Bentley v. Com. ex rel. State Bd. of Dental Examiners

• Decision Date: 18 May 1951
• Citation: 239 S.W.2d 991
• Parties: BENTLEY v. COMMONWEALTH ex rel. STATE BOARD OF DENTAL EXAMINERS.
• Court: United States State Supreme Court — District of Kentucky

Page 991

239 S.W.2d 991

BENTLEY v. COMMONWEALTH ex rel. STATE BOARD OF DENTAL EXAMINERS.

Court of Appeals of Kentucky.

May 18, 1951.

V. R. Bentley, Pikeville, J. W. McKenzie, Mont Walker, Ashland, for appellant.

Francis M. Burke, Pikeville, Eugene S. Wiggins, Richmond, for appellee.

CULLEN, Commissioner.

This is an appeal from a judgment of the Pike Circuit Court permanently enjoining the appellant from practicing dentistry in Kentucky unless and until he has been issued a license by the Kentucky State Board of Dental Examiners, and enjoining him from maintaining a dental office or advertising as a dentist. The State Board of Dental Examiners sought the injunction as intervening plaintiff in the action

This is the second appeal in this case. The decision of this Court on the first appeal is reported in 307 Ky. 756, 212 S.W.2d 296, 299, under the style of Bentley v. Commonwealth. The first appeal came up on a demurrer to the amended answer, and reference is made to the opinion on that appeal for a summary of the initial pleadings.

The plaintiff at the time of the first appeal was the Commonwealth on relation of the Attorney General, and the State Board of Dental Examiners was not a party. As appears from the opinion on the first appeal, this Court concluded that a proper determination could not be made in the case unless the State Board of Dental Examiners was made a party. Accordingly the case was remanded with directions to set aside the order sustaining the demurrer to the amended answer, and with at least a strong recommendation, if perhaps not a direction, that the State Board of Dental Examiners be made a party. Contemplating this procedure, the court said: 'Thereupon, by appropriate pleadings, as the alignment of parties authorizes, the issue may be raised as to whether or not the Board may or should issue a license to appellant upon payment of proper dues.'

Upon the case being remanded to the lower court, the State Board of Dental Examiners moved to intervene as a plaintiff, and an order was entered that the board be made a plaintiff and be authorized to prosecute the case, and that the action thereafter be styled in the name of the Commonwealth of Kentucky on relation of the State Board of Dental Examiners. The board filed an intervening petition adopting all of the allegations in the original petition of the Attorney General, and asking the same relief as was prayed in the original petition. The board further filed a reply to the amended answer to the original petition. The defendant some time later filed an answer to the intervening petition, adopting all of the allegations of his original answer and amended answer to the original petition of the Attorney General, and praying for the same relief as in his original amended answer, which was that the petition be dismissed and that the defendant recover his costs, 'and for all other proper and equitable relief to which he may appear entitled.' Thereupon the parties proceeded to take voluminous testimony by deposition, and to enter as evidence a number of exhibits. Upon submission of the case, judgment was entered granting the injunction as prayed for by the intervening plaintiff.

On this appeal the defendant contends that the judgment is erroneous for the following reasons:

1. A Resolution of the 1946 General Assembly, Acts 1946, c. 254, which he pleaded in his answer, granted him the right to practice dentistry and directed the State Board of Dental Examiners to issue him a license. (The text of the Resolution is quoted in the opinion on the first appeal.)

2. By virtue of Section 2641 of Carroll's 1909 Kentucky Statutes he was entitled to practice dentistry upon graduation from a recognized dental college without being required to present a diploma or submit to an examination by the State Board of Dental Examiners.

3. Upon the merits of the case and in equity and good conscience, he is entitled to engage in the practice of dentistry.

The resolution of the 1946 General Assembly relied on by the appellant contains a lengthy preamble reciting...