Ice v. State ex rel. Indiana State Bd. of Dental Examiners, 29774

• Citation: 161 N.E.2d 171,240 Ind. 82
• Decision Date: 02 November 1959
• Docket Number: No. 29774,29774
• Parties: Robert B. ICE, Appellant, v. STATE of Indiana ex rel. INDIANA STATE BOARD OF DENTAL EXAMINERS, Appellee.
• Court: Supreme Court of Indiana

Page 171

161 N.E.2d 171

240 Ind. 82

Robert B. ICE, Appellant, v. STATE of Indiana ex rel. INDIANA STATE BOARD OF DENTAL

EXAMINERS, Appellee.

No. 29774.

Supreme Court of Indiana.

Nov. 2, 1959.

William C. Welborn and Milford M. Miller, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., Thomas L. Webber, Asst. Atty. Gen., for appellee.

ACHOR, Chief Justice.

This is an action by the State of Indiana on relation of the Indiana State Board of Dental Examiners for an injunction to restrain appellant Robert B. Ice from engaging in the practice of dentistry. The injunction issued and from this decree appellant appeals.

Appellant is a dental technician with 20 years' experience. During his military service he both fitted and manufactured prosthetic dentures. Appellant asserts that the Acts of 1943, ch. 308, § 2, p. 1036 [being § 63-522, Burns' 1951 Repl.], which defines the practice of dentistry and limits such practice only to licensed dentists, is unconstitutional and that the decision of the court is contrary to law and is not sustained by sufficient evidence.

In support of his contention that the decision of the court is contrary to law and not sustained by sufficient evidence, appellant argues that the decision is contrary to public policy in that it prohibits experienced dental technicians from taking impressions necessary to the manufacture of dentures and prohibits the construction or repair of dentures to be worn by any person except on prescription by and delivery to a licensed dentist. ¹ In support of his argument, appellant asserts the existence of a great public need for dentures and a comparable shortage of dentists, which makes it impossible for the dentist to either make or adequately supervise the making of dentures sufficient to meet the public need. In effect, appellant argues that the injunction constitutes an unlawful exercise of the police power.

However, it is well settled that the practice of dentistry is a profession directly related to the public health and that the exercise of the police power for control of practice of dentistry is a matter which rests with the legislature and not with the court. Upon this subject this court has stated:

'The legislative judgment that the welfare of the public requires that those practicing the dental profession shall possess the necessary skill and learning, and shall obtain a certificate, is probably conclusive; but, if it were not, the courts must take judicial knowledge that it is a profession requiring skill. The fact that the dentist employs his professional skill upon an important part of the human body is, of course, known to every one, and cannot be unknown to the courts. As this is known, it must follow that it may also be judicially known that one unskilled in the profession may injure the person who employs him. As this is so then, as we have seen, the legislature may prescribe the qualifications of those permitted to practice the profession. * * * It is established law that an act of the legislature cannot be annulled by the judiciary in any respect, unless it clearly contravenes some provision of the constitution. Doubt must be resolved in favor of the validity of the statute. Since this doctrine was announced by Chief Justice Marshall early in the history of our country, it has been inflexibly adhered to by all the courts. Cooley Const. Lim. (5th ed.) 218; Beauchamp v. State, 6 Blackf. 299; [Pittsburgh, C. & St. L. Ry.] Co. v. Brown, 67 Ind. , 49 ; Hedderich v. State, 101 Ind. 564, 1 N.E. 47 ; Robinson v. Schenck, 102 Ind. 307, 319, 1 N.E. 698.' Wilkins v. State, 1888, 113 Ind. 514, 516-517, 16 N.E. 192, 193.

We next consider appellant's contention that the law is unconstitutional. Appellant asserts that it violates art. 1, §§ 1, 21 and 23 of the Constitution of Indiana, and Section 1 of the Fourteenth Amendment to the Constitution of the United States. ²

Specifically appellant contends that under art. 1, §§ 1 and 23, supra, appellant has a vested right as a dental technician, experienced in the making of prosthetic dentures, to continue the practice of his profession, notwithstanding the provisions of § 63-522, supra, which defines such activity as the practice of dentistry, and because of this alleged vested right the appellant's constitutional rights are violated by the enforcement of this statute.

Further appellant contends that he has been discriminated against in that he has not been extended the same privileges and immunities as other classes of citizens, such as dentists or medical technicians contrary to art. 1, § 23 of the Constitution of Indiana, supra, and § 1 of the Fourteenth Amendment to the Constitution of the United States, supra. The contentions have heretofore been answered in the negative by the following cases and authorities:

In State v. Williams, 1937, 211 Ind. 186, 197, 5 N.E.2d 961, 966, this court said:

'The profession of dentistry is not a business, but one of the learned professions which requires long years of study before one is capable of practicing the profession. * * * and anyone who is not so qualified can neither directly nor indirectly practice dentistry. * * *'

And in State ex rel. Indiana State Board of Dental Examiners v. Boston Sys. Den., 1939, 215 Ind. 485, 489, 19 N.E.2d 949, 951, this court said:

'To prohibit the appellee from engaging in the unauthorized practice of dentistry by injunction does not destroy any of its vested rights. The practice of dentistry is a personal privilege and not a matter of right. Iterman v. Baker, supra (214 Ind. 308, 15 N.E.2d 365). It is a profession and not a business. * * *'

And in Lucas v. State ex rel. Board, etc., 1951, 229 Ind. 633, 639-642, 99 N.E.2d 419, 422, we quoted from State ex rel. Burroughs v. Webster et al., 1898, 150 Ind. 607, 616, 617, 618, 619, 620 and 621, 50 N.E. 750, 753, 754, 755, 41 L.R.A. 212, with approval as follows:

"Statutes similar to the one under consideration, denying to all physicians in the state, lawfully engaged in practice, the right to continue such practice, until they conform to the requirements of the statute, and restricting the practice of medicine to persons who are able to demonstrate their qualifications have been held constitutional as a proper exercise of the police power of the state in nearly every state of the union and in the supreme court of the United States. (Cases cited.) * * * Similar statutes have been sustained for the regulation of the practice of dentistry. (Cases cited.) * * * In every one of these cases it has been held that it is within the...