Commonwealth v. Brown

• Court: Supreme Judicial Court of Massachusetts
• Citation: Commonwealth v. Brown, 302 Mass. 523, 20 N.E.2d 478 (Mass. 1939)
• Decision Date: 10 April 1939
• Parties: COMMONWEALTH v. FRED P. BROWN.

302 Mass. 523

20 N.E.2d 478

COMMONWEALTH v. FRED P. BROWN.

Supreme Judicial Court of Massachusetts, Suffolk.

April 10, 1939

October 3, 1938.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.

Dentist. Advertising.

Constitutional Law Police power, Advertising, Regulation of the practice of dentistry, Unconstitutionality of separable portion of statute. Practice, Criminal, Exceptions: whether error harmful, general exception; Sentence.

Whether the evidence was sufficient to support two of the five counts in an indictment, on all of which the defendant was convicted was immaterial on an exception to the refusal of a ruling that there should be a finding of

"not guilty on all counts," where there was evidence supporting three of the counts and the sentence was a fine of $1 on the indictment generally.

The constitutionality of particular statutory provisions involved in an indictment was considered without reference to whether other, independent provisions were constitutional or whether the provisions in question would be constitutional as applied to persons other than the defendant. The provisions of Section 52A, inserted in G.L. (Ter. Ed.) c. 112 by St.

1937, c. 253 prohibiting registered dentists' seeking patronage by advertising are constitutional.

INDICTMENT, found and returned on April 21, 1938. The defendant was found guilty by Fosdick, J., and alleged exceptions.

F. L. Simpson, (F.

W. Solomon with him,) for the defendant.

E. O. Proctor, Assistant Attorney General, for the Commonwealth. S. Silverman, by leave of court, submitted a brief as amicus curiae.

LUMMUS, J. The defendant, a registered dentist, was indicted in five counts for violations of G.L. (Ter. Ed.) c. 112, Section 52A inserted by St. 1937, c. 253. The counts allege that he was a registered dentist, and allege that he did (first count) "include, permit and cause to be included in a letter of advertisement certain written words and statements of a character tending to deceive and mislead the public"; (second count) "include, permit and cause to be included in a letter of advertisement certain words and statements claiming the performance of painless operations of a dental and oral surgical nature"; (third count) "include, permit and cause to be included in a letter of advertisement certain written words and statements tending to solicit patronage for his business, services, advice and products"; (fourth count) "include, permit and cause to be included in a letter of advertisement certain written words and statements advertising to use a system of anaesthetics without truly and accurately naming the same"; (fifth count) "include, permit and cause to be included in a letter of advertisement certain written words and statements setting forth offers, inducements, representations and statements of a character tending to influence, persuade and induce persons to seek, employ and patronize his business, services, advice and products." The defendant, waiving trial by jury, was found guilty upon each count, and was fined one dollar upon the indictment generally. His exceptions bring the case here.

All the counts are based upon a letter mailed by the defendant to one O'Leary, and received by him. Its text is shown in a footnote. ^[*] The exceptions raise the questions (1) whether the letter contained evidence supporting the conviction, and (2) whether the statute conflicts with either the State or the Federal constitution.

The several counts appear to be based upon prohibitions contained in the statute. It is not clear that the letter would warrant conviction on the first two counts, but it warranted conviction on the last three counts. The question of the sufficiency of the evidence as to the first two counts is unimportant for two reasons. First, the defendant has limited his so called "motion for directed finding," which in his favor we treat as a request for a ruling (Forbes v. Gordon & Gerber, Inc. 298 Mass. 91; Menici v. Orton Crane & Shovel Co. 285 Mass. 499 , 500-501; Treasurer & Receiver General v. Tremont Storage Warehouse, Inc. 296 Mass. 531; Johnson v. Warner Bros. Circuit Management Corp. 301 Mass. 348), to the point that there should have been a "finding of not guilty on all counts," and has not asked rulings as to the sufficiency of the evidence to support each count by itself. Carere v. F. W. Woolworth Co. 259 Mass. 238 , 240. Taxi Service Co. v. Gulf Refining Co. 252 Mass. 314 , 319. Tourtellotte v. Saulnier, 267 Mass. 361 , 364. Clark-Rice Corp. v. Waltham Bleachery & Dye Works, 267 Mass. 402 , 415. Sylvia v. New York, New Haven & Hartford Railroad, 296 Mass. 157 , 160-161. Secondly, the sentence imposed was supported by at least three counts, and it is immaterial whether there was no finding upon the others or a finding upon them that was not justified by the evidence, for no further sentence can ever be imposed upon any count of the indictment. Jennings v. Commonwealth, 17 Pick. 80, 83. Josslyn v. Commonwealth, 6 Met. 236, 240. Carlton v. Commonwealth, 5 Met. 532. Booth v. Commonwealth, 5 Met. 535. Crowley v. Commonwealth, 11 Met. 575. Commonwealth v. Foster, 122 Mass. 317 , 322. Harding v. Commonwealth, 283 Mass. 369 . Claassen v. United States, 142 U.S. 140. Selvester v. United States, 170 U.S. 262. The smallness of the sentence takes the case out of the rule applied in Commonwealth v. Hull, 296 Mass. 327, 337-338.

