State v. Briggs

77 P. 750, 45 Or. 366, 1904 Ore. LEXIS 106

• Court: Oregon Supreme Court
• Decided: August 1, 1904
• Status: Published

Opinions

Mr. Justice Bean

delivered’the opinion of the court.

The defendant was convicted for conducting a barber school in violation of an act of the legislature of 1903 (Laws 1903, p. 27), amendatory of the act of 1899 (Laws 1899, p. 237; B. & C. Comp. §§ 3841-3853), regulating the trade or calling of a barber, and providing for the licensing of persons carrying on such trade. Judgment -was arrested upon motion, however, the trial court holding the act in question unconstitutional and void on the ground that it delegates to the board of barber examiners legislative authority, and vests in them power to issue and withhold licenses arbitrarily and at pleasure. If the law is open to either objection, the judgment must be affirmed. It is a settled maxim that the power conferred upon a legislature to make laws cannot be delegated by that department to another body or authority (Cooley, Const. Lim., 7 ed., 163), and any statute attempting to vest in a board, officer, or tribunal arbitrary power to issue or withhold permission or license to practice aDy trade, profession, or calling without regard to discretion, in the legal sense of that term, or without regard to the qualifications of the applicant, is void: White v. Holman, 44 Or. 180 (74 Pac. 933); Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. 1064) ; Noel v. People, 187 Ill. 587 (58 N. E. 616, 52 L. R. A. 287, 79 Am. St. Rep. 238). Without setting out the provisions of the law challenged in detail, it is sufficient for the purposes of the question here involved that it defines what shall constitute the occupation of a barber (Laws 1903, p. 31, § 9); provides for the appointment of a board of examiners ; defines the powers and duties of the board, among which is “to make such by-laws as it may deem necessary not inconsistent with the constitution of this State, or with the provisions of this act, and shall prescribe the qualifications of a barber in this State” (p. 27, § 2); declares that it shall be unlawful for any person not registered to practice the business of a barber, or conduct a barber shop or barber school, without the sanction of the board (pp. 27, 32, §§ 1, 12); and provides a penalty for the violation of its provisions: p. 31, § 10. While the law defines what shall constitute a barber, it does not prescribe the standard or degree of knowledge, learning,- experience, or qualification which shall be required before applicants shall be licensed, or authorized to practice or follow the trade or calling, but leaves that matter to be determined by the board of examiners. This, it is argued, renders the act void, because it is a delegation of legislative authority, and vests in the board arbitrary and unregulated powers. The position -of the defendant is that, while the legislature may lawfully regulate the trade or calling of a barber, and require all persons following it to register, or obtain certificates from the board of examiners, it. must provide in the act the standard of qualification required, leaving to the board the mere duty of ascertaining whether the applicant possesses such qualification. •

1. Legislative power cannot be delegated, and the legislature cannot confer upon any person, officer; or tribunal the right to determine what the law shall be. This is a function which the legislature alone is authorized under the constitution to exercise. The constitutional inhibition, however, cannot be extended so as to prevent the legislature from conferring authority upon an administrative board to adopt suitable rules, by-laws, regulations, and requirements to aid in the successful carrying out and .execution of a law it has passed. The doctrine on this subject is admirably stated by Mr. Justice Agnew, in Locke’s Appeal, 72 Pa. 491 (13 Am. Rep. 716), as follows: “ Then the true distinction, I conceive, is this: The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend, which cannot be known to the lawmaking power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation.” It is well settled by a long line of authorities in harmony with this doctrine thatthe power given to an administrative board like the one now under consideration to prescribe rules and regulations reasonably adapted to carry out the purposes and object for which the board is created does not constitute an improper delegation of legislative authority. See Blue v. Beach, 155 Ind. 121, 133 (56 N. E. 89, 50 L. R. A. 64, 80 Am. St. Rep. 195), and cases there cited. Thus, the legislature of South Carolina passed an act giving the board of agriculture power to grant or refuse licenses to mine for phosphate rock in the property of the State, as the board might in its discretion deem best. The act was held valid, and not a delegation of legislative authority, the court saying: “It is undoubtedly true that legislative power cannot- be delegated, but it is not always easy to say what 'is and what is not legislative power, in the sense of the principle. The legislature is only in session for a short period of each year, and during the recess cannot attend to what might be called the business affairs of the state. From the necessity of the case, as well as the character of the business itself, that must be performed by agents appointed for that purpose — such as the railroad commission, regents of the lunatic asylum, the state board of canvassers of elections, sinking fund commission, etc. The numerous authorities cited in the argument show conclusively that, wrhile it is necessary that the law itself should be full and complete, as it comes from the proper lawmaking body, it may be — indeed, must be — left to agents in one form or another to perform acts of executive administration which are in no sense legislative”: Port Royal Min. Co. v. Hagood, 30 S. C. 519 (9 S. E. 686, 3 L. R. A. 841).

