The opinion
CARTER, J., Dissenting.
I dissent. The effect of the majority decision is to prohibit members of the dental profession from advertising in any manner whatsoever the character or quality of service performed by them or which they arc offering to the public. This is contrary to the legislative enactment upon which the decision is based. The decision, however, concedes that it is within the province of the Legislature to prescribe the acts which constitute unprofessional conduct by a dentist, including the subject of advertising.
The Legislature has not seen fit to prohibit a dentist from advertising except in the following respects:
(1) “The making use of any advertising statements of a character tending to deceive or mislead the public;
(2) “The advertising of professional superiority or the performance of professional services in a superior manner;
(3) - “The advertising to guarantee any dental service. . . . ” (Section 1680, Dental Practice Act of California, subdivisions 11, 12 and 17.)
By restricting the prohibition against advertising to the above-quoted provisions, it necessarily follows that in all *545 other respects a dentist may advertise the character or quality of service which he offers to the public.
It is a matter of common knowledge that there are many methods employed by members of the various professions to obtain patrons, customers, patients or clients. Probably the most effective method is to publish advertisements in newspapers which are read by thousands of people and to which many people refer for information to guide them in their daily walks of life. No reason has been suggested, and none has occurred to me, why an advertisement in a newspaper depicting in a fair and truthful manner the character or quality of service which a member of a profession offers to the public should be prohibited. In any event, it must be conceded that it is a matter of public policy to be determined by the Legislature as to whether or not members of a profession should be prohibited from advertising the character or quality of professional service they offer to the public, and if so, to what extent such advertising may be prohibited.
In the ease at bar no attempt was made to prove that any statement contained in the advertisement published by appellant was in any respect untrue, and in the absence of evidence to the contrary, it must be assumed that the statements contained therein were true.
The majority opinion devotes much space to a discussion of whether or not a proceeding for the revocation of the license of a member of a profession is qwm-criminal. Such discussion is wholly beside the point and immaterial. Matters such as the burden of proof, presumption of innocence, reasonable doubt and the like are of no particular concern here. However, it is well to point out and keep in mind the gravity of the consequences flowing from the revocation of a license of a professional man. He usually spends years of his life and incurs large expense in pursuit of the knowledge requisite to the successful practice of his chosen vocation. If his license is revoked he loses all of that effort and investment. He is deprived of the right to obtain the necessities of life by the only method for which he is qualified. He suffers not only economically but socially as well; his station in life is lowered and the dignity and pride naturally a part of his professional standing is forever gone.
Under these circumstances I do not think it can be seriously questioned that the administrative board should be required *546 to act strictly within the terms of the statute, and a review of its determination and also of that of the superior couif should be made, and the evidence carefully examined to ascertain whether a violation of the law has been perpetrated by the accused. Both the findings of the board and the superior court against the accused must be supported by substantial evidence and the conclusions drawn therefrom must be reasonable. In the case at bar, as pointed out in the majority decision, there is no conflict in the evidence. The only evidence offered was the testimony of appellant and the advertisement itself. That being the case the question presented to this court is purely one of law, and this court is fully as capable of arriving at a conclusion of whether appellant has violated the law as the dental board or the superior court. On questions of law this court is not bound by the findings or conclusions of the board or the trial court; it is legally competent to pass on the issues without regard to such findings or conclusions. It is not a ease of determining an issue on conflicting evidence, or of passing on the weight of the evidence, or the credibility of witnesses. (San Diego Trust & Savings Bank v. County of San Diego, 16 Cal. (2d) 142 [ 105 Pac. (2d) 94 ].)
A review of the record in this case convinces me that there is no substantial evidence to support the conclusion that appellant was guilty of unprofessional conduct. It must be borne in mind that the statute does not forbid any and all advertising, and for that reason care should be taken to avoid so interpreting it. It is not a question of whether one is in favor of professional men advertising. Indeed, our only concern here is with what the Legislature has done in that respect. It is not the function of this court to make the law. This is purely a legislative function.