The provisions of the statute are obviously intended to prohibit advertising of professional service and its incidents. They are not to be construed so literally as to prohibit advertising by a professional man of some commercial business not connected with his profession. Matter of Thibodeau, 295 Mass. 374 . If the statute is unconstitutional as to dental hygienists, or as to some of the acts prohibited, as the defendant contends, we cannot think that the Legislature intended all its provisions to fail if some should fail. There is no dependence of some provisions upon others. Commonwealth v. Kimball, 299 Mass. 353 , 360, and cases cited. Compare Carter v. Carter Coal Co. 298 U.S. 238, 312 et seq., 321 et seq., 336 et seq. The unconstitutionality of a particular provision in a statute otherwise valid, can be raised only by a person whose rights are impaired by it. Horton v. Attorney General, 269 Mass. 503, 513-514. Broadhurst v. Fall River, 278 Mass. 167 , 170. We consider, therefore, only the constitutional validity of the prohibitions upon which the five counts of the indictment are based. The defendant has pointed out some extreme, and, according to his contention, absurd, consequences of a literal construction of the statute. We do not discuss them, because so far as they cannot be avoided by legitimate construction we think they do not impair the constitutional validity of the statute. The prohibitions upon which the five counts are based appear to us sufficiently clear and certain for enforcement by criminal proceedings. Commonwealth v. Pentz, 247 Mass. 500 . Commonwealth v. National City Co. of Boston, 280 Mass. 439. Kneeland v. Emerton, 280 Mass. 371 , 383 et seq.

The essence of the statute, so far as relates to the five counts, is that "no registered dentist, person practicing dentistry or dental hygienist" shall "include, or permit or cause to be included," in any manner of advertising, "any written or spoken words or statements of a character tending to deceive or mislead the public," or "claiming . . . the performance of painless operations of a dental or oral surgical nature," or "tending to solicit patronage for his business, services, advice or products," or "advertising to use any system of anaesthetics without truly and accurately naming the same"; neither shall he "make or set forth any promises, guarantees, offers, inducements, representations, statements or rewards of a character tending to influence, persuade or induce persons to seek, employ or patronize his business, service, advice or products"; with certain qualifications permitting acts that apparently would be prohibited by the general language quoted. In short, the statute purports to deny to a registered dentist, such as the defendant, not merely the use of dishonest or deceptive advertising, but also the right to seek patronage through advertising, in modes deemed harmless and rightful when employed in commercial business. The only question is, whether such a denial offends either the State or the Federal Constitution.

The Legislature doubtless may regulate advertising even in commercial business, when the public interest requires. Commonwealth v. Libbey, 216 Mass. 356. Packer Corp. v. Utah, 285 U.S. 105. Nebbia v. New York, 291 U.S. 502. Pacific States Box & Basket Co. v. White, 296 U.S. 176. Old Dearborn Distributing Co. v. Seagram-Distillers Corp. 299 U.S. 183. National Fertilizer Association Inc. v. Bradley, 301 U.S. 178. In the professions, the right to restrict advertising is broad and clear. Dentistry is undoubtedly a learned profession. Graves v. Minnesota, 272 U.S. 425. Learned professions "are characterized by the need of unusual learning, the existence of confidential relations, the adherence to a standard of ethics higher than that of the market place, and in a profession like that of medicine by intimate and delicate personal ministration. Traditionally, the learned professions were theology, law and medicine; but some other occupations have climbed, and still others may climb, to the professional plane. United States v....