BLUMENTHAL v. BOARD OF MEDICAL EXAMINERS

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District Court of Appeal, Second District, Division 2, California.

Herman BLUMENTHAL, Petitioner and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent.*

Civ. 25385.

Decided: August 22, 1961

Ellis J. Horvitz, Los Angeles, for appellant. Stanley Mosk, Atty. Gen., Philip C. Griffin, Deputy Atty. Gen., for respondent.

Appeal from judgment denying petitioner's prayer for administrative mandamus requiring the Board of Medical Examiners to issue to him a ‘Certificate of Dispensing Optician’ pursuant to §§ 2550–2558 Business & Professions Code. Appellant attacks as unconstitutional that provision of § 2552 which requires an applicant for registration as dispensing optician to have had ‘at least five (5) full years of actual experience in taking facial measurements and fitting and adjusting lenses or frames in an establishment or establishments of a dispensing optician registered under this chapter or of a dispensing optician engaged in dispensing prior to the enactment of this chapter and thereafter registered, or who has been licensed as a dispensing optician for a period of five years in another state.’ Though the point was raised below, the trial court without discussion of the matter impliedly upheld the constitutionality of the statute in denying petitioner any relief.

This chapter was added to the code in 1939 and the enacting statute contains the familiar severability clause (Stats.1939, Ch. 955, pp. 2692, 2695). Section 2550 defines the term ‘dispensing opticians' as consisting of ‘[i]ndividuals and firms filling prescriptions of physicians and surgeons licensed by the Board of Medical Examiners for ophthalmic lenses and kindred products, and, as incidental to the filling of such prescriptions, taking facial measurements and fitting and adjusting lenses or frames,’ and forbids the engaging in such business by one who has not been registered with the Board of Medical Examiners.

Section 2552 reads as follows: ‘Each application, to enable the board to determine if applicant is entitled to be registered under this chapter, shall be verified under oath by the person or persons required to sign the application and shall contain the matters referred to in (a) hereof and be accompanied by the affidavits referred to in (b):

‘(a) The name, address and time, place and extent of the previous experience of each person signing the application and likewise of the person or persons who will have charge of or manage applicant's general dispensing operations, and of each person having any proprietary interest in applicant who will engage in dispensing operations. The person or persons who will be in charge of or who will manage applicant's general dispensing operations and each person having any proprietary interest in applicant who will engage in dispensing operations shall have at least five (5) full years of actual experience in taking facial measurements and fitting and adjusting lenses or frames in an establishment or establishments of a dispensing optician registered under this chapter or of a dispensing optician engaged in dispensing prior to the enactment of this chapter and thereafter registered, or who has been licensed as a dispensing optician for a period of five years in another state.

‘(b) The sworn affidavits, in a form prescribed by the board, of three (3) physicians and surgeons licensed by the Board of Medical Examiners who specialize in the treatment of eyes, stating and certifying according to their own knowledge, that each person referred to in (a) has the required experience, is of good moral character, and that applicant and each such person is fully competent and qualified to accurately fill prescriptions for ophthalmic lenses and kindred products and to take facial measurements and to fit and adjust lenses or frames.

‘Applicant shall furnish such additional information or proof, oral or written, with respect to the competency, qualifications and moral integrity of applicant and each of the foregoing persons which the board may request.

‘The board in considering any application for a renewal of a certificate may in its discretion require from applicant the same information and proof with respect to any or all of the foregoing matters.’

Section 2553 requires the board to make an investigation of the applicant and if it finds him to be ‘competent and qualified to engage in the business of dispensing optician [to] register such applicant and issue to the applicant a certificate of dispensing optician. If the board does not so determine it shall deny the application.’ The statute provides no standard for determining competency and does not prescribe an examination of any kind. It also narrows the group of applicants to those who have had five years practical experience under another dispensing optician.

Section 2553.1 establishes reciprocity with respect to ‘any person who has had five years' experience and has been licensed for such period as a dispensing optician in another state.’

Section 2557 exempts from operation of the statute licensed optometrists, physicians and surgeons unless ‘exclusively engaged in the business of filling prescriptions for physicians and surgeons.’ Violation of any provision of the chapter is made a misdemeanor by § 2558.

