State ex rel. Inscho v. Missouri Dental Board

• Decision Date: 12 November 1936
• Citation: 98 S.W.2d 606,339 Mo. 547
• Parties: State of Missouri at the relation of James B. Inscho v. Missouri Dental Board, Appellant
• Court: Missouri Supreme Court

98 S.W.2d 606

339 Mo. 547

State of Missouri at the relation of James B. Inscho v. Missouri Dental Board, Appellant

Supreme Court of Missouri

November 12, 1936

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Roy McKittrick, Attorney General, and Harry G. Waltner Jr., for appellant;

Yates & Wild of counsel.

(1) The action of the board did not deprive respondent of a valuable right or property without due process of law and was not in violation of either the State or United States Constitution. (a) The action of the board was constitutional. The learned trial judge clearly erred in holding that the action of the board deprived respondent of a valuable property right without due process of law and in holding such action was in violation of either the State or Federal Constitution. This point has been ruled adversely to respondent's contention again and again. Citations from a few of the many cases on this point should be sufficient. State v. Davis, 194 Mo. 485; State v. Hathaway, 115 Mo. 46; State ex rel. Brown v. McIntosh, 205 Mo. 616. To the same effect is State ex rel. Crandall v. McIntosh, 205 Mo. 611; State ex rel. Wolfe v. Dental Board, 282 Mo. 302. (b) Respondent did not question the constitutionality of the act in the hearing before the board. Having failed to raise the question of constitutionality at the first opportunity he was in no position to question the same upon the trial in the circuit court. Jacobs v. Cauthorn, 238 S.W. 445. A constitutional question should be raised as soon as it may be under the circumstances of the given case or it will be waived. Carrandine v. Ford, 187 S.W. 295; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1110; State ex rel. v. Jones, 277 Mo. 213, 210 S.W. 9; Schimmelpfenning v. Wells, 326 Mo. 304, 24 S.W.2d 161. (2) The complaint charged an offense and violation by the respondent within the meaning of Revised Statutes 1929, Section 13566. It has repeatedly been held, even in criminal cases, that a complaint in the language of the statutes is sufficient. Ex parte Karnstrom, 249 S.W. 598; State v. Anderson, 298 Mo. 391; State v. Dildine, 330 Mo. 760; State v. Settle, 329 Mo. 792; State v. Page, 58 S.W.2d 295; State v. Toombs, 324 Mo. 832; State v. Johnson, 55 S.W.2d 968.

George Halpern for respondent.

The order of appellant revoking respondent's certificate of registration to practice dentistry, is unlawful, unjust and unreasonable; and in violation of Section 30, Article II, of the Constitution of Missouri, and of Amendments V, XIV of the Constitution of United States. (a) A license or right to practice dentistry is a valuable right which cannot be taken away without due process of law. State ex rel. Hurwitz v. North, 264 S.W. 678; State ex rel. Shackelford v. McElhinney, 241 Mo. 592, 145 S.W. 1139; State ex rel. v. Robinson, 253 Mo. 271, 161 S.W. 1169; Chenoweth v. Board of Medical Examiners, 141 P. 132, 57 Colo. 74; Ex parte Wall, 107 U.S. 265; Waller v. State, 68 S.W.2d 601. (b) Subsection 2 and that part of subsection 4 of Section 13566, under which appellant pretended to act, are so vague and indefinite as to make them invalid and inoperative. Sec. 13566, R. S. 1929; Czarra v. Board of Medical Supervisors, 25 App. Cas. 443; Green v. Blanchard, 138 Ark. 137, 211 S.W. 375; Ex parte Jackson, 45 Ark. 158; United States v. Reese, 92 U.S. 214; Am. School of Magnetic Healing v. McAnnulty, 127 U.S. 94; State ex rel. Spriggs v. Robinson, 253 Mo. 271, 161 S.W. 1169; State v. Timeus, 135 S.W. 27, 232 Mo. 184; State v. Julow, 129 Mo. 163, 31 S.W. 781; State ex rel. v. Adcock, 105 S.W. 271, 206 Mo. 550; Hewitt v. State Medical Examiners, 148 Cal. 530, 84 P. 39; State v. Waller, 68 S.W.2d 601. (c) The complaint, under which appellant issued the order, does not charge any violation or offense under Section 13566; therefore, appellant had no jurisdiction or authority to issue the order. (d) The evidence presented at hearing before appellant fails to show any violation or offense within the meaning of Section 13566; therefore, appellant was without jurisdiction or authority to issue the order of revocation. Sec. 13566, R. S. 1929; 2 C. J. 294; Green v. Blanchard, 138 Ark. 137, 211 S.W. 375; Dick v. Puritan Pharmaceutical Co., 46 S.W.2d 941; State ex rel. v. Robinson, 253 Mo. 271, 161 S.W. 1173; Webster's New International Dictionary (1926 Ed.), p. 1381; State v. Timeus, 232 Mo. 184, 135 S.W. 27; State v. Anderson, 298 Mo. 382, 250 S.W. 70; Dr. D. D. Campbell on "Full Denture Prosthesis" (1924 Ed.), pp. 122, 375, 376; State v. Waller, 68 S.W.2d 601.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

