Berry v. District Court of Third Judicial Dist. In and For Ada County

• Decision Date: 06 June 1967
• Docket Number: No. 9947,9947
• Citation: 91 Idaho 600,428 P.2d 519
• Parties: Thomas L. BERRY, Plaintiff, v. The DISTRICT COURT OF the THIRD JUDICIAL DISTRICT of the State of Idaho, IN AND FOR the COUNTY OF ADA, Defendant.
• Court: Idaho Supreme Court

Page 519

428 P.2d 519

91 Idaho 600

Thomas L. BERRY, Plaintiff, v. The DISTRICT COURT OF the THIRD JUDICIAL DISTRICT of the State of Idaho, IN AND FOR the COUNTY OF ADA, Defendant.

No. 9947.

Supreme Court of Idaho.

June 6, 1967.

Elam, Burke, Jeppesen & Evans, Boise, for appellant.

Allan G. Shepard, Atty. Gen., and Samuel Kaufman, Special Asst. Atty. Gen., Boise, for respondent.

McFADDEN, Justice.

This original proceeding was initiated by plaintiff, Thomas L. Berry, filing in this court his petition for a writ of review of an order of the District Court of the Third Judicial District, Ada County, entered in the case of Thomas L. Berry, et al. v. Commissioner of Law Enforcement, et al., whereby the plaintiff was adjudged guilty of contempt of court and fined $500.00 of which the sum $400.00 was suspended. The writ issued and the record from the district court, after having been supplemented, is before this court.

The contempt proceedings, the subject of this review, were initiated by an affidavit charging the plaintiff herein with having violated the provisions of a judgment of the district court entered April 12, 1962. An order to show cause issued and the cause was tried by the court on the issues presented by the affidavit.

The judgment, which the plaintiff is charged with having violated, provides in part:

'That plaintiffs, their agents and employees, are permanently enjoined and restained from performing any acts or services in connection with dental prosthetic appliances which require or necessitates the presence, aid, assistance or cooperation of the wearer or user of such appliances and in particular, plaintiffs, their agents and employees are permanently restrained and enjoined from examining the mouth of the wearer of prosthetic appliances or examining such appliances in the wearer's mouth for the purpose of diagnosis, treatment, repair, replacement or correction; from taking impressions of the mouth or within the mouth for the purpose of relining dentures or making new dentures or molds for new dentures, whether such impressions be taken or made by plaintiffs, their agents or employees themselves, or by the wearer of the teeth under the supervision or direction of the plaintiffs, their agents or employees; from fitting, adjusting or correcting a prosthetic appliance in the wearer's mouth or diagnosing the the necessity for such corrections with the assistance of carbon paper, indicator paste or visual observation of the appliance in the mouth of the wearer.'

This particular decree was the subject of an appeal to this court in Case No. 9196, entitled Berry v. Koehler, 86 Idaho 225, 384 P.2d 484, in which case the trial court's findings of fact, conclusions of law and judgment (including the above quoted portion thereof) were affirmed by this court. See: Berry v. Koehler, supra, for a discussion of the various statutory enactments and decisions of this court involving this plaintiff and the provisions of I.C. § 54-901.

On the hearing in the district court on the order to show cause, the attorney general's office presented the testimony of Roy L. Yancey in support of the averments in the affidavit submitted in the contempt proceedings. Berry submitted no evidence at the hearing. Following the hearing the trial court rendered a memorandum decision and subsequently entered its order holding the plaintiff herein in contempt of court. Encompassed in this order were findings by the trial court which read as follows:

'That on or about March 31, 1966, one Ray Yancey went to Berry's (plaintiff herein) place of business known as the Quality Dental Lab at 1401 Jefferson, Boise, Idaho, for the purpose of having his dentures, both upper and lower, either relined or new dentures made. That while the ultimate decision to make new dentures rather than reline the dentures was made by said Yancey, the old dentures were examined by Berry, who voiced an opinion they were not worth relining. That on or about Friday, April 1, 1966, Yancey returned to Berry's place of business, at which time Berry, with the presence, aid, assistance and cooperation of Yancey, which was required, supervised and instructed Yancey in the taking of impressions for the purpose of making new dentures, using the old dentures as a tray in taking such impressions. That on at least one occasion, Berry replaced the lower denture in Yancey's mouth and on another occasion while holding the back of Yancey's head with one hand, put his (Berry's) fingers in Yancey's mouth and wiggled both plates. The impressions were taken under the supervision and direction of Berry.

