Young v. Board of Pharmacy

• Decision Date: 08 December 1969
• Docket Number: No. 8759,8759
• Citation: 1969 NMSC 168,462 P.2d 139,81 N.M. 5
• Parties: , 36 A.L.R.3d 1 Eldon D. YOUNG, Petitioner-Appellee, v. The BOARD OF PHARMACY for the State of New Mexico, Respondent-Appellant.
• Court: New Mexico Supreme Court

Page 139

462 P.2d 139

81 N.M. 5, 36 A.L.R.3d 1

Eldon D. YOUNG, Petitioner-Appellee, v. The BOARD OF PHARMACY for the State of New Mexico Respondent-Appellant.

No. 8759.

Supreme Court of New Mexico.

Dec. 8, 1969.

James A. Maloney, Atty. Gen., John D. Donnell, Special Asst. Atty. Gen., Santa Fe, for appellant

Easley & Reynolds, Hobbs, for appellee.

OPINION

MOISE, Chief Justice.

Appellee was given notice to show cause before the Board of Pharmacy for the State of New Mexico, appellant here, as to why his license to practice pharmacy should not be revoked on the grounds that he 'wilfully and unlawfully sold without a prescription certain dangerous drugs * * * and further that he conducted himself in an unprofessional manner in not keeping accurate records and inventory of depressant and stimulant drugs as required by law.'

After a hearing at which appellee was present and represented by counsel, the appellant board made findings of fact, and based thereon entered an order revoking appellee's license as a pharmacist. Appellee thereupon sought review in the district court as provided in § 67--26--17 to 67--26--20, N.M.S.A. 1953, inclusive, complaining specifically of the appellant board's findings of fact 4, 5 and 6 and conclusions of law 1 and 2. These findings and conclusions read:

Findings:

'4. On or about March 24, 1967 the respondent wilfully and unlawfully sold without prescription certain dangerous drugs as defined by the Federal Food and Drug Laws.

'5. On or about March 25, 1967 the respondent wilfully and unlawfully sold without prescription certain dangerous drugs as defined by the Federal Food and Drug Laws.

'6. The respondent has conducted himself in an unprofessional manner by not keeping adequate records and inventory of depressant and stimulant drugs as provided by law.'

Conclusions:

'1. By virtue of the facts as found by the board above, the respondent, Eldon D. Young, conducted his pharmacy in violation of the Federal Food and Drug Laws.

'2. That the respondent, Eldon D. Young, was guilty of unprofessional conduct.'

The trial court proceeded to review the decision of the appellant as provided in § 67--26--20, N.M.S.A.1953, following which, written findings of fact and conclusions of law were filed and appellant's order was set aside the held for naught for the stated reason that the findings of fact, quoted above, were not supported by substantial evidence, and the conclusions of law were not supported by any findings of fact or sustained by competent evidence and were 'unreasonable, arbitrary and unlawful.'

Appellant prosecutes this appeal from the district court decision, as provided in § 67--26--23, N.M.S.A.1953. Although stated as one point, two separate issues are presented. The first question is whether there is substantial evidence here to support findings 4 and 5, above set forth.

The problem arises by virtue of the facts which we relate. On each of the two dates in question (March 24 and March 25, 1967) one Rudy Montoya went into appellee's store and, although he had no prescription from a doctor, requested some penicillin. In compliance with the request, appellee delivered an unmarked and unlabeled bottle containing some pills to Mr. Montoya, and received pay for them. These pills in the unmarked container were in turn delivered by Mr. Montoya to a deputy sheriff by the name of Gill who testified that he placed identifying marks thereon and sent them to the Food and Drug Administration; that in due time he received the containers back, together with a letter stating that the pills contained therein were penicillin. Appellee objected to the introduction of the pills and containers because of asserted failure to present witnesses who could account for continuous possession as a foundation asserted to be required before such articles may be received in evidence. The period not covered was that from the time officer Gill mailed the containers until they were returned to him. In whose possession and through whose hands had they passed in the interim? Appellee objected to introduction of the letter because of its hearsay nature, the author not being available for examination or cross-examination.

