COFFMAN v. STATE BD. OF EXAMINERS

SHARPE, J.

Plaintiff, Henry Coffman, seeks a writ of mandamus to compel the defendant State board of examiners in optometry to permit him to take an examination in optometry.

Plaintiff shows that he is a citizen of the United States, a resident of Wayne county, Michigan, a graduate of Cass Technical High School of Detroit and has served 7 years in the army and navy of the United States. He also shows that he is a graduate of Monroe College of Optometry of Chicago, Illinois, under an accelerated course of instruction; that he passed the Illinois State Board in Optometry examination and was issued a certificate by the State of Illinois in 1947.

Plaintiff was denied an opportunity to take the Michigan examination in optometry for the reason that the Monroe College of Optometry did not teach a 2-year course in optometry and is not an accredited optometry college.

One of the sections of the statute in controversy here, CL 1948, § 338.253 (Stat Ann § 14.643), provides in part:

"After May first, 1925, the applicant shall be at least 21 years of age, of good moral character, who is a graduate of an optometric school or college rated as class A or class B by the international association of boards of examiners in optometry, teaching optometry and giving a course of at least 2 years of 6 months each. The said board herein provided for is hereby empowered to fix from time to time, the number of hours of actual clinical instruction and recitation necessary to constitute a year's attendance course at an optometric school or college, to comply with the requirements herein stated."

By virtue of CL 1948, § 338.251 (Stat Ann § 14.641), the board of examiners in optometry is authorized to make rules and regulations governing the practice of optometry and such other rules as may be as necessary to carry out the provisions of the act. By virtue of the above act the board adopted the following rule:

"Applicants for examination must be 21 years of age, of good moral character and must be possessed of an education equal to a 4 years' high school course, Michigan standard, and be a graduate in optometry of a university, school or college approved by the Michigan State board of optometry, giving a course of at least 4 years." Michigan Administrative Code 1944, p 477.

It also appears that the above rule was approved by the attorney general on October 24, 1944. It is to be noted that the rule adopted by the board raises the statutory minimum from 2 years of 6 months each to "a university, school or college approved by the Michigan State Board of Optometry, giving a course of at least 4 years." It is conceded that the Monroe College of Optometry did not give a course of study in optometry of at least 4 years nor was it approved by the Michigan board of optometry.

On February 1, 1951, the attorney general ruled that the provision of CL 1948, § 388.253, requiring applicant for examination to have graduated from optometric school or college rated as class A or class B by the international association of boards of examiners in optometry is void as attempted delegation of legislative power to a nongovernmental body, but held that the excision of the ultra vires phrase would not affect the validity of the remainder of the act. Both plaintiff and defendants accept the ruling of the attorney general, at least the issue referred to in the opinion is not argued. The opinion states:

"The legislative power of this State is vested in the legislature and in the people by Constitution 1908, art 5. The legislature is prohibited by the Constitution from delegating legislative powers to non-Michigan governmental agencies (Minor Walton Bean Company v. Unemployment Compensation Commission, 308 Mich. 636, 654, 655; Colony Town Club v. Unemployment Compensation Commission, 301 Mich. 107, 113-114) or to private individuals or associations (People, ex rel. Shumway, v. Bennett, 29 Mich. 451 [18 Am Rep 107]; Senate of Happy Home Clubs of America v. Alpena County Supervisors, 99 Mich. 117 [23 LRA 144]; In re Petition of Hawkins to Vacate Alley, 244 Mich. 681, 684; People v. Hall, 290 Mich. 15, 29-32). * * *

"The excision of the ultra vires phrase will not affect the validity of the remainder of the act. See CL 1948, § 338.260 note (Stat Ann 1949 Cum Supp § 14.651); PA 1945, No 267, § 4 (Stat Ann 1949 Cum Supp § 2.354); CL 1948, § 8.5 (Stat Ann 1949 Cum Supp § 2.216); Evans Products Company v. State Board of Escheats, 307 Mich. 506, 549."

We are in accord with such opinion and hold that the legislature could not delegate to the international association of boards of examiners in optometry the rating of optometric schools or colleges as required under the act.

In view of our holding the statute would read:

"The applicant shall be at least 21 years of age, of good moral character, who is a graduate of an optometric school or college teaching optometry and giving a course of at least 2 years of 6 months each. The said board herein provided for is hereby empowered to fix from time to time, the number of hours of actual clinical instruction and recitation necessary to constitute a year's attendance course at an optometric school or college, to comply with the requirements herein stated."

