Lasdon v. Hallihan

• Decision Date: 10 September 1941
• Docket Number: No. 25989.,25989.
• Citation: 377 Ill. 187,36 N.E.2d 227
• Parties: LASDON et al. v. HALLIHAN, Director of Registration and Education, et al.
• Court: Illinois Supreme Court

377 Ill. 187

36 N.E.2d 227

LASDON et al.

v.HALLIHAN, Director of Registration and Education, et al.

No. 25989.

Supreme Court of Illinois.

June 13, 1941.

Rehearing Denied Sept. 10, 1941.

Action by Edward N. Lasdon and six others against John J. Hallihan, Director of Registration and Education, and others ot enjoin enforcement of certain provisions of the Dental Practice Act by criminal prosecution. From a decree dismissing the complaint for want of equity, named plaintiff and three other plaintiffs appeal.

Affirmed.Appeal from Circuit Court, Cook County; Philip J. Finnegan, judge.

Louis M. Kaplan, of Chicago, for appellants.

George F. Barrett, Atty. Gen., and Thomas J. Courtney, State's Atty., of Chicago (Albert E. Hallett, Jr., of Chicago, of counsel), for appellees.

MURPHY, Justice.

This case comes direct to this court by appeal from a decree of the circuit court of Cook county, pursuant to leave granted appellants to appeal within one year under the procedure provided for in rule No. 29, 370 Ill. 29. Ill.Rev.Stat.1939, c. 110, § 259.29. Constitutional questions are presented which confer jurisdiction for a direct appeal.

Seven persons, four of whom are appellants, instituted this action against the Director of Registration and Education, the Attorney General, and State's attorney of Cook county, seeking by such proceeding to enjoin such officials from enforcing, by criminal prosecution, certain provisions of the Dental Practice act which they claim violate the State and Federal constitutions. After evidence had been taken before the master and a hearing was had on his report, the chancellor dismissed the complaint for want of equity. Appellants operated dental laboratories in Chicago for the making of prosthetic dentures, bridges and other substitutes for natural teeth.

The constitutional attack is upon parts of section 5 of the Dental Practice act as amended in 1939. Ill.Rev.Stat.1939, chap. 91, par. 60. The pertinent provisions of the section, as amended, are: ‘A person practices dentistry, within the meaning of this Act: * * * (9) Who furnishes, supplies, constructs, reproduces or repairs, or offers to furnish, supply, construct, reproduce or repair prosthetic dentures (sometimes known as ‘plates'), bridges or other substitutes for natural teeth, to the user or prospective user thereof. * * *

‘The following practices, acts, and operations, however, are exempt from the operation of this Act: * * * (f) The making and repairing of prosthetic dentures, bridges, artificial restorations or other structures to be used or worn as substitutes for natural teeth, or appliances for the correction of disease, loss, deformity, malposition, dislocation, fracture of or injury to the jaws, teeth, lips, gums, cheeks, palate, or associated tissues or parts upon order or prescription given by a licensed and registered dentist and constructed on, or by use of, casts or models made from impressions taken by a licensed and registered dentist; provided, that such prosthetic or orthodonic appliances, or the services rendered in the construction, repair or alteration thereof shall not be offered for sale, or use, or delivery to the public. And provided further that such prosthetic or orthodonic appliances shall not be placed or adjusted on the oral cavity, except by licensed and registered dentists.’

It will be observed that under these provisions dental plates may, under certain specified conditions, be made by one who is not a licensed and registered dentist. Such conditions are (a) the impression from which the plate is to be made must be taken by a licensed dentist; (b) the person engaged in the making of such appliances shall not offer to sell them or the services rendered in the construction of them to the public and (c) the placing and adjustment of the plates in the oral cavity shall be performed by a licensed dentist.

The master found that for several years there had been two classes of dental laboratories in Chicago, those who dealt exclusively with licensed dentists having no contact or dealings with the general public or the patient for whom the plate was being made, and those who advertised their business by offering to sell full or partial dentures to the public.

