Pearce ex rel. Structural Pest Control Commission v. Sharbino, 49551

• Decision Date: 05 May 1969
• Docket Number: No. 49551,49551
• Parties: Dave L. PEARCE, Commissioner of Agriculture, ex rel. STRUCTURAL PEST CONTROL COMMISSION v. James SHARBINO.
• Court: Louisiana Supreme Court

Page 126

223 So.2d 126

254 La. 143

Dave L. PEARCE, Commissioner of Agriculture, ex rel. STRUCTURAL PEST CONTROL COMMISSION v. James SHARBINO.

No. 49551.

Supreme Court of Louisiana.

May 5, 1969.

Dissenting Opinion May 20, 1969.

Joel B. Dickinson, Baton Rouge, for plaintiff-appellant.

Gist, Methvin & Trimble, James T. Trimble, Jr., Alexandria, for defendant-appellee.

SANDERS, Justice.

This appeal raises the constitutionality of the Structural Pest Control Law, LSA-R.S. 40:1261--1274.

Dave L. Pearce, Louisiana Commissioner of Agriculture, acting on behalf of the Structural Pest Control Commission, sought an injunction against James Sharbino to restrain him from practicing structural pest control without a license. In his answer, Sharbino attacked the constitutionality of the Structural Pest Control Law, especially LSA-R.S. 40:1265, contending it is vague, contains no legislative standards, delegates legislative powers in violation of the Louisiana Constitution ¹, and denies equal protection and due process guaranteed by the Fourteenth Amendment of the United States Constitution. The district court declared the statute unconstitutional and dismissed the suit.

The Commissioner of Agriculture has appealed. ²

LSA-R.S. 40:1265 provides:

'A. Any person desiring to engage in structural pest control or eradication work shall file a written application for license with the commission. Any applicant who is qualified for examination shall be given a written examination for license by the commission, which examination shall take place not more than forty-five days from the date the application for license is filed. The examination shall take place at the domicile of the commission. All applicants for examination for license must have a knowledge of the practical and scientific facts underlying the practice of structural pest control, control of wood-destroying insects and fumigation and the necessary knowledge and ability to recognize and control those hazardous conditions which may affect human life and health.

'B. The commission may, by majority vote, adopt rules and regulations governing the issuance of licenses for each particular type of structural pest control which, however, shall not conflict with any provision of this Part.

'C. An applicant, in order to qualify for examination for license to engage in structural pest control work, or rodent control work, must produce satisfactory evidence to the commission that he is a graduate of a college or university and has a major in entomology, or must have completed at least four years of satisfactory work under the supervision of a pest control operator who is recognized, approved and licensed by the Structural Pest Control Commission in that phase or special field of work for which a license is desired; provided, however, that any foreign applicant from a state that does not require a license to engage in entomological, structural pest control work or rodent control work, must be a graduate of a college or university and have a major in entomology, or must produce satisfactory evidence to the commission that he has completed at least four years of satisfactory work in such state under the supervision of a recognized and reputable pest control operator, in order to obtain a license in this state.' * * *

Defendant contends the only requirement for a license is an examination of unspecified content. With no legislative standards, the examination is left to the uncontrolled discretion of the Commission, vesting that body with arbitrary power to grant or withhold a license. The defendant asserts the statute is unconstitutional, relying upon the holdings of this Court in Louisiana State Board of Embalmers v. Britton, 244 La. 756, 154 So.2d 389; Banjavich v. Louisiana Licens. Bd. for Marine Divers, 237 La. 467, 111 So.2d 505; and State v. Morrow, 231 La. 572, 92 So.2d 70.

The Commissioner, on the other hand, contends the statute contains reasonably clear standards or guides, fixing the scope of the examination, as well as the qualifications to take it.

In Louisiana State Board of Embalmers v. Britton, supra, we held:

'Delegations by the Legislature to administrative bodies of the power to administer laws have long been recognized. Such delegations are the product of necessity arising from economic and governmental conditions of increasing complexity.

'It is well settled, however, that the Legislature must establish reasonably clear standards or guides in such a delegation to fulfill constitutional requirements. The salutary purpose of these standards is to prevent the abdication by the Legislature of its exclusive law-making power, provide meaningful guidance to the administrative body, inhibit the arbitrary use of authority by that body, and serve as a basis for judicial review.'

