Brown v. University of New York

Hill, P. J. This action for an injunction restraining the enforcement of rule 8 of the Regents Rules concerning dental advertising, promulgated by the Board of Regents on March 16, 1933, is brought against the Board of Regents and the State Board of Dental Examiners by four dentists, residing and practicing their profession in the State of New York, on behalf of themselves and in a representative capacity for all licensed dentists in the State. Plaintiffs appeal from an order denying a motion for temporary injunction and from an order denying their motion for a declaratory judgment on the pleadings. The Legislature has vested the Board of Regents with supervisory powers over the practice of dentistry (Matter of Dr. Bloom Dentist, Inc., v. Cruise, 259 N. Y. 358, 363), and “ conformably to law ” (Education Law, § 51) the Board may prescribe canons of conduct. The Regents, in past years, had made seven rules concerning advertising, which are still in force. These proscribe advertising which tends to deceive or mislead the public, that advances claims of professional superiority, names prices for items of work “ when the nature of the professional service rendered and the materials required ” are variable, the employment of publicity agents, the use of glaring illuminated or flickering light signs, and inhibits other similar acts offending against professional ethics. The extreme penalty for a violation is the revocation of the license to practice. The new rule, carrying a like penalty, reads: “ 8. The employment of letters, handbills, posters, circulars, cards, stereoptican slides, motion pictures, radio, newspapers or other advertising devices for the purpose of soliciting patronage, [87] except that a dentist may use personal professional cards of a modest type announcing his name, title, address, telephone number and office hours.” The plaintiffs challenge the power of the Board to adopt the rule. The Legislature may delegate to an administrative board or officer the power to revoke a license if, in the exercise of a reasonable discretion, such act is required for the protection of the public. (Matter of Mandel v. Board of Regents, 250 N. Y. 173; People ex rel. Lieberman v. Van De Carr, 199 U. S. 552, affg. 175 N. Y. 440.) The legislative grant to the Regents (Education Law, § 51) empowered that Board to supervise “ conformably to law ” those who practice dentistry and if necessary to revoke licenses. The Legislature by chapter 609 of the Laws of 1933 amended subdivision 2 of section 1311 of the Education Law to authorize the revocation of a dentist’s license if he was found guilty of unprofessional or immoral conduct, fraud or deceit, or of hiring or aiding persons not licensed to practice dentistry, or if he had been convicted of a crime, or was grossly ignorant or inefficient, or was “ guilty of untrue, fraudulent, misleading or deceptive advertising.” When the proposed amendment was first introduced, it provided as a further ground for revocation “ that the dentist has violated the rules of the Regents governing advertising or any other Regents’ rules.” This was stricken out prior to enactment. The modification is indicative that the Legislature did not intend to grant so broad a power to the Board. As enacted, the statute permits advertising which is not “ untrue, fraudulent, misleading or deceptive.” The Board of Regents may not make laws; that power rests with the Legislature, and is non-delegable, but when the Legislature has indicated its will by the enactment of a law, power to administer may be granted to that Board, and this power may be exercised by the adoption of rules. (United States v. Grimaud, 220 U. S. 506, 517.) The statute must prescribe a standard by which the action of the Regents is governed. (People v. Klinck Packing Co., 214 N. Y. 121, 139.) The standard set for dental advertising is that it shall not be “ untrue, fraudulent, misleading or deceptive.” Rule 8 is more restrictive than the statute. It transcends the standard fixed in the law and enacts a standard of its own. “ In the absence of clear and definite language conferring without ambiguity jurisdiction * * * we should not unnecessarily hold that the Legislature has intended to delegate any of its powers in the matter.” (Matter of Quinby v. Public Service Commission, 223 N. Y. 244, 263.) Indeed, the Legislature may not delegate its law-making power by which standards are set up. ( United States v. Grimaud, supra.) [88] The rule prohibits “ the employment of * * * advertising devices for the purpose of soliciting patronage.” This absolute prohibition is not permitted by the statute. The modest card is not advertsing as the word is used in connection with soliciting patronage. It is merely a compilation of data, convenient for the use of an inquirer. A card containing similar information used by a pastor or Sunday school teacher would not be classified as advertising. The standard governing the rule-making power permits advertising so long as it be not untrue, fraudulent, misleading or deceptive. The action may be maintained under section 473 of the Civil Practice Act. (Dowsey v. Village of Kensington, 257 N. Y. 221.) The order should be reversed. McNamee and Crapser, JJ., concur; Rhodes, J., dissents, with an opinion, in which Bliss, J., concurs, with a memorandum.