Reyburn v. Minnesota State Bd. of Optometry

• Decision Date: 29 June 1956
• Docket Number: 36769,Nos. 36768,s. 36768
• Citation: 247 Minn. 520,78 N.W.2d 351
• Parties: W. J. REYBURN et al., Appellants, v. MINNESOTA STATE BOARD OF OPTOMETRY et al., Respondents.
• Court: Minnesota Supreme Court

Page 351

78 N.W.2d 351

247 Minn. 520

W. J. REYBURN et al., Appellants, v. MINNESOTA STATE BOARD OF OPTOMETRY et al., Respondents.

Nos. 36768, 36769.

Supreme Court of Minnesota.

June 29, 1956.

Syllabus by the Court.

1. If the law furnishes a reasonably clear policy or standard of action which controls and guides the administrative officers in ascertaining the operative facts to which the law applies, so that the law takes effect upon these facts by virtue of its own terms, and not according to the whim or caprice of the administrative officers, the discretionary power delegated to the board or commission is not legislative.

2. 'Unprofessional conduct' is conduct which violates those standards of professional behavior which through professional experience have become established, by consensus of the expert opinion of the members, as reasonably necessary for the protection of the public interest.

3. The legislature need not enumerate what specific acts or omissions constitute unprofessional conduct since the phrase 'unprofessional conduct' itself provides a guide for, and a limitation upon, the exercise by the board of its power to revoke a practitioner's license.

4. It is the majority rule that a statute empowering a regulatory board to revoke the license of an optometrist for unprofessional conduct is not void for uncertainty and indefiniteness because it states the grounds for the revocation of the license in general terms and fails to specify what particular acts or omissions constitute unprofessional conduct.

5. The statutory phrase (M.S.A. § 148.57, subd. 3) 'among other things' coupled to the enumeration of specific or illustrative acts of unprofessional conduct is indicative merely of a legislative intent not to occupy the entire field by express definition but to delegate to the board the duty of ascertaining what other or additional acts violate the profession's acceptable standards.

6. The word Employment as found in § 148.57, subd. 3, is to be construed in the broad sense of meaning Use and it is immaterial whether 'cappers' or 'steerers' are paid or unpaid.

Milton H. Altman, Lipschultz, Altman, Geraghty & Mulally, St. Paul, for appellants.

Miles Lord, Atty. Gen., Richard W. Johnson, Sp. Asst. Atty. Gen., for respondents.

MATSON, Justice.

Appeal is from an order denying plaintiffs' motion for a new trial.

Plaintiffs are optometrists licensed to practice by the State of Minnesota. Upon the separate complaints of Dr. Carel C. Koch, plaintiffs were cited and required to appear before the Minnesota State Board of Optometry to show cause why their licenses should not be revoked or suspended. The complaints alleged, among other things, that plaintiffs had in the past and at the time of the complaint an arrangement or agreement with the King Optical Company, a dispensing optician, whereby said company has been engaged as a 'steerer' to obtain business for each plaintiff; that numerous referrals have been made to plaintiffs by the said company; that plaintiffs in turn refer persons back to the said company for spectacles or eye glasses; that plaintiffs have neglected or failed to check or examine the lenses and other parts of the glasses furnished by the King Optical Company to the patients so referred to plaintiffs in order to determine whether the glasses met the patient's needs; and that plaintiffs have an agreement with the King Optical Company apportioning the income attributable to the referrals.

Pursuant to the above complaints the defendant Minnesota State Board of Optometry, hereinafter referred to as the board, issued an order requesting plaintiffs to show cause on March 11 and March 12, 1954, why their licenses to practice optometry should not be revoked or suspended. Prior to the hearing dates plaintiffs each commenced an action against the defendants--the board and its individual members--praying for certain declaratory relief and an injunction enjoining defendant board and its members from proceeding with the hearing of the charges based upon Dr. Koch's complaints. The actions were consolidated for trial which resulted in a judgment against plaintiffs dismissing their complaints and denying the injunctive and declaratory relief sought. Plaintiffs thereupon made a motion for a new trial. Plaintiffs' motion was denied, whereupon this appeal was taken.

This appeal presents questions relative to (1) the constitutionality of M.S.A. § 148.57, subd. 3; (2) the validity and application of board's rule No. 8; (3) whether the board is disqualified for bias and prejudice; and (4) whether the signed complaints are sufficient to confer jurisdiction on the board.

