Opinion
March 17, 1953. Rehearing Denied April 17, 1953.
Appeal from the Circuit Court for Alachua County, John A.H. Murphree, J.
John R. Parkinson, Daytona Beach, for appellant.
Clayton, Arnow, Duncan Johnston, Gainesville, for appellees.
Lloyd T. Everett, a registered land surveyor, was employed to survey a certain piece of land. He made two efforts to accomplish that for which he was employed and presented his client with a map or plat of his work. Account of alleged inaccuracies both maps were refused by the attorney employed to approve the title. Everett's client forthwith "fired" him and he returned the slight with a bill for services. A complaint was lodged against him which resulted in a trial and conviction for malpractice, malfeasance, gross carelessness, and gross incompetency in the practice of land surveying. His certificate of registration was revoked and Everett undertook to have that order reviewed in the Circuit Court by certiorari or in the alternative by writ of mandamus. Both writs were denied and the revocation order was affirmed. This appeal was prosecuted.
Several questions are urged for determination but the only one we feel impelled to answer is whether or not the evidence shows that Everett was guilty of malpractice, malfeasance, gross carelessness, and gross incompetence in the practice of land surveying.
Malpractice imports criminal neglect or unprofessional conduct in the handling of professional matters. It may proceed from ignorance, carelessness, want of professional skill, disregard of established rules, or a malicious or criminal intent. Malfeasance imports violation of a public trust or guilt of some form of official wrong. Gross carelessness implies that which is unusual or culpable. It is not necessarily that which is criminal. It has to do with that which is wrong or reprehensible. Culpable implies fault rather than guilt and may not imply malice or guilty purpose. Gross incompetence imports a lack of diligence or competence with reference to discharging legal or professional obligations or duties.
An examination of the record discloses no suggestion of fraud, misrepresentation or criminal neglect of professional duty, violation of public trust or the doing of that which is reprehensible so as to fasten on Everett the charge of malpractice, malfeasance, gross carelessness, or gross incompetence. Among land surveyors and those experienced in land surveying, it is common knowledge that there are many inaccurate or imperfect surveys in this country. On account of the destruction of old landmarks such as stones, trees, streams, and other markers indicating corners and lines, the matter of locating them accurately is a matter of controversy even among the best surveyors. Many old surveys are said to have been made in camp rather than on the ground making it difficult for surveyors to resolve complexities they encounter. One should not have his registration cancelled for lack of ingenuity to resolve such complexities. We find no satisfactory or conclusive evidence to support the charges against defendant. The most it shows is that Everett was slow and halting and perhaps failed to produce a perfect or acceptable survey. There is no showing whatever that he was any less competent than when he was first certified as a surveyor. The charge here is predicated on a single, isolated attempt to locate some lines and corners, about which there was controversy.
Peremptorily cancelling one's source of livelihood and taking the bread and butter out of his mouth is a serious matter aside from the smut it smears on his good name and should not be done except on conclusive showing of some recognized ground for revocation of the permit. There are numerous findings touching inaccuracies in Everett's maps, but we fail to find conclusive support for them. That is to say, such support as would warrant cancellation of his certificate to practice land surveying. They are rather in the field of controversy. Lack of what appellees may consider as proper degree of alertness absent fraud, criminal neglect or intentional wrong is not sufficient predicate for cancelling one's certificate to practice land surveying.
The judgment appealed from is therefore reversed with directions to reinstate appellant's certificate as land surveyor.
It is so ordered.
ROBERTS, C.J., and THOMAS, HOBSON, MATHEWS and DREW, JJ., concur.
SEBRING, J., dissents.
The Florida State Board of Engineer Examiners revoked the certificate of registration of Lloyd T. Everett as a land surveyor on the ground that he had been guilty of malpractice, malfeasance, gross carelessness and gross incompetence in the preparation of certain land surveys. Everett filed a petition for certiorari in the Circuit Court of Alachua County to review the order of revocation. After a full hearing on the matter, the Circuit Court entered an order dismissing the petition for certiorari; the order containing, among other things, the following findings:
"The Court has carefully considered the amended petition, in which is incorporated a transcript of the testimony taken at the hearing before the Board, together with all maps and other original exhibits presented at said hearing, which have been filed herein by relator-petitioner in support of the amended petition. Argument of counsel for the respective parties has been heard and the written briefs filed in support of their respective positions have been studied. From it all the court finds as follows:
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"2. Relator-petitioner, Lloyd T. Everett, was fairly apprised of the complaint made against him as a licensed surveyor and was accorded a full and fair opportunity to be heard, including the right to cross-examine all opposing witnesses. He attended the hearing in person and by counsel, and filed a formal traverse of the charges made against him. The treatment accorded and the procedure exercised, informal though it was, measured up to the standard of due process of law.
"3. The Land Surveyors' Act, F.S. 472, F.S.A., and the Professional Engineers' Act, F.S. 471, F.S.A., must be read and considered in pari materia, and when this is done it is apparent that the State Board of Engineer Examiners, being charged with the responsibility of administering the former, has the authority to administer oaths to witnesses in hearings before it respecting revocation of licenses of land surveyors.