The pure food law of Indiana provided that within ninety days after its passage the board of health should adopt measures to facilitate the law’s enforcement, and prepare rules regulating minimum standards of food, defining specific adulterations, etc. It was held not an attempted delegation of legislative power. Mr. Justice Hadley said: “The obvious purpose of the provision last quoted was to commit to a body of learned and scientific experts the duty of preparing such rules and prescribing such tests as may from time to time, in the enforcement of the law, be found necessary in determining what combination of substances are injurious to health, and to what extent, if at all, admixtures or deteriorations of foods and drugs may go without injuriously affecting the health of the consumer. That which is required of the State Board of Health has no semblance to legislation. It merely relates to a procedure in the law’s execution for a reliable and uniform ascertainment of the subjects upon which the law, is intended to operate”: Isenhour v. State, 157 Ind. 517 (62 N. E. 40, 87 Am. St. Rep. 228). A law of Georgia vested in a railroad commission authority to make reasonable and just rates for freight and passenger trafile, to be observed by all railroads doing business in the state, and the act was held valid, the court saying: “ It was not expected that the legislature should do more than pass laws to accomplish the ends in view. When this was done, its duty had been discharged. All laws are carried into execution by means of officers appointed for that purpose; some with more, others with less, but all must be clothed with power sufficient for the effectual execution of the law to be enforced. Legislative grants of power to the officers of the law to make rules and regulations which are to have the force and effect of laws are by no means uncommon in the history of our legislation”: Georgia Railroad v. Smith, 70 Ga. 694. An act of Congress authorizing the Secretary of War to make such rules and regulations as might be necessary to prevent obstructions in the Mississippi River provided that any violation of such rules and regulations should constitute a misdemeanor, and it was held that the act was not invalid because conferring legislative authority on the secretary, as he was only authorized to make rules, and it was the act itself which declared a violation to be a crime : United States v. Breen, (C. C.) 40 Fed. 402. The legislature may properly delegate to a board the power to determine what is a college in good standing or a reputable college, within the meaning of a law authorizing graduates of such a college to practice their profession : Barmore v. State Board of Medical Examiners, 21 Or. 301 (28 Pac. 8); People ex rel. v. Dental Examiners, 110 Ill. 180.

