AYLWARD v. STATE BOARD OF CHIROPRACTIC EXAMINERS

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District Court of Appeal, Third District, California.

AYLWARD et al. v. STATE BOARD OF CHIROPRACTIC EXAMINERS et al.

Civ. 7219.

Decided: October 04, 1946

Morris Lavine, of Los Angeles, for appellants. Robert W. Kenny, Atty. Gen., and J. Albert Hutchinson, Deputy Atty. Gen., for respondents.

This is an appeal from a judgment directing the issuance of a writ of mandate commanding the State Board of Chiropractic Examiners to annul its order canceling certain licenses which it had previously issued, and to refrain from interfering with petitioners' practice of chiropractic in this state.

The petition for the writ alleges in substance that petitioners—some twenty-five or more in number—were at all times mentioned therein chiropractors holding licenses issued by the State Board of Chiropractic Examiners which, at the time of the issuance of said licenses, consisted of five named persons; that on May 26, 1944, by which time its personnel had completely changed, the said Board adopted a resolution canceling the license of each of the designated persons and ordering that the secretary mail a copy of the resolution to each licensee, and that the investigator for the Board obtain the certificates of license and transmit them to the Board. That none of the petitioners was present at such meeting or had notice thereof or opportunity to be heard, and that no evidence was offered or received in support of said resolution. That matters and things stated in said resolution had theretofore and prior to July 16, 1943, been considered by the Board after written charges had been filed, at which time petitioners had been given notice, were present or represented by counsel; that evidence had then been presented, and it had been concluded by said Board that there was no ground for revocation of the licenses. Petitioners also alleged that in adopting the resolution of May 26, 1944, the Board acted arbitrarily, specially and capriciously and in violation of constitutional requirements, and in excess of its powers; that after the granting of licenses to them petitioners, at great expense, had opened offices, bought equipment, and given up other occupations in order to practice chiropractic, and that the Board was estopped from revoking their licenses. Also that the prior decision of the Board was res judicata.

In answer to the petition the Board admitted the issuance of the licenses to petitioners but alleged that they were issued illegally in that each petitioner took his examination from one member of the Board only, that none of the examinations was prepared, given or graded by the Board, but by an individual member; that none of the applicants was identified by number, and that most of their licenses were issued without an affirmative vote of three members of the Board in a meeting of the Board, and that the Board, as such, took no action authorizing the issuance of such licenses; and that, for the foregoing reasons, all of the licenses were void, as was the action of the Board in regard to the hearing in 1943.

At the trial of the mandamus proceeding petitioners introduced evidence in support of the allegations of their petition which included a showing that the purpose of the resolution of the Board of 1942 permitting examinations by one member was to give emergency examinations for those expecting to go into the armed services, by permitting them to take examinations under the authority of the member of the Board nearest their residences. The decision of the Board of July, 1943, and the resolution of May 26, 1944, were introduced in evidence. Petitioners also showed that no notice of the proceedings had on the latter date was given to any of the licensees, and that action then taken was without the filing of any new charges and without the introduction of any evidence.

Appellants called but one witness, a member and the secretary of the Board in 1942. He testified that he gave an examination to two of the petitioners; that no other member of the Board participated in examining those two, or in preparing questions for them, or in grading the papers; that the papers were sent to the Sacramento office of the Board and he did not know whether other members reviewed them or not. He testified, however, that the questions asked were taken from those that had been approved by the Board for previous examinations; that in January, 1943, the Board approved the licenses issued, at which time they considered all of the examination papers; that he had signed some of the licenses at his home and some at a Board meeting. He gave no testimony as to how the other licensees were examined. Over the objection of petitioners respondents introduced a transcript of the hearing before the Board in July 1943, but no testimony was offered or received to support a recitation appearing in the May 26, 1944 resolution that certain of the applicants paid $100 to the member of the Board from whom he took his examination, nor was there any as to the recitation of that resolution that the applications of some of the licensees showed on their faces that the applicants did not possess the educational qualifications required by section 5 of the Act regarding the completion of the requisite hours of study. Gen.Laws, Act 4811.

