State v. Friedkin

• Decision Date: 24 June 1943
• Docket Number: 1 Div. 195.
• Citation: 244 Ala. 494,14 So.2d 363
• Parties: STATE v. FRIEDKIN.
• Court: Alabama Supreme Court

14 So.2d 363

244 Ala. 494

STATE v. FRIEDKIN.

1 Div. 195.

Supreme Court of Alabama

June 24, 1943

Wm. N. McQueen, Acting Atty. Gen., and John O Harris and W. W. Callahan, Asst. Attys. Gen., for appellant.

Outlaw, Seale & Kilborn, of Mobile, for appellee.

FOSTER Justice.

This is an appeal by the State under section 370, Title 15, Code of 1940, on the theory that the judgment in the circuit court held that the Act of the Legislature under which the indictment was preferred was unconstitutional. The indictment is in six counts.

The demurrer to counts 2, 5 and 6 was sustained, and to counts 1 3 and 4 was overruled.

Count 2 charged defendant with the practice of chiropody without a license and contrary to law. Count 5 charged the practice of chiropody without a certificate of qualification from the State Board of Medical Examiners contrary to law. Count 6 was in substance the same as count 5.

The statute which is controlling is section 259, Title 46, Code of 1940. It was so provided in an Act of September 21, 1939 amending section 2837, Code of 1923, so as to add the feature applicable to chiropody. See, General Acts 1939, page 600.

The demurrer which was sustained to counts 2, 5 and 6, supra, was to the effect that the statute on which the indictment is based, "as completed by the rules and regulations of the Board of Medical Examiners of the State of Alabama," is void as applied to defendant because it deprives him of liberty or property without due process, and denies to him the equal protection of the laws, in that it discriminates against persons not residing in Alabama, and against aliens that the rules are legislative in part, and the power to adopt them has not been delegated to the board, and that it cannot be delegated to them to that extent.

We are told in brief for appellee and in argument at the bar that the Board of Medical Examiners passed rules and regulations on December 1, 1939, and that the Act authorizing them did not by its terms become effective until December 21, 1939, and that they contained a clause exempting from examination persons then residing in Alabama, who were bona fide citizens of the United States, "and who had reputedly engaged solely in the practice of chiropody for one year prior to the passage of the chiropody act."

We are therefore asked by appellee to affirm a judgment sustaining the demurrer on the contention (not made a ground of the demurrer) that when the rules were passed, the board had no authority to do so, or if they had such authority, they were violative of the constitutional provisions just mentioned.

The contention first made is that the board can only determine whether the applicant has the qualifications prescribed by it in regulations duly promulgated, and that there were no such rules duly promulgated; or, if so, they were void on constitutional grounds.

That question and the discriminatory claim as to the rules and regulations are dependent on the theory that the court will take judicial notice of those rules and regulations; when they were adopted; and that defendant was not a resident of Alabama, or was not a citizen of the United States. For if he were a resident of Alabama and a citizen of the United States, the regulations would not be discriminatory as to him, and he could not complain that it was so as to some other person not here involved. A person adversely affected must present such a constitutional issue in court. State v. Merrill, 218 Ala. 149(6), 117 So. 473; State ex rel. Thomas v. Gunter, 170 Ala. 165, 54 So. 283, unless it is one of great public interest, Shehane v. Bailey, 110 Ala. 308, 20 So. 359 (and then discretionary with the court), State v. St. John, Ala.Sup., 13 So.2d 161; 16 Corpus Juris Secundum, Constitutional Law, § 94, p. 215, note 62.

The power and duty of a court to take judicial notice of the rules and regulations of an administrative board has been considered in several of our cases. We have declared that our courts will not take judicial notice of the regulations of an administrative board, unless they are of such wide application and established duration as to have become a part of the common knowledge of well informed persons. Ferguson v. Starkey, 192 Ala. 471, 68 So. 348; Hill v. Cameron, 194 Ala. 376, 69 So. 636. See, Georgia Pac. Rwy. Co. v. Gaines, 88 Ala. 377, 7 So. 382.

