Opinion
No. 36546.
September 11, 1968.
Appeal from the Circuit Court, Leon County, Hugh M. Taylor, J.
Earl Faircloth, Atty. Gen., and Robert A. Chastain, Asst. Atty. Gen., for appellant.
Joseph C. Jacobs, of Ervin, Pennington, Varn Jacobs, Tallahassee, and William G. O'Neill, Ocala, for appellees.
This is a direct appeal from a decision of the trial court determining that subsection, F.S. 1965, 460.02(4), F.S.A. and Section 460.27, F.S. 1965, are wholly invalid and inoperative. Other portions of the final decree are not questioned on this appeal.
Section 460.02 reads as follows:
"460.02 Board, appointed by the governor, terms.
"(1) The governor shall appoint three chiropractic physicians who shall possess the qualifications specified in § 460.01 to constitute the Florida state board of chiropractic examiners.
"(2) The term of office of the members of the board shall be for three years from the termination of the now existing terms. Thereafter, the governor shall appoint or reappoint each member for a term of three years.
"(3) Any vacancy in the membership of the board shall be filled by appointment by the governor for the unexpired term.
"(4) The board of directors of the Florida chiropractic association, inc., shall recommend to the governor for appointment to the board the name or names of chiropractors that it feels are qualified to serve on the board. In making this recommendation the association shall be guided by the provisions of subsection (1)."
Section 460.27 reads as follows:
"460.27 Renewal of license required, fee, etc.
"(1) All persons who are now or may hereafter be regularly licensed to practice chiropractic in the state shall, on or before January 1, annually hereafter renew same and pay a renewal fee each year to the board, not to exceed twenty-five dollars as fixed annually by the board.
"(2) In addition to the payment of such renewal fee, each licensee so applying for license renewal shall furnish to the board satisfactory evidence that he has attended the two day educational program as conducted by the Florida chiropractic association, inc., or as a substitute therefor, the equivalent as approved by the board, in the twelve months preceding each renewal date. The determination of whether a substitute annual educational program is necessary shall be solely within the discretion of the board. Satisfactory evidence of attendance on postgraduate study of a type and character and at an educational session or at an institution approved by the board shall be considered equivalent.
"(3) Licenses may be renewed by the board at its discretion and the applicant excused from paying the renewal fee or attending the annual educational program or both in any of the following instances:
"(a) The applicant submits an affidavit to the board evidencing that he, for good cause assigned, suffered a hardship which prevented the applicant from renewing the license or attending the educational program at the proper time;
"(b) In the event of an unusual emergency;
"(c) For other good and sufficient reason.
"(4) The secretary of the board shall send a written notice to every person holding a valid license to practice chiropractice at least thirty days prior to January 1 in each year, directed to the last known address of such licensee, and shall enclose with such notice blank forms as prescribed by the board for application for annual license renewal.
"(5) Every person failing to renew his license within thirty days after the same is due shall automatically forfeit his license to practice chiropractic in the state, but he may have his license reinstated upon the payment of a restoration fee of fifty dollars for each delinquent year or any part thereof in addition to the renewal fee as provided in subsection (1), and upon presentation of satisfactory evidence of postgraduate study of a standard approved by the board.
"(6) The board shall have the right, for good cause shown, to adopt and prescribe the type and character of the postgraduate study to be done by any chiropractor in order to comply with the requirements of this chapter."
The trial court held that Section 460.02(4), supra, was a clear attempt to indirectly exert legislative power on the Governor in the exercise of the appointive power and to attempt to authorize and require the Board of Directors of the Florida Chiropractic Association, Inc. to participate in the election of persons to be appointed to public office. In reaching such conclusion the trial court relied in part upon the decision of this Court in Westlake v. Merritt, 85 Fla. 28, 95 So. 662. Westlake is inapplicable. In that case the questioned statute provided that the "members of said board shall be appointed by the Governor" from a list recommended by the board. There is no attempt by the Legislature in the questioned section to coerce or make any positive requirement on the Governor in connection with such appointment. The recommendations are in no sense made binding on the Governor. There is nothing in the statute which attempts to preclude others from making recommendations in the premises nor does the statute in any way discriminate against nor deprive chiropractors who are not members of such association designated of any privileges, immunities or property rights. The Governor may totally disregard any and all recommendations with reference to such appointment in selecting membership for the Board. The trial court was in error in holding. F.S. Section 460.02(4), F.S.A., to be invalid.