Except for the rigid statutory requirement of five years apprenticeship to a licensed dispensing optician, petitioner seems to possess ample qualifications, and neither the board nor the court found the contrary. The application was filed in May, 1957. Previously petitioner-appellant had finished high school and two years pre-optometry study at University of Southern California. From 1930 to 1935 he worked for Commercial Optical Company in Omaha, Nebraska, doing bench work and dispensing lenses. This company was not licensed as there was no such requirement under Nebraska law. From 1935 to 1942 appellant worked for Deitrich Optical Company in Los Angeles, which was licensed as dispensing optician from the time of enactment of the statute in 1939. His primary function was shop work but occasionally he dispensed lenses. From 1942 to 1949 he worked for Superior Optical Company in Los Angeles but did no dispensing except for a six-month interim period when he did such work for Atlas Optical Company, a registered dispensing optician. From 1949 to 1952 appellant operated his own optical laboratory which was primarily a manufacturing and wholesale operation and during that time he did no dispensing except to help out other practitioners on occasions. From 1952 to 1957 he worked for Dr. Julian Gunzberg, a registered ophthalmologist, in Beverly Hills. During these five years he did only dispensing and making of lenses and was in charge of the optical department.

It thus appears that in addition to good basic education appellant had five years of dispensing experience in Nebraska, six months with Atlas Optical Company a licensed dispensing optician in Los Angeles, some time during the period of 1942 to 1949, and five years of dispensing under a licensed ophthalmologist in Beverly Hills; a total of ten and one-half years experience in dispensing. But the statute rules out the Nebraska experience because the employing optician was not licensed.

Counsel assume or assert that the code also excludes the years with Dr. Gunzberg, a registered ophthalmologist, although licensed ophthalmologists, physicians and surgeons are eligible to do dispensing work without compliance with this statute (§ 2557). An ophthalmologist is a physician or surgeon, Webster's New International Dictionary, Second Edition, defines the word as ‘a physician specializing in the study and treatment of defects and diseases of the eye.’ 38 Cal.Jur.2d § 3, page 532: ‘Physicians and surgeons are authorized to practice optometry, and such physicians and surgeons as specialize in treatment of the eye are known as opthalmologists.’ 1 Ops.Cal.Atty.Gen. 619, 620: ‘Section 2137 of the Business and Professions Code sets forth the practices authorized by the certificate of the physician and surgeon, which provides for the treatment of diseases, injuries, deformities and other physical or mental conditions and prohibits any person not so licensed from practicing as a physician and surgeon. Such physicians and surgeons who specialize in the treatment of the eyes are known as oculists or ophthalmologists.’ It would seem that the words physicians and surgeons in exemption section 2557 reasonably construed, should embrace ophthalmologists. But the terms of the statute strictly construed rule out experience under the guidance of a physician or surgeon or ophthalmologist as a basis for registration. In aid of its constitutionality a liberal construction of the law might read into the statute as sufficient qualification the guidance of a physician or surgeon or ophthalmologist as well as a licensed dispensing optician. But counsel for neither side has raised this point; they have tacitly agreed to the contrary; so we proceed to consider the constitutional issue debated by them.

Appellant's claim is that § 2552 so narrows the group of persons eligible to make application for registry—those who have had five years experience under a registered dispensing optician or have been licensed as such for five years in another state—as to be an arbitrary classification and hence violative of the Fourteenth Amendment to the United States Constitution, § 11 of Article I of the California Constitution which requires all laws of a general nature to have uniform operation, and § 21 of Article I of said constitution which says, ‘nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.’ Appellant's counsel stresses the point that the statute prescribes an exclusive method of procuring a dispensing certificate, namely, service of five years as apprentice to a local dispensing optician; that no training under physicians or surgeons or ophthalmologists will suffice; no educational background however excellent counts; no degree from any university or trade school has any value; no familiarity with dispensing work gained in naval or military service will help; no examination of the applicant is afforded and no opportunity to demonstrate knowledge, skill and efficiency; no way to a license except through apprenticeship to someone presently holding a certificate. There is no requirement that any licentiate employ any helper or helpers or that he instruct his employees in any manner whatsoever. He may decline to hire an apprentice for any or no reason, be it race, color, creed or other objectionable feature. For instance, it would be an easy matter for the present body of licentiates to exclude all Catholics or Jews or Negroes from the ranks of future dispensing opticians. Whether that result be called monopoly or not, a statute that thus impairs the right of citizens to fair access to a chosen line of employment must fall as an arbitrary classification and denial of equal rights.