At the conclusion of the hearing the trial court made findings substantially as follows:

That on July 18, 1942, the Board of Chiropractic Examiners adopted a resolution authorizing the giving of special examinations for chiropractic licenses. That each of the petitioners was given an examination by a member of the Board and that each license was issued, approved and signed by more than a majority of the Board. That each of the petitioners held a license signed and approved by at least four, and some by five of the members of the Board, including the secretary, and that each bore the official seal of the Board. That prior to the issuance of the licenses, the papers of each applicant were deposited with and became a part of the records of the Board. That the examination given to each of the petitioners was of the same type and character as used in previous regular examinations by the Board. That petitioners passed such examinations, and that the approval of such examinations was made by the entire Board. That on January 10, 1943, the Board at a meeting adopted a resolution approving special examinations and approving the issuance of said licenses. That in June, 1943, a complaint was sworn to by an investigator of the Board, and upon same an order to show cause was issued and served upon petitioners, directing each of them to appear before the Board on July 16, 1943, to show cause why his license should not be revoked. That a hearing was had by the Board on said date at which time petitioners were present in person and represented by counsel, and at which testimony was taken and stipulations were entered into between counsel for the licensees and a deputy attorney general representing the Board. That at the conclusion of the hearing the said Board made findings that none of the matters presented was ground for revocation of the licenses, that all were issued by the Board after a resolution had been duly and regularly passed by it authorizing the giving of special examinations; that each of such examinations was given by a member of the Board from questions of the same type as used in connection with previous examinations, that each of the persons examined passed by more than a passing grade, that there had been no complaints as to their ability, knowledge or skill, that the Board had authorized special examinations in the past for special purposes, and that after the examinations were held the papers in each case, together with the results, had been forwarded to Sacramento, after which the grades were duly entered, and licenses were issued and signed by four or five members of the Board in regular session; that although some applicants were given numbers, nearly all examinations were given to individuals at individual times and sittings, and it would have been an idle act to designate the person by number, and that this requirement had been waived by the Board's resolution pursuant to powers given by section 4 of the Act giving the Board power to adopt rules and regulations for the performance of its work; and that the Board deemed it proper and necessary to give these special examinations in the manner given.

The court further found that prior to the adoption of the resolution of May 26, 1944, no notice or citation was given to any of the licensees nor was any complaint filed against any of them, and that in adopting such resolution the Board ‘acted specially and arbitrarily without due or any notice to the petitioners or any of them, and without any hearing, and that the action of said Board was an arbitrary exercise of its powers, and without due process of law.’ That no grounds exist for the purported cancellation of petitioners' licenses; that each of them is duly licensed and entitled to carry on his profession without interference; that each of them acted in good faith in taking the examination and in procuring his license, and that none of them was guilty of any deception, unprofessional conduct or fraud in securing his said license.

As conclusions of law the court decided that each of the petitioners was duly licensed; that prior to May 26, 1944, the Board had fully investigated the matters and things embraced in the resolution of May 26, 1944, had acted upon them, and by its said action the said matters and things had been passed upon and adjudicated—that they were res judicata, and the Board on May 26, 1944, was without power or authority to inquire into them. That none of the petitioners had been charged with any grounds set forth in the Act for revocation of license nor had there been any evidence of any such grounds. That each of said petitioners was entitled to continue to practice his profession and to the continuation of his license and any annual renewals thereof; and that petitioners were entitled to the peremptory writ as prayed.

On this appeal the Board contends that the rule made by the Board in 1942 authorizing special examinations was void, that as given the special examinations were void, that the subsequent approval of the licenses by the Board in January, 1943, was void, and that the action of the Board after the hearing in July, 1943, was void; but that its action in May, 1944, canceling the licenses without hearing or notice is valid and expressly authorized by the Act, that the principles of res judicata do not apply, nor can estoppel be relied upon as against said Board. It also asserts that a case of extrinsic fraud was made out by the record—though of what it consisted we are not advised.