The advertisement upon which the charge against appellant was based is as follows:
“Dr. Webster offers his finest dental plates. Natural expression. The newest plate material in dentistry. This new material, although having the most delicately shaded natural gum color, will absolutely not change in color. Does not stain from smoking, alcohol or alkaloids, will not shrink or warp. Be sure your new dentures are made of this wonderful new material. SEEING IS BELIEVING. Dr. Webster invites you to SEE and TALK to former patients who will be *547 in his office all of this week to show you THESE BEAUTIFUL PLATES. Only by SEEING- them can you actually APPRECIATE their NATURAL BEAUTY. Note how they MOLD the FEATURES back to that YOUTHFUL appearance by adding charm and BEAUTY to the PROFILE. TALK to these patients and let them tell you the; EAT •CORN OFF THE COB, EAT STEAKS and TASTE their foods as well as they ever did. A NATURAL EXPRESSION. These new dental plates are so ably designed that Dr. Webster challenges you to detect any false appearance in either the beautifully shaded porcelain teeth or artistically blended natural looking pink gums. Each tooth is set so that it appears to be growing there, yet these beautiful plates cost you very little money. . . .
“DR. WEBSTER’S IMMEDIATE RESTORATION PLATE MATERIAL WEIGHS LESS THAN 1 OZ.
“This beautiful plate material which forms the gums and the main body of Dr. Webster’s Natural Appearing Dental Plates has a new natural GUM-PINK color which looks just like real healthy gums. Made from a secret formula, is a development of dental science which many plate wearers have been thankful for. Is particularly adaptable to difficult cases, since it weighs LESS THAN ONE OUNCE, enabling Dr. Webster to fashion a plate which will fill out the cheeks, and fit properly without being heavy or bulky.
“Have your dental plates made ‘the Webster Way’ of immediate restoration. You need not be without your teeth for even one hour, or lose a single day’s employment. Dr. Webster’s immediate restoration dentures or plates are faithful reproductions of your own natural gums and teeth, in their true color, size and form. These plates are made to defy detection—so much so that members of your immediate family or most intimate friends need not know that you are wearing artificial teeth. Why suffer the embarrassment of being without your teeth even one hour.
“Is your mouth difficult to fit? No matter how little you pay for your dental plates at Dr. Webster’s an individual study of your case is always made. There is no limit to the care used in fitting difficult cases. Great care is taken not to cause wrinkles, drooping mouth, unnecessary lines, unnatural expression, etc., when making these new beautiful *548 plates. . . . ‘See Dr. Webster today’ and have your dental needs cared for the ‘Webster Way’.”
In my opinion there is nothing in the above-quoted advertisement tending to mislead the public. It cannot be doubted that the phrases “DR. WEBSTER’S IMMEDIATE RESTORATION PLATE MATERIAL WEIGHS LESS THAN 1 OZ. This beautiful plate material. . . . Made from a secret formula, is a development of dental science which many plate wearers have been thankful for. . . . Have your dental plates made ‘The Webster Way’ of immediate restoration ’ ’, are neither deceptive nor misleading nor tending to mislead. It is established that it is common practice among dentists to use the same material used by appellant. The material is made by a manufacturer having a secret formula. When one advertises that he uses the same material as other dentists use, and that such material is beautiful and is a development of dental science that people using plates appreciate, and that the material is light, he is not deceiving or misleading the public. To determine that such advertising is misleading would be to condemn the entire dental profession for using such material because if they all use it they are misleading the public by so doing. There is nothing untrue about those statements. There is no reasonable implication that appellant followed a unique procedure or used unique materials for his plates. The contrary inference flows from the statement that it is “a development of dental science”. If it is a development of dental science generally the natural inference is that all practitioners of dental science are aware of it and follow it. It is a matter of common knowledge that each dentist has some methods and procedure which are different in varying degrees than those used by other dentists. How can the public be mislead even if we assume that there is an intimation that appellant has a certain way of doing things different than other members of his profession ? At the most appellant merely advises the public that dental science has available a good plate material and that he is using that material. If anything, the advertisement might be termed generally educational, in that it broadcasts the information that persons requiring plates are able to obtain ones which are satisfactory, light, and beautiful.
