(concurring).
I am in agreement with Mr. Justice CROCKETT’S conclusion that plaintiff is not entitled to have the license applied for issued without passing the required examination.
Plaintiff’s contention that he is exempted from taking the examination by reason of having practiced engineering in the field applied for for at least four years is not persuasive when it is shown that whatever practice he did was in violation of the statute1 which declared it to be unlawful for “any person to practice or engage in or attempt to practice * * * any profession, trade or occupation that may be subject to the department of registration without authority so to do as in this title provided.” Mr. Justice CROCKETT makes answer to plaintiff in the following language:
“Furthermore, as a practical matter no engineer, including plaintiff, could have been lawfully practicing in this state for four years * * * without being licensed. * * * ”
In my opinion the conclusion reached by Mr. Justice CROCKETT is fully justified by the fact that plaintiff had not been lawfully practicing but had been practicing in violation of law. The statute is a complete bar to plaintiff’s right to prevail unless he takes the required examination. It is likewise unnecessary to pass on the *98question as to whether the review before the district court should have been made upon the record before the Department of Registration and the committee, or whether the trial court was authorized to take testimony and determine plaintiff’s rights after a trial de novo. The evidence submitted to the district court is impotent to overcome the conditions precedent to plaintiff’s right to be licensed, provided for in the statute. It is against public policy to permit one to ignore the laws made for the protection of the public and say, “I had no right to practice without a license, but you did nothing about it, and the Department has no right to refuse me a license because I have actually been practicing as required.”
I however find myself out of agreement with Mr. Justice CROCKETT as to the nature of the review applicable in this case.
I cannot agree that the statute provides for and contemplates that the review of the Department of Registration is intended to be in the nature of certiorari only.
Mr. Justice CROCKETT observes that the Industrial Commission and the Public Service Commission are granted power to make final determinations of fact and that this court in reviewing their actions is empowered only to affirm or set aside the order of the commission.
It should however be remembered that the statute2 applicable to the Industrial Commission provides:
“After each formal hearing, it shall be the duty of the commission to make findings of fact and conclusions of law * * * The findings and conclusions of the commission on -questions of fact shall be conclusive and final and shall not be subject to review * * *»
The statute applicable to the Industrial Commission further provides:3
“No new or additional evidence may be introduced in such court, but the cause shall be heard on the record of the commission as certified by it. The review shall not be extended further than to determine:
“(1) Whether or not the commission acted without or in excess of its powers.
“(2) If findings of fact are made, whether or not such findings of fact support the award under review.”
Mr. Justice CROCKETT impliedly concedes that under the Statute of 1933, Section 79-1-36 (now Sec. 58-1-36, U.C.A. 1953) the review authorized was a trial de novo.
The language of Section 58-22-19 quoted by Mr. Justice CROCKETT must be un*99reasonably strained to justify the conclusion reached by him. .
How can this language — “Any person * * * aggrieved by any action of the committee in denying * * * his certificate” apply to plaintiff? How can the committee deny his certificate before one is issued? The only reasonable construction of the language used is that it refers to the denial of the application to reissue a certificate. The section as heretofore observed provides “The director * * * may re-issue a certificate of registration to any person whose certificate has been revoked. * * * ”
In my view of the matter, assuming that Section 58-22-19 is applicable here, which I do not concede, there is not in the section language which can be construed as Mr. Justice CROCKETT would construe it.
Unlike the Industrial Commission Act and the Public Service Commission Act this court is not designated as the court of review. There is no language that would lead to the conclusion that it was a review in the nature of certiorari. The district court, a proper court to take evidence and conduct another trial is vested with jurisdiction. The section does not declare that findings and conclusions of the committee or the director on questions of fact shall be conclusive and final.
To reach the conclusion reached by Mr. Justice CROCKETT hurdle after hurdle of unwarranted conclusions must be scaled. In my opinion when the district court is charged with the duty of affirming or reversing the action of the committee there is implied and intrinsic in the statute the authority to conduct a hearing de novo. Nothing in the statute mitigates against that conclusion.
