Commonwealth ex rel. Att'Y Gen'L v. Pollitt
| Decision Date | 01 March 1935 |
| Citation | 258 Ky. 489 |
| Parties | Commonwealth ex rel. Attorney General et al. v. Pollitt. |
| Court | United States State Supreme Court — District of Kentucky |
2. Physicians and Surgeons. — Statute requiring every licensed dentist to renew license annually held applicable to dentists licensed before as well as after enactment (Ky. Stats. 1930, secs. 2636-3, 2636-6, 2636-9).
3. Statutes. — Words should receive their popular and general meaning, unless contrary intention appears from entire statute.
4. Physicians and Surgeons. — Legislature held empowered to require annual renewal fees from dentists licensed thereafter (Ky. Stats. 1930, sec. 2636-9).
5. Physicians and Surgeons. — Statute requiring dentists licensed to practice in state to obtain annual renewals held applicable to all registered dentists, including dentist who, having been licensed previously, was nonresident of state at time of enactment of statute, and, as so applied, statute was not unconstitutional as taxing occupation carried on outside state (Ky. Stats. 1930, secs. 2636-3 to 2636-5, 2636-9, 2636-15 to 2636-17).
6. Physicians and Surgeons. — Statute requiring $1 renewal fee annually from licensed dentists held exercise of police power rather than taxing power, and, as such, did not violate state or Federal Constitution, unless discriminatory or unreasonable on face (Ky. Stats. 1930, sec. 2636-9).
Appeal from Mason Circuit Court.
EDWARD BLOOMFIELD, B.D. COUGHLIN, BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellants.
THOMAS D. SLATTERY for appellee.
The court below denied an order seeking to enjoin appellee from practicing dentistry in Kentucky, and the commonwealth ex rel. appeals.
It was claimed that Dr. Pollitt had failed to comply with laws relating to the practice of dentistry, and, after an unsuccessful effort to have him indicted on the ground mentioned, this equitable action was begun by the Attorney General.
It is admitted that Dr. Pollitt on May 24, 1904, had complied with the laws then in effect relating to the practice of dentistry, and was certified as a licensed dentist; that Dr. Pollitt soon thereafter left Kentucky and went to Illinois, later to Ohio, where he continued to practice dentistry until some time in 1932, when he returned to Kentucky. It is also admitted that Dr. Pollitt has never renewed his certificate under the provisions of the act of 1912, and also that the act of 1904, under which he was registered, did not provide for annual renewal of license.
It was stipulated during the trial that no injunction had theretofore been asked or refused by any court; that certain witnesses had appeared before the Mason county grand jury in April, 1933, bearing testimony to the effect that for some time prior thereto Dr. Pollitt had been in the practice of dentistry in that county, that the grand jury had failed to return an indictment against him, and that he continued practicing, claiming that his 1904 certificate guaranteed to him the right to so do.
It is contended by appellant that section 9 of chapter 95, Acts 1912, section 2636-9, Ky. Stats. 1930, makes it mandatory upon a person regularly licensed in Kentucky to pay the annual renewal fee therein provided, notwithstanding he was a nonresident at the time or after the passage of the act of 1912. Appellee contends, first, that the action should not lie in equity, because Dr. Pollitt had been regularly licensed, and was not violating any law by practicing, and further that equitable relief should only be granted when it was made plain that the further practice of the profession or trade was detrimental to the welfare of the public. At this point it may be said that this suit was properly brought in equity, and is clearly based on the principle that, where the law appears to be inadequate, and where the general welfare of the public is involved, a court of equity will grant relief. The petition is sufficient both in form and substance, and the court below did not err in overruling defendant's demurrer thereto. See Ky. State Board of Dental Examiners v. Payne, 213 Ky. 382, 281 S.W. 188; Commonwealth ex rel. v. Brown, 239 Ky. 197, 39 S.W. (2d) 223, and other cases of similar import.
As to the laws involved there is no disagreement but quite a contrariety of opinion as to the meaning and effect of the section of the statute, supra. The act of 1904 (Acts 1904, c. 32, p. 89 [Ky. Stat. 1909, sec. 2641]), under which Dr. Pollitt was licensed, provided with respect to qualifying certificates:
"All persons hereafter receiving such certificate of qualification to practice dentistry or dental surgery in this State shall have same recorded in the office of the clerk of the county or counties in which he shall practice, and it shall be the duty of such clerk, upon presentation of said certificate * * *"
to record same in a book to be kept for that purpose.
The section of the 1912 act and Statute (section 2636-9), the effect and meaning of which is brought sharply into question, provides:
Dr. Pollitt did not renew his certificate within three months after December 31, 1912, nor did he take steps to have it restored within one year after its cancellation. The testimony discloses that Dr. Pollitt was holder of certificate No. 1050 issued by the board on May 24, 1904, and it was canceled by the board April 24, 1913. It was also shown that, until advised otherwise by the law officers of the state and by its own attorney, the board had been reinstating applications without regard to lapse of time, after such had been referred to the board and by that body considered.
Dr. Pollitt wrote the board's secretary in December, 1931, saying that he had lost his certificate and requesting information as to the procedure necessary to obtain a duplicate. He was advised to make application for restoration and to furnish indorsements of the dental organization and state board in the state where he had last practiced. On January 9, 1932, after a request for proper blanks, Dr. Pollitt made application to practice in Kentucky, giving his address, signature, number of his certificate, and inclosing money order for $6, $1 for renewal fee, and $5 for penalty. This application was submitted to the five members of the board, and the same number voted against his reinstatement. He was advised of the result and asked for a reconsideration of the vote, which was granted, with the same negative result, and his remittance was returned.
In his application of January 9, 1932, Dr. Pollitt stated:
There is, however, filed as Exhibit No. 3 a letter from him to the secretary of the board, of date 2-27-18, in which he wrote:
In reply to this he was advised that all licenses unrenewed under the 1912 act had been annulled and canceled; that he might apply for reinstatement, but in the meantime any attempt to practice before reinstatement would be in "violation of the law and subject to penalties." Nothing more came of this correspondence, in so far as is shown by the record.
As indicated, on a consideration of the pleadings and such facts as were developed, the lower court declined to grant an injunction. On appeal the appellant pitches the case squarely on the proposition that the act of 1912 with relation to renewal of certificates applied to all dentists theretofore licensed and registered, concerning which claim, with regard to resident dentists, there seems to be no dispute, and applies with equal force to nonresidents who had been registered in Kentucky prior to the act of 1912.
The appellees contend that, if section 9 of the act of 1912 be construed to be retroactive (which construction is not admitted), it can have no extraterritorial effect, on the theory that for the lawmaking body of Kentucky to undertake to "regulate or supervise" nonresident dentists would be far beyond its powers, and hence as to such is unconstitutional and void.
It is further argued that, if the act be held to give the board power to cancel the license of a nonresident, without notice, such construction is in conflict with the spirit manifested in section 2636-6, Ky. Stats. 1930, which provides for notice and hearing, with appeal to the Governor, in cases where a license is sought to be revoked for a violation of the law, or of some lawful rule of the board.
The main issue is whether or not Dr. Pollitt can be deprived of...
To continue reading
Request your trial