Abrams v. Jones

• Citation: 35 Idaho 532,207 P. 724
• Parties: A. M. ABRAMS, Respondent, v. ROBERT O. JONES, as Commissioner of the Department of Law Enforcement, Appellant
• Decision Date: 01 June 1922
• Court: Idaho Supreme Court

207 P. 724

35 Idaho 532

A. M. ABRAMS, Respondent, v. ROBERT O. JONES, as Commissioner of the Department of Law Enforcement, Appellant

Supreme Court of Idaho

June 1, 1922

DENTAL ACT-NO RETROACTIVE EFFECT-REVOCATION OF DENTAL LICENSE-RIGHT TO PRACTICE DENTISTRY A VALUABLE PERSONAL RIGHT-PENAL LEGISLATION-STATUTORY CONSTRUCTION-CHARGES UNDER ACT MUST BE SPECIFIC-RIGHT OF ACCUSED TO IMPARTIAL TRIBUNAL.

1. The dental act of this state (C. S., chap. 91) contains no provision which, either expressly or by necessary implication, authorizes the state department of law enforcement to revoke dental licenses issued prior to the passage and approval of the act.

2. While legislation of the character embraced within the general scope of the dental act of this state may be sustained upon the ground that the legislature has authority under the police power to provide all reasonable regulations that may be necessary affecting the public health, safety or morals, such an act is in its nature highly penal and must be strictly construed.

3. Held, that respondent's license is not subject to revocation by the department of law enforcement, upon the grounds and in the manner provided in the present dental law the license having been issued prior to the passage and approval of said law.

4. In any judicial or quasi-judicial proceeding a pleading in the nature of an accusation or complaint, must contain positive statements of the essential facts in issue, and is to be deemed insufficient where it merely states conclusions.

5. Held, that the charges brought against respondent as a practicing dentist by the department of law enforcement were indefinite and uncertain, and that he was entitled to a bill of partic- ulars or to have such charges set out specifically, in order that he might have an opportunity to prepare his defense.

6. Where the state confers a license upon an individual to practice a profession, trade or occupation, such license becomes a valuable personal right, which cannot be denied or abridged in any manner except after due notice and a fair and impartial hearing before an unbiased tribunal.

7. Respondent being entitled to a hearing before an impartial tribunal upon the charges which had been preferred against him, held, that this right was denied when he was required to submit himself for trial before a body which was acting in the capacity of accuser, prosecutor and judge.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Action to enjoin the revocation of a license to practice dentistry and dental surgery. Judgment for plaintiff. Affirmed.

Affirmed.

Roy L Black, Attorney General, and Dean Driscoll, First Assistant for Appellant.

The right to revoke professional licenses is grounded in the police power of the state and is sustained against the constitutional provisions, such as art. 1, secs. 1 and 9 Idaho constitution, so long as the exercise of the power is reasonable. (In re Inman, 8 Idaho 398-406, 69 P. 120; State v. Dolan, 13 Idaho 707, 92 P. 995, 14 L. R. A., N. S. 1259; Reetz v. Michigan, 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563; Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; 21 R. C. L., p. 361, sec. 9; Meffert v. State Bd. Med. Examiners, 66 Kan. 710, 72 P. 247, 1 L. R. A., N. S., 811; affirmed, 195 U.S. 625, 25 S.Ct. 790, 41 L.Ed. 350, together with note in L. R. A.; State v. Hovorka, 100 Minn. 249, 10 Ann. Cas. 398, 110 N.W. 870, 8 L. R. A., N. S., 1273, and note; State v. Webster, 150 Ind. 607, 50 N.W. 750, 41 L. R. A. 212.)

What is a reasonable exercise of the police power is in the first instance, a question for the legislature. (Olson v. Idora Hill Min. Co., 28 Idaho 504, 155 P. 291; In re Crane, 27 Idaho 60, 151 P. 1006, L. R. A. 1918A, 942.)

The power vested in the board is not a judicial power in the sense in which that term is used in the constitution, but is rather executive. (State v. State Bd. Med. Examiners, 34 Minn. 387, 26 N.W. 123; In re Inman, 8 Idaho 406, 69 P. 120; Raaf v. State Bd. Med. Examiners, 8 Idaho 714, 84 P. 33; Barton v. Schmershall, 21 Idaho 568, 122 P. 385; McKnight v. Grant, 13 Idaho 629, 121 Am. St. 287, 92 P. 989; Speer v. Stephenson, 16 Idaho 717, 102 P. 365; People v. Apfelbaum, 251 Ill. 18, 95 N.E. 995; 21 R. C. L. 365, sec. 12; Aiton v. Board, 13 Arz. 354, 114 P. 962.)

The legislature has ample power to make the grounds for revocation as applicable to licenses previously issued as to licenses issued after the enactment of the present law. (State v. Hovorka, supra; Meffert v. State Bd. Med. Examiners, supra; State v. Webster, supra; Dent v. West Virginia, supra.)

The charges in the present cases are sufficiently definite and certain. (Lanterman v. Anderson, 36 Cal.App. 472, 172 P. 625; Suckow v. Alderson, 182 Cal. 247, 187 P. 965; State Bd. Med. Examiners v. Jordan, 92 Wash. 234, 158 P. 982; State Bd. Med. Examiners v. Macey, 92 Wash. 614, 159 P. 801.)

The fact that the board formulated the charges and recommended the holding of a hearing would not disqualify them from participating in the hearing. (State Board v. Ray, 22 R.I. 538, 48 A. 802; Wolff v. State Bd. Med. Examiners, 109 Minn. 360, 123 N.W. 1074.)

