Skelton v. Lees, 8752
| Decision Date | 13 August 1958 |
| Docket Number | No. 8752,8752 |
| Parties | d 88 L. C. SKELTON, Plaintiff and Respondent, v. Frank E. LEES et al., Defendants and Appellants. |
| Court | Utah Supreme Court |
E. R. Callister, Jr., Atty. Gen., Raymond W. Gee, Asst. Atty. Gen., for appellants.
Dan S. Bushnell, Salt Lake City, for respondent.
L. C. Skelton instituted proceedings in the district court to review and reverse the action of Frank Lees, Director of the Department of Registration for refusing to register and license him as a civil engineer. After a hearing the district court sustained his contention that the Director had acted arbitrarily and ordered the Department to grant his request. The Department appeals.
The errors assigned may be regarded as:
(1) That the district court incorrectly deemed the proceeding to be a trial de novo;
(2) That it improperly determined that the Department had acted arbitrarily in refusing the plaintiff's application.
Plaintiff's application to the Department to become registered as an engineer was duly referred to the examining committee set up by statute. 1 He was approved for registration conditioned upon his successful completion of an examination prescribed by the committee in accordance with Sec. 58-22-12(1)(b) S.L.U.1955, which action was approved by the Director who so advised plaintiff. Plaintiff declined to take the examination and informed the Department that he sought registration under (1)(c) of the above section, which allows licensing without examination, under special circumstances, based upon reputation, training, and experience in practical engineering. After re-examining plaintiff's application the committee advised the Director that plaintiff did not qualify under the latter section and reaffirmed its recommendation that he take the examination.
Plaintiff then instituted proceedings for review in the district court. He there urged that he qualified under Sec. (1)(c) above referred to; and also for the first time sought to take advantage of a section enacted in 1955, 58-22-22(2), which allows registration without an examination of persons actively engaged in the practice of engineering in fields which theretofore had not been required to register.
After reviewing the record made before the Department, and taking additional evidence, the district court ruled that the Department's action was arbitrary and found that plaintiff was entitled to be registered under both of the sections above referred to.
The position taken by the plaintiff is that the proceeding in the district court was in effect a trial de novo of his application; whereas the Department contends that it should have been limited to a review of the record made before it. Plaintiff relies upon the case of Baker v. Department of Registration 2 and the subsequent one of Withers v. Golding. 3 Without detailing the changes in the applicable statutes it can be said in summary that the statute relevant to the instant review is significantly different from the ones involved in either of the two cases just referred to. The Baker case was decided in 1931 under the statute of 1923, which merely stated in general terms that an 'appeal to the courts may be had' without any specification of the nature of the proceeding or any restriction thereon. 4 The Withers case was decided in 1941 under the statute enacted in 1933, which provided that an applicant or holder of a certificate '* * * aggrieved by any ruling of the department * * * may * * * institute an action in the district court,' and allowed the court to '* * * determine the issues of both questions of law and fact and may affirm, set aside, or modify the ruling complained of.' 5 (Emphasis added.) The emphasized language provides a foundation for a greatly different type of proceeding than under Sec. 58-22-19 6 applicable in the instant case, which we discuss below.
In 1935 by Chapter 7a, Title 79, professional engineers and land surveyors were first brought under the Department of Registration. Section 18 thereof provided that the 'general provisions of Title 79, Revised Statutes of Utah 1933, shall be applicable to the administration and enforcement of this act * * *.' which provision was carried into the 1953 Code as Section 58-10-18. In 1955 the legislature repealed the entire Chapter 10 of Title 58 governing engineers and land surveyors and adopted a new act covering them which changed the whole administrative setup and also the qualifications for registration. 7
The matter of significance is that the new enactment of 1955 was obviously purposed to completely cover regulations pertaining to engineers and surveyors. Near the end of that chapter there was added Sec. 58-22-19 which is the only part of the act dealing with review by the courts. It is true that the compiler in titling the section used the designation 'Revocation of certificates' and made no reference to the denial of applications. Suct title, however, is not persuasive since it was not contained in the original act as passed by the legislature. It is to be conceded that the earlier paragraphs of Sec. 19 deal with revocation and leave some basis for uncertainty as to whether that section applies to the denial of applications. However, when it is realized that the final paragraph in Sec. 19 contains language which would seem meaningless unless it applies to proceedings such as the instant one, it seems that the most reasonable interpretation thereof is that its purpose was to provide the method of review by the courts for all matters arising under the chapter. This is borne out by the general language of said final paragraph, particularly the words emphasized:
'Any person who shall feel aggrieved by any action of the committee in denying or revoking his certificate of registration may within thirty days appeal therefrom to the district court which shall affirm or reverse the action of the committee.' (Emphasis added.)
