Campbell v. State

• Decision Date: 17 February 1942
• Docket Number: 28621.
• Citation: 12 Wn.2d 459,122 P.2d 458
• Parties: CAMPBELL v. STATE et al.
• Court: Washington Supreme Court

122 P.2d 458

12 Wn.2d 459

CAMPBELL v. STATE et al.

No. 28621.

Supreme Court of Washington, En Banc.

February 17, 1942

Action by J. C. Campbell against the State and Thomas A. Swayze, its Director of Licenses, challenging the validity of Rem.Rev.Stat. § 10031-18. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

STEINERT and MILLARD, JJ., and ROBINSON, C.J., dissenting.

Appeal from Superior Court, Thurston County; D. F Wright, Judge.

Stevenson & Gershon, of Seattle, for appellant.

Riddell & Riddell, of Seattle, amici curiae.

Smith Troy and John E. Belcher, both of Olympia, for respondent.

BEALS Justice.

In his complaint in this action against the state of Washington and Thomas A. Swayze, its director of licenses, plaintiff alleged that he is duly licensed and qualified to practice dentistry in the state of Washington, owning and operating, under his own name of 'Doctor J. C. Campbell,' a dental office in the city of Seattle; that he desires to open another dental office in the city of Tacoma, also under his own name as aforesaid; that the defendant director of licenses threatens to prevent plaintiff from opening and operating a second office in the city of Tacoma, claiming that in so doing plaintiff would violate Rem.Rev.Stat.Supp. § 10031-18, which reads in part as follows: 'It shall be unlawful for any person to conduct a dental office in his or her name, or advertise his or her name in connection with any dental office or offices, unless such person is personally present in said office operating as a dentist or personally overseeing such operations as are performed in said office or each of said offices during a majority of the time said office or each of said offices is being operated: Provided however, That this section shall not prohibit any person from continuing to conduct any office or offices legally conducted in this state at the time this act takes effect.'

Plaintiff further alleged that he intended to participate in the ownership and management of the Tacoma office by contract with a regularly licensed dentist in the state of Washington, and that the state statute pursuant to which the defendant director of licenses was proposing to proceed against plaintiff was unconstitutional as in violation of the constitution of the United States, and also in violation of the constitution of the state of Washington.

Defendants demurred to the complaint upon the ground that the same failed to state facts sufficient to constitute a cause of action, and after argument the superior court sustained the demurrer. Plaintiff having elected to stand upon his complaint, and having refused to plead further, judgment was entered dismissing the action, from which plaintiff has appealed.

Appellant contends that the trial court erred in sustaining the demurrer to his complaint, and in entering judgment dismissing the action.

Appellant argues that the statute is void as in violation of article XIV,§ 1, of the amendments to constitution of the United States, which reads in part as follows:

'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,' and also violates article I, § 3, of the constitution of the state of Washington, which provides that 'no person shall be deprived of life, liberty, or property without due process of law,' and violates § 12 of the same article, which provides that 'No law shall be passed granting to any citizen, class of citizens, or corporation, other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.'

Plaintiff so drafted his complaint as to directly present the constitutional questions above set forth, and in his brief his counsel frankly admit that, according to his plan, he, Dr. J. C. Campbell, '* * * would not be personally present in said Tacoma office, or operating as a dentist, or personally overseeing such operations as are performed in said office, during a majority of the time the Tacoma office would be in operation.'

