Sullivan v. Board of Dentistry , 268 Mich. 427 ( 1934 )

Gordon B. Sullivan and others, duly licensed and practicing dentists, filed a bill to restrain the Michigan State board of dentistry from enforcing Act No. 235, Pub. Acts 1933. The Michigan State Dental Society has intervened as a defendant.

Section 2 of the act provides:

"Said board shall adopt rules and regulations for its own organization and for the practice of dentistry in this State and for carrying out the provisions of this act, and may amend, modify and repeal said rules and regulations from time to time. The said rules and regulations and any amendments thereto shall become effective upon the legality of same being established by the attorney general."

Plaintiffs claim that the quoted provision empowering the board to adopt rules and regulations for the practice of dentistry is an unlawful and unconstitutional delegation of legislative powers, vitiates the entire act and destroys its constitutionality. They fear that the board, instead of merely adopting rules and regulations setting forth the details for carrying out the expressed provisions of the act and forbidding practices unquestionably within the purview of the act, may assume legislative functions and attempt to proscribe practices that the legislature has neither expressly nor inferentially outlawed. A board or commission has no such legislative power. See G. F. Redmond Co. v. Michigan Securities Commission,222 Mich. 1; In re Van Hyning, 257 Mich. 146.

No rules or regulations have thus far been promulgated by the board, nor is it shown that any have been submitted to the attorney general to establish their legality. It is not to be presumed that the board will adopt any rules and regulations for the practice of dentistry that do not meet the test of constitutionality. It is not our duty to pass on moot questions or abstract propositions. As no unconstitutional rule has been pointed out, the presumption of the constitutionality of the act remains. Even if the law could be construed in two ways, one consistent with the constitutionality, and the other inconsistent therewith, the former will be considered as the one presumptively intended by the legislature. Motz v. City of Detroit, 18 Mich. 495; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Attorney General v. Railway Co.,210 Mich. 227. Plaintiffs' action is wholly anticipatory. They have not shown any right to equitable relief at the present time. See Cruickshank v. Bidwell, 176 U.S. 73 (20 Sup. Ct. 280);McCabe v. Railway Co., 235 U.S. 151 (35 Sup. Ct. 69).

The decree dismissing the bill is affirmed, with costs to defendants.

NELSON SHARPE, C.J., and POTTER, NORTH, FEAD, WIEST, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred.