In re Campbell

• Decision Date: 27 October 1943
• Docket Number: 29054.
• Citation: 142 P.2d 492,19 Wn.2d 300
• Parties: In re CAMPBELL.
• Court: Washington Supreme Court

142 P.2d 492

19 Wn.2d 300

In re CAMPBELL.

No. 29054.

Supreme Court of Washington

October 27, 1943

Department 1.

Proceeding in the matter of the revocation of the license of Dr. John C Campbell, to practice dentistry in the State of Washington. From the judgment dismissing appeal from an order of the statutory trial committee revoking his license to practice dentistry in the state and affirming the order, Dr. John C Campbell appeals.

Affirmed.

See also, 12 Wash.2d 459, 122 P.2d 458.

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

Griffin & Gershon, of Seattle, for appellant.

Simon Wampold, Jr., Atty. Gen., for respondent.

Riddell & Riddell, of Seattle, amici curiae.

STEINERT Justice.

Pursuant to the provisions of Rem.Rev.Stat. § 10861, a complaint was filed with the director of licenses of the state of Washington charging Dr. John C. Campbell with certain violations of the law relating to the practice of dentistry, and seeking to revoke his certificate and license to practice that profession in this state. A hearing on the charges was scheduled to be held Before a statutory trial committee. At the opening of the hearing an amended complaint was filed enlarging and more specifically defining the charges. The hearing then proceeded, and upon the completion of the evidence the matter was taken under advisement. Thereafter, the trial committee made its findings and conclusions, based upon which the director of licenses signed and entered an order revoking the certificate and license. Dr. Campbell thereupon appealed to the superior court for Thurston county, and in due time the court heard the matter de novo, upon the record made Before the trial committee. At the close of the hearing, the court made findings and conclusions approving and adopting those previously made by the committee, and thereupon entered judgment dismissing the appeal from the departmental decision and affirming the order revoking the doctor's license to practice dentistry in this state. Deeming himself aggrieved by the judgment of the superior court, Dr. Campbell appealed to this court. His appeal is resisted by the state.

The facts are not disputed and, for the most part, are stipulated by counsel. On November 9, 1916, the appellant herein, John C. Campbell, made application to the state board of dental examiners for permission to take the examination required of an applicant in order to practice dentistry in this state. He successfully passed the examination and received a license from the board.

Sometime in 1934, appellant for the first time opened a dental office in the city of Seattle. At that time he was, and now is, a resident of the state of California. The Seattle office is one of a chain of twelve or more of such dental offices, the main office being in the city of San Francisco, and all the other offices, with the exception of the one in Seattle, being located in various cities throughout the state of California. At the Seattle office licensed dentists, resident in this state, are employed. Appellant visits his Seattle office only occasionally, usually about once in every two months, and only upon such occasions does he perform dental work in this state. Apart from such occasional visits, appellant has not been personally present in the Seattle office.

On or about October 1, 1941, appellant paid to the department of licenses of Washington the required annual renewal fee, permitting him to continue the practice of dentistry in this state until September 30, 1942.

In connection with the operation and conduct of the Seattle office, appellant has for an extended period of time prior to the filing of the amended complaint herein inserted various advertisements in the daily press. These advertisements constitute the basis of the principal charge alleged in the amended complaint and will be referred to in more detail a little later herein.

The original complaint, dated February 9, 1942, comprised the following charges against the appellant: (1) That on November 9, 1916, while he was residing in Salem, Oregon, appellant obtained his original license to practice dentistry in this state, upon the representation that he intended to remove to the state of Washington and there personally to enter upon the practice of that profession, but that at no time since the issuance of the license has he resided in the state of Washington; (2) that appellant failed to file the license so obtained for record in the office of the proper county auditor, as required by law; and (3) that appellant, to whom the original license was issued under his true name of John C. Campbell, has been operating and advertising the dental office in Seattle under the name of 'J.C. Campbell,' with a resident licensed dentist in charge thereof as manager, and that in violation of the Laws of 1937, chapter 45, § 1, he has not been personally present in the office during a majority of the time, or at all, while the office was in operation. The original complaint and a citation attached thereto were served by a deputy sheriff of San Francisco upon the appellant personally in that city on February 18, 1942.

On April 29, 1942, at the opening of the hearing Before the trial committee, an amended complaint was served upon appellant's counsel. The amended complaint, as further amended by stipulation and proof, eliminated the charge contained in the original complaint with reference to appellant's obtaining the initial license upon the representation that he intended personally to practice dentistry in the state of Washington and also eliminated the charge with reference to his failure to file his license for record. The specific charges contained in the amended pleading were (1) that appellant, having obtained a license in 1916, and having opened a dental office in Seattle in 1934, employing therein resident licensed dentists, had at no time since the latter date permanently resided in the state of Washington, nor had at any time, in that office, personally performed any of the dental services customarily rendered therein as part of the practice of dentistry; and (2) that appellant, while conducting his Seattle office, had used false and misleading advertising, as hereinafter more fully detailed, the tendency of which was to deceive the public into believing that appellant was personally doing the things necessary to be done as part of the practice of dentistry in that office, when in truth and in fact he was not personally present in the office nor doing any of the things which the public was led to believe he was personally performing.

At none of the proceedings Before either the trial committee or the superior court was appellant present in person, but appeared only through his attorney.

Under his first assignment of error appellant contends that since the amended complaint was not served upon him personally, the trial committee did not acquire jurisdiction to hear and determine the charges contained therein.

Rem.Rev.Stat.(Sup.), § 10031-9, upon which appellant relies, provides that in all proceedings for the revocation or suspension of a license to practice dentistry, the holder of such license shall be given twenty days' notice in writing by the director of licenses, specifying the offense, or offenses, with which the accused person is charged, and also specifying the day when and the place where the hearing upon the charges is to be held.

The service of the original complaint, together with the citation to appear, complied fully with the provisions of the statute, and the appellant does not now contend otherwise. His contention is limited solely to an attack upon the amended complaint and the service thereof. It may be conceded, for the purposes of this case, that the amendatory pleading contained a material charge different from any contained in the original complaint.

It appears from the record that immediately upon the beginning of the hearing Before the trial committee, the assistant attorney general representing the state of Washington stated to the committee that he and Mr. John C. Stevenson, then but not now representing the appellant, after many conversations with each other had agreed to confine the issues to a single question as then formulated by the state's counsel. Contemporaneously with the making of that statement, the assistant attorney general presented the amended complaint and asked that it be filed, to which no objection was made by Mr. Stevenson. Counsel for the respective parties then proceeded to stipulate with reference to the contents of one of the paragraphs of the amended pleading. Having stipulated to that extent. Mr. Stevenson then stated: 'Let me say for the purposes of the record that we are preserving all objections to the sufficiency of the complaint first and second to the deficiency of service of the complaint. Aside from that we are willing to stipulate as to certain facts in connection with the case.'

It will be noted that the objection did not refer to the amended complaint but simply to the complaint, and, further, that there was no specific claim made that the amended complaint should have been served upon the appellant personally or that twenty days must elapse Before the hearing could be had.

Counsel for the respective parties then made a further series of stipulations, covering twenty pages of the typewritten record and having reference to various matters in connection with the amended complaint and with the evidence pertaining to the case.

At that juncture, Mr. Riddell, who had been granted permission to appear as amicus curiae, raised a question with reference to Mr. Stevenson's prior objection 'to the deficiency of service of the complaint,' and specifically asked whether Mr. Stevenson...