1. Plaintiffs contend that § 148.57, subd. 3, fails to provide sufficient administrative standards to guide the board in the exercise of its power to revoke or suspend a practitioner's license for unprofessional conduct and therefore constitutes a delegation of legislative power in contravention of Minn.Const. art. 3, M.S.A. Section 148.57, subd. 3, insofar as here pertinent, provides:

'* * * may revoke the certificates or suspend the right to practice of any person * * * who is found by the board to be * * * Guilty of unprofessional conduct. 'Unprofessional conduct' means any conduct of a character likely to deceive or defraud the public, including, Among other things, * * * the employment of 'cappers' or 'steerers' to obtain business; splitting or dividing a fee with any person; * * *.' (Italics supplied.)

Plaintiffs' contention rests on the assumption that the use of the phrase 'among other things' empowers the board to formulate its own definition of unprofessional conduct whereby it may revoke or suspend a license according to its own caprice and whim and not as guided by any reasonable standards of administrative action.

Although purely legislative power cannot be delegated, we find no such delegation here. In Lee v. Delmont, 228 Minn. 101, 113, 36 N.W.2d 530, 538, this court said:

'* * * Although discretion to determine when and upon whom a law shall take effect may not be delegated, the legislature may confer upon a board or commission a discretionary power to ascertain, Under and pursuant to the law, some fact or circumstance upon which the law by its own terms makes, or intends to make, its own action depend. The power to ascertain facts, which automatically brings a law into operation by virtue of its own terms, is not the power to pass, modify, or annul a law. If the law furnishes a reasonably clear policy or standard of action which controls and guides the administrative officers in ascertaining the operative facts to which the law applies, so that the law takes effect upon these facts by virtue of its own terms, and not according to the whim or caprice of the administrative officers, the discretionary power delegated to the board or commission is not legislative. ¹ * * *

'The policy of the law and the standard of action to guide the administrative agencies may be laid down in very broad and general terms. Annotation, 79 L.Ed. 489.'

2. 'Unprofessional conduct' is conduct which violates those standards of professional behavior which through professional experience have become established, by the consensus of the expert opinion of the members, as reasonably necessary for the protection of the public interest. In establishing the necessity for and the existence of such standards, every member of the profession should be regarded as an expert. ²

'* * * There is a moral dereliction in failure by any member of a profession to apply in professional practice the standards which, by consensus of opinion in the profession, are necessary.' ³

What constitutes unprofessional conduct by an optometrist may be determined by those standards which are commonly accepted by those practicing the profession in the same territory. ⁴

3. The legislature need not enumerate what specific acts or omissions constitute unprofessional conduct since the phrase 'unprofessional conduct' itself provides a guide for, and a limitation upon, the exercise by the board of its power to revoke a practitioner's license. The legislature by that term has not delegated to the board power to define as 'unprofessional' any conduct which by the consensus of the expert opinion is ethical and consonant with the public welfare. The board is thereby empowered to declare as 'unprofessional' Only such conduct as fails to conform to those standards of professional behavior which are recognized by a consensus of expert opinion as necessary for the public's protection. ⁵ It follows that the board is not determining when and upon whom the delegated discretionary power is to take effect but is simply ascertaining the existence of a member's acts or omissions which, if they violate the accepted standards of professional behavior, automatically bring the law into operation by its own terms.

4. That the phrase 'unprofessional conduct,' here defined as Any conduct of a character likely to deceive or defraud the public, provides a sufficient guide for the ascertainment of the operative facts which bring the statute into operation is clearly indicated by our decision in State ex rel. Powell v. State Medical Examining Board, 32 Minn. 324, 325, 20 N.W. 238, 239, wherein we held constitutional a statutory provision that "The board of examiners may refuse certificates to individuals guilty of Unprofessional or dishonorable Conduct, and they may revoke certificates for like causes." (Italics supplied.) It is also the majority rule that a statute empowering a regulatory board to revoke the license of a physician, surgeon, or dentist for unprofessional conduct is not void for uncertainty and indefiniteness because it states the grounds for the revocation of the license in general terms and fails to specify what particular acts or omissions constitute unprofessional conduct. ⁶ This principle is equally applicable to the practice of optometry. ⁷

5. Since 'unprofessional...