(dissenting) — Dr. Harry V. Flynn was a li*597censed dentist practicing in the state of Washington. He was charged with unprofessional conduct by reason of violating RCW 18.32.230 [cf. Rem. Rev. Stat. (Sup.), § 10031-8] and RCW 18.32.350 [cf. Rem. Rev. Stat. (Sup.) § 10031-18, part].
The matter came on for hearing, June 24, 1955, before the administrative hearing committee appointed by the governor of the state of Washington. On August 1, 1955, upon the recommendation of the committee, the director of licenses entered an order revoking the license in question.
The licensee appealed to the superior court, which heard the cause upon the record made before the administrative hearing committee.
Tire trial court found that finding of fact No. 4 of the administrative hearing committee was sustained by competent evidence. It was:
“That on or about the second day of February 1955, said Harry V. Flynn operated a dental office located at 1504 First Avenue, Seattle, Washington, and did employ therein one Paul Holbrook, an unlicensed dentist, to do and perform a dental operation on the mouth and teeth of one William B. Curley.”
From that finding of fact, the court concluded
“That the appellant Harry V. Flynn was found guilty upon sufficient competent evidence of a violation of RCW 18.32.230 (5) (7), and that the order of the Director of the Department of Licenses revoking the license of Harry V. Flynn to practice dentistry in the State of Washington must be sustained and the appeal dismissed, and the Court may not reverse the hearing committee on a matter of discretion.”
The court felt that the penalty was severe, but sustained the order of the director of licenses for lack of authority to alter it since it was not arbitrary or capricious.
The appellant concedes that the record sustains the finding of fact upon which the trial court relied, and that some disciplinary action is appropriate, but contends, upon appeal, that the penalty is not the penalty which the court would have imposed had the appellant been accorded a trial de novo as provided by the statute.
*598The appeal statute, ROW 18.32.270 [cf. Rem. Rev. Stat. (Sup.), § 10031-9, part], provides:
“The revocation or suspension of a license shall "be in writing signed by the director, stating the grounds upon which such order is based and the aggrieved person shall have the right to appeal from such order within fifteen days after a copy thereof is served upon him, to the superior court of Thurston county, which shall hear the matter de novo. In such appeal the entire record shall be certified by the director to the court, and the review on appeal shall be confined to the evidence adduced at the hearing before the director.”
The appellant contends that a trial de novo, as contemplated by the statute, authorizes and requires the triah court to enter its own judgment based upon the facts found from an examination of the record made before the administrative hearing committee. This is predicated upon the theory that the right to practice dentistry is a property right] and that a proceeding to revoke it is judicial rather than administrative in nature. Appellant, therefore, claims he has not had due process of law and seeks a remand of the cause to the trial court for its own judicial imposition of the appropriate penalty.
The licensing of dentists is an exercise of the police power for the protection of the public against incompetent practitioners. The license to practice dentistry is a privilege, not a property right. The granting or restricting of such a privilege is a legislative and administrative function. In re Harmon, ante p. 118, 323 P. (2d) 653. This being so, the judicial function is discharged by reviewing the action of the administrative hearing committee to determine if it was arbitrary and capricious, or contrary to law. Household Finance Corp. v. State, 40 Wn. (2d) 451, 244 P. (2d) 260.
The trial court was correct in determining that the penalty was not arbitrary and capricious, since it was within the limits prescribed by law and predicated upon competent evidence in violation of the statute. ' -
41 Am. Jur., Physicians and Surgeons, 174, § 47, states, inter alia:
*599“As has been seen, there is, in most respects, no real distinction between refusing to grant a license and the revocation of one which has been granted, and.it is within the police power of the state to delegate to the same body or tribunal which it has empowered to grant licenses the power to revoke them and to vest such tribunal with the power to investigate and try charges for the revocation of a license. Such a delegation is consistent with the constitutional guaranty of due process of law. The power conferred upon ,a state board to revoke a physician’s license for cause is a discretionary and administrative, and not a judicial, function.”
In State Board of Medical Registration and Examination v. Scherer, 221 Ind. 92, 46 N. E. (2d) 602, the court said:
“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 statutory procedural methods, and its decision is supported by substantial evidence, its findings and determination will not be disturbed. [Citing cases.] It is true that the statute here in question seems to contemplate a de novo proceeding before the court, and a finding of ‘guilty’ or ‘not guilty,’ but, regardless of what may seem a legislative intention to the contrary, this court has consistently construed similar statutes as vesting in the courts only such jurisdiction as the Constitution permits.
“ . ■. • . the only- jurisdiction of the court was to review the decision of the board, . . . ”
Th’é Order should be affirmed.
• The appellant concedes his guilt, but he is shopping around for an easier penalty. His solé contention upon *600appeal is that the court itself should assess the penalty in a trial de novo. The majority opinion properly holds, in effect, that the court has no such power and upholds the right of the director of licenses to exercise his discretion. Having gone that far, this court was then logically bound to affirm the trial court. No one has ever contended that the record does not establish the violation or that the penalty imposed is not within the limits prescribed by law. The gist of the majority opinion is its agreement with the appellant that the penalty imposed was too severe. The device the majority hits upon to lessen it is to send the case back to the director for him to exercise his discretion all over again. Obviously, there is no point in this unorthodox procedure, unless they intend to continue to do so until the director has exercised his discretion the way the majority want him to.
The labored explanation of the attempt to do indirectly what a court cannot do directly is predicated upon the theory that, while the appellant is guilty enough to be penalized, he is only a little bit guilty, and, hence, this court is justified in procuring a lighter penalty for him by any means — even that of invading the administrative branch of government by telling it how to exercise its discretion.
The charge of employing an unlicensed dentist is the only one before the court. The reasons given for holding that the appellant is only a little bit guilty of employing an unlicensed dentist are set out in extenso in the majority opinion. Upon the specific charge in question, they amount to this:
(1) The appellant himself has not been proven to be an incompetent dentist. This is obviously irrelevant.
(2) The unlicensed dentist he employed has not been proven to be incompetent. This is equally irrelevant.
(3) The unlicensed dentist has not been proven to have injured anybody. This was, of course, not in issue and naturally the record is silent upon it.
(4) The appellant was not charged with having willfully hired an unlicensed dentist, hence, he did so inadvertently. This is an obvious non sequitur.
*601(5) ' A law imposing a penalty for employing a dentist who is unlicensed is unconstitutional, because there is no “rational connection” between employing an unlicensed dentist and being a competent dentist. If this were a cogent argument, it would preclude any penalty at all. None of this excusatory matter is sound or relevant to the issue herein.
I dissent.
Donworth and Ott, JJ., concur with Mallery, J.
Hill, C. J. (dissenting) — -I concur in the result of the dissent. The trial court should be affirmed.