Prouty v. Heron, 16590

• Decision Date: 09 March 1953
• Docket Number: No. 16590,16590
• Citation: 255 P.2d 755,127 Colo. 168
• Parties: PROUTY et al. v. HERON et al.
• Court: Colorado Supreme Court

Page 755

255 P.2d 755

127 Colo. 168

PROUTY et al. v. HERON et al.

No. 16590.

Supreme Court of Colorado, en Banc.

March 9, 1953.

Rehearing Denied April 6, 1953.

John W. Metzger, Atty. Gen., Allen Moore, Deputy Atty. Gen., Donald C. McKinlay, Asst. Atty. Gen., Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Charles M. Soller, Asst. Atty. Gen., and James D. Parriott, Jr., Asst. Atty. Gen., for plaintiffs in error.

George K. Thomas, Denver, for defendant in error.

Louis I. Hart, Jr., Denver, amicus curiae.

MOORE, Justice.

Defendant in error was plaintiff in the trial court and we will herein refer to him as plaintiff. Plaintiffs in error were defendants in the trial court and we will hereinafter refer to them as defendants or board.

Plaintiff filed his complaint in the district court of the City and County of Denver, in which he sought to enjoin defendants from classifying qualified engineers as to specific branches of their profession and thereby limiting the practice of such engineers to those phases of the profession properly belonging to the classification in which such engineers were placed by the board. Plaintiff further sought by court order to correct the roster, and licensing cards, issued by the board to registered engineers, in such manner as to entitle registrants to practice the profession of engineering without limitation as to class or branch of the profession; and for a declaratory judgment holding certain rules and regulations adopted by the defendant board to be void. He further sought to enjoin the printing and publication, by defendants, of a pamphlet containing, among other things, a roster of engineers authorized to practice their profession in Colorado and the branch of the profession in which each engineer had been classified.

November 4, 1949, the trial court granted the relief sought by plaintiff, and thereafter the board brought the case to this court by writ of error to review that judgment.

Chapter 161, page 365 of the 1951 Session Laws of Colorado, relating to 'Engineering and Land Surveying,' became effective March 29, 1951 and pursuant to joint motion of the parties the cause was remanded to the trial court for the purpose of permitting defendants to file a motion for modification of the judgment and for dissolution of the injunction. Said motion was based upon the ground that the stated act of the legislature expressly commanded the performance by defendants of those acts which the trial court had enjoined, and fully authorized the board to do those things of which plaintiff complained.

Plaintiff filed an answer to defendants' motion, in which the 1951 Act of the legislature was attacked on constitutional grounds, which we hereinafter consider. Nine witnesses were examined at the hearing which followed. November 16, 1951, the motion for modification of the judgment and for dissolution of the injunction was denied.

The trial court stated that chapter 161, Session Laws of Colorado 1951, operated as an '* * * infringement on petitioner's rights under the Fourteenth Amendment and the pertinent section of our own Article 2 of the Colorado Constitution, the court holds the present act unconstitutional * * *.' The trial court accordingly refused to dissolve the injunction.

Facts essential to the proper solution of this controversy are as follows: Plaintiff was duly licensed to practice the profession of engineering in the State of Colorado on May 12, 1921, under authority vested in the State Board of Engineer Examiners by an Act of the General Assembly approved April 9, 1919. S.L. '19, c. 185, p. 625. This license contained, inter alia, the following statement: 'The State Board of Engineer Examiners of Colorado * * * having determined that Kenneth A. Heron has fully complied with said act and is entitled to a license to practice the Profession of Engineering, do hereby license him to practice said profession * * *.' Thereafter plaintiff left the State of Colorado, returning in the year 1945, and in December of that year he reapplied for registration as a professional engineer in Colorado, paid the required fee, and received a registration card certifying that he was especially qualified to practice in the branch of civil engineering. Plaintiff protested the limitation implied by this qualified registration, and requested a license without limitation or classification, but this never was issued.

In December, 1947, plaintiff against applied for a renewal license to practice his profession for the year 1948 and requested tht his registration be carried on the records of the defendant board as 'professional engineer' without limitation or classification. The request, however, was denied and again the registration card was issued stating that plaintiff was qualified in the branch of civil engineering. Plaintiff demanded a hearing, which was denied.

In the year 1949 plaintiff again was registered as an engineer qualified in the branch of civil engineering, and on June 23rd of that year he, by his attorney, protested such limited registration and made formal demand on the board for the withdrawal fo all limitations on his license to practice engineering in Colorado, and demanded a correction of his registration, including the license card and the roster of engineers, in such manner as to show that he was licensed to practice the profession of engineering without qualification or limitation. Upon refusal of defendant board to comply with this demand, suit was instituted.

In the complaint, counsel for plaintiff set forth the foregoing facts and alleged that defendant board was about to print and publish for free distribution a pamphlet containing, among other things, a roster of registered engineers and the classification to which each was assigned, and further alleged that there was no authority under the law for the printing and distribution of such a roster.

Defendant board in its answer set out the regulations which it had adopted purporting to authorize the classification of engineers and publication of the roster of which plaintiff complained. In the pleadings two questions were raised which were correctly stated by the trial court as follows:

'First: Has the State Board of Examiners of Engineers and Land Surveyors of the State of Colorado the right and authority to license an engineer and to issue a certificate limiting and qualifying such practice by the words such as 'Civil,' 'Electrical,' 'Mechanical,' etc.

'Second: Is there authority in the law for the printing and free distribution of the annual report and roster of engineers to be paid out of the funds collected by said Board as license fees.'

No specific authority for the classification of professional engineers was contained in the applicable statute. Its validity depends upon the legality of certain rules and regulations adopted by the board. We deem it unnecessary to set them forth in detail. Suffice it to say that the trial court correctly held that the regulations, upon which the board relied as authority for their classification of engineers, and for the publication and distribution of a roster including such classifications, were void.

Chapter 161, Session Laws of Colorado 1951, as hereinbefore stated, was enacted subsequent to the entry of the trial court's judgment which granted the relief sought by plaintiff. Upon reconsideration of the case on the questions raised by the motion to dissolve the injunction, and the answer thereto which was filed by plaintiff, the trial court considered the 1951 Act at length and stated, inter alia:

'The court has given serious and careful consideration as to whether the 1951 Act, Chapter 161, is unconstitutional on the following grounds:

'First: That it is discriminatory;

'Second: That it constitutes special legislation;

'Third: That there was an unauthorized delegation of power by the Legislature to the Board and that such delegation is arbitrary, capricious and unreasonable.'

The Attorney General, on behalf of defendant board asserted in his brief that the questions legitimately raised concerning the subject matter of the action were: '(a) Whether or not there was an unconstitutional delegation of legislative authority to the board; (b) whether or not the legislature unlawfully granted legislative authority for the printing and distribution of classified rosters and cards; (c) whether or not the classification directed by the legislature constituted a deprivation of property without due process of law; (d) whether or not classification directed by the legislature was discriminatory.' Consideration and resolution of two of these queries will suffice to determine the rights of plaintiff in the instant action, and to more clearly define the powers of the legislature with regard to the classification of those who in the future may apply for a license to practice the profession of engineering in all or any of its branches.

Questions to be Determined.

First: Is the right to practice a profession, once legally granted, within the rights protected by the Constitutions of the United States and of the State of Colorado, which provide that no person shall be deprived of life, liberty or property without due process of law?

This question is answered in the affirmative. Our court has heretofore stated that the professions of law, medicine and dentistry are generally considered as learned professions, and that, 'Neither is an ordinary trade or calling which all citizens alike may pursue.' People v. Painless Parker...