People v. Painless Parker Dentist, 12050.

• Decision Date: 04 March 1929
• Docket Number: 12050.
• Citation: 85 Colo. 304,275 P. 928
• Parties: PEOPLE v. PAINLESS PARKER DENTIST.
• Court: Colorado Supreme Court

275 P. 928

85 Colo. 304

PEOPLE v. PAINLESS PARKER DENTIST.

No. 12050.

Supreme Court of Colorado, En Banc.

March 4, 1929

Rehearing Denied March 25, 1929.

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Action by the District Attorney, in the name of the People, against the Painless Parker Dentist. The trial court dismissed the action after sustaining defendant's general demurrer to the complaint, and plaintiff brings error.

Reversed and remanded, with instructions.

On Application for Rehearing.

Foster Cline, Dist. Atty., Charles H. Haines, and Samuel H. Crosby, all of Denver, for the People.

Frank B. Goudy, Edward L. Wood, and James D. Parriott, all of Denver, for defendant in error.

CAMPBELL J.

The district attorney, in the name of the people, brought this action under chapter 28 of our Code of Civil Procedure against 'Painless Parker Dentist,' a California private corporation, for unlawfully usurping the franchise of practicing dentistry in the state of Colorado without having procured a license therefor, as our statute on the subject requires. The trial court sustained the defendant's general demurrer to the complaint the dismissed the action, at plaintiff's costs. Its ruling was 'more particularly' based on its conception that no franchise, as contemplated by our usurpation chapter, is involved and no public interest is shown. If the ruling is right for any legal reason, it is immaterial on what particular ground the trial court held the complaint defective. But since the particular ground mentioned was persuasive with the court below, and because the briefs of the defendant on this review take so wide a range, and therein are discussed so exhaustively questions of fact that are not in the complaint but which are in direct conflict therewith, we shall first summarize the allegations of the complaint so that the reader may know what the admitted facts of the complaint are which the trial court held do not entitle the people to any relief.

The complaint alleges that the defendant is a corporation organized under the laws of the state of California; that it has never obtained or held, and does not now hold, and because the defendant is a corporation it is not eligible to obtain or hold, a license to practice dentistry in Colorado that for more than one year last past defendant has unlawfully usurped and intruded into and exercised, and does now usurp, intrude into and exercise, in this state, the franchise and privilege of practicing dentistry therein; that defendant has held itself out to the public and publicly advertised, and now holds itself out and publicly advertises that it is engaged in the practice of dentistry in the state of Colorado and maintains and operates a dental office in the city and county of Denver, in which it has received, and proposes to continue to receive, as prospective dental patients, people who are enticed into such office by defendant's advertising, or who otherwise have come to such office to have their teeth examined and diagnosed, and to have operative dental surgery performed on their teeth, and that defendant has accepted many such persons during such period of time as dental patients, and for a money consideration has entered into contracts with them to examine their teeth and diagnose the condition thereof and to perform dental surgery upon the teeth of such patients within the city of Denver for a money consideration, and in pursuance of such contracts with the patients has performed, and will continue to perform, operative dental surgery upon their teeth; that the manner and method by which defendant has so practiced dentistry and is now practicing it in this state is by employing agents to do the work on the teeth of patients who come to its office and to diagnose the condition and to perform operative dental surgery, such agents being employed by and paid by and being under the direction and control of the defendant and not being in any contractual relation whatever with the patients, and the defendant threatens so to continue to practice dentistry in this state for a money profit unless prevented by an order of the court. Such, in substance, are the allegations of this complaint, which, as above stated, the trial court held did not entitle the people to a judgment of ouster against the defendant.

Our General Assembly, in the exercise of its police power, has by statute enacted regulations for the practice of dentistry in this state. Section 4571, C. L. 1921, makes it unlawful for any person to practice dentistry in this state unless he shall have a license for such purpose. Any person shall be regarded as practicing dentistry within the meaning of the act who uses the word 'dentist,' or other letters or titles in connection with his name, which in any way represent him as engaged in the practice of dentistry.

Section 4574 provides that any person desiring to practice dentistry in this state shall first submit to an examination before the state board of dental examiners touching his qualifications, and every such applicant for examination shall, with his application, submit to the board a diploma of graduation of some reputable dental college, or school, or university dental department, duly authenticated by the laws of this state or some other state of the Union.

Section 4575 declares that persons possessing such diploma, upon deposit of an examination fee, shall be examined by the board upon the science and practice of dentistry; and all who are found qualified, if of good morals and character, shall receive a license to practice their profession in this State.

These are the principal provisions of our so-called Regulatory Act (C. L. §§ 4571-4579) that bear upon the present controversy. As we understand the record, the trial court in its opinion, while conceding that the defendant under these statutory provisions not only did not have, but could not have, a license to practice dentistry, and as a corporation was not in a position to ask for or acquire one, and could not, in the nature of things, because of its corporate capacity, possess a license to practice dentistry, nevertheless, it held that, since the defendant employed qualified licensed dentists to engage in such practice for it, and it not appearing that the persons actually doing and performing dental work as its employees or agents did not have a license, the defendant may not be interfered with. The defendant strenuously contends throughout its brief that it was not, and is not, practicing dentistry in this state without a license, or at all, and it asserts that, being a corporation, it is not within the purview of our statute regulating the practice of dentistry, because that statute purports to regulate the practice of dentistry only by natural persons or human beings and does not apply in any respect to a private corporation organized to practice dentistry. It is a sufficient answer to this contention to say that not only does the complaint itself directly charge, in so many words, that the defendant is practicing, and assuming to practice, dentistry in this state without a license, but the defendant uses in and as a part of its corporate name the word 'dentist,' which use section 4571 says shall be regarded as practicing dentistry. Notwithstanding these repeated assertions in its brief that it is not charged with practicing dentistry in this state, it is too clear for discussion that the defendant assumes to be engaged and, by its demurrer, admits that it is, and that it assumes to be, engaged in the dental practice. True, the defendant as a corporation cannot itself extract teeth or diagnose the condition of patients or perform dental surgery thereon, but it purports to do these things through natural persons by it selected, who, as it says in its brief, are licensed dentists.

In this last assertion counsel are wrong in asserting that, because the complaint does not question the competency of the defendant's alleged agents as licensed dentists, it necessarily follows that these employees are duly licensed and this court must so assume. It was not necessary for the plaintiff in his complaint to negative the competency of the defendant's alleged employees, and there is nothing in this record, except the statements of defendant's counsel in their briefs, that the employees of defendant who perform dental work are duly licensed dentists. If they are licensed dentists, and if that circumstance negatives the allegation of the complaint that defendant assumes to be engaged in practicing dentistry, the defendant must, if it so contends, make that point by an allegation in its answer, not by a demurrer to the complaint. So that, if it is true, as defendant argues, that it is not in its corporate capacity engaged in the practice of dentistry in the sense of doing dental work itself, and that the dental work in its Denver office is done by its licensed employees, and if its method or manner of practicing dentistry is through licensed employees, it should have filed an answer and so alleged instead of filing a general demurrer which admits the allegations of the complaint that it is engaged in the practice of dentistry.

But it may be said that this is a mere technicality, because, in the nature of things, a private corporation, which is only an artificial person created by statute, cannot itself do dental work, and therefore if it has the right or possesses the power to practice dentistry at all, it must do so through the agency of its employees who are licensed dentists; and this leads to a consideration of a fallacy which colors and enters into the entire argument of the defendant, which is based upon the false assumption that since it is competent to engage in...