Withers v. Golding, 6181

CourtSupreme Court of Utah
Writing for the CourtMcDONOUGH, Justice.
Citation100 Utah 179,111 P.2d 550
PartiesWITHERS et al. v. GOLDING, Director of Department of Registration et al
Docket Number6181
Decision Date27 March 1941

111 P.2d 550

100 Utah 179

WITHERS et al.
v.
GOLDING, Director of Department of Registration et al

No. 6181

Supreme Court of Utah

March 27, 1941


Appeal from District Court, Third District, Salt Lake County; P. C. Evans, Judge.

Action by W. L. Withers and others against S.W. Golding, Director of the Department of Registration of the state of Utah, and another, to review an order revoking the plaintiff's license to practice dentistry in the state of Utah. From a judgment sustaining the order, the named plaintiff appeals.

Judgment affirmed.

D. N. Straup, Willard Hanson, and Stewart M. Hanson, all of Salt Lake City, for appellant.

Joseph Chez, Atty Gen., and Harley W. Gustin and George A. Faust, both of Salt Lake City, for respondents.

McDONOUGH, Justice. WOLFE, J., PRATT, Justice, concurs. MOFFAT, Chief Justice, concur in the result. LARSON, J., dissents.

OPINION [111 P.2d 551]

[100 Utah 181] McDONOUGH, Justice.

W. L. Withers has appealed from a judgment and decree of the lower court sustaining an order of the Director of the Department of Registration revoking appellant's license to practice dentistry in the State of Utah, the court adding a provisional modification of such order to be hereinafter noted.

In 1938 an investigator for the Department of Registration, by order of the director thereof, filed a petition in said department against appellant and others setting out certain alleged acts of professional misconduct and praying that a citation issue requiring the appearance of the individuals named therein before the department and a representative committee to show cause why the license of each of them to practice dentistry should not be revoked. The individuals named in the petition were given notice and in due time they appeared before the department by their counsel and separately filed demurrers to the petition. The cause came on for hearing, at which time the director of the department overruled the demurrers and, without granting any time in which to further plead, proceeded with the trial of the case, swearing in the committee (appointed pursuant to Sec. 79-1-6, R. S. U. 1933) to hear the case and introducing evidence as to the matters alleged in the petition. However, leave was given to file an answer during the course of the proceedings, and appellant did so. At the conclusion of the evidence a motion to dismiss the action was denied by the director. A verdict was returned by the committee against Withers and others finding them guilty of unprofessional conduct and recommending that their licenses to practice dentistry in the State of Utah be revoked. The director of the department issued an order accordingly, whereupon a proceeding was instituted in the district court in which Withers and the others sought to have a retrial or some sort of a review by the district court of the proceedings before the Department of Registration.

[100 Utah 182] The action of the district court was commenced by what was termed as a "Petition and Notice of Appeal" which is in the nature of a complaint. Therein, Withers and the other defendants in the hearing before the Department of Registration designated themselves as "petitioners and appellants" and set out, in addition to the regular jurisdictional facts necessary in a complaint, the various steps which had been taken before the department as hereinabove set out. It was further alleged that the defendants' motion for a nonsuit was overruled "without right, either of law or of fact, and without warrant or jurisdiction;" that the findings made by the committee were "mere conclusions" and not in compliance with Title 79-1-8, R. S. U. 1933; that said findings, as made, did not "warrant or justify the recommendations made nor the revocation of the licenses of defendants;" that the licenses referred to were

"revoked without authority of law, without evidence adduced to justify or warrant a revocation thereof, that the revocation so ordered and entered was upon insufficient findings to justify or support a revocation of the licenses, and that the said department and the said director, without right and without authority, and contrary to law, and without jurisdiction, proceeded to hear and try the matters and things alleged in the petition * * * without giving or affording the * * * [defendants ] an opportunity to join an issue upon the matters alleged in the said petition and to proceed to a hearing thereof on the merits, without first giving the said defendants an opportunity to file an [111 P.2d 552] answer controverting the matters and things alleged in the said petition."

The final paragraph sets out that the defendants

"do hereby severally and separately appeal to the said District Court * * * from the said order * * * made and entered in the said Department on the said 20th day of July, 1938, revoking the licenses of the said * * * [defendant ] and from the whole thereof, and that the said appeal is taken on questions of both law and fact. And that the said * * * director of the said Department of Registration * * * be required to certify and transmit a record of all of the proceedings * * * to the Clerk of the said District Court * * * including all the papers and documents or certified copies thereof on file in the said Department of Registration in the said [100 Utah 183] cause, and including the findings or a copy thereof of the said committee and of the said order made and entered by the said director of the Department of Registration revoking and cancelling the licenses of the said * * * [defendants ]; that the said matters when so transmitted be heard in the said District Court upon a trial de novo upon all the issues of both questions of law and fact and in accordance with the statute, 79-1-36, R. S. U. 1933, in such case made and provided; that the order made by said Director revoking the licenses of these plaintiffs be set aside and cancelled; and that the petitioners and appellants have such other and further relief in the premises as may be mete and proper."

The Department of Registration filed an answer admitting the allegations of the petition relative to the issuance of the order to show cause and the appearance and participation in the hearing of the defendants and then set out an affirmative defense to said petition by way of justification for the revocation of the licenses involved, the allegations of which will be hereinafter noted.

When the cause came on to be heard, the "petitioners" demanded a jury trial, which the trial court refused. The question was then raised as to the nature of the proceedings before the trial court. The court apparently determined that the proceeding was in the nature of a trial de novo on the record made before the Department of Registration, stating: "This rule would require a review of questions of law, together with an examination of the record made before the Board and the presentation of such additional evidence as the parties may offer, leading to an independent determination of the facts by the trial court."

