Batty v. Arizona State Dental Board, Civil 4296

• Decision Date: 28 April 1941
• Docket Number: Civil 4296
• Citation: 57 Ariz. 239,112 P.2d 870
• Parties: HOWARD BATTY, Appellant, v. THE ARIZONA STATE DENTAL BOARD and P. H. BENNETT, R. A. McCALL, F. W. BOVILLE, B. A. GLENNIE and J. L. BORAH, as Members of the Arizona Dental Board, Appellees
• Court: Arizona Supreme Court

112 P.2d 870

57 Ariz. 239

HOWARD BATTY, Appellant, v. THE ARIZONA STATE DENTAL BOARD and P. H. BENNETT, R. A. McCALL, F. W. BOVILLE, B. A. GLENNIE and J. L. BORAH, as Members of the Arizona Dental Board, Appellees

Civil No. 4296

Supreme Court of Arizona

April 28, 1941

APPEAL from a judgment of the Superior Court of the County of Maricopa, J. C. Niles, Judge. Judgment affirmed.

Mr. R C. Stanford, Mr. R. C. Stanford, Jr., Mr. Harlow H. Akers and Mr. John W. Murphy, for Appellant.

Mr Henderson Stockton, Mr. S. N. Karam, Mr. Eli Gorodezky and Mr. J. W. Cherry, Jr., for Appellees.

OPINION

LOCKWOOD, C.J.

This is an appeal by Howard Batty, plaintiff, from a judgment of the superior court of Maricopa county, upon a writ of certiorari brought by plaintiff against the Arizona State Dental Board, hereinafter called the board, and the individual members thereof, revoking the license of plaintiff to practice dentistry within the state of Arizona. The factual situation may be stated as follows.

Plaintiff was admitted to the practice of dentistry in Arizona in 1929, and practiced his profession more or less continuously thereafter up to February 14, 1938. On that date he received a written order citing him to appear before the board and show cause why his license should not be revoked. The charges against him were stated as follows:

"I. That Dr. Howard Batty, D.D.S., is physically incompetent to practice dentistry in that he is now suffering from pulmonary tuberculosis.

"II. That Dr. Howard Batty, D.D.S., has been guilty of misrepresentation in securing dental licenses in the state of Arizona in that he represented himself at the time of procuring dental licenses to be free from any malignant, infectious or contagious diseases, whereas in truth and in fact, said Dr. Howard Batty, D.D.S., was at the time of procuring a dental license under the Dental Act of 1935, and when he first procured a dental license in 1929, suffering from pulmonary tuberculosis.

"III. That Dr. Howard Batty, D.D.S., has been and is guilty of fraud in his practice of dentistry in that he practices dentistry under names not included in his license and he permits his office and facilities to be used in the practice of dentistry by persons not licensed to engage in the practice of dentistry; and in that he sends certain of his patients to a dental laboratory wherein dentistry is practiced by persons without a dental license, to have dental work performed upon his patients in such dental laboratory; and in that he authorizes and permits those not licensed as dentists, working in such dental laboratory, to charge patients for the services performed by himself as a dentist, and by unlicensed dentists working in such dental laboratory, and to collect therefor; and in that he employs unlicensed persons to perform work which can be done legally only by licensed persons."

A hearing was had on these charges before the board and five witnesses testified. The board, after such hearing, adopted the following resolution:

"Resolved, That after hearing of the accusations against Dr. Howard Batty, D.D.S., it appears to the satisfaction of the board that the charges have been sustained; and

"Resolved, That the license of the accused shall be revoked unless the licensee, within thirty days from and after the date hereof and the service of a copy of this resolution upon the accused, Dr. Howard Batty, D.D.S., or his attorneys, John W. Murphy and Harlow H. Akers, shall sue out a Writ of Certiorari in the Superior Court of Maricopa County, Arizona, the county wherein the accused licensee, Dr. Howard Batty, D.D.S., maintains his office and practice of dentistry."

Thereafter plaintiff sued out a writ of certiorari in the superior court, which court considered the matter on the record and entered the following judgment:

"IT IS ORDERED, ADJUDGED AND DECREED that petitioner, Howard Batty, take nothing by his petition and that the proceedings, finding and judgment of the Arizona State Dental Board be affirmed and that respondent, Arizona State Dental Board, do have and recover of and from petitioner, Howard Batty, its costs, taxed herein in the sum of $ .

"The above and foregoing form of judgment is hereby settled and approved this the 8 day of April, 1940.

"J. C. NILES

"Judge of the Superior Court of Maricopa County, Arizona."

The appeal is from this judgment.

