation, in fact delegated legislative authority to a corporation in violation of the state constitution, and as a result, the board thus created is unlawfully controlled by the above association to the detriment of plaintiff and all optometrists practicing in competition with the members of that association; (B) The above acts are unconstitutional for the reason that said acts require that every optometrist, before securing renewal of his certificate to practice, must furnish evidence to the board that he attended at least two days of the annual education program of the association or its equivalent, and that such requirement is unconstitutional for the reason the legislature has failed to provide a course of study and in lieu has delegated the power to the association and has placed in it the authority to determine the program to be followed. Other allegations in expansion of the above are not summarized. Plaintiff further alleged that the optometry act unlawfully delegates to the board the authority to prescribe a code of ethics for optometrists, but provides no standards to govern the board in establishing a code and is therefore an abuse of legislative authority and discriminatory between optometrists who are and are not members of the above association, and unconstitutional. Plaintiff also alleged that an optometrist is a quasi-professional and also an artisan merchant, and optometry is not a learned profession ans subject to a code of ethics and any attempt by the legislature to provide for a code is unwarranted and under the circumstances unconstitutional. Plaintiff also alleged at length that the act creating the board does not provide the manner in which a complaint is to be made or who may prefer charges and that Waldie and Babb had no authority to make complaint; that prior to 1953 the board had adopted rules under G.S.1949, 74-1504, and that section had been repealed, and the rules theretofore adopted became a nullity; that the board had no authority to make rules and, in any event, had made no rules for the conduct and procedure of the board for government of applicants for registration, and that the complaint was...