Robertson v. Schein

• Decision Date: 10 October 1947
• Citation: 305 Ky. 528,204 S.W.2d 954
• Parties: ROBERTSON et al. v. SCHEIN.
• Court: Kentucky Court of Appeals

204 S.W.2d 954

305 Ky. 528

ROBERTSON et al. v. SCHEIN.

Court of Appeals of Kentucky

October 10, 1947

Appeal from Circuit Court, Franklin County; W. B. Ardery, Judge.

Action by Herbert Schein against Elliott Robertson and others, etc for a mandatory order directing defendants, as State Board of Veterinary Examiners, to issue to plaintiff an unrestricted license to practice veterinary medicine, surgery, and dentistry. From judgment for plaintiff, the defendants appeal.

Affirmed.

Eldon S. Dummit, Atty. Gen., and Emmet V. Mittlebeeler, Asst. Atty Gen., for appellants.

Smith &amp Leary, of Frankfort, for appellees.

THOMAS Justice.

The appellee, Herbert Schein, is a graduate of Middlesex College in Waltham, Massachusetts, a veterinary college organized and approved under the laws of that state, which authorized it to confer the degree of 'Doctor of Veterinary Medicine' upon graduates completing the prescribed course of study. He completed that course and on December 1, 1944, it conferred upon him that degree and issued to him a diploma to that effect.

Desiring to locate and practice veterinary surgery in this commonwealth, appellee applied to the State Board of Veterinary Examiners (the members of which are appellants) to take the examination prescribed and required by sec. 321.040, subsec. (3) KRS, which says: 'If he (applicant) passes the examination satisfactorily, the board shall issue him a license certificate, signed by its president and secretary and authenticated by its seal.' (Our parenthesis.) He passed the examination 'satisfactorily' and the Board on August 26, 1946, issued to him a license 'as a Non Graduate Veterinarian pursuant to an act of the Legislature approved March 24, 1916,' with authority to practice veterinary medicine, surgery and dentistry in the State of Kentucky pursuant to the laws thereof.

Appellee was dissatisfied with the limitations contained in the license by the use of the words 'Non Graduate,' which, as the Board held, deprived him of using the title 'Dr.' before his name, or the letters 'D. V. M.' after his name. He then applied to the Board and requested it to issue him an unrestricted license as contemplated by sec. 321.040 of KRS, which it failed and refused to do. The Board concluded that it had the right to so limit the privilege conferred on appellee, pursuant to the 1916 statute, Laws 1916, c. 71, but all semblance of such authority which the 1916 Act may have contained was repealed by Chapter 177 of the 1918 Acts. The title to the latter act is:

'An Act to amend Chapter 71 of the Acts of the General Assembly of 1916, which is 'An Act to regulate the practice of Veterinary Medicine, surgery and dentistry in the State of Kentucky, to license non-graduate veterinarians, to establish a State Board of Veterinary Examiners and to provide penalties for violating the provisions thereof,' which act was signed by the Governor on March 24, 1916.'

In its body the provisions in the 1916 Act with reference to 'Non-Graduate Veterinarians' is entirely omitted. Therefore, our present law as contained in Chapter 321 of KRS is the entire law relating to the licensing of veterinary surgeons.

Pursuant to its interpretation, or its authority, it promulgated rules 19 and 20, which say:

'Rule 19. Such applicant having passed a satisfactory examination, and being a graduate of a recognized Veterinary College, as shown by his diploma filed with the Board, shall be granted a Graduate's license; and all other applicants, not graduates of recognized Veterinary Colleges, shall be granted a Non-graduate license; and under no circumstances shall there be any deviation from this rule.

'Rule 20. A recognized Veterinary College shall be defined as such colleges as are recognized and accredited by the American Veterinary Medical Association and by the United States Bureau of Animal Husbandry.' (Our emphasis)

On April 26, 1947, appellee filed this action in the Franklin circuit court against appellants, and in his petition he set out the above facts and prayed for a mandatory order directing the Board to issue to him an unrestricted license to practice veterinary medicine, surgery and dentistry 'in all of its phases and branches as defined in KRS 321.010, subsec. (3)' and for his costs and all proper relief. The court overruled defendant's demurrer to the petition and adjudged, upon his failing to further plead, that:

'(1) The only requirements for a license to practice veterinary medicine, surgery or dentistry as such term is defined in KRS 321.020 are contained in KRS 321.040.

'(2) The defendant Board was without authority to promulgate and enforce Rules 19 and 20 of the Board's Rules and Regulations.

'(3) Plaintiff having satisfactorily passed the examination provided in KRS 321.040 is entitled to an unrestricted license to practice veterinary medicine, surgery and dentistry in the Commonwealth of Kentucky, and the Board is hereby ordered to issue to the plaintiff an unrestricted license so to do.'

Before filing the action Mr. Joseph J. Leary, one of the attorneys for appellee, wrote to the Board asking it certain questions as to what his client was authorized to do under the Non Graduate license, or certificate, it had issued to him, one of which was: 'May they (the holders of such a certificate) use the letters D. V. M. after their names?' to which the Board replied: 'We are of the opinion that the use of these letters is not proper nor in accord with highest professional standards.' In answer to counsel's question (3) the Board said that the holder of a Non Graduate license 'may establish an office in Kentucky and, in connection with this office a small animal hospital,' but it expressed a doubt that a Non Graduate veterinarian 'can hold himself out to the public as qualified and equipped to engage in the practice of veterinary medicine in all of its branches.' The letter stated the Board's doubt as being based upon the fact 'that the United States Bureau of Animal Husbandry does not recognize him as a graduate veterinarian.' The letter concluded with the statement that: 'These limitations are caused by the decisions of outside agencies and are not under the jurisdiction of the Board. The Bureau of Animal Husbandry would not recognize a Non Graduate veterinarian, no matter what action might be taken by our Board.' So it thus clearly appears that the only fact upon which the Board based its authority for the promulgation of its rules 19 and 20 was, that the United States Bureau of Animal Husbandry would not recognize a graduate veterinarian from a school not recognized by it.

The sole question here involved is the authority of the Kentucky Board to promulgate its two rules above referred to which must emanate solely from conferred authority given by the Kentucky Statute. We have seen that it nowhere confers any authority on the State Board to issue two classes of certificate or license, one based upon graduation from the recognized veterinary college and one based upon successful examination by one from a veterinary college not recognized and which is designated 'Non Graduate certificate.'

So the question resolves itself into whether or not the promulgated rules were legislative in character, by extending our statute law upon the subject beyond its expressed requirements and provisions, by the injection into the statute requirements not therein provided for. If that question should be answered in the affirmative then clearly the promulgated rules in contest are invalid. Our Constitution prescribes in its section 27 that: 'The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.'

The following section (28) prescribes that: 'No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.'

Nowhere in the Constitution is there any direction or permission of the Legislative department to delegate its authority to make statutory laws to any person or group of persons, which simplifies the question for determination to whether or not rules 19 and 20 of the Board are purely administrative in their character, or are they legislative in character.

The only authority given to the Board to make rules is coupled with the provision that such rules shall be consistent 'with the laws of this state or of the United States, necessary to carry out this chapter.' See division (a) of subsec. (1) of KRS 321.120.

In the case of Bloemer et al. v. Turner et al., 281 Ky 832, 137 S.W.2d 387, 388, the question involved related 'to the authority of an administrative bureau' to make rules in the performance of its duties conferred upon it by statute. The statute there involved provided for branding and labeling packages of specified articles of food for domestic animals. The statute prescribed what should be contained on the label to such packages, which were '(1) the number of net pounds therein; (2) the name, brand or trademark; (3) the name and address of...