Hodgen v. Com.

• Decision Date: 14 March 1911
• Parties: HODGEN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

135 S.W. 311

142 Ky. 722

HODGEN v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 14, 1911

Appeal from Circuit Court, Jefferson County, Criminal Division.

R. H Hodgen was convicted of practicing dentistry in violation of the statute forbidding any person to practice dentistry under the name of any company, association, or corporation, and appeals. Affirmed.

Benjamin F. Washer, Seddon & Holland, and Harry Wallingford, for appellant.

Kohn Baird, Sloss & Kohn, Jas. Breathitt, Atty. Gen., and Tom B McGregor, Asst. Atty. Gen., for the Commonwealth.

CARROLL J.

The appellant, a practicing dentist, was fined in the Jefferson circuit court for practicing dentistry in violation of an act of the General Assembly of 1908, now section 2643a of the Kentucky Statutes (Russell's St. § 5033a1), reading: "It shall be unlawful for any person or persons to practice or offer to practice dentistry or dental surgery under the name of any company, association or corporation, excepting those who have been in actual business for fifteen years or more; but, any person or persons practicing or offering to practice dentistry or dental surgery shall practice under their own respective name or names. Each and every person in an office practicing or offering to practice dentistry or dental surgery shall have his or her state board certificate displayed in plain view in the operating room." From the agreed statement of fact, it appears that the appellant graduated from a recognized school of dentistry in 1889, and that he has continuously since that time practiced his profession; that at the time and for two years previous to his conviction, he had been in the service of the National Dental Parlors, a corporation located in Louisville, Ky. and during this time had practiced dentistry and dental surgery for compensation as an employé of this concern, not under his own name, but under its name; that the National Dental Parlors is a designation adopted by the Union Dental College, a corporation under the laws of Missouri, with its chief office at St. Louis, Mo., and it, the National Dental Parlors, has been engaged in business in Louisville since 1906.

The prosecution was instituted and the conviction had upon the ground that, under the statute, "it is unlawful for any person or persons to practice dentistry under the name of any company, association or corporation, except such as have been in actual business in this state for fifteen years or more," and, as the National Dental Parlors had only been in business in this state since 1906, the appellant in practicing dentistry under its name violated the statute.

It is the contention of the commonwealth, and the lower court so ruled, that any person who practiced dentistry or dental surgery for or under the name of any company, association, or corporation that had not been in actual business in this state for 15 years or more violated the statute, although the dentistry so employed and practicing might have been a licensed and authorized dentist for a longer period than 15 years; while counsel for appellant insists that under the statute any person who had been authorized for a longer period of time than 15 years to practice dentistry or dental surgery might do so under the name of any company association, or corporation, although such company, association, or corporation might not itself have been in existence for a period of 15 years. The statute is not free from ambiguity, and there is something to be said in support of the interpretation given it by each of the opposing counsel; but we are not inclined to adopt either construction. We think the statute should be construed to apply to all persons who practice dentistry or dental surgery under the name of any company, association, or corporation, unless they had been so practicing under the name or style of such company, association, or corporation for a period of 15 years or more. Or, to put it in another way, the statute prohibits any person from practicing dentistry or dental surgery under the name or style of any company, association, or corporation, unless he had been practicing under the same name and style for 15 years or more. The fact that a company, association, or corporation, may have been engaged in the actual business of dentistry or dental surgery for 15 years or more, or that the dentist had been authorized to practice dentistry for 15 years or more, will not relieve from violation of the statute the dentist practicing under or in its name, unless he himself had practiced under the identical name for 15 years or more. This construction of the statute removes the most serious objections urged against it by counsel for appellant, and we do not understand counsel for the commonwealth as objecting to it, and so we might here conclude the opinion. But, for the purpose of showing that the construction we have given it is the proper one, we will state the reasons that influenced us in coming to the conclusion we have. At the outset, it may be said to be beyond doubt that the Legislature under the police power of the state has authority to control and regulate the practice of dentistry, and to prescribe the qualifications of those who engage in its profession. Commonwealth v. Basham, 101 Ky. 170, 40 S.W. 253, 19 Ky. Law Rep. 336; Kentucky Board of Pharmacy v. Cassidy, 115 Ky. 690, 74 S.W. 730, 25 Ky. Law Rep. 102; Wilson v. Commonwealth, 119 Ky. 769...