Appellant answers by directing attention to § 67--26--11, N.M.S.A.1953, applicable to the hearing before it. That section reads:

'In proceedings held under the Uniform Licensing Act (67--26--1 to 67--26--28), Boards may admit any evidence and may give probative effect to evidence that is of a kind commonly relied on by reasonably prudent men in the conduct of serious affairs. Boards may in their discretion exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. In proceedings involving the suspension or revocation of a license, rules of privilege shall be applicable to the same extent as in proceedings before the courts of this state. Documentary evidence may be received in the form of copies or excerpts. Boards may take notice of judicially cognizable facts and in addition may take notice of general, technical or scientific facts within their specialized knowledge. The person whose license is involved shall be notified either before or during the hearing of the material so noticed and shall be afforded an opportunity to contest the facts so noticed. Boards may utilize their experience, technical competence and specialized knowledge in the evaluation of evidence presented to them. Depositions may be taken and used as in civil proceedings.'

There can be no question that under § 67--26--11, supra, the evidence was admissible and, if 'of a kind commonly relied on by reasonably prudent men in the conduct of serious affairs,' may be given 'probative effect.' Section 67--26--20, N.M.S.A.1953, reads as follows:

'Upon the review of any board decision under the Uniform Licensing Act (67--26--1 to 67--26--28), the judge shall sit without a jury, and may hear oral arguments and receive written briefs, but no evidence not offered at the hearing shall be taken, except that in cases of alleged omissions or errors in the record, testimony thereon may be taken by the court. The court may affirm the decision of the board or remand the case for further proceedings; or it may reverse the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: in violation of constitutional provisions; or in excess of the statutory authority or jurisdiction of the board; or made upon unlawful procedure; or affected by other error of law; or unsupported of substantial evidence on the entire record as submitted; or arbitrary or capricious.' (Emphasis supplied.)

We defined substantial evidence, in Wilson v. Employment Sec. Comm'n, 74 N.M. 3, 389 P.2d 855 (1963), as:

'* * * more than merely any evidence and more than a scintilla of evidence and contemplates such relevant legal evidence as a reasonable person might accept as sufficient to support a conclusion.'

See McWood Corporation v. State Corporation Commission, 78 N.M. 319, 321, 431 P.2d 52 (1967).

In State v. Scott, 111 Utah 9, 175 P.2d 1016, 1021 (1947), is found a discussion of the nature of 'probative evidence' which we consider helpful. We quote:

'The basic rule of admissibility fo evidence is that all evidence having probative value--that is, that tends to prove an issue, is admissible. In countries where the civil law prevails that is clearly recognized. But in the common law there were developed certain exceptions to that basic rule, for example, the hearsay rule, which made certain evidence, though relevant and material, incompetent. That was because of the danger of prejudice to the party against whom it was offered who would have no chance to cross-examine the source, or the probative value of the evidence offered was small as compared to the great prejudicial effect it might have. So-called 'exceptions to the hearsay rule' are really not exceptions to the hearsay rule which is itself an exception to the basic rule of admissibility, but are in reality limitations on the hearsay exception. * * *'

In Akin v. Estate of Hill, 201 Kan. 306, 440 P.2d 585 (1968), a presumption recognized in law was held not to have 'probative value' under the facts there present, notwithstanding a statute giving such effect to certain presumptions. For two New Mexico cases discussing the treatment of presumptions as proof see Teeter v. Miller, Smith & Jones, 66 N.M. 49, 342 P.2d 864 (1959), and Hartford Fire Insurance Co. v. Horne, 65 N.M. 440, 338 P.2d 1067 (1959).

Liquor Control Commission v. Bartolas, 10 Ohio Misc. 225, 225 N.E.2d 859, 862 (1963), discusses the terms 'probative evidence,' 'probative value,' and 'substantial evidence' in a case involving suspension of a permit to sell liquor. We quote therefrom:

'Probative evidence is testimony of substance and relevant consequence not vague or uncertain, but having the quality of proof or fitness to induce conviction of truth, and has reference to the substance of the testimony generally and not the credibility of the witness, though credibility is involved where testimony is directly opposed to physical possibilities or scientific facts. (Louisville & N. Railroad Co. v. Lefever's Adm'x, 288 Ky. 195, 155 S.W.2d 845.)

'Evidence has 'probative value' if it tends to prove an issue. (State v. Scott, 111 Utah 9, 175 P.2d 1016.)

'Under these definitions the finding of the Commission is supported by probative evidence.'

Commonwealth, Department of Highways v. Tyree, 365 S.W.2d 472 (Ky.1963), involves application of the rule in connection with opinion evidence of value offered in a condemnation case.

In Stammer v. Board of Regents of University of State of New York, 287 N.Y. 359, 365, 39 N.E.2d 913, 915 (1942), the Court of Appeals of New York, in reviewing proceedings of an administrative board suspending a physician's license to practice medicine, held that hearsay evidence although admissible by law is not...