These authorities are directly to the purpose that in the regulation and licensing of trades, occupations, callings, and professions which affect the public welfare the legislature must enact the law necessary to accomplish the object in view; but it may be carried into execution by some officer or board appointed for that purpose, and such officer or board may be authorized to prescribe the qualifications of those desiring to follow such callings or professions. There are other cases holding laws of this character valid, although the point in issue here is not directly discussed in them. Thus, in West Virginia, every practitioner of medicine was required to obtain a certificate from the State Board of Health that he was a graduate of a reputable medical college, or that he had practiced medicine in the State continuously for ten years prior to the passage of the act, or that he had been found, upon examination by the medical board, qualified to practice medicine in all its branches.. There was no provision in the statute as to the standard of qualification which the board should exact or enforce in its examination of applicants, that being left entirely to its judgment; and yet the law was held valid by both the supreme court of the State and of the United States: West Virginia v. Dent, 25 W. Va. 1; Dent v. West Virginia, 129 U. S. 114 (9 Sup. Ct. 231). In the latter case Mr. Justice Field said: “No one has a right to practice medicine without having the necessary qualifications of learning and skill; and the statute only requires that whoever assumes, by offering to the community his services as a physician, that Ire possesses such learning and skill, shall present evidence of it by a certificate or license from a body designated by the State as competent to judge of his qualifications.” The legislature of Alabama passed an act making it unlawful for an engineer of any railroad train to draw or operate an engine upon the main line or roadbed of any railroad without first undergoing an examination and obtaining a license from the board of examiners for locomotive engineers. The Supreme Court of the United States held the law valid, although it did not provide what should constitute the qualification of an engineer, but left that matter to the judgment of the board : Smith v. Alabama, 124 U. S. 465 (8 Sup. Ct. 564). A law of the State of New York providing for the examination and licensing of plumbers was held valid and constitutional, although it did not attempt to define the qualification which should be required of licensed plumbers, but vested that power in the board of examiners : People ex rel. v. Warden, 144 N. Y. 529 (39 N. E. 686, 27 L. R. A. 718). Similar statutes were upheld in Maryland (Singer v. State, 72 Md. 464, 19 Atl. 1044, 8 L. R. A. 551), and in Ohio: State v. Gardner, 58 Ohio St. 599 (51 N. E. 136, 41 L. R. A. 689, 65 Am. St. Rep. 785). Other cases to the same effect could be referred to, but these are sufficient to show that the provision of the act under consideration, vesting authority in the hoard of examiners to prescribe the qualifications of a barber, is not a delegation of legislative power.

It is sometimes said in opinions and in law books that, where a statute undertakes to regulate the licensing of callings, trades, or professions, the extent of the qualifications required of the licensee must be determined by the judgment of the legislature; but this does not mean that the legislature must necessarily provide in the act itself the exact qualifications required. It may delegate that power to a board or commission created and authorized by it, which, in the exercise of the authority vested in it, acts on behalf of the State ; its conclusions and judgments, so long as exercised within the limits of the law, being the acts of the State, and binding as such. The nature and character of the profession, trade, or calling intended to be licensed or regulated often demands technical knowledge and learning in order to designate accurately the qualifications which should be possessed by those designing to follow it. In the nature of things, this is a matter outside the ordinary scope of legislative wisdom. The prescribing of the proper qualifications of applicants for licenses by some agent of the State, learned in such profession or calling, is not legislation, but rather the exercise of a mere administrative power. A law, when it comes from the legislature, must be complete, but there are many matters affecting its execution and relating to methods of procedure, which the legislature may properly delegate to some ministerial board or officer, and prescribing the qualifications of persons who shall be licensed to follow or engage in the practice of a given trade or profession is one of them.

2. Now, is the law in question open to the objection that it confers upon the board of barber examiners power to prescribe varying standards of qualifications for different applicants, or arbitrarily to grant or refuse a license at will? The authority to prescribe the qualifications of a barber is a general grant of power, and does not, like the laws held void in Noel v. People, 187 Ill. 587 (58 N. E. 616, 52 L. R. A. 287, 79 Am. St. Rep. 238), and Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. 1064), vest in the board the absolute discretion to grant or withhold licenses. The board is required to exercise the power conferred by prescribing fair and reasonable qualifications appropriate to the calling intended to be regulated, operating generally and impartially upon all in like situations; and there is no pretense that it has not done so. If it should act arbitrarily or oppressively, its conduct might call for a remedy against the members of the board, but it would not furnish a ground for declaring the act invalid : People v. Hasbrouck, 11 Utah, 291, 306 (39 Pac. 918); People ex rel. v. Warden, 144 N. Y. 529 (39 N. E. 686, 27 L. R. A. 718); People ex rel. v. Dental Examiners, 110 Ill. 180. The constitutionality of a law is to be determined by its provisions, and not by the manner in which it may be administered ; and, unless it conflicts with the constitution, the law is valid. The law here in question provides for the appointment of a.board, made up of persons skilled in the calling, to which the duties imposed are intrusted for performance, and to which is committed the power of prescribing such qualifications for applicants applying for licenses desiring to practice the trade or calling of a barber as maybe just and reasonable, and it must be presumed that the board will exercise fairly and impartially the powers conferred.

, It follows that the judgment of the court below must be reversed, and it is so ordered. Eeversbd.

Decided 5 November, 1904.