Ky. State Board Dental Examiners v. Payne
| Decision Date | 05 March 1926 |
| Citation | 213 Ky. 382 |
| Parties | Kentucky State Board of Dental Examiners v. Payne. |
| Court | United States State Supreme Court — District of Kentucky |
1. Injunction — Action to Enjoin Practice of Dentistry Without Obtaining License, Required by Statutes, May be Brought by Board of Dental Examiners, Rather than in Name of Attorney General (Ky. Stats., Sections 2636-1 to 2636-22). — Action, under Ky. Stats., section 2636-1 to 2636-22, to enjoin practice of dentistry without license, required by section 2636-3, may be brought by members of state board of dental examiners, and need not be brought in the name of the Attorney General, as relator for the Commonwealth, in view of intent of legislature, as indicated by section 2636-8.
2. Injunction — Ordinarily, injunction will not lie to prevent commission of crime.
3. Injunction — Injunction Will Lie to Prevent Practice of Dentistry Without Obtaining License, even though Defendant would be Laying Himself Open to Penalty in Doing so (Ky. Stats., Sections 2636-1 to 2636-33). — Ky. Stats., sections 2636-1 to 2636-22, regulating practice of dentistry, is intended for protection of health and life of those needing service, and injunction will lie to prevent violation of statute, such as practicing without license, required by section 2636-3, notwithstanding such practitioner lays himself open to penalties imposed by section 2636-18.
Appeal from Rockcastle Circuit Court.
W.E. BEGLEY for appellant.
S.D. LEWIS for appellee.
Reversing.
The appellants and plaintiffs below, as members of the Kentucky State Board of Dental Examiners, filed this equity action in the Rockcastle circuit court against appellee and defendant below, George Payne, praying that he be enjoined from practicing dentistry in this Commonwealth without having first obtained a license so to do, as is prescribed and required by section 2636-3 of our present statutes. It was alleged in the petition that defendant had opened an office in Mt. Vernon and was and had been for some time prior thereto actively engaged in the practice of dentistry, and that he had neither applied for nor obtained the license required by the section of the statute and that the penalty of not less than $5.00 nor more than $20.00 prescribed in section 2636-18 was inadequate to secure the enforcement of the highly public policy purpose of the legislature in the enactment of the statute, and that great and irreparable injury would result, not only to the members of the public who might become patients of defendant, but also to others engaged in the practice of the profession and who had complied with the requirements of the law. The necessity for the invoking of the remedy as well as the grounds therefor were more elaborately stated, but which we deem unnecessary to more extensively state in this opinion. The court sustained defendant's demurrer filed to the petition and, plaintiffs declining to plead further, it was dismissed, and to reverse that judgment this appeal was prosecuted.
The first question for determination is one of practice, and it is: Whether the action, if maintainable at all, was properly commenced by plaintiffs as members of the board of examiners created by the statute, which was enacted in 1912 and is now sections 2636-1 to and including 2636-22 of the 1922 edition of Carroll's Kentucky Statutes? Generally, where injunctive relief of the character here sought is granted by the court in cases where the Commonwealth is the moving spirit behind it, the action should be brought in the name of the attorney general as relator for the Commonwealth. Commonwealth v. McGovern, 116 Ky. 212; Respass v. Commonwealth, 131 Ky. 807, and other cases following those opinions. But it is competent for the legislature to provide otherwise, since there is nothing in our Constitution limiting its right to so prescribe, and in the absence of such constitutional limitation it has the authority to do so under the well known principle that the legislatures of the states have all power, except those withheld by the Constitution of the particular jurisdiction. There is nothing in our Constitution limiting or circumscribing the power or authority of the legislature to prescribe by whom such actions when maintainable at all may be prosecuted. Besides, the right of the legislature to lodge the authority to bring such suits with whatever governmental agency it sees proper is stated as a correct principle by Mr. Joyce in his Law of Nuisances, section 426, and was recognized and upheld by the Texas court of last resort in the case of Ex Parte Allison, 90 S.R.W. 492. Other authorities and courts recognize the same right, but the proposition is so clear to our minds that we deem it unnecessary to cite them.
Accepting that as true, the next question is: Does our statute, composed of the sections supra, vest the Board of Dental Examiners with authority to maintain the action? The first section of the act (2636-1) at its beginning says: "That the Kentucky State Board of Dental Examiners heretofore created be continued, to consist of five practicing dentists, whose duty it shall be to carry out the purposes and enforce the provisions of this act as hereinafter specified." Subsection 8 of the act, now section 2636-8 of our statutes, prescribes the fees to be paid by the applicant for the license when originally obtained and for each renewal thereof, and directs the purposes for which such fees when collected may be expended, a part of which was "to provide the means for carrying out and enforcing the provisions of this act." The latter part of the same section says: "All moneys received in excess of said per diem allowances and other expenses, herein provided, shall be held by the secretary-treasurer of said board as a special fund for meeting the other expenses of said board, and for such use as the said board may deem necessary in the enforcement of this act." Clearly it was intended by the legislature from the excerpts we have inserted from the statute to vest the board with power to enforce its provisions by whatever lawful means it might employ for the purpose; and, without further discussion, we hold that if the remedy here invoked is available for the purpose of enforcing the provisions of the act it may be maintained by the members composing the board, since the statute does not create it a corporation.
The next and vital question in the case is: Can the remedy by injunction be resorted to for the purpose of preventing one practicing the profession of dentistry without complying with the provisions of the statute by procuring a license and complying with its other requirements? Defendant contends, and it was no doubt so held by the trial court, that the purpose of the petition was only to enjoin defendant from the commission of a crime and that the equitable relief of injunction may not be employed for such a purpose, and the McGovern and the Respass cases, supra, as well as the later case of Johnson v. Tarter, 199 Ky. 47, are cited in support of that proposition. Perhaps a hundred more cases as well as innumerable text writers could also have been cited in support of the general doctrine, one of which from this court is Commonwealth v. Ruh, 173 Ky. 771, L.R.A. 1917D, 283. See also annotation in 35 A.S.R., page 670. We have no quarrel to make with the broad statement of the doctrine as applied in the cases referred to and as stated by all text writers, but a reading thereof will disclose that many exceptions have been ingrafted on the doctrine as so broadly stated, and that courts in the exercise of...
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