In 1931 Dr. James B. Inscho, a duly registered and licensed dentist, under the statutes of this State requiring registration was engaged in the practice of dentistry in Kansas City, Missouri. At a hearing, after the notice prescribed by Section 13567, Revised Statutes 1929, before the Missouri Dental Board, on September 2, 1931, the board made an order revoking Dr. Inscho's certificate of registration. Whereupon Dr. Inscho petitioned the Circuit Court of Jackson County for an alternative writ of mandamus directing the Dental Board to rescind its order, of September 2, 1931, revoking his certificate of registration to practice dentistry in this State, and to restrain the enforcement of the order. The alternative writ issued and the Dental Board filed a return thereto. Upon a hearing in the Circuit Court of Jackson County the finding was for the relator and petitioner; the decree and judgment of the court being that the order of the Dental Board revoking the certificate of registration was "unlawful, unjust and unreasonable;" and that the notice and complaint did not charge nor the evidence show any offense under, or violation of, Section 13566, Revised Statutes 1929, for which the Dental Board is empowered by statute to revoke a certificate of registration. A peremptory writ of mandamus was issued commanding the board to rescind its order. The Dental Board appealed.

The circuit court had before it, and its finding and judgment was based upon, a complete transcript of the proceedings before the Dental Board; the notice, which includes the charge, the evidence before the board and its finding and order revoking the certificate of registration. That record is brought here by the appeal. The Dental Board is vested, by statute, with administrative and ministerial powers and duties and so long as its actions are within the scope of its powers and it exercises a reasonable discretion the courts will not interfere therewith but if, perchance, through some misunderstanding or misconstruction of the statute the board exceeds its power or acts beyond the scope of its authority or in the exercise of the powers given it acts arbitrarily and against the great weight of the evidence before it upon a given question, the aggrieved party may resort to an action of this kind. [State ex rel. McCleary v. Adcock, 206 Mo. 550, 105 S.W. 270.]

The act creating the Dental Board and regulating the practice of dentistry in this State empowers the board to revoke a certificate of registration for any of the causes therein enumerated and specified. We quote therefrom as follows: "Section 13566 (R. S. 1929). Said Dental Board shall have power to revoke a certificate of registration or a license issued thereon upon any one of the following causes:

"1. If the registration or license is obtained illegally or fraudulently . . .

"2. The publication or circulation of any fraudulent or misleading statements as to the skill or method of any licensee or operator.

"3. Upon the commission and conviction of any criminal operation, or misdemeanor or felony, or chronic or persistent inebriety, or extended drunkenness or confirmed drug habit.

"4. Upon the publication or circulation by letters, circulars, newspapers, cards or otherwise where the licensee or person holding a certificate holds himself out to the public as a practitioner without causing pain, or advertising in any other manner with a view of deceiving or defrauding the public, or in any way that will tend to deceive or defraud the public, or in using, or advertising as using, any drug, nostrum or patent proprietary medicine of any unknown formula or any dangerous or unknown anaesthetic which is not generally used by the dental profession, or using, or advertising as using, any drugs, material, medicine, formula, system or anaesthetic which is either falsely advertised, misnamed or not in reality used or which has not the sanction and approval of the dental and medical sciences."

The following subsections of this section specify other causes for revocation as follows: Subdivision 5, employment by a registered and licensed dentist in the practice of dentistry, of any person not "regularly registered and licensed;" Subdivision 6, the violation of "any of the provisions" of the dental act; Subdivision 7, failure or refusal to keep "his office and dental equipment in a thoroughly clean and sanitary condition;" Subdivision 8, failure to procure the annual license required by the act.

In the present case the notice served on Dr. Inscho, which the statute (Sec. 13567, R. S. 1929) requires "shall specify the offenses . . . which the accused shall be expected to respond to," charged him "with violation of Section 13566, Revised Statutes 1929 (supra), in that you have been guilty of: (1) The publication and circulation of misleading statements as to your skill and method in the practice of dentistry. (2) Advertising through newspapers and through statements to patients, such advertising and such statements being made in such a way that will tend to deceive and defraud the public." Such is the charge itself. The notice then...