Rehearing Denied June 10, 1958.
[84 Ariz. 226] Robert Morrison, Atty. Gen., and Robert G. Mooreman, Sp. Asst. Atty. Gen., for appellants.
Lewis, Roca, Scoville & Beauchamp, Phoenix, by John P. Frank, Phoenix, for appellee.
UDALL, Chief Justice.
This is an appeal from an order and judgment of the trial court in favor of Leonard F. McDaniel, petitioner-appellee. Therein a writ of prohibition was directed to John C. Park, chairman and the other members of the State Board of Technical Registration who are the appellants here but were the respondents in the court below. Hereinafter we will refer to appellants as the Board and to McDaniel as appellee.
The events antecedent to the proceedings below are these: Appellee McDaniel is a registered structural engineer engaged in the practice of his profession in Maricopa County. The Board, apparently believing that appellee was not conducting himself properly, made some preliminary investigation and then initiated disciplinary action against him by the filing of formal charges of professional misconduct. These charges may be summarized as: misuse of his seal, practicing architecture, and aiding and abetting an unregistered person to evade the registration law. In preferring these [84 Ariz. 227] charges the Board was proceeding under the provisions of the Technical Registration Act of 1935 which now appears as A.R.S. Title 32, Chap. 1, § 32-101 et seq., (hereinafter referred to as the Act).
A hearing on the charges was set by the Board for July 13, 1957, and notice thereof was served on appellee, wherein he was advised that his certificate as an engineer might be suspended or revoked 'should such charges be substantiated.' Prior to the date set for the hearing, the appellee filed an application for a writ of prohibition in the Superior Court of Maricopa County praying that the court prohibit the Board from considering the charges above mentioned. An order to show cause was issued and a hearing had thereon where the matters were briefed, orally argued, and taken under advisement. On July 8, 1957, the court entered the following order which forms the basis for the Board's appeal, viz.:
'The Court having fully considered the matter of the application for a Writ of Prohibition, finds that the charges one and two set forth in exhibit A of petitioner's application, being
the charges made by the respondent, State Board of Technical Registration, do not constitute charges within the jurisdiction of said respondent upon which to base a hearing as set out therein.
'The Court further finds that as to charge No. 3, the statute on which the same is based is so ambiguous, indefinite and contradictory to the extent that, in the opinion of the Court, it is unconstitutional and also constitutes a possible delegation of legislative authority.
'It is ordered that the Writ of Prohibition issue as prayed.'
The first assignment is that the superior court erred in issuing the writ of prohibition because the appellee was not entitled to this extraordinary writ since he had a plain, speedy and adequate remedy by appeal under the provisions of A.R.S., Title 12, Chap. 7, Art. 6, entitled 'Judicial Review of Administrative Decisions.' It was upon this legal theory that the Board principally relied in the lower court. Had appellee McDaniel submitted to the disciplinary hearing before the Board, unquestionably he could have had an adverse ruling first reviewed by the superior court (section 12-904 et seq.) and if it ruled against him then an appeal would lie to this court under section 12-913. Does it necessarily follow, as contended by appellants, that this statutory procedure for review is, in all cases, the exclusive and an adequate remedy for a registrant, such as appellee, who wishes to attack the jurisdiction and action of the Board? We think not. In the usual and ordinary situation--absent a jurisdictional question--such is the procedure that must be followed. We however [84 Ariz. 228] cannot agree that prohibition will not lie if it fairly appears to the trial court that in a given case the administrative agency is acting without of in excess of its jurisdiction and that an appeal will not furnish a plain, speedy and adequate remedy at law. See, Westerlund v. Croaff, 68 Ariz. 36, 41, 42, 198 P.2d 842, for a full discussion of the relevant factors, with many authorities; 42 Am.Jur., Prohibition, section 9, as to test of adequacy.
This court, in reviewing a grant of the writ of prohibition by a lower court, will not consider whether as an original proposition it would have granted such a writ but restricts its review to whether the lower court abused its discretion. We perceive a number of factors tending to justify the action taken by the trial court in its finding that the remedy of appeal was not adequate: e. g. questions as to the constitutionality of portions of the Act relied upon; grave doubts as to the legal sufficiency of the charges made; that the same acts charged might involve appellee McDaniel in a criminal prosecution under the criminal sections of the statute (see, Adolph Coors Co. v. Liquor Control Commission, 99 Utah 246, 105 P.2d 181); the extreme burden placed upon appellee in connection with the broad requirements of a subpoena issued in the matter; lack of jurisdiction of the Board; and the fact that a criminal case involving similar constitutional questions had already been certified to this court. On the whole record we hold the trial court did not abuse its discretion in the issuance of the writ in the instant case.