‘A classification which draws the line in favor of existing businesses as against those later entering the field will be upheld if any reasonable and substantial basis can be found to justify the classification. [Citation.] On the other hand, such a classification is unconstitutional if it is purely arbitrary and capricious, resting on no reasonable or substantial difference between the classes when considered in relation to the object of the regulation.’ Del Mar Canning Co. v. Payne, 29 Cal.2d 380, 382, 175 P.2d 231, 232.

‘The respondent board relies on the presumption that there is a reasonable basis factually supported for the classification which prefers corporations having three years' practice. [Citations.] The presumption of validity to which every statute is entitled will not alone compel the sustaining of a statutory provision which can only be characterized as arbitrary. Forbearance by the courts from hasty invalidation of legislation is imperative, but a statute which permits some corporations to continue operations as public accountants while denying others that privilege where no reasonable grounds exist for such favoritism, denies equal protection to the excluded corporations and grants unlawful special privileges to the favored.’ Accounting Corp. of America v. State Bd. of Accountancy, 34 Cal.2d 186, 191, 208 P.2d 984, 987.

In the last cited case, the court dealt with a statute governing the practice of public accountancy. It required all newcomers to register within six months of the effective date of the statute, procure a permit and to that end meet certain specifications; it also exempted from operation of the statute any California corporation engaged in the practice of bookkeeping and accounting for a period of three years prior to the effective date of the statute. This was claimed and held to be violative of the equal protection and other clauses of the constitution above cited. The court said, 34 Cal.2d at page 189, 208 P.2d at page 986: ‘Public accountancy is in some respects comparable to the learned professions of law, medicine and dentistry in that a high degree of skill and integrity on the part of the practitioner is demanded. Proficiency in the examination, analysis and evaluation of financial records must be combined with a relationship of trust and confidence between an accountant and members of the public who consult him. This being the case, the Legislature might have, had it chosen, reasonably excluded corporations entirely from the practice of public accountancy.’ At page 190 of 34 Cal.2d, at page 986 of 208 P.2d: ‘But since the Legislature decided that at least some corporations are not disqualified from practicing public accounting, the sole question presented is whether it was reasonable to declare that only those corporations which had engaged in the practice for three years prior to the statute's effective date, should be permitted to continue as public accountants. In licensing and regulating a profession or occupation the Legislature may properly classify persons on the basis of their experience by fixing a stated period of time as determining their qualification to continue in the activity without examination or other requirement designed to assure competence. Such legislation has been justified on the ground that an individual who has engaged in an activity subject to regulation for a period of time may be assumed to have the qualifications which others can be required to prove by examination or by compliance with other conditions. [Citations.] But where a statute discriminates against individuals or corporations solely because they are new to the field and such discrimination does not appear to have any relation to the public interest, the legislation disregards constitutional protections against arbitrary classification.’ At page 191 of 34 Cal.2d, at page 987 of 208 P.2d: ‘The arbitrariness of the challenged proviso is emphasized by the fact that a corporation which had not engaged for three years in public accounting work is not merely required to offer more proof of its fitness but is permanently excluded from the practice of public accounting. * * * The evil of the proviso to section 5062 is that it confers a privilege to remain in business upon a class of corporations arbitrarily selected from among those engaged in public accounting at the time the new accounting chapter became effective.’ Then follows the passage first above quoted. To the same effect see, Del Mar Canning Co. v. Payne, supra, 29 Cal.2d 380, 382–383, 175 P.2d 231; In re Wacholder, 1 Cal.App.2d 254, 258, 36 P.2d 705.

Ex parte Whitley, 144 Cal. 167, 77 P. 879, 883, upheld a statute regulating the practice of dentistry which in part prescribed for candidates for examination that they be ‘graduates of high schools, or similar institutions of learning, in this state, or any state of the United States, requiring a three years' course of study, who have served an apprenticeship of four years with licensed practitioners within this state.’ But the opinion carefully pointed out at page 178 of 144 Cal., at page 883 of 77 P. that ‘[t]he law does not operate to exclude any one from the profession. The field is left open to all who are in possession of the required qualifications.’

The cases cited by appellant (hereinafter mentioned) are highly persuasive when we bear in mind the principle that arbitrary classification in a statute regulating the practice of the healing arts cannot survive just as it cannot do so in a statute regulating the more ordinary affairs of life, such as accountancy (Accounting Corp. of America v. State Bd. of Accountancy, supra, 34 Cal.2d 186, 208 P.2d 984), fish reduction plants (Del Mar Canning Co. v. Payne, supra, 29 Cal.2d 380, 175 P.2d 231), retail business of selling flowers and plants (In re Wacholder, supra, 1 Cal.App.2d 254, 36 P.2d 705).

