Noble v. Douglas, 233.

• Decision Date: 15 April 1921
• Docket Number: 233.
• Court: U.S. District Court — Western District of Washington
• Parties: NOBLE v. DOUGLAS, Pros. Atty., et al.

274 F. 672

NOBLE v. DOUGLAS, Pros. Atty., et al.

No. 233.

United States District Court, W.D. Washington, Northern Division.

April 15, 1921

Browder Brown and J. W. A. Nichols, both of Tacoma, Wash., for complainant.

Malcolm Douglas and Bert C. Ross, both of Seattle, Wash., pro se.

Before GILBERT, Circuit Judge, and CUSHMAN and NETERER, District judges.

CUSHMAN District Judge.

The bill avers:

"That complainant is by profession and practice a dentist, and skilled in the theory and practice of dentistry, having pursued his studies in the science and practice of his said profession in a reputable and standard school and college of dentistry, to wit, the North Pacific Dental College of Portland, Or., from which college, after attendance and study and practice therein for the full term required, and after examination by the faculty of said college, the complainant was awarded and received the diploma of said college as evidence of his learning and skill in said profession, and authorizing him to practice his said profession in all its branches as a graduate of said college from and after the date of said diploma, to wit May 21, 1909. And your orator further says that during the time since receipt of said diploma the complainant has engaged in the practice of his said chosen profession in its various branches, and in the cleansing, care, and repair of teeth, and the manufacture and fitting and adjustment of artificial teeth, * * * and that he has no other available means whatever of maintenance or support."

It is further averred that the prosecuting attorney for King county, Wash., has filed an information in the superior court of that state, charging--

"the complainant herein with a crime against the laws of the state of Washington, to wit, with practicing dentistry in the city of Seattle, in said state, without having a license so to practice from the state board of dental examiners and by said information caused the arrest and imprisonment of complainant, and said cause is now pending in the said superior court; complainant being at present released from custody on bail pending the hearing, trial and judgment in said cause.

'And further complaining, your orator says that, since his said arrest, imprisonment, and release on bail, the complainant under the advice of his counsel has continued in the practice of his profession, and in order to maintain and support his family is compelled so to follow and practice his said profession, and without the aid and support derived from such practice the complainant and his family will be wholly without means of support, and will be wholly dependent upon the charity of friends or the public; that the defendants have threatened to have complainant again arrested and imprisoned, unless he desists from the practice of dentistry, and to continue so to arrest and imprison him as often as he shall engage in such work, and so to compel him to abandon his profession, and thereby destroying the fruits of his college study, and education and life work, and leave him helpless in the discharge of his duties to his family and as a citizen.

'And your orator further complains and says that the information and arrest of complainant aforesaid, and which defendants are threatening to repeat, are brought under the pretended authority of the statutes of Washington, to wit, sections 8412 to 8425, both inclusive, of Remington's Code of said state of Washington, and particularly of sections 8416, 8421, and 8425 thereof, and that said statute is repugnant to the Constitution of the United States and to the Fourteenth Amendment thereof, and that by enforcing said statute complainant is deprived of his liberty and of his property without due process of law.

'And your orator further says that the aforesaid trial of complainant in the state courts will require long periods of time in the presentation, trial, and determination of complainant's defense, and that, whether the judgment therein shall be favorable or adverse to complainant, the cause will proceed by appeal or writ of error to the Supreme Court of the United States, and that pending such procedure through long periods of time complainant will be prevented from practicing his profession, unless by relief granted by this court, and will thereby suffer great and wholly irreparable loss; that complainant has tried to comply with the requirements of said board of dental examiners, and therein has taken three several examinations and paid each time the required fee of $25, but that said board has each time arbitrarily refused to grant complainant a license, and so without assigning or giving any reason therefor, and without giving to complainant any record or information as to the result of his examination, other than to inform him that he had not passed; that by reason of the unlimited and arbitrary power granted to said board by said statute, and exercised by them thereunder, and by the arrest and imprisonment of complainant by defendants pursuant thereto, complainant is deprived of his liberty and property without due process of law."

Defendants have answered, and, while denying complainant's conclusions, admit the material allegations of fact in the complaint, and aver that--

"plaintiff's bill of complaint depends entirely upon the question of the constitutionality or unconstitutionality of said sections of Remington's Code of the State of Washington, and that said sections are constitutional."

The sections referred to are sections 8412-8425, inclusive, and particularly sections 8416, 8421, and 8425, of Remington & Ballinger's Code of the state of Washington. The pertinent provisions of the chapter of the Code regulating dentistry are as follows:

"Sec. 8412. A board of dental examiners, consisting of five practicing dentists, is hereby created, whose duty it shall be to carry out the purposes and enforce the provisions of this chapter." Section 8413 provides that the members of the board shall be appointed by the Governor, and regulates their terms of office and the portion of the state from which they shall be appointed. Section 8414 gives a form of oath administered to the board. Section 8415 provides:

"The board shall choose one of its members president and one secretary thereof, and it shall meet at least twice each year, in May and November, or oftener at the call of the president or secretary. * * *"

Section 8416 provides:

"Any person or persons seeking to practice dentistry in the state of Washington, or to (own), operate or cause to be operated, (or to run or manage) a dental office or place for the practice of dentistry in the state of Washington after the passage of this act shall file his or her name, together with an application for examination, with the secretary of the state board of dental examiners, and at the time of making such application shall pay to the secretary of the board a fee of twenty-five dollars, and to present him or herself at the first regular meeting thereafter of said board to undergo examination before that body. No person shall be eligible for such an examination unless he or she shall be of good moral character and shall present to said board his or her diploma from some dental college in good standing and shall give satisfactory evidence of his or her rightful possession of the same: Provided, this section shall not apply to persons engaged in the practice of dentistry at the time of the passage of this act who are bona fide citizens of the state of Washington. All persons successfully passing such examinations shall be registered as licensed dentists in the board register as hereinafter provided, and also receive a certificate, said certificate to be signed by the president and secretary of said board and in substantially the following form, to wit:

"This is to certify . . . is hereby licensed to practice dentistry in the state of Washington. This certificate must be filed for record in the office of the auditor of any county in which the party holding such certificate desires to practice, and it is unlawful for him (or her) to practice dentistry in any county in which said certificate is not filed for record.

''Dated at . . . this . . . day of . . ., A.D. 190--."

This section, as well as sections 8421 and 8424, was held unconstitutional as to 'owning, running or managing' a dental office in State v. Brown, 37 Wash. 97, 79 P. 635, 68 L.R.A. 889, 107 Am.St.Rep. 798.

Section 8417 defines the rights conferred by the certificate, and provides:

" * * * Any person failing to pass the first examination successfully may demand a second examination at a subsequent meeting of said board, and no fee shall be charged to (for) said examination: Provided, that the second examination is taken before the expiration of one year."

Section 8418 requires admitted dentists to register with the board. Section 8419 provides that persons practicing dentistry shall display, conspicuously, the names of all employees. Section 8420 provides for the recording of the certificates issued by the board with the county auditor. Section 8421 provides:

"Any person who, as principal, agent, employer, employee or assistant, who in any manner whatsoever shall practice dentistry or who shall (own, run) operate or cause to be operated, (or manage), a dental office or headquarters in the state of Washington without having first filed for record and had recorded in the office of the auditor of the county wherein he shall so practice or do such act, a certificate from said board of dental examiners as herein provided, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than fifty dollars, nor more than two hundred dollars, or be confined for any period not

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