Boehm v. North Carolina Board of Podiatry Examiners , 41 N.C. App. 567 ( 1979 )

255 S.E.2d 328 (1979) 41 N.C. App. 567

Dr. Donald P. BOEHM, Petitioner,
v.
NORTH CAROLINA BOARD OF PODIATRY EXAMINERS, Respondent.

No. 7810SC791.

Court of Appeals of North Carolina.

June 5, 1979.

Farris, Thomas & Farris by Robert A. Farris and Robert A. Farris, Jr., Wilson, for petitioner-appellant.

Broughton, Wilkins, Ross & Crampton by J. Melville Broughton, Jr. and William G. Ross, Jr., Raleigh, for respondent-appellee.

HARRY C. MARTIN, Judge.

Petitioner argues two assignments of error, first, the court erred in overruling his plea in bar, and second, the court erred in the entry of the judgment affirming the order of the Board.

In reviewing the Board's order, the proceedings were conducted by the judge without a jury, upon the record made before the Board, and the briefs and oral arguments of the parties. N.C.Gen.Stat. 150A-50. The legislature has adopted the "whole record" test for application by the court in reviewing the Board's order. N.C. Gen.Stat. 150A-51(5). This requires the Board's judgment to be affirmed if upon consideration of the whole record as submitted, the facts found by the Board are supported by competent, material and substantial evidence, taking into account any contradictory evidence, or evidence from which conflicting inferences could be drawn. Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977). This test is distinguishable from both de novo review and the "any competent evidence" standard of review. Under the "whole record" test the reviewing court cannot replace the Board's judgment between two reasonably conflicting views, even though the court could have reached a different conclusion had the matter been before it de novo. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977).

The record on appeal indicates that petitioner produced five witnesses, including himself, and respondent Board produced four witnesses. However, the record on appeal does not contain the substance of what the witnesses testified, except as stated in the findings of fact by the Board. The appellant has failed to bring forward into the record on appeal the evidence before the Board, therefore, all the findings of fact made by the Board are deemed supported by material, competent and substantial evidence. Utilities Comm. v. Electric Membership Corp., 276 N.C. 108, 171 S.E.2d 406 (1970); Davis v. Davis, 11 N.C.App. 115, 180 S.E.2d 374 (1971).

We hold the findings of fact by the Board are supported by competent, material and substantial evidence in view of the entire record, and they are conclusive upon appeal. In re Berman, 245 N.C. 612, 97 S.E.2d 232 (1957); In re Hawkins, 17 N.C. App. 378, 194 S.E.2d 540, cert. denied, 414 U.S. 1001, 94 S.Ct. 355, 38 L.Ed.2d 237 (1973).

Petitioner contends his plea in bar should have been sustained because the Board applied N.C.G.S. 90-202.8 to the acts in question when it was not effective until 1 July 1975. This statute authorizes the Board to suspend a license to practice podiatry and invoke such probation terms as it deems fit and proper where the Board is satisfied the practitioner has "obtained or collected or attempted to obtain or collect any fee through fraud, misrepresentation, or deceit." N.C.Gen.Stat. 90-202.8(a)(11).

The statute in effect during 1974 to July 1975, N.C.G.S. 90-197, did not contain this specific provision. This statute sets out four grounds for revocation of a certificate to practice podiatry, and also authorizes the Board to suspend such certificate for not more than six months on account of misconduct which would not, in the judgment of the Board, justify revocation of the certificate.

Petitioner contends that by the enactment of N.C.G.S. 90-202.8, the legislature repealed N.C.G.S 90-197 and therefore, he cannot be held accountable for acts committed prior to the effective date of N.C.G.S. 90-202.8. We so not agree. Chapter 672 of the Session Laws of 1975 is entitled, "An Act to Rewrite Article 12 of Chapter 90 of the General Statutes Concerning Licensure of Podiatrists." The act proceeds to state, "Chapter 90, Article 12 of the General Statutes is hereby rewritten as follows." The new statute is thereafter set forth. The act does not contain any provision repealing N.C.G.S. 90-197, but rewrites and recodifies it.

We hold the Board had authority after 1 July 1975 to suspend petitioner's certificate to practice podiatry for acts committed by petitioner prior to that date. The legislature authorized the Board to suspend a podiatrist's certificate for misconduct which did not come within one of the four specific categories for revocation but was of the same general character and nature. The four specific categories involve conduct which was unprofessional, immoral and dishonorable in its general character or nature. The principle of ejusdem generis applies. Turner v. Board of Education, 250 N.C. 456, 109 S.E.2d 211 (1959). The conduct of petitioner set out in the order of the Board is certainly unprofessional, immoral and dishonorable, and of the same kind, character and nature as those specifically enumerated in N.C.G.S. 90-197.

This authority granted to the Board by the legislature did not terminate 1 July 1975 upon the adoption of N.C.G.S. 90-202.8, but continued for any such misconduct committed prior to that date. See Rice v. Rigsby and Davis v. Rigsby, 259 N.C. 506, 131 S.E.2d 469 (1963); N.C.Gen.Stat. 12-4. The trial court properly denied the plea in bar.

In this Court, petitioner raises for the first time the question of the constitutionality of N.C.G.S. 90-197. Having failed to raise this question in the trial court, petitioner may not on appeal attack the statute on that ground. The appellate court will not decide a constitutional question which was not raised or considered in the trial court. Wilcox v. Highway Comm., 279 N.C. 185, 181 S.E.2d 435 (1971).

The judgment of the superior court is

Affirmed.

PARKER and MITCHELL, JJ., concur.