Allen v. Carr

• Court: North Carolina Supreme Court
• Writing for the Court: CLARKSON, Justice.
• Citation: Allen v. Carr, 210 N.C. 513, 187 S.E. 809 (N.C. 1936)
• Decision Date: 14 October 1936
• Docket Number: 173.
• Parties: ALLEN v. CARR et al.

187 S.E. 809

210 N.C. 513

ALLEN v. CARR et al.

No. 173.

Supreme Court of North Carolina

October 14, 1936

Appeal from Superior Court, Henderson County; H. Hoyle Sink, Judge.

Mandamus proceeding by Dr. T. A. Allen against Dr. H. C. Carr and others, individually and as the North Carolina Board of Dental Examiners. From an adverse judgment, plaintiff appeals.

Affirmed. This was an application for writ of mandamus, commenced by plaintiff against defendants, members of the North Carolina Board of Dental Examiners, requiring and compelling them to issue a renewal of plaintiff's license to practice dentistry in North Carolina.

The court below found the following facts, and rendered judgment thereon:

"1. That summons herein was issued on the 18th day of August 1936, and served upon each of the members of the North Carolina State Board of Dental Examiners.

2. That the plaintiff, upon the completion of a three year period, graduated with the degree of Doctor of Dental Surgery from the Atlanta Dental College, of Atlanta, Ga on the 23rd day of April, 1897.

3. That on the 11th day of May, 1897, the plaintiff, having taken the prescribed examination of the defendant Board and having been found proficient and fit, was granted license No. 95 on May 11, 1897, and soon thereafter began the practice of dentistry in Haywood County, where on July 1 1897, his license No. 95 was recorded in Book of Licensed Dentists, page 11.

4. That in the year 1899 the plaintiff gave up his practice in Haywood County, North Carolina, and went to the State of Colorado, where he appeared before the dental examiners of that State from which he procured license under which he practiced dentistry in the State of Colorado until the year 1910.

5. That in the year 1910 the plaintiff gave up his practice in the State of Colorado and removed to the State of Tennessee, where he applied to the State Board of Dental Examiners of Tennessee for license, and having taken and successfully passed the examination prescribed on June 7th, 1910, he was issued a license to practice the profession of dentistry in the State of Tennessee, where he practiced his profession until February, 1936.

6. That in February, 1936, the plaintiff returned to the State of North Carolina and made inquiry of the defendant Board as to the steps he should take to have his North Carolina dental license of 1897 renewed, and was advised that it would be necessary for him to appear before said Board and stand an examination, as required by section 11, chapter 66, Public Laws of 1935; that certain forms were furnished to the plaintiff, which he properly executed and returned to the Secretary of the Board, together with the sum of $10.00, being the fee required by said Board upon his application.

7. That the plaintiff was advised to appear before the defendant Board on the 23rd day of June, 1936, upon which day he did appear for the purpose of submitting to the examination prescribed by the Board; that the Board gave to the plaintiff a clinical examination; that is, an examination in the mechanics of dentistry, and upon the examination, the plaintiff did not make a satisfactory showing to said Board of his proficiency in the profession of dentistry.

8. That upon the failure of the plaintiff, upon the examination on June 22, 1936, to make a satisfactory showing to the defendant Board of his proficiency in the profession of dentistry, the said defendant Board, by official action, upon vote of the entire membership, denied the application of the plaintiff for the issuance of a license to resume the practice of dentistry in North Carolina; and said plaintiff received due notice of said denial.

9. That at the time the plaintiff undertook the clinical examination prescribed for him by the defendant Board and at the time it denied to the plaintiff license to resume the practice of dentistry in North Carolina, the defendant Board did not give any consideration as to the moral character of the plaintiff.

10. That the plaintiff has not, at any time, renewed his license under section 11, chapter 178, Public Laws of 1915, and has paid no fee and made no application for the restoration of his license as required by said section.

11. That the plaintiff has practiced his profession continuously and without interruption from July 1, 1897, to February 1, 1936, and upon examination was granted license by the North Carolina Board of Dental Examiners in 1897; by the Board of Dental Examiners of the State of Colorado in 1899; and by the Board of Dental Examiners of the State of Tennessee in 1910, and that the license issued to him by the Board of Dental Examiners of the State of Tennessee has been renewed and is in full force and effect until June 30, 1937.

12. That section 11, chapter 66, Public Laws of 1935, required the plaintiff to apply to the defendant Board for a license to resume the practice of dentistry in North Carolina, and authorized the defendant Board to grant such license upon a satisfactory showing to said Board of his proficiency in the profession of dentistry, and his good moral character during the period of his retirement; that said examination was duly given and the defendant Board, within its authority and power and in the proper exercise of the duties and obligations imposed upon it by law, and in the exercise of its discretion, found that the plaintiff has not made, upon his examination, a satisfactory showing of his proficiency in the profession of dentistry; that without considering further facts as permitted under the Act, said defendant Board, in the proper exercise of its duties and obligations under said Act, and pursuant to its judgment and discretion, denied to the plaintiff a license to resume the practice of dentistry in North Carolina.

Upon the foregoing facts, it is the judgment of this Court that the plaintiff is not entitled to the relief sought herein, and upon motion of the defendants, the application of plaintiff for mandamus is denied, and this action is dismissed. This the 2nd day of September, 1936.

H. Hoyle Sink, Judge,

Holding the Courts of the

18th Judicial District."

To the signing of the foregoing judgment denying the application for the writ of mandamus, the plaintiff, in apt time, excepted, assigned error, and appealed to the Supreme Court.

R. L. Whitmire, of Hendersonville, for appellant.

I. M. Bailey, of Raleigh, for appellees.

CLARKSON Justice.

The facts found by the court below fully set forth this controversy, and on them we think plaintiff's application for mandamus to renew his license to practice dentistry properly denied.

Pub.Laws 1935, c. 66, § 11, is as follows: "Any person who shall have been licensed by the North Carolina State Board of Dental Examiners to practice dentistry in this State who shall have retired from practice or who shall have moved from the state and shall have returned to the state, may, upon a satisfactory showing to said Board of his proficiency in the profession of dentistry and his good moral character during the period of his retirement, be granted by said Board a license to resume the practice of dentistry upon making application to the said Board in such form as it may require and upon the payment of the fee of ten dollars. The license to resume practice, after issuance thereof, shall be subject to all the provisions of this act."

The plaintiff contends that the above section is unconstitutional, on the following grounds: "That in requiring this plaintiff, who has been duly licensed to practice dentistry in North Carolina to take a second examination while all other dentists in the State are required to take only one examination, section 11 of the act of 1935 is unconstitutional, in that it denies the plaintiff the equal protection of the laws of North Carolina and is in direct conflict with the Fourteenth Amendment of the Constitution of the United States, said section of said act is also unconstitutional, in that it abridges the privileges and immunities of the citizens of the United States and is in direct conflict with the Fourteenth Amendment to the Constitution of the United States, and is further in...