The Chancellor then proceeded to strike down as unconstitutional all of F.S. Section 460.27, F.S.A., and among other things said:
"The annual renewal of each license is predicated upon two events, (1) the payment of a fee of $25.00 as required by subsection 460.27(1) and (2) attendance upon a two-day seminar as required by subsection 460.27(2). Standing alone these two subsections appear to be valid. But they are followed by subsection 460.27(3) set forth below. [See footnote #2.]
"It will be observed that the Board `in its discretion' may excuse the payment of the fee or the attendance upon the seminar or both for any one of three causes: (a) that the applicant, for good cause assigned, suffered a hardship which prevented the applicant from renewing the license or attending the seminar; or (b) an unusual emergency; or (c) other good and sufficient reason. These are three separate and distinct `instances' under which the Board may, `in its discretion', grant or deny a renewal of license."
The Chancellor proceeded with a discussion of F.S. 460.27(3) (c), F.S.A., "For other good and sufficient reason" — holding in fine that when considered with the remainder of the section it is too vague, indefinite and uncertain in that no guidelines are established for its administration and is therefore void. To this portion of his holding we agree under the authority of Barrow v. Holland (Fla.) 125 So.2d 749.
The trial court then invalidated all of F.S. 460.27, F.S.A., and in so doing said:
"* * * the Legislature would not have adopted subsections 460.27(1) and 460.27(2) without subsection 460.27(3) and, therefore, this whole section 460.27 must fall. This does not necessarily affect the remainder of Chapter 460, which the Court feels would have been enacted without 460.27 had the Legislature anticipated this decision.",
to which we cannot agree. F.S. Section 460.27, F.S.A., was enacted as a part of Chapter 63-295, Laws of Florida, in which section 27 of the Legislative Act provided:
"Section 27. It is declared to be the legislative intent that if any section, subsection, sentence, clause or provision of this act is held invalid the remainder of this act shall not be affected." (Emphasis supplied.)
We have no difficulty — particularly after applying the saving clause just above mentioned — in isolating and invalidating Clause (c) supra, and permitting the remainder of subsection (3) to stand.
In summary we hold that Clause (c) of F.S. 460.27(3), F.S.A. phrased "For other good and sufficient reason" is void for the reasons hereinabove stated. That Section 460.02(4) F.S. and Section 460.27 except Clause (c) just above mentioned are valid legislative enactments.
Accordingly, the judgment is affirmed in part and reversed in part for further proceedings not inconsistent with this opinion.
It is so ordered.
CALDWELL, C.J., THOMAS, ROBERTS and THORNAL, JJ., and MELVIN, Circuit Judge, concur.
ADAMS, J. (Retired), dissents with opinion.
This case originated in the Circuit Court of Leon County by appellees filing a bill in equity seeking a decree holding sections of Chapter 460 unconstitutional as well as the method of appointing the chiropractic board and further challenging certain rules promulgated by the board.
An answer was filed and hearing had, the chancellor hearing testimony.
The gist of the decree under attack found and held that there are three private and voluntary associations of chiropractors. Two are unincorporated and the third is incorporated. The latter is a private corporation and is the largest of the three. Section 460.01, Florida Statutes, F.S.A., creates the "Florida State Board of Chiropractic Examiners." Section 460.02, Florida Statutes, F.S.A., provides for the Governor to appoint members to the Board. In subsection 4 of Section 460.02, it is provided that the Board of Directors of the Florida Chiropractors Association, Inc., recommend to the Governor for appointment to the board, the names of persons who are qualified to serve on the board.
It is this last provision in the Statute which is challenged as an unlawful delegation of power as being repugnant to Section 25, Article III of the Constitution of Florida., F.S.A.
