Winokur v. State Board of Dentistry , 366 Mich. 261 ( 1962 )

366 Mich. 261 (1962) 114 N.W.2d 233

WINOKUR
v.
STATE BOARD OF DENTISTRY.

Docket No. 13, Calendar No. 49,047.

Supreme Court of Michigan.

Order affirmed March 19, 1962. Rehearing denied May 17, 1962.

Frank Schwartz (Arthur M. Lang, of counsel), for plaintiff.

Frank J. Kelley, Attorney General, Joseph B. Bilitzke, Solicitor General and Percival R. Piper, Assistant Attorney General, for defendant board.

Order of defendant board affirmed March 19, 1962.

KAVANAGH, J.

Petitioner, a practicing dentist, appeals on leave granted from a determination by defendant Michigan State board of dentistry that he had violated subsections 5 and 17 of section 18 of PA 1939, No 122 (CL 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 PA 1939, No 122 (CL 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 (77 Am Dec 491), where the rule is set forth as follows (pp 119, 120):

"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.

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 PA 1952, No 197, as amended (CLS 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. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference."

The record fails to disclose any prejudicial error in regard to the admissibility of evidence.

The final question is whether the penalty imposed upon petitioner by the Michigan State board of dentistry was in excess of the statutory power vested in the board. Petitioner contends the board had no legal authority to impose a revocation of his licenses for an indefinite period of time. It is the contention of petitioner that the board has only such powers as are vested in it by the statute which created it. He relies on CL 1948, § 338.219 (Stat Ann 1956 Rev § 14.629[19]), which reads in part as follows:

"If the accused pleads guilty, or after hearing he shall be found guilty by the board of any of the charges made, it may revoke or suspended his license for a limited period." (Emphasis supplied.)

Plaintiff fails to cite in his brief or appendix section 18 of the same statute,^[*] which reads in pertinent part as follows:

"The board shall have the power, and it shall be its duty, and it is hereby authorized, to suspend for a limited period or to revoke the license of any licensed dentist or any licensed dental hygienist for any of the following reasons: * * *

"7. For violation of the rules and regulations for the practice of dentistry, provided for in section 2 hereof."

On reading sections 18 and 19 together, it is clear the legislature has given the board the power to revoke for an indefinite period. It has also given the board power to suspend for a limited period. The word "revoke" imports finality.

It is a general rule of statutory, as well as grammatical, construction that a modifying clause is confined to the last antecedent, unless there is something in the subject matter or dominant purpose which requires a different interpretation. See Haveman v. Kent County Road Commission, 356 Mich. 11, and the cases therein cited.

We find nothing either in the language of the act involved or by implication of the subject matter or purpose of the statute to compel a different construction. Reading the entire act, we find the intention is clear that the modifying clause in section 19 — "for a limited period" — has reference to the last antecedent — suspend.

An examination of the entire record seems to disclose that petitioner received a fair and impartial hearing.

The order of the Michigan State board of dentistry dated October 12, 1960, is affirmed. Defendant shall have costs.

DETHMERS, C.J., and CARR, KELLY, BLACK, SOURIS, and OTIS M. SMITH, JJ., concurred.

ADAMS, J., took no part in the decision of this case.

NOTES

[*] CL 1948, § 338.218 (Stat Ann 1956 Rev § 14.629[18]). — REPORTER.