The Chiropractic Law (Deering's Gen.Laws, Act 4811) provides for a board of five members. Section 4 gives such board power to adopt such rules and regulations as it may deem proper and necessary for the performance of its work, and to examine applicants and to issue and revoke licenses to practice chiropractic as therein provided. Section 5 provides the prerequisites for applications for licenses, and the minimum educational requirements to enable one to practice chiropractic in this state. Section 6 provides that the board shall meet ‘as a board of examiners' on stated days in January and July, and at such other times and places as may be found necessary for performance of their duties; that each applicant shall be designated by a number instead of name so that his identity will not be disclosed to the examiners until the papers are graded, and that all examinations shall be in writing. Section 9 provides for the licensing of persons holding licenses in other states. Section 10 provides that the board may revoke a license, or may cause a licensee's name to be removed from all records of licensed practitioners of chiropractic in this state, upon the following grounds: For ‘the employment of fraud or deception in applying for a license or in passing an examination’ as provided in this Act; for practicing under a false or assumed name; for the personation of another practitioner of like or a different name; for the conviction of a crime involving moral turpitude, for habitual intemperance and for advertising in a proscribed manner. Said section further provides that any licentiate against whom any of the foregoing grounds for revoking a license is presented to the board with a view to revoking his license, shall be furnished with a copy of the complaint, and shall have a hearing before the Board in person or by an attorney.

Appellants' contention that all of the proceedings prior to May, 1944, were void is based upon the premise that under the Act examinations for licenses must be given by the Board sitting as such, that the giving of an examination by a single member is unauthorized, and that even though such examinations may have been taken and passed by the applicants and the licenses issued thereon signed and approved by the members, that nevertheless, since it does not appear that the Board sitting as such prepared the questions, or that the Board or a majority of its members were present when the examinations were given, or that the papers presented by the examinees were graded by the Board as such; and because it does appear that the said applicants were not designated by number but their identity was known at the time the examinations were given the licensees, even though the questions asked were those which had previously been prepared by the Board, and the applicants passed the examinations with satisfactory grades, and were themselves without fault, that nevertheless their licenses may be summarily canceled by the Board, without notice or hearing.

It is repeatedly asserted by appellants in their brief and recited in the resolution of May 26, 1944, that most of those taking the examination paid to the Board member giving same the sum of $100 for his personal use, and that the applications filed by eleven of them showed that the applicants did not possess the educational requirements specified in section 5 of the Act. But there is no evidence in the record to support these assertions. No one so testified, and the applications are not a part of the record before us. Also it was not so alleged in appellants' answer to the petition and, though it is so recited in the resolution of May, 1944, such recitation is not evidence of the fact.

While appellants assert that ‘where a power is given to a board it may not be exercised by the individual members of the board but must be performed by the board in an appropriate meeting properly convened, in the absence of express statutory authority permitting action by other means,’ and they cite several cases as authority for this statement, none of the cases cited is directly in point or holds that because a statute provides, as does the one before us, that the board ‘shall have power: * * * (c) To examine applicants and to issue and revoke licenses to practic chiropractic, as herein provided,’ it necessarily follows that each and every step taken in the giving of examinations must be made by the Board at a regularly convened meeting. Though this Act does not provide for the giving of examinations by individual members, it does not expressly prohibit such action if authorized by the Board at a regularly convened meeting. Appellants cite Brown v. Grenier, 73 N.H. 426, 62 A. 590, as the case ‘nearest in point on the facts.’ That was an equity suit to cancel a license issued by a board of dentistry. The examination was given by one member of a three member board, who exacted from the applicant an unauthorized fee. But in that case the opinion recites that the license was issued without the knowledge and approval of the other members, and the license was one that had previously been signed in blank by them for the convenience of the secretary of the board. Also in the case it does not appear that a previous hearing had been held, at which the license had been approved. The case is, therefore, plainly distinguishable from the one before us, not only because, as we have hereinbefore stated, there is no evidence in this record that the applicants paid anything to the members giving the examinations, and because the licenses which the Board purported to cancel were approved and signed by four or five of the members of the Board, after the examinations had been given and the examination papers were on file with it; also the licenses were thereafter specifically approved by the Board, after it examined the examination papers on file.