Terry v. Civil Service Commission, 108 Cal.App.2d 861, 870, 240 P.2d 691, 697: ‘It hardly needs citation of authority to establish the principle that the right to work is fundamental and enjoys the personal liberty guarantees of the Fourteenth Amendment. Any unreasonable limitation that deprives qualified persons of the equal opportunity to qualify for work is unconstitutional. See Bautista v. Jones, 25 Cal.2d 746, 749, 155 P.2d 343. The right to work for the government is, of course, not absolute, but it should be safeguarded from legislative or quasi legislative action which discriminates against persons or classes of persons.’

Smith v. State of Texas, 233 U.S. 630, 34 S.Ct. 681, 58 L.Ed. 1129, struck down a state statute declaring it a misdemeanor for any person to act as conductor on a railway train without previously having served for two years as a freight conductor or brakeman. At page 638 of 233 U.S., atpage 683 of 34 S.Ct. the court said: ‘None of the cases sustains the proposition that, under the power to secure the public safety, a privileged class can be created and be then given a monopoly of the right to work in a special or favored position. Such a statute would shut the door, without a hearing, upon many persons and classes of persons who were competent to serve, and would deprive them of the liberty to work in a calling they were qualified to fill with safety to the public and benefit to themselves. * * * [T]he act permits brakeman on freight trains to be promoted to the position of conductor on a freight train, but excludes all other citizens of the United States from the right to engage in such service. The statute does not require the brakeman to prove his fitness, though it does prevent all others from showing that they are competent. The act prescribes no other qualification for appointment as conductor than that for two years the applicant should have been a brakeman on a freight train, but affords no opportunity to any others to prove their fitness. It thus absolutely excludes the whole body of the public, including many railroad men, from the right to secure employment as conductor on a freight train.’ At page 641 of 233 U.S., at page 684 of 34 S.Ct.: ‘So that the case distinctly raises the question as to whether a statute, in permitting certain competent men to serve, can lay down a test which absolutely prohibits other competent men from entering the same private employment. It would seem that to ask the question is to answer,—and the answer in no way denies the right of the state to require examinations to test the fitness and capacity of brakemen, firemen, engineers, and conductors to enter upon a service fraught with so much of risk to themselves and to the public. But all men are entitled to the equal protection of the law in their right to work for the support of themselves and families. A statute which permits the brakeman to act,—because he is presumptively competent,—and prohibits the employment of engineers and all others who can affirmatively prove that they are likewise competent, is not confined to securing the public safety, but denies to many the liberty of contract granted to brakemen, and operates to establish rules of promotion in a private employment. If brakemen only are allowed the right of appointment to the position of conductors, then a privilege is given to them which is denied all other citizens of the United States.’

People v. Ringe, 197 N.Y. 143, 90 N.E. 451, 27 L.R.A.,N.S., 528, involved a statute regulating the undertaking business. At page 454 of 90 N.E. the court said: ‘The act under consideration also provides that no person shall be licensed as an undertaker unless he has been employed as an assistant to a licensed undertaker continuously for a period of at least three years. * * * The trouble with this statute, however, is not wholly obviated by holding that it does not require three years' continuous service by an assistant after the license to the undertaker was actually granted. The provisions of the statute requiring that the service must be continuous, and arbitrarily prohibiting the issuing of a license to a person to engage in the business of undertaking unless such person has been an assistant to a licensed undertaker for the time therein specified, unnecessarily interferes with the common-law right to engage in a lawful business. It makes a particular form of acquiring skill and knowledge essential, and forfeits the right to count the time so engaged in that particular education at each time when there is a break in the continuity of the service.’

