State v. Fisher

Decision Date05 December 1893
Citation119 Mo. 344,24 S.W. 167
PartiesSTATE ex rel. FLICKINGER v. FISHER, Judge.
CourtMissouri Supreme Court

Selden P. Spencer, for relator. W. C. Marshall and W. L. Bruce, for respondent.

SHERWOOD, J.

In this original proceeding for a mandamus, the single question presented is whether the relator, a dentist, and who appends to his name "D. D. S.," is liable to do jury duty under the laws of this state. Among those exempt under the general laws of this state is "a person exercising the functions of a * * * practitioner of medicine." Rev. St. 1889, § 6062. Under the provisions of section 8, article 21, of the Scheme and Charter, (Rev. St. 1889, p. 2162,) "every male citizen of this state, resident in such city, sober and intelligent, of good reputation, over twenty-one years of age, and not exempt from jury duty by the general laws of this state, or otherwise disqualified or excused as provided in this act, shall be deemed to be qualified for and subject to the performance of jury duty under the provisions hereof." Section 9 of the same article then proceeds to define who are exempt from jury duty, and among them specifies a person who is actually exercising the functions of "a practitioner of medicine." Of laws in pari materia with those mentioned is chapter 110, Rev. St. 1889, p. 1612. This chapter is entitled, "Medicine, Surgery and Dentistry," and consists of three articles, — the first "Medicine and Surgery;" the second, "Disposition of Human Bodies;" and the third, "Dentistry." These articles were originally separate acts, approved at different times. Laws 1883, p. 114, approved February 20th; Id. p. 115, approved April 2d; and Laws 1887, p. 215, approved March 31st, relating to dead bodies. Those acts, however, like the diversified contents of the great sheet, knit at the four corners, that Peter saw in his vision, have been gathered together in all their incongruity in the present revision, and now form chapter 110. Section 6871, art. 1, of that chapter provides that "every person practicing medicine and surgery, in any of their departments, shall possess the qualifications required by this article," to wit: If the applicant is a graduate of medicine, he must present his diploma to the state board of health, etc.; and thereupon that board issues its certificate to the applicant, and such diploma and certificate are made conclusive of the right of the holder of the same to practice medicine in this state. Other provisions are inserted in the section with respect to the steps necessary to be taken by those who are not graduates of medicine, but who also desire to practice it, etc. To this end two kinds of certificates are provided to be issued by the board, — one for graduates who possess diplomas, and the other for those not graduates who have stood a successful examination before the board as to their qualifications. Without such certificate of one sort or the other, no one can lawfully practice medicine and surgery in any of their departments in this state. State v. Gregory, 83 Mo. 123. Section 6881 of the same chapter and article denounces certain penalties against those who shall practice medicine or surgery in this state without complying with the provisions of this article, to wit, a fine of not less than $50, nor more than $500, or by imprisonment in the county jail not less than 30, nor more than 365, days, or by both such fine and imprisonment. Section 6889 of article 3, entitled "Dentistry," makes it unlawful for any person to practice dentistry or dental surgery in this state without being the possessor of a diploma, etc. No provision, however, is made for the presentation of such diploma to the board of health, nor for any examination by that board of the applicant touching his qualifications. The applicant simply presents his diploma to the county clerk or city register, as the case may be, and receives a certificate, which is made "prima facie evidence of the right of the holder to practice under this article." Section 6893 of that article prescribes a penalty for violating the provisions of such article, to wit, by a fine not less than $25, nor more than $200. These different penalties under articles 1 and 3 evidently go to show that the legislature regarded the violation of article 1 by a physician as a more serious offense, and therefore to be punished more severely, than a violation of article 3 by a dentist. In a word, by those very penalties they drew a distinction between a doctor and a dentist. Relator relies on a certificate obtained under the provisions of article 3 aforesaid, from the city register, on presentation to the latter by relator of his diploma, which certificate, among other things, states that relator's name had been entered on the "roll of dental surgeons" in the city register's office. Looking at all these statutory provisions bearing on the point in hand, the question mentioned at the outset recurs to the mind: Do those provisions, or any of them, exempt relator from the performance of jury duty? The general laws of this state, as already seen, as well as the provisions of sections 8 and 9 of the Scheme and Charter, exempt only certain persons from the performance of that duty. Has relator brought himself within any exemption therein contained? The prevalent rule in construing statutes is that the expression of one thing is the exclusion of another. Anderson, Law Dict. "Expressio," etc. An express exception, exemption, or saving excludes all others, (Brocket v. Railroad Co., 14 Pa. St. 241;) and, when a general rule has been established by a statute with exceptions, the courts will not curtail the former, nor add to the latter, by implication, (Suth. St. Const. § 328; Tyson v. Britton, 6 Tex. 224; Roberts v. Yarboro, 41 Tex. 450; U. S. v. Dickson, 15 Pet. 165.) Here relator claims the force and benefit of a certain exception which he asserts takes his case out of the operation of the general statute which compels the performance of jury duty by all male citizens, resident, etc. In order to avail himself of such exception he must show that his case falls strictly within it, since exceptions, privileges, and exemptions are not favored in the law. And in this investigation the familiar rule laid down by Lord Bacon is peculiarly apposite, "that, as exceptions strengthen the force of a general law, so enumeration weakens, as to things enumerated." Page v. Allen, 58 Pa. St. 338. Service on juries is one of the general burdens imposed upon the male citizens of a state, and all men who receive the advantages of government are bound to contribute to its support, and "none can claim exemption unless the exemption be so clearly expressed in the statute as to admit of no other construction." Miller v. Kirkpatrick, 29 Pa. St. 226. The state has an inherent and indisputable right to the service of all her male citizens as jurors, and therefore any statute which strips the government of any portion of its prerogative in this regard, by giving exemption from this general burden, should receive a strict construction. Academy v. Philadelphia, 22 Pa. St. 496. Here it cannot be successfully claimed that relator finds any exemption in the terms of the statute, for certainly he is not a "practitioner of medicine and surgery in any of their departments," as defined in section 6871, nor does he exhibit the qualifications required by that section, to wit, a...

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