The Chancellor held invalid Section 460.02(7), the sum and substance of which provides for the annual renewal of licenses predicated upon payment of a fee of $25 and attendance at a two day seminar, and the further provision that the license may be renewed by the board at its discretion and the applicant excused from paying the renewal fee or from attending the annual program or both in the following instances: (a) the applicant submits an affidavit to the board evidencing that he for good cause assigned suffered a hardship which prevented applicant from renewing the license or attending the seminar; (b) in the event of an unusual emergency; (c) other good and sufficient reason.
The Chancellor held that subsection 4 of Section 460.02 was invalid, said provision reading:
"(4) The board of directors of the Florida chiropratic association, inc., shall recommend to the governor for appointment to the board the name or names of chiropractors that it feels are qualified to serve on the board. In making this recommendation the association shall be guided by the provisions of subsection (1)."
The Chancellor also held Section 460.27, Florida Statutes, F.S.A. wholly invalid.
Chapter 460 is a chapter dealing entirely with the profession of chiropractics. It has a severability clause in it and we will not disturb the act as a whole if we find enough valid legislation in the chapter to enable the profession through its board to function within the main purposes set forth by the Legislature.
I agree with the Chancellor on this question inasmuch as this was a clear case of the Legislature delegating to a private corporation a measure of sovereignty contrary to Section 25, Article III of the Constitution of Florida. I recognize the distinguishing feature in this from our holding in Westlake vs. Merritt, 95 So. 662. It is true in this instance the Statute did not require the Governor to honor the recommendation of the board. Nevertheless a private corporation cannot in this instance participate in sharing the exercise of any sovereign capacity with the executive branch, neither can the Legislature delegate sovereign power to a private corporation.
The Chancellor was of the opinion that the Legislature would not have adopted subsections (1) and (2) of Section 460.27, without subsection (3); therefore, he concluded that all of Section 460.27 must be declared invalid.
The chancellor found that all of Section 460.27 was invalid. Under this section the annual renewal of licenses was predicated upon the payment of the $25 fee as required by subsection (1) thereof, and two, attendance upon a two-day seminar. The Chancellor stated that these standing alone appeared to be valid but there was subsection (3) following them which he found to be invalid and then concluded that to eliminate the bad portion would call for the striking down of all of Section 460.27.
I agree with the Chancellor that the Legislature exceeded its authority in delegating powers to the Board which were not defined and spelled out in such a fashion as to meet constitutional requirements. There was a complete absence of standards and guidelines given by the Legislature by which the Board might comply with their duty under subsection (3) of said section. See Barrow v. Holland, Fla., 125 So.2d 749 and 1 Fla. Jur., Section 36, p. 243.
The Legislature in enacting this chapter very clearly stated that if any part of this chapter should be held invalid the remainder should not be affected. It is apparent that this Board can function and carry out the purposes of the act under 460.27 so long as subparagraphs (1) and (2) thereof are upheld. It is my conclusion therefore, that all of subparagraph (3) of said section is invalid and the remainder of said section is valid. In arriving at legislative intent we take a different view from the learned Chancellor. It is my judgment that the Legislature proposed to enact an overall comprehensive law recognizing and providing for the profession of Chiropractics. By deleting the objectionable parts of this chapter it seems perfectly reasonable that this profession could function in keeping with this legislative purpose. I have no difficulty reaching this conclusion even if the Statute had no severability clause in it. However in this case the Legislature provided, "it is declared to be the legislative intent that if any section, subsection, sentence, clause, or provisions of this act is held invalid the remainder of the act shall not be affected." See Section 27, of the act. See also: 6 Fla.Jur., Const. Law, p. 352; 30 Fla.Jur., Statutes, § 140, p. 243; State v. Calhoun County, 126 Fla. 376, 170 So. 883; State ex rel. Limpus v. Newell, Fla., 85 So.2d 124; Kass v. Lewin, Fla., 104 So.2d 572; Dade County v. Keyes, Fla.App., 141 So.2d 819.