Lamons v. Yarbrough
| Decision Date | 11 October 1949 |
| Docket Number | 16791. |
| Citation | 55 S.E.2d 551,206 Ga. 50 |
| Parties | LAMONS et al. v. YARBROUGH et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. It is the duty of the courts, in the interpretation of statutes to seek diligently to arrive at the legislative intent, and in order to do so, they should not adopt an arbitrary rule that the legislature intended to make a typographical or clerical error, the result of which would be to make nonsense of the act, and destroy it.
2. While, under the Constitution, the judiciary has the power and duty to declare void legislative acts in violation of the Constitution of this State or of the United States, the conflict between the act and the fundamental laws must be clear and palpable before the act of the co-ordinate department of the government will be declared unconstitutional. It is the duty of the courts to put such construction upon statutes, if possible, as to uphold them and carry them into effect.
3. The legislature has the right in the exercise of the police power of the State to determine what trades or occupations shall be regulated, and the nature and extent of the regulations to be applied, and if such regulation be reasonable, and the law operates alike on all who come within the scope of its provisions, constitutional uniformity is secured.
4. The act of the legislature regulating the occupation of dental hygienists, approved February 25, 1949, Ga.L.1949, p. 1192 is not unconstitutional, (a) because it violates the due-process and equalprotection clauses of the 14th amendment to the Constitution of the United States and the Constitution of this State; or (b) because it violates article 3, section 7, paragraph 8 of the Constitution of this State, providing that no law shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof.
5. The petition in this case, attacking the act above referred to upon the grounds indicated in the preceding headnote, failed to state a cause of action, and the trial court did not err in sustaining the general demurrer thereto.
Two named persons describing themselves as practicing Dentists or Doctors of Dental Surgery in Georgia; five named persons describing themselves as practicing licensed Dental Hygienists with school or college training therefor, one person describing herself as an applicant for examination and license as a Dental Hygienist and as a graduate of a school or college approved by the Board of Dental Examiners of Georgia, and the Georgia Dental Hygienists Association, alleging itself to be a corporation duly organized for the betterment of the profession, and all alleging themselves to be citizens and taxpayers of the State of Georgia, as petitioners, brought their petition in the Superior Court of Bibb County against seven named defendants as individuals and as members of the State Board of Dental Examiners of Georgia, and another named defendant as Secretary of said Board by virtue of being Joint Secretary of the State Examining Boards of the State of Georgia, seeking to restrain and enjoin the defendants from holding any examination or granting any licenses to Dental Hygienists under the provisions of the act of the General Assembly of Georgia approved February 25, 1949, Ga.L.1949, p. 1192, upon the grounds and for the reasons that said act is alleged to be unconstitutional and void as violative of the following provisions of section 1 of the Fourteenth Amendment of the Constitution of the United States, Code Ann. § 1-815: 'nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws'; and of article 1, section 1, paragraph 3 of the Constitution of the State of Georgia, Code Ann. § 2-103, which provides: 'No person shall be deprived of life, liberty, or property, except by due process of law'; and of article 1, section 1, paragraph 2 of the Constitution of the State of Georgia, Code Ann. § 2-102, which provides: 'Protection to person and property is the paramount duty of government, and shall be impartial and complete'; and of article 3, section 7, paragraph 8 of the Constitution of the State of Georgia, Code Ann. § 2-1908, which provides: 'No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof.'
It is alleged in the petition and insisted in the briefs of counsel for the plaintiffs in error: that sections 1 and 3 of said act are wholly irreconcilable, conflicting, discriminatory, ambiguous, and unenforcible, and have the effect of rendering the whole of said act discriminatory, illegal, void, and unconstitutional, as depriving the petitioners of their constitutional rights in violation of constitutional provisions above referred to; that 'section 3 of said act by its terms refers to and is predicated upon provisions of section 1 of said act, as if section 84-1009 of the Code of Georgia of 1933, relating to definitions and qualifications for Dental Hygienists still existed as a law, when by the terms of section 1 of said act said Code § 84-1009 was purported to be repealed;' and that section 3 of said act within itself attempts to provide an alternate method of examination for licensing of dental hygienists, one method for those who have graduated from a school or college recognized by the Board of Dental Examiners, and another method for candidates for dental hygienists who have not had such school or college training, but who may have been employed by and performed certain duties for licensed dentists; but that said section is rendered ineffective, unenforcible, discriminatory, and unconstitutional, because section 3 is mistakenly based on the premise that either § 84-1009 of the Code is still in existence as the law or that some other provisions in the act re-enacts definitions, qualifications, and standards for dental hygienists, and the examination of and licenses for such persons, when there is an absence of such provisions in any other portion of said act; that, if said act is allowed to stand, it would penalize and discriminate against dental hygienists, already licensed, who are graduates of a school or college recognized by the Board of Dental Examiners, and candidates for licenses, who are such graduates, because it would require college-trained applicants to take both a theoretical and practical examination, whereas office-trained applicants would only be required to take a practical examination, thus being discriminatory, not only as to candidates for licenses, but also allowing into the profession untrained, inefficient, and hazardous persons with the same rights and privileges as those who are qualified by school or college training; and, for the same reasons would deprive the petitioners of property without due process of law, and deny to the petitioners the equal protection of laws as guaranteed in the constitutional provisions referred to.
The petition prays: (1) for process; (2) that the defendants, and each of them, their agents, servants, or persons acting by or through them, be temporarily restrained and permanently enjoined from holding an examination for or licensing dental hygienists on June 6, 1949, or any other date, or attempting to do so under the said act; (3) that the act be declared void and unconstitutional upon each and all of the grounds set out; and (4) for general relief.
To this petition as amended the defendants interposed their general and special demurrers, which were sustained, and the petition and restraining order previously granted dismissed, and to this judgment the plaintiffs except.
Dobbs & McCutchen, Atlanta, Marshall L. Allison, Atlanta, for plaintiffs in error. Spence Grayson, Savannah, for parties at interest.
Eugene Cook, Atty. Gen., J. R. Parham, Asst. Atty. Gen., for defendants in error. Pierre Howard, Atlanta, for parties at interest.
HAWKINS, Justice (after stating the foregoing facts).
1. All of the grounds of demurrer are not set out for the reason that, under the view we take of this case, the ruling on the general demurrer is controlling. Neither is the entire act here set out, for it is only sections 1, 2, and 3 thereof which are under attack, and which the plaintiffs insist render the entire act unconstitutional and void.
Previous to the passage of the act now under attack, the entire law relating to dental hygienists, their qualifications, examination, etc., was contained in the Code, § 84-1009. It is alleged in the petition that, acting under the authority of this Code section, the Board of Dental Examiners had adopted a rule which provided that
Section 1 of the act now before us quotes the above-mentioned section of the Code, and specifically repeals it in its entirety.
Section 2 of the act, in substance, prohibits any person from practicing as a dental hygienist in Georgia 'until such person has passed a written and a clinical examination conducted by the Board of Dental Examiners of Georgia' prescribes a fee for the examination, and provides that 'The said Board of Dental Examiners shall issue licenses and license certificates as dental hygienists to those persons who have passed said examination in a manner satisfactory to the said Board, which license certificate shall be posted and displayed in the place in which said hygienist is employed.' Section 3 o...
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