The laboratories of appellants were within the latter classification. The pleadings raised an issue of fact as to appellants' method of transacting business. The finding of the master on that point is not questioned, the material parts of which are: ‘The laboratories in question conduct their business in the following manner: An ‘ad.’ is placed in a newspaper of general circulation or some other publication offering for sale to the public full or partial dentures; a person in need of a full or partial denture who has been the advertisement * * * enters the store or office of the laboratory and informs the plaintiffs or one of their employees that he wishes to purchase a denture; * * * the customer is asked * * * whether he, the customer, has a dentist; if he has not, the laboratory owner then recommends a dentist to the customer; the customer then leaves the laboratory and visits the dentist; the dentist makes an impression and arrangements are made between the customer and the dentist for the payment to the dentist for his services; * * * upon this impression [the one made by the dentist] the laboratory constructs the denture, which denture is then delivered to the dentist for fitting in the customer's mouth; the denture is then sent back by the dentist to the laboratory for adjustments and when it is finally completed, it is returned by the laboratory to the dentist for final fitting in the customer's mouth; the customer pays the laboratory for its work and pays the dentist for his work.' The appellants had each been engaged in the making of dentures for several years and previous to a few months before the trial their dealings had been exclusively with licensed dentists.

Appellants say they do not contend that the provision of the act which requires the making of the impression and fitting and adjustments of the plate in the oral cavity to be done by a licensed dentist is not a proper exercise of legislative power, but that their objection is to the provision which prohibits them from making and offering dental plates for sale or use to the public.

The specific reasons why the Federal and State constitutions are claimed to have been violated by the amendment to section 5 are (a) that the amendment unreasonably restrains trade, impairs the right of contract and deprives appellants of liberty and property without due process of law in violation of sections 1 and 2 of article 2 of the Illinois constitution and the fifth and fourteenth amendments of the Federal constitution; (b) that it violates section 13 of article 4 of the Illinois constitution, in that the amendment purports to cover subjects not embraced in the title of the act and embraces more than one subject; (c) that it is special or class legislation, violating section 22 of article 4 of the State constitution and the fourteenth amendment of the Federal constitution; (d) that it is unreasonable, arbitrary, bears no relation to public health, morals or welfare of the people and is not a valid exercise of the police power, and finally, it is argued, as a matter of statutory construction, that the dental laboratory operations as carried on by appellants did not constitute the practice of dentistry within the meaning of the act.

Appellants are in no position to complain of the impairment of their right to contract as to matters relating to their business if their business was of such nature as to be the subject of legislative regulation through the exercise of the police power of the State. Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086;Rast v. Van Deman & Lewis Co., 240 Ill. 342, 36 S.Ct. 370, 60 L.Ed. 679, L.R.A.1917A, 421, Ann.Cas.1917B, 455;Schiller Piano Co. v. Illinois Northern Utilities Co., 288 Ill. 580, 123 N.E. 631, 11 A.L.R. 454. In discussing the extent of power which the legislature possesses in matters related to the police power this court in People v. Weiner, 271 Ill. 74, 110 N.E. 870, 872, L.R.A.1916C, 775, Ann.Cas.1917C, 1065, said: ‘The power of the Legislature to pass laws for the preservation of good order or to promote public welfare and safety, or to prevent fraud, deceit, cheating, and imposition, has always been recognized in this state. People v. Freeman, 242 Ill. 373, 90 N.E. 366,17 Ann.Cas. 1098;People v. Schenck, 257 Ill. 384, 100 N.E. 994,44 L.R.A.(N.S.) 46, Ann.Cas.1914A, 1129. * * * A rightful exercise of the police power is not a violation of the Fourteenth Amendment, even though property interests are affected. * * * The police power has been defined as that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society. * * * This power is very broad and far-reaching; yet it is not without its restrictions. While the courts will not pass upon the wisdom of an act concerning the exercise of the police power, they will pass upon the question whether such act has a substantial relation to the police power. * * * It must have some relation and be adapted to the ends sought to be accomplished.’

In the exercise of police power the practice of the professions has been subjected to licensing and regulation for the reason that the services customarily rendered by those engaged in such professions are so closely related to the public health, welfare and general good of the people, that regulation is deemed necessary to protect such interests. It has been held a proper exercise of police power to legislate and protect the professions performing such services against commercialization and exploitation. Winberry v. Hallihan, 361 Ill. 121, 197 N.E. 552;Semler v. Oregon State Board of Dental Examiners, supra; People v. People's Stock Yards State...