However, assuming that the action of the Board in 1942 authorizing the giving of special examinations in the manner provided for in its resolution of 1942 was unauthorized by the Act, and that the provisions of said Act require that examinations be given by the Board as a unit and may not be given by but one member, and that the provisions of the state requiring that each applicant shall be designated by number instead of by name so that his identity will not be known to the examiners until the papers are graded, was not complied with, and that the Board members did not sign the licenses at a regular meeting, the crucial question to be decided is whether the Board, having issued and signed the licenses in due form, and having approved their issuance by a resolution adopted in January, 1943, and having found after a fully hearing and an examination of the papers in July, 1943, that there was no ground for canceling said licenses, had the power, without notice and without further charges or evidence, to reverse its previous action and cancel said licenses in May, 1944.

We are of the opinion that the Board was without such power. It must be conceded that no such power is granted by the Act itself, and that the section providing for the revocation of licenses by the Board specifies the grounds for such revocation, and also requires notice and a hearing on such charges as constitute grounds for revocation. That there were no complaints based upon such specified grounds, upon which the Board acted in May, 1944, and that no notice was given and no hearing had, must likewise be conceded. Furthermore, it has been held in numberous cases in this state that where a board has once acted upon a motion it has exhausted its power and may not thereafter reverse the decision previously made.

In Olive Proration, etc., Committee v. Agricultural Prorate Commission, 17 Cal.2d 204, 109 P.2d 918, 921, petitioner sought a writ of mandate directing the respondents to annul two orders which purported to terminate the proration program theretofore established. It appeared that a petition for termination of such program had once been filed and a hearing had thereon after which respondent commission made its findings and order denying the petition. Subsequently, without any further hearing or request therefor and without notice to or consent of any of the interested parties, it made an order rescinding its previous order denying the petition to terminate, and granted it. The court said that while ordinarily the doctrine of res judicata may not appropriately be applied to the exercise of such powers by administrative bodies, that ‘Where orders which relate to what may be rather broadly defined as individual rights are concerned, the question whether the administrative agency may reverse a particular determination depends upon the kind of power exercised in making the order and the terms of the statute under which the power was exercised. As to the first factor, almost without exception, courts have held that the determination of an administrative agency as to the existence of a fact or status which is based upon a present or past group of facts, may not thereafter be altered or modified. Muncy v. Hughes, 265 Ky. 588, 97 S.W.2d 546; Little v. Board of Adjustment, 195 N.C. 793, 143 S.E. 827; Lilienthal v. City of Wyandotte, 286 Mich. 604, 282 N.W. 837. As concisely stated by the New York Court of Appeals, ‘officers of special and limited jurisdiction cannot sit in review of their own orders or vacate or annul them.’ People ex rel. Chase v. Wemple, 144 N.Y. 478, 39 N.E. 397, 398. But if it is clear that the legislature intended that the agency should exercise a continuing jurisdiction with power to modify or alter its orders to conform to changing conditions, the doctrine of res judicata is not applicable. The determination depends upon the provisions of the particular statute. The orders here challenged were made in a proceeding authorized by the Agricultural Proration Act, supra, as a means whereby persons in an industry may exercise the rights given to them, as a group, to control the proration of their products. The statute contains no provision in express terms giving the commission authority to change its considered determination, made after a full hearing, and the fact that any order made by it may be reviewed in a judicial proceeding to be commenced within 30 days after its effective date is some evidence of legislative intention to the contrary. And since all administrative action must be grounded in statutory authority, in the absence of a provision allowing a commission to change its determination, courts have usually denied the right so to do.'

