State Board of Chiropractic Examiners v. Life Fellowship

Concurring and Dissenting Opinion by

Mr. Justice Pomeroy:

I agree with Part I of the opinion of the Court holding, as did the courts below, that Section 15 of the Chiropractic Registration Act of 1951 is unconstitutional as written. I respectfully disagree with Part II of the opinion, holding that the offending portions of *301the section cannot be severed from the remainder, so as to leave in force a valid regulatory section consonant with what appears to have been the legislative intent.

The issue is one of determining whether the unconstitutional provisions of the statute are severable and whether the statute can stand as a coherent whole and can express the basic intent of the legislature without those offending sections. “Whether or not one part of a statute can survive the excision of another part which has been held invalid is a question of statutory construction, and in determining it the court searches for the intention of the legislature.” Rieck-McJunkin Dairy Co. v. Milk Control Commission of Pennsylvania, 341 Pa. 153, 162, 18 A. 2d 868 (1941). Our basic guideline in approaching these questions, as the Court recognizes, is the Statutory Construction Act, Section 55 of which provides in part as follows: “The provisions of every law shall be severable. If any provision of a law is found by a court of record to be unconstitutional and void, the remaining provisions of the law shall, nevertheless, remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so depend upon, the void provision, that it cannot be presumed the Legislature would have enacted the remaining valid provisions without the void one; or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.” Act of May 28, 1937, P. L. 1019, art. IY, §55, 46 P.S. §555.

The Dauphin County Court, having reached the decision that the section in question was unconstitutional, struck from it the reference to the Pennsylvania Chiropractic Society. There remained, however, the phrase “an equivalent educational conference”. The court below recognized that this was awkward, since the quoted phrase had meaning only with reference to the deleted *302reference to the Society. Indeed, as the majority opinion indicates, an “equivalent” conference is unintelligible standing without the stricken reference to the Society. It is, in the words of the Statutory Construction Act, “inseparably connected with” the reference to conferences of the Society. The solution, however, is neither a rewriting of the section, which the Court properly declines to do, or holding the entire section void, which is what the Court does, but merely the striking of the clause requiring attendance at an “equivalent” conference, together with the adjective “equivalent” in the following sentence. If this were done, the remaining portion of the first paragraph of Section 15 would read as follows: “No applicant for registration shall be granted a registration for the ensuing license yéar unless the applicant shall furnish to the board satisfactory evidence that he has attended not less than one two-day educational conference during the current license year. An educational conference shall be one approved or ratified by the board as meeting the educational and professional requirements of the profession.” I am satisfied that the statute in this form, after deletion of the offending portions, would not ignore, or subvert, the purpose of the legislature in enacting the statute. Taken as a whole, Section 15 reflects a general legislative intent to insure the exposure of registered chiropractors to an educational conference which will satisfy certain requirements established by the Board. Set against this basic legislative purpose of Board certification pursuant to a legislative standard, the statutory reference to conferences held specifically by the Society—and the corollary to that reference, “equivalent” conferences—is but incidental. Thus there is no valid basis for concluding that the indicated words and phrases are not properly separable from the statute as a whole.

*303The cases relied upon by the Court are, in my opinion, better authority for the position here espoused. Thus, in Rieck-McJunkin Dairy Co. v. Milk Control Commission, supra, the Court, speaking through Mr. Justice, later Chief Justice Steen, said: “Even in the absence of a statutory declaration, it has never been considered a barrier to the application of the principle of severability that the valid and invalid provisions are contained in the same paragraph or section of the act, the only question being whether or not they are essentially and inseparably connected in substance: [citations omitted]. . . .” 341 Pa. at 162, 163. Again, in Rutenkerg v. Philadelphia, 329 Pa. 26, at page 39, the test of severability was restated thus: “. . . after the invalid portion of the act has been stricken out, whether that which remains is self-sustaining and is capable of separate enforcement without regard to that portion of the statute which has been cast aside. If this be true the statute should be sustained to the extent of that which remains.” That which would remain of Section 15, paragraph one, as above quoted, is both self-sustaining and capable of separate enforcement without regard to the deleted portion. Nor do I consider that Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 320-21, 196 A. 2d 664 (1964), also relied on by the majority, compels a different result. The statutory provisions there involved, unlike those in this case, were indeed “so interwoven as to be inseparable”. The judicial surgery here suggested, on the other hand, would not be so radical as to eviscerate the statute; rather, it would save the legislative purpose and directive as a viable instrument for regulation of the chiropractic profession.

Appellant contends that if the Act were to be thus construed it would constitute an invalid delegation of authority to the State Board of Chiropractic Examiners to the extent that the sole standard governing the *304Board’s approval of educational conferences would be the requirement that such conferences meet “the educational and professional requirement of the profession”. I am unable to agree. The Court has previously held that a statutory direction that the Superintendent of Public Instruction pass on the merits of petitions for the creation of independent school districts “from an educational standpoint” was not unconstitutionally vague or uncertain. Weaverland Ind. School District Case, 378 Pa. 449, 455, 106 A. 2d 812 (1954). The standard here in issue would certainly be no less precise than that employed in the Weaverland case. It would be reasonably related to the objects of the legislature, would militate against arbitrary or capricious action by the Board and permit judicial review of the Board’s action. See Com. of Pa. Water & P. R. Bd. v. Green Spring Co., 394 Pa. 1, 9-10, 145 A. 2d 178 (1958).

I conclude that the invalid portions of the Act are properly severable from the Act as a whole and should be stricken; and that the Act, as it would read following such severance, is not an unconstitutional delegation of legislative power to the Board. I would therefore indicate disapproval of the adjudication of the State Board of Chiropractic Examiners to the extent that it was based on the provisions of Section 15 of the Chiropractic Registration Act of 1951 as originally enacted and prior to severance of the unconstitutional portions. Accordingly, I would affirm the order of the Superior Court, which affirmed the order of the Court of Common Pleas dismissing the appeal from the State Board adjudication.1

*305Mr. Justice Jones joins in this concurring and dissenting opinion.

The adjudication of the State Board and the appeal therefrom by appellant related .to an educational conference proposed to be held in June, 1968. Obviously the requested conference cannot now be held and the specific application therefor is not susceptible of further action by the State Board or the court below, nor was it susceptible of such action at the time of the decision of *305the lower court on September 30, 1968. For this reason the appeal from the State Board was properly dismissed. Because, however, of the necessarily recurrent nature of the questions involved in this appeal, the controversy is not moot. Werner v. King, 310 Pa. 120, 164 Atl. 918 (1933) ; Devlin v. Osser, 434 Pa. 408, 254 A. 2d 303 (1969).