A statute that confers arbitrary or uncontrolled power to grant or withhold a license to engage in an occupation violates the constitutional requirements. Banjavich v. Louisiana Licens. Bd. for Marine Divers, supra; 1 Am.Jur.2d, Administrative Law, § 108, p. 907.

To determine whether the present statute is unconstitutional, we must examine its provisions in the light of well established constitutional principles. Among them are salutary rules of judicial restraint. When a court can reasonably do so, it will construe a statute so as to preserve its constitutionality. Buras v. Orleans Parish Democratic Executive Committee, 248 La. 203, 177 So.2d 576; Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270; United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; 16 Am.Jur.2d, Constitutional Law, § 144, p. 345. Moreover, when a statute is susceptible of two interpretations, one making it unconstitutional and the other constitutional, the interpretation sustaining constitutionality should be adopted. Borden v. Louisiana State Board of Education, 168 La. 1005, 123 So. 655, 67 A.L.R. 1183.

The licensing requirements of the present statute may be divided into two classes: qualifications to take the examination and guides for the examination.

Subsection C sets forth the qualifications to take the examination. A resident applicant must produce 'satisfactory evidence' that he is a college graduate with a major in entomology, the science dealing with insects, Or that he has completed four years of 'satisfactory work' under the supervision of a licensed pest control operator.

Defendant attacks the qualification provision, contending the language 'satisfactory evidence' and 'satisfactory work' leaves an applicant's qualifications to the uncontrolled discretion of the Commission. We think not.

The phrase 'satisfactory evidence' is a common one in law. It means that competent evidence which satisfies an unprejudiced mind of the existence of a fact. Houle v. Tondreau Bros. Co., 148 Me. 189, 91 A.2d 481. In the present context, 'satisfactory work' means work that meets the minimum standards of apprenticeship generally prevailing in the occupation. Neither of the phrases invests the Commission with unfettered discretion. They represent objective standards. Commission rulings based on them are subject to judicial review.

Subsection A of the statute deals with the examination. The examination must be in writing; it must be given within forty-five days from the filing of the application; it must be given at the domicile of the Commission. The final sentence provides:

'All applicants for examination for license must have a knowledge of the practical and scientific facts underlying the practice of structural pest control, control of wood-destroying insects and fumigation and the necessary knowledge and ability to recognize and control those hazardous conditions which may affect human life and health.'

It is this sentence that has produced the most difficulty in the litigation. The defendant contends the sentence pertains only to the applicant, leaving no guide as to the subject matter or scope of the examination. The Commissioner of Agriculture, on the other hand, asserts it fixes the subject matter of the examination. Adopting defendant's contention, the district court held the sentence relates only to the applicant and has no relation to the examination itself. We disagree with this limited construction.

To ascertain the true meaning of the sentence, it must be examined in context. LSA-C.C. Art. 16; Thibaut v. Board of Com'rs, 153 La. 501, 96 So. 47. The sentence, as we have observed, forms a part of the subsection devoted to the examination, rather than qualifications. To construe the sentence as relating only to an applicant's qualifications would result in a double testing of knowledge, one to screen the applicant to take the examination and the other for the examination itself. This unusual result can be avoided by harmonizing it with the subsection topic: guides for the examination. Although the sentence is inartistically phrased, it may reasonably be construed to refer to the matters covered by the examination. As thus construed, the statute provides the examination shall test the knowledge of the applicant as to the following matters:

(1) Practical and scientific facts underlying the practice of structural pest control;

(2) Control of wood-destroying insects;

(3) Fumigation;

(4) Recognition and control of hazardous conditions which may affect life and health arising from pest infestation and control.

LSA-R.S. 40:1261 defines structural pest control, fumigant, and the other terms used in the occupation. Hence, the standards or guides for the examination are reasonably clear.

The cases defendant relies upon are inapposite. In State v. Morrow, supra, the statute regulating watchmaking required the applicant to 'possess such general education, training and experience as the Board may determine.' The statute contained no specific provision for an examination. The court, noting the absence of proper standards or guideposts, declared the statute unconstitutional. In Banjavich...