There is no evidence to support the conclusion that appellant was “advertising to guarantee dental service”. The *549 majority opinion refers to the following phrases in this advertisement as containing an advertisement to guarantee dental service: ‘ ‘ This . . . material . . . will absolutely not change in color. Does not stain from smoking, alcohol or alkaloids, will not shrink or warp. . . . These new dental plates are so ably designed that Dr. Webster challenges you to detect any false appearance. . . . Each Tooth is set so that it appears to be growing there. . . . Dr. Webster’s immediate restoration dentures or plates are faithful reproductions of your own natural gums and teeth, in their true color, size and form. These plates are made to defy detection . . . most intimate friends need not know that you are wearing artificial teeth.” The most that can be said of those statements is that the plates and material are satisfactory. If that is a guarantee, then every advertisement is one. A dentist merely stating that he did good or satisfactory work would be advertising a guarantee of his services. An advertisement consisting.of merely the dentist’s name and the college from which he graduated or how long he had practiced would carry the implication that if you became his patient you would obtain satisfactory service. This is contrary to the legislative intent. As above stated the Legislature carefully refrained from forbidding all advertising. By stating that the material, which is used by the dental profession generally, will not stain, etc., there is no guarantee of “dental service” mentioned in the law. The most that could be said is that such material will not stain. Material is not services. Services are personal, mental or physical acts. The remainder of the phrases are merely expressions of an opinion and could in no sense be considered a guarantee. In order to constitute a guarantee there must be a positive assurance that a definite fact will obtain, or that a definite result will be accomplished.
Although the majority opinion does not discuss the charge of advertising professional superiority, there is likewise no evidence supporting that charge. The board and trial court found appellant guilty of that charge also. In regard to that charge it would appear that the most that could be said of the advertisement is that appellant states that he makes good dental plates. That is clearly not sufficient to support a charge of professional misconduct, for it must be remembered that the Legislature carefully refrained from prohibit *550 ing a dentist from all manner of advertising. He must, however, restrict his advertising. And to say such advertising as is here involved, is a claim of professional superiority, would amount in practically all instances, to prohibiting all advertising except possibly such as is of a strictly educational nature, and even such advertising would necessarily have to be disassociated with the dentist doing the advertising. That would manifestly be an unwarranted extension of the Dental Practice Act. It is quite clear that it may be plausibly asserted that statements by a dentist in his advertisements, suggesting that he be patronized, that he does certain work, or that his work is of a certain quality and the like, are all pregnant with the inference that he is to be chosen in preference to other dentists, and therefore has professional superiority. When he asks you to patronize him, the inference is that you should not go elsewhere; when he describes the quality of his work, he implies that elsewhere the work will be inferior. There must therefore be a convincing showing of a direct claim of professional superiority of the advertising dentist as compared with other dentists to justify disciplinary action.
The majority opinion makes the following statement:
“The evidence in the instant ease included the advertisement itself and the testimony of appellant. If either the advertisement or the testimony offers any substantial support for the conclusion of the court below, the judgment must be affirmed. Appellant’s argument is, in substance, that the advertising statements admittedly made by him do not constitute a violation of the terms of the statute. The language used by the appellant and the circumstances under which it was used are admitted. The application of the legal standard, prescribed by the statute to the admitted facts requires a construction of the statutory provisions upon which both the Board and the court below were in agreement.” I may be obtuse, but it is not clear to my mind what the author of the majority opinion meant by the italicized portion of the above-quoted statement. The fact is, that the majority opinion accepted the conclusion reached by the Dental Board and the trial court that the above-quoted advertisement violated subdivisions 11 and 17 of Section 1680 of the Dental Practice Act prohibiting advertising statements of a character tending to deceive or mislead the public and advertising *551 to guarantee dental service, but the majority opinion apparently does not agree with the conclusion reached by the Dental Board and the trial court that said advertisement violated subdivision 12 of said section which prohibits advertising of professional superiority or the performance of professional service in a superior manner. It would seem to me that' if this court is bound by the conclusion reached by the Dental Board and the trial court upon any of the issues, it should be bound by their conclusion as to all of the issues. I make this observation merely for the purpose of demonstrating the unsoundness of the premise upon which the conclusion reached in the majority opinion is based.
The appeal of this case was first presented to the District Court of Appeal of the Fourth Appellate District and was decided by that court. ( 103 Pac. (2d) 442 .) In a very able opinion prepared by Mr. Justice Marks of that court, the same conclusion was reached which I have announced in this opinion, but a hearing was granted by this court for the purpose of giving further consideration to the problems involved. To my mind there can be no doubt of the soundness of the reasoning upon which the conclusion of the District Court of Appeal was based, and for the reason stated therein and in the foregoing opinion, the judgment of the trial court should be reversed with directions that it issue a writ of mandate requiring the respondent Board of Dental Examiners of California to reinstate appellant’s license as prayed for in his petition.
A petition for a rehearing was denied April 3, 1941. Carter, J., voted for a rehearing.