Chapter 118 of the Laws of Utah 1955 now appearing as Chapter 22 of the 1957 Pocket Supplement to Volume 6 of U.C.A. 1953 is referred to by Mr. Justice CROCKETT, and he observes that in 1955 the legislature repealed the entire chapter governing engineers and land surveyors and adopted a new act — Chapter 22 of Title 58.
There is no language used in Chapter 22 which can be construed to repeal the procedure set out in Section 58-1-36, U.C. A.1953 (formerly Sec. 79-1-36). If that section has been supplanted by Chapter 22 it is by implication.
Section 58-22-10 of the act provides:
“The records of the committee shall be prima facie evidence of the proceedings of the committee and department set forth therein * * (Emphasis added.)
The above language is quite different from that used in the statute applicable to the Industrial Commission. There it is stated “The findings and conclusions of the commission on questions of fact shall *100be conclusive and final and shall not be subject to review.”
The statute having made the records of the committee prima facie evidence necessarily contemplates that the same may be assailed and are not conclusive.
It is likewise significant that Section 58-22-19 in the body thereof makes no reference to an application for license but purports only to deal with the revocation of licenses.
The compilers’ headnote to the section reads as follows:
“Revocation of certificates — Grounds —Charges of fraud, deceit, gross negligence, incompetence, or misconduct — Hearing—Re-issuing—Appeals.”
Without giving any consideration to the caption it will be observed that the body of the section declares as follows:
“The committee shall have the power to revoke the certificate of registration of any registrant who is found guilty of:
“(a) the practice of any fraud or deceit in obtaining a certificate of registration ;
“(b) any gross negligence, incompetency, or misconduct in the practice of engineering or land surveying as a registered professional engineer or land surveyor.”
The section then provides that the committee or any person may prefer charges of fraud, deceit, gross negligence, mcom-petency, or misconduct against any registrant.
Provision is made for hearing the charges by the committee, for furnishing a copy of the charges, for giving notice of the time and place of hearing. It is further provided :
“At any hearing, the accused registrant shall have the right to appear personally and by counsel, to cross-examine witnesses appearing against him, and to produce evidence and witnesses in his defense. * * *
“If, after such hearing, it is determined that the charges are well founded, the director shall revoke the certificate of registration of such registered professional engineer or land surveyor.
“The director, for reason the committee may deem sufficient, may reissue a certificate of registration to any person whose certificate has been revoked, providing four or more members of the committee vote in favor of such re-issuamce. A new certificate of registration, to replace any certificate revoked, lost, destroyed, or mutilated, may be issued * * *.
“Any person who shall feel aggrieved by any action of the committee in denying or revoking his certificate of registration may within thirty days appeal therefrom to the district court *101which court shall affirm or reverse the action of the committee. * * * ” (Emphasis added.)
The last paragraph above is the one quoted by Mr. Justice CROCKETT.
It is strange indeed that if the legislature intended the paragraph quoted by Mr. Justice CROCKETT from Sec. 58-22-19 to apply to the denial of an application for certificate, would say nothing about an application for certificate. The use of the language “in denying * * * his certificate” may be appropriate to the reissuance of a certificate that has been revoked. In fact it is improper to say that the committee could deny the certificate of registration. It might revoke a certificate and the director might act improperly in denying his right to have a certificate reissued as provided for. Until a certificate has been issued there is no certificate to deny. If it was intended that the section apply to an application for a certificate it would read “in denying his application for a certificate or in revoking his certificate.”
Section 58-1-36 deals with “recourse to the courts” generally and provides “for instituting an action in the district court, against the director by an. applicant for * * * a * * * certificate * * * affected and aggrieved by any ruling of the department of registration” and authorized the court to “determine the issues on both questions of law and fact and may affirm, set aside or modify the ruling complained of.”
I do not believe that the paragraph quoted from Sec. 58-22-19 was intended to supersede Sec. 58-1-36 as to refusal of an application for a certificate since the former section deals only with revocation of certificates and not with application therefor, and since by so doing we would substitute a clear and definite proceeding for one of questionable application.
I am of the opinion that the trial court was vested with jurisdiction to review the matter de novo, but that plaintiff failed to establish his right to a certificate.
. Section 58-1-08 (formerly § 79-1-38).
. Section 35-1-85, U.C.A.1953.
. Sec. 35-1-84.