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"Now, Therefore, It Is Considered, Ordered and Adjudged that the said amended petition for writ of certiorari and alternatively for writ of mandamus be and the same is hereby denied, and the said order revoking the land surveyor's license of Lloyd T. Everett is thus affirmed."
An Appeal has been taken from this ruling; the appellant assigning as grounds for the reversal of the circuit court order, that the evidence produced before the Board of Engineer Examiners was insufficient to warrant the finding that he had been guilty of gross incompetence as a land surveyor; that the court erred in holding that the action of the Board in revoking the license constituted due process of law; that the court erred in holding that members of the Board had authority to administer oaths to witnesses in hearings before said Board relating to revocation of licenses of land surveyors; and that the court erred in holding that Section 472, Florida Statutes 1951, F.S.A., is constitutional and valid.
I can find no error in the order appealed from. The record shows that the appellant was represented at the hearing before the Board by an attorney who vigorously defended his client. The Board had before it the evidence adduced from two witnesses for the complainant, two witnesses for the appellant, two witnesses styled in the record as "expert witnesses," and a vast amount of documentary material. There is nothing in the record so far as I can find, to suggest that the appellant was not apprised of and did not fully understand the specific nature of the charge against him, that he did not have a full and fair opportunity to be heard, or that he was precluded from cross examining adverse witnesses. The evidence adduced before the Board was ample, in my opinion to sustain the findings made and I know of no legally valid reason that would authorize this Court to disturb them.
The Circuit Court found in its order that when considered together the Land Surveyors' Act, Chapter 472, Florida Statutes 1951, F.S.A., and the Professional Engineers' Act, Chapter 471, Florida Statutes 1951, F.S.A., authorize the State Board of Engineer Examiners to administer oaths to witnesses to testify before it in matters respecting revocation of licenses of land surveyors.
While Chapter 472, Florida Statutes 1951, F.S.A. does not appear to contain any specific provision authorizing the Board to administer oaths to witnesses in such cases, it does contain in Section 472.10, Florida Statutes 1951, F.S.A., the provision that "The records of the board shall be open to public inspection and certified copies thereof shall be received in evidence in all the courts of this state as prima facie evidence of what they purport to be and of the facts therein contained." (Emphasis supplied.) This, together with the powers and duties placed upon the Board in respect to administering Chapter 472 would seem, impliedly at least, to carry forward the provisions of Chapter 471 empowering the Board to administer oaths over into Chapter 472, which pertains to land surveyors.
But even assuming such a conclusion to be debatable, I think that under the facts of this case the appellant is precluded from raising the question. For as appears from the record, at the time set for the hearing the appellant was present with his counsel and his witnesses. He cross examined the complainant's witnesses, who theretofore had taken the oath administered by the Board, without raising any objection as to their competency. At the proper time in the proceeding he had his own witnesses sworn by the Board and then elicited evidence from them in an effort to disprove the case made by the complainant's witnesses. So far as the record discloses, the hearing before the Board was conducted in all solemnity and there is not the slightest indication or suggestion that the witnesses did not testify truthfully or that, if sworn again by an officer as to whose lawful competency to administer oaths there could be no question, the witnesses would give any different version of the transaction. It was only after the hearing had finally adjourned, the Board had made its ruling, and the appellant had sought review in the Circuit Court, that he attempted to raise for the first time the legality of the oath that was given. Under these circumstances I cannot see how the question now sought to be argued can be raised by the appellant.
The final contention made by the appellant is that Chapter 472 is unconstitutional and void because it arbitrarily excludes from the operation of its provisions all land surveyors coming from without the State of Florida and land surveyors working for the Federal Government; and allows corporations to engage in land surveying in the State so long as any officer or employee is a land surveyor.
I do not think that the appellant is in position to raise this contention. A litigant will not be heard to urge the unconstitutionality of a statute where he has not been harmfully affected by the particular features of the statute alleged to be in conflict with the Constitution. See State ex rel. Hoffman v. Vocelle, 159 Fla. 88, 31 So.2d 52; State ex rel. Watson v. Gray, Fla., 48 So.2d 84. The appellant has shown no harmful results to him because of the existence of the particular features of the statute he attempts to assail. He was registered under the law as a surveyor prior to the revocation of his certificate, and enjoyed all the rights, powers and privileges appertaining thereto. Doubtless we would have continued in the exercise of these rights, powers and privileges had it not been for the intervention of the suspension proceedings conducted under authority of Section 472.10, Florida Statutes 1951, F.S.A. Therefore, if appellant had any right in this action to complain of any supposed unconstitutionality of the statute, his attack should have been levelled at Section 472.10, which pertains to the power of the Board to revoke his certificate; for it is only by the application of this section to his situation that he can be said to have suffered injury.
The burden was upon the appellant to show that the Circuit Court erred when it entered the order appealed from. I am firm in my conviction that he has failed to make this showing. Hence, I must dissent from the majority opinion.