Karl Paine and Chas. M. Kahn, for Respondent Abrams.

The act in no way applies to those who were holders of dental licenses prior to its passage. Where a statute enumerates the things upon which it is to operate, or forbids certain things, it is to be construed as excluding from its review all those not expressly mentioned. (Vadney v. State Board of Medical Examiners, 19 Idaho 203, 112 P. 1046; State v. Cooper, 11 Idaho 219, 81 P. 374; State Board of Health v. Ross, 191 Ill. 87, 60 N.E. 811; Hewett v. State Board of Medical Examiners, 148 Cal. 590, 113 Am. St. 315, 7 Ann. Cas. 750, 84 P. 39, 3 L. R. A., N. S., 896; Noble v. Douglas, 274 F. 672.)

The right to practice a profession is a valuable property and vested right. (Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552; Chenoweth v. State Board of Medical Examiners, 57 Colo. 74, Ann. Cas. 1915D, 1188, 141 P. 132, 51 L. R. A., N. S., 958.)

"It is a maxim of law that no man can be at once judge and suitor." (Broom's Legal Maxims, 8th ed., pp. 94-99; State Board of Health v. Ray, 22 R.I. 538, 48 A. 802; Meyer v. City of San Diego, 121 Cal. 104, 66 Am. St. 22, 53 P. 434, 41 L. R. A. 762; Stahl v. Board of Supervisors, 187 Iowa 1342, 175 N.W. 773; City of Abbeville v. Gooseby, 93 S.C. 370, 76 S.E. 977.)

In this case the very fact that those who presumed to sit in judgment on the plaintiff instituted the charges is sufficient to brand the proceedings as unfair. (12 C. J. 1225; Commissioners Union Drain Dist. No. 1 v. Smith, 233 Ill. 417, 84 N.E. 376, 16 L. R. A., N. S., 292; In re Cameron, 126 Tenn. 614, 151 S.W. 64.)

"It is not sufficient to state merely legal conclusions. It is necessary in a complaint to charge the acts of unprofessional or dishonest conduct and facts complained of against the accused licentiate." (Board of Medical Examiners v. Eisen, 61 Ore. 492, 123 P. 52; Klafter v. State Board of Examiners of Architects, 259 Ill. 15, Ann. Cas. 1914B, 1221, 102 N.E. 193, 46 L. R. A., N. S., 532; In re Baum, 32 Idaho 676, 186 P. 927; Macomber v. State Board of Health, 28 R.I. 3, 65 A. 263, 8 L. R. A., N. S., 585.)

C. C. Cavanah, for Respondents Parker and Greer.

The right to practice dentistry is, like the right to practice any other profession, a valuable property right, subject only to reasonable regulations in the interests of the public health and safety. (21 R. C. L. 352; State v. Cooper, 11 Idaho 219, 81 P. 374; Hewitt v. State Board of Med. Ex., 148 Cal. 590, 113 Am. St. 315, 7 Ann. Cas. 750, 84 P. 39, 3 L. R. A., N. S., 896; Chenoweth v. State Board of Med. Ex., 57 Colo. 74, Ann. Cas. 1915D, 1188, 141 P. 132, 51 L. R. A., N. S., 958; Ex parte Dixon (Nev.), 183 P. 642; Smith v. State Board, 140 Iowa 66, 117 N.W. 1116; People v. McCoy, 125 Ill. 289, 17 N.E. 786; Wert v. Cluter, 37 Ohio St. 347.)

The police power cannot transcend the constitution and cannot be exercised so as to work a practical abrogation of its provisions. (Jewel v. McCann, 95 Ohio St. 191, 116 N.E. 42; People v. Ringe, 197 N.Y. 143, 18 Ann. Cas. 474, 90 N.E. 451, 27 L. R. A., N. S., 528; 12 C. J. 904.)

Both the committee and the commissioner act in the dual capacity of prosecutor and judge in these proceedings. The meaning of due process of law as contemplated by the constitution is an impartial and fair tribunal to pass judgment upon matters affecting this valuable right of the plaintiffs. (12 C. J. 1225; Commissioners v. Smith, 233 Ill. 417, 84 N.E. 376, 16 L. R. A., N. S., 292; In re Cameron, 126 Tenn. 614, 151 S.W. 64; State Board of Health v. Roy, 22 R.I. 538, 48 A. 802.)

The statute under which these charges are brought does not apply to licenses issued prior to its enactment. (Vadney v. State Board of Med. Ex., 19 Idaho 203-207, 112 P. 1046.)

The charges are indefinite and uncertain. They are nothing but general statements and do not contain any specific dates or other circumstances which the plaintiffs are certainly entitled to know before they can properly prepare and make their defense. (State Board etc. v. Jordan, 92 Wash. 234, 158 P. 982; State Board etc. v. Macy, 92 Wash. 614, 159 P. 801.)

J. T. Pence, for Respondents Beale, Forde, DeGroot, Gadsby, McRae, Martin, Mohney, Van Auken and Wolfe.

The right to practice a profession is a valuable property right. (Smith v. State Board, 140 Iowa 66, 117 N.W. 1116; Hewett v. State Board, 148 Cal. 590, 113 Am. St 317, 7 Ann. Cas. 750, 84 P. 39, 3 L. R. A., N. S., 896; Chenoweth v. State Board, 57 Colo. 74, Ann. Cas. 1915D, 1188, 141 P. 132, 51 L. R. A., N. S., 958; Gray v....