Indiana State Bd. of Dental Examiners v. Davis
| Citation | 121 N.E. 142,69 Ind.App. 109 |
| Decision Date | 15 March 1918 |
| Docket Number | No. 9973.,9973. |
| Parties | INDIANA STATE BOARD OF DENTAL EXAMINERS et al. v. DAVIS. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Vigo County; Josiah F. Walker, Judge.
Proceedings on an appeal by Wilbur E. Davis from the action of the Indiana State Board of Dental Examiners and others in rejecting his application for a license. From a judgment in favor of the applicant, the Board appeals. Reversed, with directions.
Superseding opinions, 117 N. E. 883, 118 N. E. 978.
Ele Stansbury, of Indianapolis, William Horsley, Clarence A. Royse, and Royse, Dix & Cooper, all of Terre Haute, and Paul G. Davis, of Indianapolis, for appellant. George W. Wells and Duvall & Whitaker, all of Terre Haute, for appellee.
At the November meeting, 1916, of the state board of dental examiners the appellee, under the provisions of section 6104 et seq., Burns 1914, submitted himself to an examination with a view to obtaining a license to practice dentistry in this state. Under the rules of the board such an applicant is required to pass both a practical and also a theoretical or written examination. As determined by the board, appellee passed successfully the practical branch of the examination, but failed in its theoretical branch. As a consequence the board declined to issue to him a certificate entitling him to a license to practice dentistry in this state. Thereupon appellee, being a resident of Vigo county, appealed to the superior court of Vigo county under the provisions of section 6106, Burns 1914, praying that the board be required to show cause why he should not be permitted to practice dentistry in the state. In response to a writ issued by the court and directed to appellants, said board and its members, as such, made return to such writ in the form of an answer filed to appellee's petition and said writ, whereby appellants pleaded among other matter the failure of appellee to pass such examination successfully. To such answer, denominated a return to the writ, appellee filed a general denial. A trial before the court resulted in a finding and judgment in appellee's favor. The judgment is to the effect that appellee is, and at the time of such examination was, qualified to practice dentistry in Vigo county, and that he is, and at said time was, entitled to a license to that effect. By the judgment the clerk of court was ordered to issue to appellee a license to practice dentistry in said county, in form and substance as prescribed by section 6109, Burns 1914.
Three questions are presented: First, does the statute contemplate an appeal from the action of the trial court in such a proceeding as this? Second, were the state board of dental examiners and the members thereof proper parties to the proceeding in the trial court, and are they proper parties in this court if the cause is appealable? Third, in such a proceeding in the trial court, is it contemplated that the investigation should extend to a broad inquiry respecting the appealing applicant's competency to practice dentistry, uninfluenced by any examination that he may have failed to pass successfully, or should the inquiry be limited to whether there was an examination fairly and impartially conducted, and whether the applicant passed such examination successfully, or whether the board fairly determined that he did or did not pass such examination successfully? If either the first or the second question must be answered in the negative, the cause should be dismissed. If both these questions are answered in the affirmative, the third question requires an examination into the merits of the appeal. These questions arise out of rulings made on various demurrers and motions, and on the admitting and excluding of evidence offered.
We proceed to outline the statutes applicable, the reference being to Burns 1914: It is unlawful to practice dentistry in this state without a license. Section 6104. The state board of dental examiners is required to examine all applicants who present the specified credentials, and to issue certificates to all who pass a satisfactory examination. Section6105. Such credentials include a diploma issued to the applicant by a dental college of a certain recognized and designated standing. Certain fees must be paid also. Section 6106. Subsequent sections provide that upon the receipt of such a certificate from the board the applicant may present it to the clerk of the circuit court of the county in which he resides, and thereupon receive a license of a specified form and substance authorizing him to practice dentistry in such county. Section 6114, among other things, requires that the board make and keep a record of all applications and their contents, and also the board's action thereon, and that the board shall also retain all examination papers for a period of one year from the date upon which the examination is held. The board is required to enforce the act, and it is the duty of the proper prosecuting attorney to prosecute all violations on complaint of the board. Section 6115. It is made the duty of the board also to establish a schedule of minimum requirements to be complied with by applicants in order that certificates may issue to them, and likewise a schedule of rules for the recognition of dental colleges in order that their diplomas may be accepted as credentials of applicants. Sections 6116 and 6117. The board is authorized to establish rules for the reciprocal recognition of certificates issued by other states. Section 6118. Two situations give rise to the right of appeal: First, “if such applicant shall fail to pass the examination prescribed by said board, he shall have the right of an appeal to the circuit or superior court of the county in which he resides requiring said board to show cause why such applicant should not be permitted to practice dentistry” (section 6106), second, the board is authorized to refuse to issue a license (certificate) and may suspend or revoke a license (or certificate) theretofore issued, where it appears that the applicant procured his certificate by fraud, or has been convicted of a felony, and in certain other cases (section 6119). In any such case there may be a hearing before the board on notice, and from an unfavorable determination of the board the person affected “may appeal *** to the circuit or superior court of the county in which he resides.” Section 6120. It is made the duty of the Attorney General “and of the prosecuting attorney of the court to which an appeal from any action of the board may be taken, to represent the board in any such appeal,” and in addition the board may employ an attorney to assist in any legal proceedings. Section 6121.
The material facts disclosed by the record are as follows: Appellee graduated from the New Orleans College of Dentistry in 1906. That college conforms to the rules and requirements established by the board under section 6117. From 1906 to May, 1916, appellee practiced dentistry in Louisiana, except a short time early in 1910 during which he practiced in Florida. In May, 1916, he came to Terre Haute, Vigo county, and at the November, 1916, meeting of the board he presented the necessary credentials, and in common with a number of other applicants submitted to such an examination as is contemplated by section 6106. The scope of such an examination under the rules of the board includes both a practical and a theoretical phase. The former deals with the ability of applicants to do actual work, such as filling teeth, etc., and the latter is directed to determine the knowledge of applicants of the various sciences and subsciences at the basis of dentistry, and is in writing. As ascertained by the board, appellee passed the practical examination successfully, but fell below the minimum requirements in the theoretical examination in a number of particulars. As a consequence the board denied him a certificate. In so doing it is not charged that the board was actuated by partiality, or that it was guilty of fraud. In fact, it seems to be conceded that appellee, although given a square deal, failed to pass the examination as indicated. Appellee thereupon appealed to the Vigo superior court under the provisions of section 6106. Something is said in the briefs to the effect that appellee's appeal to the superior court was prosecuted under sections 6119 and 6120. The averments of his petition and all the facts indicate plainly that the appeal was taken under section 6106. Thus he appealed from the action of the board in an examination which he failed to pass, and he prayed the court that the board be required to show cause, etc. The record does not present a case of a revoked or suspended certificate, or of the refusal to issue a license or certificate by reason of fraud, crime, etc. Appeals under section 6120 are limited to situations where such elements, or at least one of them, are present.
Under the provisions of section 6118 the Indiana board had entered into an arrangement with the dental boards of a number of states including Louisiana, indicated by the following:
“Reciprocal relations have been established with *** Louisiana upon the following terms: Any applicant who has been in the legal and ethical practice in any of the above states for not less than five years, and who is a member of the State Dental Society and has the recommendations of the board and society of his state, may be admitted to our examinations at any regular meeting, and excused from all theoretical examination, being required to pass the practical as above.”
Had appellee sought to avail himself of such arrangement, and to that end produced satisfactory proof that he had been in the practice of dentistry in Louisiana for the required time, and that he was a member of the State Dental Society of that state, he would have been entitled to a certificate by passing successfully...
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