It ruled also that the department had the burden of going forward with the evidence; and that the record made before the department should be certified to the court.

The trial court made findings of fact to the effect that the proceedings before the Department of Registration "were regular in all particulars" and that the director did not err in the admission of evidence or in denying motion "for dismissal or nonsuit." It also found several acts of professional misconduct on the part of the petitioners (in violation of [100 Utah 184] Section 79-6-8, R. S. U. 1933, as amended by Chapter 78, Laws of Utah 1935.) From said findings the court concluded that the petitioners were guilty of professional misconduct under the statute and that the order of the Department of Registration revoking the licenses of said petitioners should be affirmed; provided, however, that when any one or all of said petitioners should present satisfactory evidence to the department that he or they had discontinued the acts of misconduct found to have been committed then the department should reinstate such person or persons.

Judgment was entered accordingly, and costs in the sum of $ 164.65 were assessed against petitioners. W. L. Withers, one of the defendants and petitioners, brings this appeal. The assignments of error may be summarized as follows, viz:

(1) Alleged error of the lower court in refusing (a) to grant appellant a trial upon the issues made by the pleadings in the district court; or (b) to grant a trial de novo on new evidence, and in refusing to grant appellant a jury trial,

(2) Alleged insufficiency of the evidence to support the findings and conclusions of the trial court;

(3) Alleged error in the judgment and decree entered by the lower court;

(4) Alleged error in taxing costs against appellant.

We shall consider them in order:

(1) When the matter came on for hearing before the court below, the question arose as to the nature of the proceeding under the provisions of Section 79-1-36, R. S. U. 1933, [111 P.2d 553] reading as follows:

"Any applicant for or holder of a license * * * or any person directly affected and aggrieved by any ruling of the department of registration, may within thirty days after notice of such ruling institute an action in the district court * * * against the director in his official capacity setting out his grievance and his right to complain. [100 Utah 185] In his answer the director may set out any matter in justification; and the court shall determine the issues on both questions of law and fact and may affirm, set aside or modify the ruling complained of." (Italics added.)

In a discussion in open court the parties admitted they did not know what procedure the above statute contemplated, and at the suggestion of counsel the record of the proceedings before the Department of Registration was ordered...

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8 practice notes
  • Vance v. Fordham, No. 18176
    • United States
    • Utah Supreme Court
    • 22 Agosto 1983
    ...reviewed the administrative findings to assure that they were supported by a "clear preponderance of the evidence," Withers v. Golding, 100 Utah 179, 111 P.2d 550 (1941), rather than the less comprehensive review under the "arbitrary and capricious" standard actually employed. From this pre......
  • Lauren W. Gibbs, Inc. v. Monson, 6331
    • United States
    • Supreme Court of Utah
    • 13 Octubre 1942
    ...to orders of the Department of Registration. The latter statute was considered by this court in the recent case of Withers v. Golding, 100 Utah 179, 111 P.2d 550, 554, discussing the procedure contemplated by such statute we therein stated: "* * * The proceeding in the district court is in ......
  • Skelton v. Lees, No. 8752
    • United States
    • Supreme Court of Utah
    • 13 Agosto 1958
    ...establish his right to a certificate. --------------- 1 Baker v. Department of Registration, 78 Utah 424, 3 P.2d 1082; Withers v. Golding, 100 Utah 179, 111 P.2d 550; Peterson v. Industrial Commission, 102 Utah 175, 177, 129 P.2d 563; Woodburn v. Industrial Commission, 111 Utah 393, 181 P.2......
  • Feight v. State Real Estate Comm'n, No. 32604.
    • United States
    • Supreme Court of Nebraska
    • 6 Diciembre 1949
    ...if alleged, that the findings of the commission are contrary to the weight of the evidence. See Withers v. Golding, 100 Utah, 179, 111 P.2d 550. We think the general rule is that where a review of a finding and order of an administrative officer, board, or commission is afforded by the fili......
  • Request a trial to view additional results
8 cases
  • Vance v. Fordham, No. 18176
    • United States
    • Utah Supreme Court
    • 22 Agosto 1983
    ...reviewed the administrative findings to assure that they were supported by a "clear preponderance of the evidence," Withers v. Golding, 100 Utah 179, 111 P.2d 550 (1941), rather than the less comprehensive review under the "arbitrary and capricious" standard actually employed. From this pre......
  • Lauren W. Gibbs, Inc. v. Monson, 6331
    • United States
    • Supreme Court of Utah
    • 13 Octubre 1942
    ...to orders of the Department of Registration. The latter statute was considered by this court in the recent case of Withers v. Golding, 100 Utah 179, 111 P.2d 550, 554, discussing the procedure contemplated by such statute we therein stated: "* * * The proceeding in the district court is in ......
  • Skelton v. Lees, No. 8752
    • United States
    • Supreme Court of Utah
    • 13 Agosto 1958
    ...establish his right to a certificate. --------------- 1 Baker v. Department of Registration, 78 Utah 424, 3 P.2d 1082; Withers v. Golding, 100 Utah 179, 111 P.2d 550; Peterson v. Industrial Commission, 102 Utah 175, 177, 129 P.2d 563; Woodburn v. Industrial Commission, 111 Utah 393, 181 P.2......
  • Feight v. State Real Estate Comm'n, No. 32604.
    • United States
    • Supreme Court of Nebraska
    • 6 Diciembre 1949
    ...if alleged, that the findings of the commission are contrary to the weight of the evidence. See Withers v. Golding, 100 Utah, 179, 111 P.2d 550. We think the general rule is that where a review of a finding and order of an administrative officer, board, or commission is afforded by the fili......
  • Request a trial to view additional results

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