The first question for us is whether the superior court of Maricopa county had jurisdiction to review the actions of the board by a writ of certiorari. This question is determined by the construction of chapter 24, Laws 1935, as it may be affected by sections 1 and 6 of article 6 of the Constitution of Arizona, which sections read, so far as material to this case, as follows:

"§ 1. The judicial power of the state shall be vested in a Supreme Court, superior courts, justices of the peace, and such courts inferior to the superior courts as may be provided by law."

"§ 6....

"Superior courts and their judges shall have the power to issue writs of mandamus, quo warranto, review, certiorari, prohibition, and writs of habeas corpus on petition by, or on behalf of, any person in actual custody in their respective counties. Injunctions, attachments, and writs of prohibition and of habeas corpus may be issued and served on legal holidays and non-judicial days. Grand juries shall be drawn and summoned only by order of the superior court."

It is contended by the board that superior courts have no right to review by writ of certiorari the decisions of the state dental board or, indeed, of any similar state board. Its argument is based primarily upon a recent decision of the Supreme Court of California, whose Constitution, so far as the sections of ours just quoted are concerned, is similar in substance, though not identical in language. In the comparatively recent case of Standard Oil Co. of California v. State Board of Equalization, 6 Cal.2d 557, 59 P.2d 119, the Supreme Court of that state held as follows:

"Concisely stated, our conclusion that we are without authority or jurisdiction to entertain this proceeding or to issue the writ here sought is based upon the established premises that a writ of certiorari, commonly referred to as a writ of review, will lie only to review the exercise of judicial functions (section 1068, Code Civ. Proc., as amended by St. 1935, p. 386) and that the Legislature is without power, in the absence of constitutional provision authorizing the same, to confer judicial functions upon a statewide administrative agency of the character of the respondent.

"To hold that judicial power has been conferred upon the respondent board would be tantamount to holding such attempted grant unconstitutional to that extent. We think it was not intended by the Legislature to confer any judicial power on the respondent board and it necessarily follows that this proceeding for a writ of review lacks one of the elements essential to its proper determination."

The rationale of the decision may be stated syllogistically as follows: (a) The legislature may not confer "judicial" powers upon any body created by law except the courts permitted by the Constitution; (b) a writ of certiorari may only be used to review the exercise of "judicial" powers; (c) therefore, it may not be used to review the action of any administrative body, since such body is not a court. With all due respect to the opinion of that court, we think it committed what is known as the fallacy of the undistributed middle in that the "judicial" power in the major premise is not co-extensive with the "judicial" power in the minor.

As was said in State ex rel. Attorney General v. Hawkins, 44 Ohio St. 98, 5 N.E. 228, and quoted by us approvingly in Alabam's Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658, 660:

"'What is judicial power cannot be brought within ring fence of a definition. It is, undoubtedly, power to hear and determine; but this is not peculiar to the judicial office. Many of the acts of administrative and executive officers involve the exercise of the same power.'"

Courts frequently use the phrases "judicial" power and "quasi-judicial" power indiscriminately and inaccurately. We think that the vital difference between the two is that "judicial" power, strictly speaking, is vested only in a court. Edwards v. Dykeman, 95 Ind. 509; Wilson v. Price-Raid Auditing Comm., 31 Kan. 257, 1 P. 587; Gilbert v. Board of Police & Fire Com'rs, 11 Utah 378, 40 P. 264; Bellingham Co. v. City of New Whatcom, 20 Wash. 53, 54 P. 774; Callanan v. Judd, 23 Wis. 343; State ex rel. School Dist. No. 1 v. Andrae, 216 Mo. 617, 116 S.W. 561; Missouri, K. & T.R. Co. v. Shannon, 100 Tex. 379, 100 S.W. 138, 10 L.R.A. (N.S.) 681. When, however, the power to hear and determine whether a certain state of facts which requires the application of a law exists is committed to an administrative or executive officer, although the particular power may be identical with one which is also exercised by a court, it is, strictly speaking, not "judicial" but "quasi-judicial" power. Hoyt v. Hughes County, 32 S.D. 117, 142 N.W. 471; State v. Whitford, 54 Wis. 150, 11 N.W. 424; Conover v. Gatton, 251 Ill. 587, 96 N.E. 522; Charge to Grand Jury, Fug. Slave Law, 30 Fed. Cas. 1007, No. 18,261; State ex rel. Milwaukee Med. College v. Chittenden, 127 Wis. 468, 107 N.W. 500; Mitchell v. Clay County, 69 Neb. 779, 96 N.W. 673, 98 N.W. 662; West Flagler Amusement Co. v. State Racing Comm., 122 Fla. 222, 165 So. 64.

We think the term "judicial" powers as used in constitutional provisions like sec. 1, art. 6 of our Constitution, on both reason and authority, includes only those powers which as a matter of law can be conferred only upon courts as such, and does not...