The court there referred to and quoted from Heap v. City of Los Angeles, 6 Cal.2d 405, 407, 57 P.2d 1323, 1324, in which case the civil Service Commission of Los Angeles adopted a motion rescinding the action of its predecessor commission which had sustained the discharge of a civil service employee, and then adopted a second motion ordering said employee restored to duty. The court held that under the city charter the jurisdiction of the commission was special and limited; that having determined the appellant's discharge following the required procedure, it had no jurisdiction to retry the question and make a different finding at a later time; that the charter gave no such power and it could not be implied. It said: ‘If the power were admitted, what procedure would govern its exercise? Within what time would it have to be exercised; how many times could it be exercised? Could a subsequent commission reopen and reconsider an order of a prior commission? And if the commission could reconsider an order sustaining a discharge, could it reconsider an order having the opposite effect, thus retroactively holding a person unfit for his position? These and many other possible questions which might be raised demonstrate how unsafe and impracticable would be the view that a commission might upset its final orders at its pleasure, without limitations of time, or methods of procedure.’ Also see Cook v. Civil Service Comm., 160 Cal. 598, 117 P.2d 662; Proud v. McGregor, 9 Cal.2d 178, 70 P.2d 194; Hoertkorn v. Sullivan, 67 Cal.App.2d 151, 153 P.2d 367; Pacheco v. Clark, 44 Cal.App.2d 147, 153, 154, 112 P.2d 67. Compare Noble v. Union River Logging R. Co., 147 U.S. 165, 176, 177, 13 S.Ct. 271, 37 L.Ed. 123, 127, 128; United States v. Stone, 69 U.S. 525, 537, 17 L.Ed. 765, 767; Lane v. Watts, 234 U.S. 525, 540, 34 S.Ct. 965, 58 L.Ed. 1440, 1456; Garfield v. United States, 211 U.S. 249, 29 S.Ct. 62, 53 L.Ed. 168.

Appellants attempt to justify their action by distinguishing between the revocation of a license and its ‘cancellation,’ thus impliedly conceding that the Board had no power to ‘revoke’ except for grounds stated in section 10(a) of the act and after notice and hearing as therein provided. They argue that they had the power to ‘cancel’ petitioners' licenses as they did because section 10(b) provides that at any time after two years following the ‘revocation or cancellation’ of a license the board may reissue same. But it is not reasonable to assume that the legislature, after particularly specifying the grounds upon which a license can be revoked, intended by such mere use of the words ‘revocation or cancellation’ to distinguish between the two and thus authorize an evasion of the provisions of section 10(a) by designating the process of annulment of the rights of a licensee as cancellation rather than revocation, especially since ‘cancel’ is defined by Webster as meaning ‘to revoke or recall.’

Appellants also urge that the judgment of the trial court should be reversed because the principle of estoppel is not applicable to the Board—that, though nominally against the Board, the action is in fact against the state, against which estoppel may not be invoked. While in view of the decisions in Olive Proration, etc., Committee v. Agricultural Prorate Commission, Heap v. City of Los Angeles, and similar cases hereinbefore cited, a determination of this precise question is not necessary to this decision, it may be noted in passing that, as said in the recent case of County of San Diego v. California Water, etc., Co., 75 Cal.App.2d ——, 171 P.2d 926, 932, a ‘governmental agency may be estopped as right and justice may require, where the act or contract relied on to create the estoppel and within its corporate powers, although the method of exercising the power was irregular or unauthorized. 31 C.J.S., Estoppel, § 144, p. 428, Note 78; Miller v. McKinnon, 20 Cal.2d 83, 91, 124 P.2d 34, 140 A.L.R. 570; Greene County v. Tennessee Eastern Electric Co., 6 Cir., 40 F.2d 184; 7 Cal.Jur., p. 515, sec. 88.’

The judgment is affirmed.

ADAMS, Presiding Justice.

PEEK and THOMPSON, JJ., concur.

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