Mott v. Georgia State Bd. of Examiners in Optometry
| Decision Date | 12 April 1918 |
| Docket Number | 508. |
| Parties | MOTT v. GEORGIA STATE BOARD OF EXAMINERS IN OPTOMETRY ET AL. |
| Court | Georgia Supreme Court |
Rehearing Denied May 6, 1918.
Syllabus by the Court.
Section 7 of the act of the General Assembly approved August 7, 1916 (Acts 1916, pp. 83, 87), as follows: "The state board of examiners in optometry shall refuse to issue the certificate of registration, provided for in this act, to any person who shall have been guilty of grossly unprofessional and dishonest conduct"--is contrary to article 1, § 1, par 3, of the Constitution of this state (Civ. Code 1910, § 6359), which guarantees due process of law, and therefore is void and unenforceable.
The provision in the act for an appeal to the superior court after the board has rendered judgment of condemnation is not a compliance with the mandate of the Constitution.
Where a legislative act provides for times and places for the meetings of a board authorized to perform duties delegated to it, no further notice need be given; but where the act fails to specify any place of meeting, and permits unlimited meetings besides those provided, and requires no hearing, the essentials of the constitutional guaranty of due process of law are not met.
It cannot be said that the board were in the exercise of a discretion delegated by the General Assembly. Whether one is guilty of "grossly unprofessional and dishonest conduct" is not a matter of discretion. The terms of the act are mandatory, and provide that when guilt is fixed the board "shall" refuse to issue the certificate of registration.
The petition set out a cause of action, and it was error to dismiss it on demurrer.
Additional Syllabus by Editorial Staff.
The fundamental idea in "due process of law" is that of notice and hearing, and it means that a citizen must be afforded notice of hearing before he is condemned, and that a judgment can be rendered only after trial.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Mandamus by Kennon Mott against the Georgia State Board of Examiners in Optometry and others. Demurrer to petition sustained, and petition dismissed, and plaintiff brings error. Reversed.
Thos B. Felder, of New York City, and Owens Johnson, of Atlanta for plaintiff in error.
Daley, Chambers & Daley and Jas. K. Hines, all of Atlanta, for defendants in error.
Pursuant to the act of the General Assembly approved August 7, 1916 (Acts 1916, p. 83), Kennon Mott applied to the Georgia state board of examiners in optometry for registration and certificate covering the practice of optometry. He paid the fee of $10 required by the act; he submitted proof, in form as required by the board, that he was 21 years old, of good moral character, and for at least two years prior to the passage of the act had been continuously engaged in the practice of optometry in this state; and he satisfactorily passed an examination by the board into his proficiency. The board refused to issue the certificate of registration. Mott filed his petition for mandamus and other relief against the board and each of its members, alleging that their action was unjust, wrongful, arbitrary, oppressive, and unlawful; that they had refused to give him any hearing or trial as to the grounds upon which their action was based; that he was not allowed to hear any evidence which the board may have heard or considered in the premises; that he had not been confronted with or given an opportunity to examine witnesses testifying against him, or to be in any manner heard in support of his right; and that no just cause for the refusal of the certificate existed. He contends that the action in refusing the certificate was null and void, because in violation of the due process clause of the Constitution of this state and of the United States, and that section 7 of the legislative act is unconstitutional and void for the reasons that it arbitrarily deprives him of his right and property in his profession (although he has complied with all requirements for the issuance of certificate), without notice, hearing, or trial, and without due process of law; that, while section 7 of the act provides for due notice and hearing before a certificate already issued can be revoked by the board, it denies the same due process to an applicant who may be suspected of unprofessional or dishonest conduct, and is therefore in violation of article 1, § 1, par. 3, of the Constitution of this state, and paragraph 1 of the Fourteenth Amendment to the Constitution of the United States.
The defendants demurred generally, and upon the following grounds: That the legislative act provides for an appeal to the superior court by the applicant for registration, where registration is refused by the board, upon giving bond to secure the costs of such appeal if determined against him, this being the only remedy open to plaintiff, and, as his petition does not contain the essentials of an appeal, it cannot be maintained; that he does not allege that the board had not made investigation into his moral character or professional conduct before refusing certificate of registration, the presumption of law being that it had made such investigation and based its refusal upon the same; that the petition does not allege facts showing that the action of the board was unjust, wrongful, arbitrary, or oppressive; that the discretion of the board in refusing registration will be controlled or abridged only upon showing abuse of such discretion, and the presumption is in favor of the board having acted within such discretion; that the legislative act creates a public service board, whose discretion will be restricted, controlled, or inquired into by the courts only in the manner prescribed in the act, by appeal to the superior court; that the act seeks to conserve and protect the health and welfare of the people of the state, and is based upon the exercise by the Legislature of the police power, and is therefore not violative of any provision of the state and federal Constitutions; and that the exemption of optometrists who are physicians and surgeons is no such discrimination against optometrists who are not physicians and surgeons as to deny to the latter the equal protection of the laws. The demurrer was sustained, and the petition was dismissed.
Following the well-known rule, where petitions are considered with respect to demurrers thereto, the observations and rulings hereinafter stated are, of course, based upon the assumption that the facts are true as alleged.
1. Although there are numerous assaults made upon the act of the General Assembly regulating the practice of optometry, we think it necessary to consider only that based upon the ground that the act deprives the petitioner of the due process of law guaranteed him under the Constitutions of this state and of the United States. Whether the act offends either of these Constitutions in other respects is not decided, because, under the view we entertain, it is immaterial to the petitioner and cannot operate to his injury.
Mott was already engaged in the practice of optometry prior to March 1, 1917; and the portions of the act in question, bearing upon his right to be registered and to receive a certificate of registration authorizing him to continue the practice, are as follows:
Provision is made for an appeal to ...
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