People v. Harrison, 170 App.Div. 802, 156 N.Y.S. 679, at page 683, speaking of the same statute as that involved in Ringe, after an amendment thereto, said: ‘It is contended on the part of the people that these changes in the law fully meet the criticism of the Court of Appeals in People v. Ringe, supra. I am of opinion that they do not. The statute still requires that the requisite skill and knowledge shall be obtained in a particular manner, to wit, by service as a registered apprentice for at least two years in all cases where the application for a license is made after June 1, 1915, and service as a registered apprentice for two years, or practical experience with an undertaker, prior to the time the act as thus amended took effect, acceptable to the board in lieu of such service as a registered apprentice, where the application for a license is made on or prior to June 1, 1915.’ At page 684 of 156 N.Y.S.: ‘[I]t is, I think, manifest that the knowledge essential to qualify one to enter an examination for a license as an undertaker might be acquired in a medical or other school for such purpose, or by special training and observation, without actually serving as an apprentice, and in any event the requirement of two years' service in such capacity is unreasonable.’ At page 685 of 156 N.Y.S.: ‘In State v. Walker, 48 Wash. 8, 92 Pac. 775, 15 Ann.Cas. 257, the Supreme Court of Washington declared a statute requiring an apprenticeship for two years with a qualified and practicing barber as a condition precedent to obtaining a certificate as a barber void, on the ground that competency only was required, and that it was not within the province of the Legislature to provide that it should be attained in a particular manner.’

Except that it deals with plumbers rather than opticians, the case of People v. Brown, 407 Ill. 565, 95 N.E.2d 888, is closely parallel to the situation at bar. Dealing with the constitutionality of the Plumbing License Law (Ill.Rev.Stat.1949, c. 111 1/2, §§ 95–116) the court said, in part: ‘Obstacles are interposed by the act to a person freely and of his own choice engaging in the occupation of master plumber, the trade of journeyman plumber, and the activity of learning the trade by apprenticeship. One cannot be a licensed master plumber unless he has prior thereto been a licensed journeyman plumber, and before that a certified registered plumber's apprentice. No matter how well qualified a person may be by instruction and training, he can never of his own free will and choice become a certified registered plumber's apprentice, a journeyman plumber or master plumber, unless a licensed master plumber so wills. The act does not load a licensed master plumber with the obligation of employing a person who desires to enter into an apprenticeship. The refusal to employ one as an apprentice need not be based upon any valid reason. It may be an arbitrary refusal, it may be a refusal predicated upon an understanding between master plumbers to limit the number of apprentices learning the trade, and it may be upon one, or some, of the facts of race, color or creed. The act does not allow a person to learn the trade of journeyman plumber by acquiring the necessary instruction and training in any way, other than as an apprentice to a licensed master plumber. Just the refusal to employ will effectually bar the way to an apprenticeship. The licensed master plumber is in full and absolute control of the situation, a private citizen exercising a power under the protection of the State which the State cannot lawfully exercise, i. e., the arbitrary denial to a citizen of his inherent and inalienable right to engage in a legitimate activity by his own free will and choice. After a plumber's apprentice has started to serve the five years required of him, he is still subject to the unregulated will of the licensed master plumber employer. Under the act his tenure as an apprentice may be terminated at any time by the employer, for it does not require apprenticeship articles to stabilize the relationship of the two.’ 95 N.E.2d at pages 893–894. ‘The right to instruct the apprentices and journeyman plumbers belongs exclusively to the master plumbers. Educational institutions, public or private, are barred by the act; and it cannot be circumvented by employing a licensed master plumber and his licensed journeyman plumber employees. The students instructed must be bona fide apprentice employees of the licensed master plumber who is hired. The legislature by bestowing that right upon licensed master plumbers, intentionally or unintentionally, conferred upon them a monopoly.'95 N.E.2d at page 895. ‘The legislature conferred a special privilege upon licensed master plumbers, as a class, when it gave to them the arbitrary and exclusive right to determine who shall, or shall not, engage in the vocation of learning the trade of journeyman plumber, coupled with their having the sole right, with the uncontrolled exercise thereof, to instruct plumbers' apprentices in that trade. Defendant argues it is a special privilege contrary to section 22, article IV, of the constitution. The People counter by saying each applicant has an equal opportunity to take the required examination, provided he possesses the qualifications demanded by the act. The People ignore the fact one cannot become an applicant to take the examination for journeyman plumber until he has been employed by a master plumber. Applicants must come from the ranks of apprentices, and apprentices come into existence only through the reasoned, or unreasoned, grace of the licensed master plumber.’ 95 N.E.2d at page 898. ‘From what we have said elsewhere in this opinion, it is very clear it has not been demonstrated that the bestowal of the special privilege rests upon material distinctions between the trade of plumbing and other trades or vocations affecting the public health, safety or welfare; or that licensed master plumbers, as a class, are so circumstanced by the innate characteristics of their calling that the special privilege in their hands is necessary and will beneficially affect the public as stated above. The special privilege was granted in violation of the constitution.’ 95 N.E.2d at page 899. These views were reiterated in Schroeder v. Binks, 415 Ill. 192, 113 N.E.2d 169, which involved a later and similar plumbing license law. At page 173 of 113 N.E.2d it is said: ‘We conclude that there is no persuasive authority which supports the economic hierarchy sanctioned by the Plumbing License Law of 1951 and that the act is not a proper exercise of the police power of the State.’

