Winokur v. Michigan State Bd. of Dentistry

• Decision Date: 19 March 1962
• Docket Number: No. 13,13
• Citation: 114 N.W.2d 233,366 Mich. 261
• Parties: William WINOKUR, Petitioner and Appellant, v. MICHIGAN STATE BOARD OF DENTISTRY, a Michigan Administrative Tribunal, Defendant and Appellee. a member of Dickson's City Council.
• Court: Michigan Supreme Court

Page 233

114 N.W.2d 233

366 Mich. 261

William WINOKUR, Petitioner and Appellant, v. MICHIGAN STATE BOARD OF DENTISTRY, a Michigan Administrative Tribunal, Defendant and Appellee. a member of Dickson's City Council.

No. 13.

Supreme Court of Michigan.

March 19, 1962.

Frank Schwartz, Detroit, for petitioner and appellant, Arthur M. Lang, Detroit of counsel.

Paul L. Adams, Atty. Gen., Joseph B. Bilitzke, Sol. Gen., Percival R. Piper, Asst. Atty. Gen., for defendant and appellee.

Before the Entire Bench, except ADAMS, J.

KAVANAGH, Justice.

Petitioner, a practicing dentist, appeals on leave granted from a determination by on leave granted from a determination by defendant Michigan State board of dentistry and 17 of section 18 of Act 122, P.A.1939 (C.L.1948, § 338.218 [Stat.Ann.1956 Rev. § 14.629(18)]) and had violated his probation under a previous order of the board dated November 6, 1959. The board revoked petitioner's licenses effective October 12, 1960.

Petitioner raises 4 questions on appeal.

The first question is whether or not certiorari is a proper remedy available to plaintiff to review the findings of the Michigan State board of dentistry. The attorney general agrees, on behalf of the board, that plaintiff's remedy is by certiorari. We do not believe any serious question is presented in this regard. Section 19 of Act 122, P.A.1939 (C.L.1948, § 338.219 [Stat.Ann.1956 Rev. § 14.629(19)]), provides in part as follows:

'The findings of fact made by the board acting within its power shall, in the absence of fraud, be conclusive, but the Supreme Court shall have power to review questions of law involved in any final decision or determination of the board * * *.'

Certiorari is the proper remedy to review such proceedings.

The second question is whether the Michigan State board of dentistry sustained the burden of proving the petitioner had knowledge of the fact that Dave Edelsohn, an employee, was practicing dentistry without a license.

The function of the Supreme Court in reviewing by certiorari has been stated in many decisions of this Court, but never more clearly than in Jackson v. People, 9 Mich. 111, pp. 119-120, where the rule is set forth as follows:

'The office of a certiorari is not however to review questions of fact, but questions of law. And in examining into the evidence the appellate court does so not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal.'

The above rule has been repeatedly followed by this Court, most recently in the case of Trojan v. Taylor Township, 352 Mich. 636, 91 N.W.2d 9.

An examination of the record in the instant case leads us to believe the evidence is such that it justified the finding of knowledge as a legitimate inference from the facts proved. We, therefore, will not disturb the finding of the board in that regard.

Petitioner's third question deals with alleged errors of law at the hearing. These involve the admission in evidence of certain testimony by one Armand Archambault, a witness for defendant board, who testified he was an employee of the Michigan Bell Telephone Company in charge of the portion of the phone book referred to as 'the yellow pages.' He identified 2 advertisements in the yellow pages which he said were ordered and paid for by Dr. Winokur. Another witness, William Hawkins, called by the board, testified he was in charge of the commercial department of the Michigan Bell Telephone Company. He produced bills and testified they were mailed to petitioner and paid by him.

The statute in regard to the admission of evidence in administrative proceedings provides a wide latitude for a hearing board. This statute--section 5 of Act 197, P.A.1952, as amended (C.L.S.1956, § 24.105 [Stat.Ann.1961 Rev. § 3.560(21.5)])--provides in regard to the admission of evidence as follows:

'(1) Agencies shall so far as practicable follow the rules of evidence applicable to proceedings in chancery cases, but may in their discretion admit and give probative effect to any evidence which possesses probative value commonly accepted by reasonably prudent men in the conduct of their affairs. They shall give effect to the rules of privilege recognized by law. They may exclude incompetent, immaterial and unduly repetitious evidence.

'(2) All evidence, including records and documents in the possession of the agency of which it desires to avail itself, shall be offered and made a part of the record in the case, and no other factual information or evidence shall be considered in the determination of the case. ...