See CL 1948, § 8.5 (Stat Ann 1949 Cum Supp § 2.216); People v. McMurchy, 249 Mich. 147.

There is no question but that the legislature, acting under its police power, has the power and authority to prescribe minimum requirements for those who seek to become optometrists. When the legislature provided that an applicant shall be a graduate of an optometric school giving a course of at least 2 years of 6 months each, it did not intend a calendar year of 365 days, but that the school year should be at least 6 months devoted to the study of optometry. It is a well known fact that many students have accelerated the time required to complete a prescribed course by attending summer school and thus been able to graduate before the usual time of graduation.

The right to allow an administrative agency to adopt rules and regulations to effectuate the purposes of the legislation is well recognized. See United States v. Grimaud, 220 U.S. 506 (31 S.Ct. 480, 55 L ed 563); People v. Soule, 238 Mich. 130; and Sherlock v. Stuart, 96 Mich. 193 (21 LRA 580).

In Salowitz v. State Board of Registration in Medicine, 285 Mich. 214, we said:

"In exercising supervision over the health of several millions broad discretionary powers must necessarily be granted, and it is only when that discretion is abused that the courts will interfere."

In Ranke v. Corporation & Securities Commission, 317 Mich. 304, we quoted and adopted the following:

"In California Drive-In Restaurant Association v. Clark, 22 Cal.2d 287, 302 (140 Pac2d 657, 147 ALR 1028), that court said:

"It is true that an administrative agency may not, under the guise of its rule-making power, abridge or enlarge its authority or exceed the powers given to it by the statute, the source of its power. * * * However, "the authority of an administrative board or officer, * * * to adopt reasonable rules and regulations which are deemed necessary to the due and efficient exercise of the powers expressly granted cannot be questioned. This authority is implied from the power granted."'"

In 42 Am Jur, § 26, p 316 et seq., it is stated:

"Administrative boards, commissions, and officers have no common-law powers. Their powers are limited by the statutes creating them to those conferred expressly or by necessary or fair implication. * * * In determining whether a board or commission has a certain power, the authority given should be liberally construed in light of the purposes for which it was created and that which is incidentally necessary to a full exposition of the legislative intent should be upheld as being germane to the law. * * * Implication of necessary powers may be especially appropriate in the field of internal administration. However, powers should not be extended by implication beyond what may be necessary for their just and reasonable execution."

In Roberts Tobacco Co. v. Department of Revenue, 322 Mich. 519, we said:

"The rule is firmly established that the legislature may authorize the adoption by an administrative agency, charged with the administration of the provisions of a statute, of rules and regulations to carry out the purpose of the legislature as expressed by it. In Argo Oil Corporation v. Atwood, 274 Mich. 47, it was said:

"`It is too well settled to need the citation of supporting authorities that the legislature, within limits defined in the law, may confer authority on an administrative officer or board to make rules as to details, to find facts, and to exercise some discretion, in the administration of a statute.'

"See, also, Warnshuis v. State Board of Registration in Medicine, 285 Mich. 699; Toole v. Michigan State Board of Dentistry, 306 Mich. 527; Ranke v. Corporation & Securities Commission, 317 Mich. 304."

While the function of setting professional school standards and rating the schools accordingly was expressly intrusted to the international association of boards of examiners in optometry by the legislature, which for reasons heretofore mentioned we hold unconstitutional, yet it does indicate legislative intention to set up minimum standards as a guide to the board. It does not follow that the board cannot, within reason, adopt higher standards than the minimum set up in the legislation. We have examined the rule adopted by the board and conclude that it has a proper relationship to the legislative act. The rule does not deprive plaintiff of any personal property rights. His right to practice optometry is a privilege granted by the State and is subject to the statutory law and the reasonable and proper rules of the board. The record does not support plaintiff's claim that his qualifications are such as to compel defendant board to permit him to take the examination. See Toan v. McGinn, 271 Mich. 28.

We find no arbitrary abuse of discretion on the part of the board calling for redress. The writ of mandamus is denied, but without costs as a public question is involved.

REID, C.J., and BOYLES, NORTH, DETHMERS, BUTZEL, CARR, and BUSHNELL, JJ., concurred.