'That on or about Saturday, April 2, 1966, Yancey returned to Berry's place of business and tried the new teeth which were then ready and which had been made by Berry using the impressions taken Friday. The lower denture did not fit properly and Berry supervised the taking of a new impression of Yancey's lower gums, much in the same manner as the previous impressions were taken, instructing Yancey how to bite, how to hold his jaws and how long to hold the bite. On Monday, April 4, 1966, Yancey returned to Berry's place of business, at which time Berry several times checked the new dentures in Yancey's mouth, used visual observation, carbon paper and indicator paste and made corrections. Berry charged Yancey the sum of $151.50 for the new dentures, of which charge Yancey made two $25.00 payments.'

The foregoing recitation of facts closely follows the testimony given by Yancey. The record of Yancey's testimony sustains these findings in all material aspects. The record fully justifies the trial court's conclusions inherent in the recitation of facts that '(T)he impressions were taken under the supervision and direction of Berry.'

A writ of review cannot be extended further than to determine if the inferior tribunal has regularly pursued its authority. I.C. § 7-208. Hawley v. Bottolfsen, 61 Idaho 101, 98 P.2d 634. The sole question for determination on a writ of review is whether the inferior tribunal, in this case the trial court, exceeded its jurisdiction. McConnell v. State Board of Equalization, 11 Idaho 652, 83 P. 494; Gilbert v. Elder, 65 Idaho 383, 144 P.2d 194; Speciality Sales v. Graf, 73 Idaho 113, 245 P.2d 820. Such writ does not lie to review facts except insofar as such facts are essential to determine the jurisdictional question. First National Bank of Weiser v. Washington County, 17 Idaho 306, 105 P. 1053; Lansdon v. State Board of Canvassers, 18 Idaho 596, 111 P. 133; Hay v. Hay, 40 Idaho 159, 232 P. 895; Hawley v. Bottolfsen, 61 Idaho 101, 98 P.2d 634.

The record discloses all jurisdictional facts necessary for the trial court to enter its order in the premises. The trial court had jurisdiction of the plaintiff by reason of his appearance before the court pursuant to the order to show cause; and of the subject matter which involved the issue whether Berry had violated the provision of the judgment previously entered in a case wherein he was a party; and the facts sustain the trial court's findings set out in the order it entered reflecting a violation of its judgment previously entered. The order of the trial court is affirmed. Costs to defendant.

McQUADE and SPEAR, JJ., concur.

SMITH, Justice (dissenting) in which dissent TAYLOR, C. J., concurs:

Plaintiff's cause in various forms has been before this court on three previous occasions.

In Berry v. Summers, 76 Idaho 446, 283 P.2d 1093 (1955), plaintiff sought a declaratory judgment as to the constitutionality of Idaho Sess.Laws, 1949, Ch. 105, § 1, as amended by Idaho Sess.Laws, 1953, Ch. 105, § 1, purporting to define and restrict the practice of dentistry. On that appeal we held that the statute as amended, was an unreasonable regulation and not reasonably necessary for the protection of the public, insofar as it imposed as prerequisites for the performance of a dental technician's services, the educational requirements and licensing as a dentist.

The legislature then further amended the statute by enactment of Idaho Sess.Laws, 1957, Ch. 81, § 1, now codified as I.C. § 54-901, which reads:

'Definition-Practice of dentistry.-The The practice of dentistry is the doing by one person, for a direct or indirect consideration, of one or more of the following with respect to the teeth, gums, alveolar process, jaws, or adjacent tissues of another person, namely:

'Examining for diagnosis, treatment, extraction, repair, replacement, substitution, or correction;

'Diagnosing of disease, pain, injury, deficiency, deformity, or physical condition;

'Treating, operating, prescribing, extracting, repairing, taking impressions, fitting, replacing, substituting, or correcting;

'Cleaning, polishing, or removing stains or concretions, or applying topical medication;

'Administering anaesthetics or medicaments in connection with any of the foregoing.

'The doing of any of the foregoing acts with respect to dental prosthetic appliances which requires or necessitates the presence, aid, assistance or cooperation of the person intended to be the user or wearer of such dental prosthetic appliance is hereby specifically defined as practicing dentistry and is not mere mechanical work upon inert matter in a dental laboratory as the term is used hereafter in this act.'

Plaintiff challenged the constitutionality of I.C. § 54-901 in Appeal No. 8813, Berry v. Koehler, 84 Idaho 170, 369 P.2d 1010 (1962). On that appeal and on the later rehearing, we held that although the legislature had the authority and power to so define the practice of dentistry, nevertheless plaintiff could not, without the process of law, be deprived of his constitutional right to follow his recognized and gainful occupation as a dental technician. On remittitur the district court entered findings of fact, conclusions of law, and judgment in conformity with our opinion. Paragraph 2 of the judgment which, in the case at bar plaintiff has been adjudged to have...