State v. Gee

• Decision Date: 29 October 1951
• Docket Number: No. 1001,1001
• Citation: State v. Gee, 73 Ariz. 47, 236 P.2d 1029 (Ariz. 1951)
• Parties: STATE v. GEE.
• Court: Arizona Supreme Court

Page 1029

236 P.2d 1029

73 Ariz. 47

STATE v. GEE.

No. 1001.

Supreme Court of Arizona.

Oct. 29, 1951.

Fred O. Wilson, Atty. Gen., Earl Anderson, Asst. Atty. Gen., for plaintiff.

Shortridge & Caruthers, of Phoenix, for defendant.

STANFORD, Justice.

This case has been certified to us by the Honorable Dudley W. Windes, Judge of the Superior Court of Maricopa County, under provisions of section 44-2401, A.C.A.1939.

An information filed against defendant charged in one count that he practiced chiropractic without having first obtained a license to so do from the State Board of Chiropractic Examiners, and the second count charged him with the crime of practicing healing without a valid certificate in basic sciences.

The facts in the case were stipulated between the state and defendant. The following stipulated facts are pertinent: (1) Defendant took the basic science examination but failed to pass; (2) defendant took the examination given by the State Board of Chiropractic Examiners and passed but was not issued a license because he had failed to pass the basic science examination; and (3) later defendant did commence the practice of chiropractic without the proper certificate and license.

Defendant moved to quash the information on the grounds that the Basic Science Act is unconstitutional.

Before further action on the case, the superior court in its order of certification, asked this court for a determination of the following questions:

'(1) Is Article 2, Chapter 67, A.C.A.1939, unconstitutional as an unlawful delegation of legislative power to the Arizona State Board of Examiners in the Basic Sciences?

'(2) If the answer to the above question is 'No', is Article 2, Chapter 67, A.C.A.1939 unconstitutional against persons wishing to practice chiropractic in the State of Arizona as in violation of the due process clause of the Fourteenth Amendment of the Constitution of the United States and in violation of paragraph 3, Article 2 of the Constitution of the State of Arizona?

'(3) Is Article 2, Chapter 67, A.C.A.1939 unconstitutional as against persons wishing to practice chiropractic in the State of Arizona as in violation of Article 4, paragraph 19, point 13 of the Constitution of the State of Arizona which states that 'No local or special laws shall be enacted in any of the following causes, that is to say; * * * 13. Granting to any corporation, association, or individual, any special or exclusive privileges, immunities, or franchises'?

'(4) Is Article 2, Chapter 67, A.C.A.1939, unconstitutional as being so ambiguous, indefinite, and contradictory in its terms as to make impossible its intelligent administration for the benefit of the public?'

Article 2, Chapter 67, A.C.A.1939, reads in part as follows:

'67-201. Basic science defined--Practicing healing and practice of healing defined.--Wherever the term 'Basic Sciences' is used in this act and not otherwise specifically defined, the same shall be understood and construed to mean and include all matter pertaining to gross anatomy, physiology, pathology, chemistry, bacteriology and hygiene. Wherever the term 'Practicing Healing' or 'Practice of Healing' is used in this act, unless otherwise specifically defined, the same shall be understood and construed to mean and include any person not hereinafter excepted from the provisions of this act who shall in any manner, for any fee, gift, compensation or reward, or in expectation thereof, engage in, or hold himself out to the public as being engaged in the practice of medicine or surgery, the practice of osteopathy, the practice of chiropractic, analysis, treatment, correction or cure of any disease, injury, defect, deformity, infirmity, ailment or affliction of human health or disease, or who shall for any fee, gift, compensation or reward, or in anticipation thereof, suggest, recommend, or prescribe any medicine, diet or any form of treatment, correction or cure therefor; also any person or persons not hereinafter excepted from the provisions of this act who, individually or collectively, maintain an office for the reception, examination, diagnosis or treatment of any person for any disease, injury, defect, deformity or infirmity of body or mind, or who attaches the title of doctor, physician, surgeon, specialist, M.D., M.B., D.C., D.O., N.D., or any other word, abbreviation or title to his name, indicating or designed to indicate that he is in the practice of healing.

'67-202. Board of examiners in basic sciences.--There is hereby created and established a board to consist of five (5) members, citizens of the state of Arizona, to be known and designated as The State Board of Examiners in the Basic Sciences.

'67-203. Members of board--Appointment, terms of office--Vacancies--Oath of office.--The board of regents of the University of Arizona shall appoint from the professors, associate professors or assistant professors of the faculty of the university, five (5) persons to serve as members of the board of examiners in the basic sciences. The first appointments shall be made as soon as may be practicable after this act shall take effect. * * *

'67-205. Examinations.--Examinations will be written and consist of ten (10) questions on each subject and be of such a nature as to constitute an adequate test as to whether the person so examined has such knowledge of the elementary principles of such basic science as is taught at the University of Arizona in one (1) year's instruction of thirty-six (36) weeks, or as is taught in one (1) year's instruction of thirty-six (36) weeks at any college or university accredited by the University of Arizona, or the equivalent thereof.'

In answering the first question certified to us we are confronted with the question of the unlawful delegation of legislative powers to the board of examiners. From our case of Marlar v. Patterson, 60 Ariz. 240, 135 P.2d 218, 221, where the court considered the validity of this basic science act, we quote: '* * * This act is nothing more than a requirement that all persons who wish to practice the healing arts in this state must first establish, to the satisfaction of an impartial board of examiners, that they possess at least a rudimentary knowledge of the basic sciences, * * * and the examining board is composed of faculty members of the state university chosen by the board of regents without regard to the school of healing to which they subscribe. * * *'

The act does not delegate to the board the responsibility of establishing the definition of the basic sciences as defendant contends. Section 67-201, supra, defines the five basic sciences on which applicants are to be examined. Nor does the act delegate legislative authority to the board because no provision is made for examination of applicants or the grading of papers. The matter of selecting questions to be asked and the passing on or grading the papers is purely an administrative duty to be performed by the board. Section 67-205, supra, sets out the general pattern to be followed in the examination of applicants by the board. It is well established that the legislature may set a general standard for the guidance of a board such as was done in the basis science law and then leave the administratie details to the board. In the case of Batty v. Arizona State Dental Board, 57 Ariz. 239, 112 P.2d 870, 874, the court used the following quotation from Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209, 219, 37 L.R.A.,N.S., 489: "* * * The legislative branch of the government by statute determines the rights, duties, and liabilities of persons and corporations under certain conditions of fact, and varying as the facts and conditions change. Manifestly the Legislature cannot remain in session and pass a new act upon every change of conditions; but it may and does commit to an administrative board the duty of ascertaining when the facts exist which call into activity certain provisions of the law, and when conditions have changed so as to call into activity other provisions. The law is made by the Legislature; the...