Opinion
Rehearing Denied Sept. 15, 1961.
Hearing Granted Oct. 17, 1961.
Opinion vacated 18 Cal.Rptr. 501, 368 P.2d 101.
Ellis J. Horvitz, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., Philip C. Griffin, Deputy Atty. Gen., for respondent.
ASHBURN, Justice.
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 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. 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, '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 Del Mar Canning Co. v. Payne,
In re Wacholder,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 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 A.D. 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 In State v. Walker,
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 Schroeder v. Binks,
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 statute 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 People v. Kindy Optical Co.
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.'
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.
FOX, P.J., and HERNDON, J., concur.