The opinion
ON MOTION FOR REHEARING
This is the first time that the question of the constitutionality of the trial de novo provision of the medical practice act has been before the courts of this state. In order for the courts to pass on this question, it is necessary that it be raised. Wood v. Wood, 159 Tex. 350 , 320 S.W.2d 807 .
This Court held in Bradley v. Liquor Control Board, 108 S.W.2d 301 , that the *107 cancellation of a permit to sell liquor under the Liquor Control Act is merely the exercise of an administrative function and that a permittee that is allegedly aggrieved by an order of the Board is not entitled on appeal to a trial de novo as if the Board had not acted on the matter, since, if the statute were to be construed as so authorizing, it would be unconstitutional as an attempt by the Legislature to confer administrative power and duties upon the judicial department.
In State Board of Medical Registration v. Scherer, 221 Ind. 92 , 46 N.E.2d 602 , the Supreme Court of Indiana held in connection with the revocation of a medical license:
“The granting and revocation of licenses to engage in trades, businesses, or professions is a ministerial function. Ministerial boards act as fact-finding bodies to ascertain whether applicants conform to a legislative formula by which the right to a license is fixed. It is well settled that under the division of powers, these ministerial fact-finding duties may not be delegated to courts, and that the so-called appeal provisions of statutes which undertake to vest in courts jurisdiction to try and determine de novo the facts entitling an applicant to a license, or to continue to operate under a license, must be treated as merely providing procedure by which the proceeding may be brought before the court for an investigation to determine whether the ministerial body' has acted legally and within its powers. In all of such cases, if the ministerial board has conformed to a statutory procedural method, and its decision is supported by substantial evidence, its findings and determination will not be disturbed.”
In affirming the administrative board’s order revoking a dental license, the Supreme Court of Washington held:
“There is a distinction between the types of decisions rendered by differ-' ent administrative agencies. • Some agencies perform judicial or quasi-judicial functions; others exercise powers which are essentially administrative. Agencies exercising essentially administrative functions may, among other things, act as fact-finding bodies to ascertain qualifications of an applicant for a license; or they may act to determine whether the conduct of a practitioner, against whom a complaint has been lodged, conforms to the legislative formula by which the right to a license is fixed. If the power exercised by the agency is essentially administrative, the superior court, upon appeal provided by statute, is limited to a consideration of whether the agency acted', arbitrarily, capriciously, or contrary to, law. (Citing case.)
“The privilege of practicing dentistry is subject to regulation under the • police power of the state. The power conferred by RCW 43.24.110, upon the ■ director of licenses and two members of the profession appointed by the governor as a committee to hear complaints and revoke a dentist’s license for cause, is essentially administrative. This administrative power is not one that courts historically were accustomed to perform or had performed prior to the statutory creation of the committee; nor a power with which the courts could have been invested.” In the Matter of the Revocation of License to Practice Dentistry of Dr., H. N. Harmon, Licensee-Appellant et. al., 52 Wash. 118 , 323 P.2d 653 .
In Jaffe v. State Department of Health, 135 Conn. 339 , 64 A.2d 330 , 6 A.L.R.2d 664 ; the Court held “The revocation of a- certifir cate of registration granted to a physician and surgeon is just as much an administrative matter as is the original grant of it.” Citing cases.
Federal Radio Commission v. General Electric, 281 U.S. 464 , 50 S.Ct. 389 , 74 L.Ed. 969 , involved an application for renewal of *108 a radio license. The statute provided that the reviewing court “shall hear, review and determine the appeal upon said record and evidence, and may alter or revise the decision appealed from and enter such judgment as to it may seem just ( 44 Stat. 1169 )”. The Supreme Court of the United States branded the licensing function as “purely administrative,” interpreted the statute as making the reviewing court “a superior and revising agency”, and accordingly held that the Supreme Court could not review. The Supreme Court layed down the broad proposition in the General Electric Case that a constitutional court “cannot * * * participate in the exercise of functions which are essentially legislative.”
Motion overruled.