Generally speaking there can be no question as to the inherent power of the legislature to regulate professions such as engineering and architecture. As a matter of fact there are twenty-eight legally recognized and regulated professions and occupations in Arizona. See, A.R.S. Title 32. Such licensing laws are, without exception, based upon what is known as police power, inherent in state legislatures; that is, the power to enact any law deemed necessary for the protection of the property, peace, life, health and safety of the inhabitants of the state. See, McCawley, Professional Engineering Registration Laws (1954), page 587. However, while the State is fully entitled to regulate the
trades and professions, it is not entitled to do so in statutes which are 'so ambiguous, indefinite, and contradictory in its terms as to make impossible its intelligent administration for the benefit of the public.' See, State v. Gee, 73 Ariz. 47, 236 P.2d 1029, 1031.
We agree with the Attorney General's abstract propositions of law to the effect that the legislature may (a) establish reasonable standards to be complied with as a prerequisite to engaging in such professional pursuits as architecture and engineering; (b) properly adopt the convenient[84 Ariz. 229] and desirable expedient of providing for the appointment of a board of qualified persons to enforce prescribed standards; and (c), confer jurisdiction upon said board to take disciplinary action. Here the legislature has lawfully granted to such board the power to 'Adopt by-laws and rules for the conduct of its meetings and the performance of duties imposed upon it by law.' A.R.S. § 32-106, subd. A, par. 1. As to these basic principles there is virtually no disagreement. Our real problem, which stems from the disciplinary proceedings instituted before the Board, is whether the charges made against appellee are legally sufficient and if so whether the particular statutes on which they were predicated are constitutional.
Before getting down to the merits of the controversy, appellee raises the following proposition of law that should be considered, viz.:
'Where the State in a lower court defends against a writ of prohibition exclusively on jurisdictional grounds, and makes no defense on the merits, it cannot for the first time offer a defense on the merits in this court.'
The Constitution of Arizona, Art. 6, section 6, provides, inter alia, that 'Superior Courts and their judges shall have the power to issue writs of * * * prohibition * * *', and A.R.S. § 12-124, subd. C, merely states: 'The superior court may issue writs of prohibition or other remedial writs necessary to carry out its powers.' It should be noted that neither the statutes nor our rules prescribe the precise procedure to follow. Notice to the parties against whom the writ is being prosecuted is of course essential in order to satisfy due process. In the modern American practice this is accomplished either by the issuance of a rule to show cause, as was done here, or the issuance of an alternative writ of prohibition. 42 Am.Jur., Prohibition, section 43. However, good practice would dictate that a responsive pleading should have been filed by the State. This was not done. The only document filed was a 'Memorandum (brief) in Denial of Writ of Prohibition' wherein the State's principal reliance was upon the legal principle that prohibition was not the proper remedy inasmuch as the right of appeal existed. In spite of this omission or irregularity we do not see that appellee was in anywise prejudiced. This for the reason that appellee McDaniel in his petition for the writ filed in the lower court specifically set forth a summary of the three charges made against him and urged as a matter of law that none of them were legally sufficient to give the Board jurisdiction to proceed against him in the disciplinary matter. The court's minutes reveal that at a hearing held on June 28, 1957, all parties were represented and the matter was fully argued and taken under [84 Ariz. 230] advisement. When a ruling was made ten days later, the order (heretofore set forth haec verba) reflects the learned trial court considered every phase of the case that had been advanced by either of the parties. Inasmuch therefore as only questions of law were raised and determined below we hold the State is not prohibited from offering a defense on the merits in this court.
Appellee contended below, and the trial court agreed, that charges one and two did not constitute charges, within the jurisdiction of the Board, upon which a hearing could be based. These charges were as follows:
'Comes Now, H. L. Royden and asserts under oath that Leonard F. McDaniel
did violate the provisions of the code in the State Board of Technical Registration and is guilty of misconduct in the practice of his profession in that:
'1. The said Leonard F. McDaniel has been guilty of using his seal on plans other than Structural Engineering, in violation of Section 32-125 A.
'2. The said Leondard F. McDaniel has been guilty of practicing Architecture, in violation of Section 32-101 2.'
The Board urges it had jurisdiction, under the express terms of the Act, to take disciplinary action as was attempted here. Further, the charges brought against appellee were valid charges of misconduct, and when taken in the light of the preliminary investigation (of which appellee was fully apprised) were sufficient to inform him of their subject matter and as such comprised adequate notice upon which to base a formal hearing.
The Board further asserts the statutory references contained in the charges were merely to notify appellee of his violation of the disciplinary provisions of the code. The sections referred to as being violated are:
(1) 'Section 32-125. Seals for Registrants.
'A. The board shall adopt and prescribe seals for use of registrants who hold valid certificates. Each seal shall bear the name of the registrant, shall state the vocation and, in the case of engineering, the branch or branches thereof he is ...