Osborne v. Baughman

THOMPSON, J.

This is an appeal from a, judgment of the superior court annulling, upon writ of review, an order of the State Board of Dental Examiners whereby the license of respondent to practice dentistry in the state of California was revoked. The questions to be determined are whether there was any testimony adduced before the board showing that respondent was chargeable with knowledge that his unlicensed employee was practicing dentistry, and whether such knowledge is necessary before it can be said that a dentist is aiding or abetting an unlicensed person to practice dentistry.

Inasmuch as appellant has argued that it is not the province of a court in

certiorari

proceedings to concern itself further than to determine whether the quasi-judicial body, such as is the Board of Dental Examiners, has exceeded its jurisdiction, it should be here observed that where such tribunal or board has acted, not upon a conflict in the evidence, but in spite of a lack of any competent evidence, it has exceeded its jurisdiction. It may be put in this language : That the writ of review may be used to determine whether there was any testimony to establish certain facts without the existence of which the board has no power to act.

(Goodall

v.

Superior Court,

37 Cal. App. 724-727 [174 Pac.

924]; Great Western Power Co.

v.

Pillsbury,

170 Cal. 180 [149 Pac. 35].)

[226]

In this case the respondent was operating two dental offices, one in the city of Glendale and the other in the city of Los Angeles. He testified that Wilson, the employee, was a dental mechanic and that he employed him as a laboratory man only; that he always had a dentist in the Los Angeles office, except for a few days after a Dr. Marr had quit and before he secured the services of a Dr. Walsh, and that during that time he left instructions that “Dr. Fridd was to take care of any patients that should come in, either come over there or have the patient sent over to the other office.” Thomas Wilson testified that he was employed as a dental mechanic; that during the time they were expecting a new dentist to take the place vacated by Dr. Marr a Mrs. Koch came in, and that he took an impression for some bridgework, made an appointment with her to return, and gave her the price of the work; that he never did any other operative work; that he knew that Dr. Osborne did not know that he was operating; that he simply took a chance on this occasion, and that during these few days they were making appointments in anticipation of Dr. Walsh and when he did not arrive they called in another dentist. The testimony further established that Wilson was arrested and convicted of practicing dentistry without a license (the act thereof consisting of taking the impression referred to), and that ten or twelve years before he had been convicted of practicing dentistry without a license in San Diego.