Toole v. State Board of Dentistry , 300 Mich. 180 ( 1942 )

I concur in the result reached by Mr. Justice WIEST. However, I do not agree with the reasoning on the question concerning appointments by the governor, that the constitutionality of the dentistry act, Act No. 122, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 6780-21 et seq., Stat. Ann. 1941 Cum. Supp. § 14.629[1]et seq.), as to that issue can be upheld merely because the act contains a "saving or severance" provision. The so-called milk marketing act, Act No. 146, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 5394-41 et seq., Stat. Ann. 1940 Cum. Supp. § 12.805[1] et seq.), contained the same saving provision, yet that act was held by a majority of this court to be void in its entirety because of its provisions for appointment of the board. Milk Marketing Board v. Johnson, 295 Mich. 644. However, there is an essential difference between the two acts which, in my opinion, saves the dentistry act. In the latter, the act itself continues present members of the dentistry board in office until the expiration of term, requires the governor to make an annual appointment thereafter, and merely requires that the governor "shall fill any vacancy for an unexpired term, by appointment from a list of 3 licensed dentists recommended to him by the Michigan State dental society." The act creating the milk marketing board in express terms designates the members of the board: "2 shall be milk producers * * * 1 shall be a distributor." Thus, the act itself expressly directs that a majority of the board shall consist of members who have a direct pecuniary interest in the matters submitted to them, much of which relates directly to the financial interest of the members themselves and the divergent interests of the groups from which the act itself requires them to be selected. For the above reason, the provision in the dentistry act requiring the governor to fill vacancies from a list recommended by the State dental society is directory; the provision in the milk marketing act was held by this court to be mandatory, and void. Because of this essential difference between the two acts, and not because of the saving clause in the dentistry act, the latter act should be held constitutional.

CHANDLER, C.J., and NORTH, STARR, BUTZEL, and SHARPE, JJ., concurred with BOYLES, J.