Appellant, in arguing that the statute in question violates the due process sections of the state and Federal constitutions, relies strongly upon the opinion of this court in the case of State v. Brown, 37 Wash. 97, 79 P. 635, 636, 68 L.R.A. 889, 107 Am.St.Rep. 798. Appellant contends that this case is squarely in point, and requires reversal of the judgment appealed from. Edwin J. Brown was prosecuted upon an information charging him with 'the crime of owning, running, and managing a dental office or department in the state of Washington without a license,' in violation of chapter 152, Laws of 1901, a statute relating to the practice of dentistry. From a judgment of conviction, the defendant appealed to this court, contending that that portion of the statute which required a license from the state board of dental examiners as a prerequisite to 'owning, running, and managing' a dental office or department, was unconstitutional. This particular question was the only one considered or decided by this court, it having been held that the police power of the state did not include the right to so restrict the ownership or management of property. In the course of the opinion, the court stated that 'to own and manage property is a natural right, and one which may be restricted only for reasons of public policy, clearly discernible.' The statute in question in the Brown case, and which this court held unconstitutional, concerned the owning, running and managing of a dental office or department by one not holding a state license to practice dentistry.

The statute attacked by appellant forbids any person to conduct a dental office in his name unless he is personally present in such office a majority of the time. The owning, running and managing of a dental office is one thing; the use of the name of a licensed dentist in connection with the conduct of a dental office, and the advertising of the name of a licensed dentist in connection with the conduct of such office, is an entirely different thing. The statute held unconstitutional in the Brown case unwarrantedly interfered with the lawful ownership of property, while the statute here in question more nearly enters the field of the prevention of false advertising, which has of recent years engaged the attention of the Congress of the United States and the legislatures of the different states.

The law of which appellant complains does not purport to interfere with his ownership of property, but merely forbids him to use his name in connection with the operation of a dental office where he is not present a majority of the time, as provided in the statute. The case of State v. Brown is not controlling on the phase of this case now under discussion.

As to the power of the legislature under the police power to regulate private interests, this court, in the case of State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101, 1113, 37 L.R.A.,N.S., 466, a case brought to determine the question of the constitutionality of the industrial insurance statute of this state, decided that the statute was constitutional, saying in the course of the opinion: 'If, therefore, the act in controversy has a reasonable relation to the protection of the public health, morals, safety, or welfare, it is not to be set aside because it may incidentally deprive some person of his property without fault or take the property of one person to pay the obligations of another. To be fatally defective in these respects, the regulation must be so utterly unreasonable and so extravagant in nature and purpose as to capriciously interfere with and destroy private rights.'

In the late case of Shea v. Olson, 185 Wash. 143, 53 P.2d 615, 619, 111 A.L.R. 998, this court held constitutional chapter 18, Laws of 1933, commonly known as the host-guest automobile liability statute, saying, concerning the police power: 'However difficult it may be to give a precise or satisfactory definition of 'police power,' there is no doubt that the state, in the exercise of such power, may prescribe laws tending to promote the health, peace, morals, education, good order, and welfare of the people. Police power is an attribute of sovereignty, an essential element of the power to govern, and a function that cannot be surrendered. It exists without express declaration, and the only limitation upon it is that it must reasonably tend to correct some evil or promote some interest of the state, and not violate any direct or positive mandate of the constitution.'

This court has considered the scope of the police power in the cases of Bowes v. City of Aberdeen, 58 Wash. 535, 109 P. 369, 30 L.R.A.,N.S., 709; State ex rel. Webster v. Superior Court, 67 Wash. 37, 120 P. 861, L.R.A.1915C, 287, Ann.Cas.1913D, 78; State v. Pitney, 79 Wash. 608, 140 P. 918, Ann.Cas.1916A, 209; Parrott & Co. v. Benson, 114 Wash. 117, 194 P. 986; City of Tacoma v. Fox, 158 Wash. 325, 290 P. 1010.

Under our decisions, it is the rule that a statute enacted pursuant to the police power of the state cannot be held unconstitutional if it reasonably tends to protect the public welfare or health from a threat or menace of evil, even though the law operates to deprive a citizen of the right which he might otherwise enjoy to maintain a business, or pursue a profession, or endeavor to gain a livelihood, in the manner proscribed by law.

We said in the case of Shea v. Olson, supra, 'While, formerly the power was viewed as one of strict and direct application, it has...