City of Sioux Falls v. Kadinger, 74 S.D. 217, 50 N.W.2d 797, involved an ordinance providing for licensing of plumbers. At page 799 of 50 N.W.2d the court said: ‘The section of the ordinance relating to apprenticeship cannot be otherwise construed than as intended to bestow upon master and journeyman plumbers the exclusive right to instruct apprentices. The only permissible proof of competency to take an examination is an affidavit of a master or journeyman plumber showing that applicant has served as an apprentice for at least three years. An applicant otherwise qualified by instruction and training and competent to engage in the business or to pursue the occupation of a plumber is denied the right to take an examination and obtain a license.’ At page 800 of 50 N.W.2d the court, citing People v. Harrison, supra, State v. Walker, 48 Wash. 8, 92 P. 775, and Smith v. State of Texas, supra, said that they ‘are additional authorities to the effect that it is not within the legislative province to provide that an applicant for an occupational license shall have attained his competency in a particular manner.’

The reasoning of the foregoing cases convinces us that the five-year apprenticeship provision of § 2552, Business & Professions Code of this State, is unconstitutional.

Appellant, foreseeing this result, argues that the severability clause of the statute1 saves all other parts of it. This he does because of the fear that striking down the five-year apprenticeship provision will throw appellant into the jaws of the Optometry Act and the unappealed decision of the Superior Court in People v. Kindy Optical Co. (1938), No. C.R.–A 1456, on the records of the Superior Court. The text of this decision has not been placed before us but counsel for appellant says it ruled that all dispensing opticians who were not licensed optometrists were practicing in violation of the Optometry Law and hence the Dispensing Opticians Act was passed to remedy the situation. We cannot adopt this severability argument for several reasons.

This chapter of the code was added in 1939 (Stats.1939, Ch. 955, p. 2693) and it contained the severability clause quoted in footnote 1 hereof. Section 2552 of the original statute read: ‘Each application, to enable the board to determine if the applicant is entitled to be registered under this chapter, shall contain: (a) The name and experience of each person who will take facial measurements and fit and adjust lenses or frames. Each such person shall have a minimum of two years previous experience in the taking of facial measurements and the fitting and adjusting of lenses and frames. (b) The recommendation of three physicians and surgeons licensed by the Board of Medical Examiners who specialize in the treatment of the eyes as part of their practice that the applicant is competent and qualified to accurately fill prescriptions for ophthalmic lenses. (c) Such other information as the board may by rule require.’ The five-year apprenticeship requirement was inserted in § 2552 by an amendment of 1947 (Stats.1947, Ch. 580, p. 1578), which amendment raised the constitutional question we have just decided. When that amendment falls the original terms of § 2552 remain effective as they always have been. People v. Building Maintenance, etc., Ass'n, 41 Cal.2d 719, 726, 264 P.2d 31, 36: ‘It has generally been held that an invalid amendment to a valid statute is ineffective for any purpose. [Citations.] * * * The problem is well illustrated by cases involving amendments that have been held invalid because they would deny equal protection by exempting certain classes from the operation of pre-existing statutes. These cases hold that since the amendments purporting to create the invalid exemptions are void, members of the nonexempted classes are not denied equal protection. [Citations.]’ To the same effect see, Miller v. Union Bank & Trust Co., 7 Cal.2d 31, 36, 59 P.2d 1024; Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 555, 171 P.2d 885; 45 Cal.Jur.2d § 64, page 586.

Thus the presently effective requirement is that an applicant have a minimum of two years previous experience. Such a standard is not subject to the objections which we have sustained with respect to the five-year apprenticeship provision. Appellant obviously passed this two-year test and is entitled to the certificate which he seeks.

The judgment is reversed and the lower court directed to issue a peremptory writ of mandate as prayed in the amended petition herein.

FOOTNOTES

1.  Stats.1939, Ch. 955: ‘§ 2. If any section, subsection, sentence, clause or phrase of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this act. The Legislature hereby declares that it would have passed this act and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional.’

ASHBURN, Justice.

FOX, P. J., and HERNDON, J., concur.