Incidentally, we reflect that if the above paragraph had had a separate number and title instead of being the concluding paragraph of Sec. 19, which starts out dealing with revocations, there could have been no doubt about its general application to the entire chapter. A further important consideration is that this statute relates specifically to engineers. Therefore if the review necessary under the law is reasonably to be found covered therein, it governs, and it is improper to look to the general statute, 58-1-36, for the method of review.
Concluding as we do, that the above statute applies to appeals from the denial of an application for a certificate, the question then becomes, what is the nature of the review? It is obvious that such statute is significantly different from the general statute, 79-1-36, referred to above, which formerly governed such procedure. The new enactment does not use the phrase 'institute an action in the district court' nor contain the general endowment of authority to make determinations of fact and law; nor to modify the judgment. The proceeding is called an appeal and the court's prerogative is limited to affirming or reversing the action taken. We must assume that the change in the statute was made for some purpose and give effect thereto. If seems plain that the purpose was to reduce the scope of review by the district court.
Comparison of the statutory basis for procedure with respect to the other administrative departments of state government also supports the idea that the review here is intended to be in the nature of certiorari only. The Industrial Commission 8 and the Public Service Commission 9 are granted power to make final determinations of fact, and, under the prescribed review by the Supreme Court, it is empowered only to affirm or set aside the orders of those commissions.
On the other hand, statutes intended to give power of plenary proceeding upon review plainly so indicate by the terms used. With respect to the State Engineer, a plenary review is expressly provided for 10 and another section refers to a trial de novo. 11 In reference to the Trade Commission it is stated that the aggrieved party, '* * * may commence a suit within the district court' and that the court may, '* * * set aside, vacate, amend or affirm' the order made. 12 Regarding contractors it is provided that the review shall be tried as 'an original action' in the district court. 13 Such specificity in granting powers in some chapters of Title 58 would indicate that any such broad grant of power would be spelled out.
It is our conclusion that the district court should be limited to a review of the record made before the Department, and is thus bound by the established rules applicable to such reviews. The determination of the administrative agency should not be reversed merely because the court would have come to a different conclusion. 14 It will interfere only if the Department has acted capriciously, arbitrarily, or outside the scope of its authority. 15
We proceed to the merits of the controversy: Whether the plaintiff met the qualifications for registration without submitting to an examination under either of the two sections of the statute relied upon by him:
The first is 58-22-22. It is part of the 1955 Act and provides for the validation of all existing certificates of engineers and grants 'grandfather' rights to practicing engineers who had not theretofore been required to be registered. Inasmuch as the three principal fields of engineering: mechanical, electrical and civil had been required to be registered since 1935, they are excluded from the latter provision. Incidentally they had been granted such 'grandfather' rights by the first registration act in 1935. 16 The 1955 Act by definition broadened the field beyond the three main classes mentioned above and required registration of any branch of engineering which 'affects the safety of life, health or property, or the public welfare.' 17
The so-called 'grandfather' right...
To continue reading
Request your trial
-
Hardy v. State Tax Commission
...S.Ct. 1498, 14 L.Ed.2d 443.8 See Vause v. Ind. Comm., 17 Utah 2d 217, 407 P.2d 1006; and authorities therein cited.9 See Skelton v. Lees, 8 Utah 2d 88, 329 P.2d 389; and authorities therein cited.1 Merrill Bean Chevrolet, Inc. v. State Tax Commission, Utah, 549 P.2d 443, 445 (1976).2 Young ......
-
Heldenbrand v. Montana State Bd. of Registration for Professional Engineers and Land Surveyors, 10917
...may be held not to apply to an original application for registration under section 66-2336.' He then cites the case of Skelton v. Lees, 8 Utah 2d 88, 329 P.2d 389, and the problem with which Mr. Justice Worthen wrestled in his special concurring opinion under the Utah statute strikingly sim......
-
National Advertising Co. v. Utah State Road Com'n
...should have access to the court and redress, see Entre Nous Club v. Toronto, 4 Utah 2d 98, 289 P.2d 670; and see also Skelton v. Lees, 8 Utah 2d 88, 329 P.2d 389.5 See Sec. 27--12--136.11, U.C.A.1953.6 See Citizens Casualty Co. of New York v. Hackett, 17 Utah 2d 304, 410 P.2d 767, 769; Char......