It was held in West v. State, 242 Ala. 369, 6 So.2d 436, that when the act of the legislature expressly declares that the rules and regulations therein referred to shall have the force and effect of law, its status is as a public statute in this respect. To the same effect is Lovett v. State, 30 Ala.App. 334, 6 So.2d 437, certiorari denied 242 Ala. 356, 6 So.2d 441.

For the same and other reasons we take judicial notice of the rules and regulations promulgated by authority of an act of Congress. Lawrenceburg Roller Mills Co. v. Jones & Co., 204 Ala. 59, 85 So. 719; Adler & Co. v. Jones & Co., 208 Ala. 481, 94 So. 816. Also of proclamations and messages of the governor, Carnley v. Brunson, 227 Ala. 197, 149 So. 87; as we did of the bank moratorium, King v. Porter, 230 Ala. 112, 160 So. 101; Hamilton v. James, 231 Ala. 668, 166 So. 425; and of the President of the United States, Louisville & N. R. Co. v. Shikle, 206 Ala. 494, 90 So. 900, and of rules promulgated by the A. B. C. Board, Hardin v. State, 241 Ala. 4, 3 So.2d 89.

But not of ordinances of a city unless so expressed in legislative enactment. 9 Ala.Dig., Evidence, p. 56, + 31. They are local in application.

The Act of the Legislature having reference to chiropody does not declare that the rules and regulations which it authorizes shall have the force of law. But the generally accepted theory is that rules, regulations and general orders of administrative authorities pursuant to the powers delegated to them have the force and effect of laws, when they are of state-wide or national application, and so set up as that information of their nature and effect is readily available, or has become a part of common knowledge. See 20 Am.Jur. 67, § 44; 42 Am.Jur. 432 et seq., § 102.

This is not in conflict with Ferguson v. Starkey, supra, or Hill v. Cameron, supra, whose holding was based on the ground as declared, that the question had relation to certain localities said to be stock law districts (not defined by law) of which the court took no judicial knowledge. But here we are dealing with a well known board of long standing whose jurisdiction and rules have state-wide application, and are easily ascertainable. See, State ex rel. Bond v. State Board, 209 Ala. 9, 95 So. 295; Parke v. Bradley, 204 Ala. 455, 458, 86 So. 28.

We prefer to accept the principle that the rules and regulations validly adopted by the board under this Act have the force and effect of law, of which courts take judicial knowledge.

Reverting to the contention that they were adopted prior to the effective date of the Act, and therefore are without support from it, we entertain the view that if they were adopted before that date, it would not prevent them from going into effect contemporaneously with the Act. See, Hawkins v. Jefferson County, 233 Ala. 49(6), 69 So. 720. The Act was approved September 21, 1939, and became effective December 21, 1939. The State Board of Medical Examiners was not created by it. It had its origin as set up in section 258, Title 46, Code of 1940, in the Act of April 5, 1911 (General Acts 1911, page 234). The Act of 1939, supra, put upon that board the duty to make an examination of applicants for license to practice chiropody on the specified subjects. The rules and regulations show an adoption on December 1, 1939. They recite that "as soon as this law becomes operative, anyone attempting to treat ailments of the human foot without procuring a certificate of qualification from the State Board of Medical Examiners will be in open violation of the law." Whereupon the board adopted the rules and regulations, one feature of which was to authorize "any person now residing in Alabama who is a bona fide citizen of the United States, and who has reputedly engaged solely in the practice of chiropody for one year prior to the passage of the chiropody act" to make application for a certificate without examination, within forty days.

We also think that prior to December 21, 1939, the board could have examined applicants on the subjects required under the rules and regulations adopted December 1, 1939, and have become satisfied as to their qualifications, and based on such knowledge have granted a certificate of qualification on December 21, 1939, or denied it, as their...