Semler v. Oregon State Board of Dental Examiners

• Decision Date: 26 June 1934
• Citation: 34 P.2d 311,148 Or. 50
• Parties: SEMLER v. OREGON STATE BOARD OF DENTAL EXAMINERS et al.
• Court: Oregon Supreme Court

34 P.2d 311

148 Or. 50

SEMLER v. OREGON STATE BOARD OF DENTAL EXAMINERS et al.

Supreme Court of Oregon

June 26, 1934

En Banc.

Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.

Injunction suit by Harry Semler against the Oregon State Board of Dental Examiners and others. From a decree of dismissal, plaintiff appeals.

Affirmed.

S. J. Bischoff and Frank J. Lonergan, both of Portland, for appellant.

Lawrence T. Harris, of Eugene, and Harry M. Kenin, of Portland (Harris, Smith & Bryson, of Eugene, and Herzog & Kenin, of Portland, on the brief), for respondents.

BELT Justice.

Plaintiff a duly licensed dentist who has practiced his profession in the city of Portland since 1918, seeks to enjoin the threatened action of the state board of dental examiners to revoke or suspend his license for an alleged violation of certain provisions of chapter 166, page 210, of the Laws of Oregon for 1933, amending section 68-1013, Oregon Code 1930 relating to the practice of dentistry. The gravamen of plaintiff's complaint is that the following provisions of the act defining unprofessional conduct which constitute ground for revocation or suspension of a license to practice dentistry are unconstitutional and void. "Advertising professional superiority or the performance of professional services in a superior manner; advertising prices for professional service; advertising by means of large display, glaring light signs, or containing as a part thereof the representation of a tooth, teeth, bridge work or any portion of the human head; employing or making use of advertising solicitors or free publicity press agents; or advertising any free dental work or free examination; or advertising to guarantee any dental service, or to perform any dental operation painlessly. ***" Other grounds specified in the act for revoking or suspending a license are not challenged by plaintiff. He does not question that part of the act relating to advertising which prohibits "making use of any advertising statements of a character tending to deceive or mislead the public."

It appears from the complaint that while plaintiff was engaged in the practice of dentistry he (1) employed the services of advertising solicitors; (2) used as advertising mediums large display signs and glaring light signs showing illustrations of a tooth, teeth, and bridge work; and (3) advertised in the daily newspapers as follows: (a) That he had acquired superior skill and ability and knowledge in the practice of dentistry and his ability to perform the professional services of dentistry in a superior manner; (b) the prices that he would charge for various services to be rendered; (c) that he makes examinations for prospective patients without making any charge therefor; (d) that he guarantees all dental work performed by him; and (e) that dental operations are performed painlessly.

Plaintiff alleges, in substance, that by reason of the methods of advertising above mentioned he has acquired a large and lucrative practice; that he and his employed assistants, who are licensed practitioners and working under his supervision have treated daily at his offices approximately 150 patients; and that on account of such volume of business he has been enabled to render service to his patients at a much lower price than charged by most practitioners. Plaintiff also alleges that all of his advertisements were made in good faith and honestly express his "intention of carrying out each and every of the representations contained therein." It is also averred that if the above statutory provisions are enforced the plaintiff will sustain irreparable loss and injury.

Plaintiff alleges as conclusions of law that the above portion of chapter 166, p. 210, Laws of Oregon for 1933, is unconstitutional and void because it (1) deprives him of property without due process of law; (2) impairs the obligation of contracts; (3) constitutes class legislation; (4) is so indefinite and uncertain as to be incapable of enforcement; and (5) denies to him equal protection of the law.

A general demurrer to the complaint was sustained and, upon refusal of the plaintiff further to plead, the suit was dismissed. The plaintiff appeals.

The history of legislation in the various states regulating the conduct of practitioners in the learned professions-law, medicine, and dentistry-disclose a marked tendency in recent years to enact more stringent regulations, that the standards of these professions be raised, and the ignorant, gullible members of the public be protected from quacks and charlatans who spurn the ethics of their profession and thrive by flamboyant methods of advertising and "high powered salesmanship." Six states, viz., California, Illinois, Michigan, South Dakota, Utah, and Wisconsin, have statutes similar to that of this state prohibiting dentists from employing "cappers" or "steerers" to obtain business. Thirty-two states of the Union make it unprofessional conduct for a dentist to make any advertising statement of a character to deceive or mislead the public. Arkansas, Delaware, Illinois, Maryland, Minnesota, New York, Ohio, and Wisconsin, have similar statutes to that of Oregon prohibiting "advertising professional superiority or the performance of professional services in a superior manner." Five states, viz., Delaware, Illinois, Maryland, New York, and Wisconsin, have statutes making it unprofessional conduct for a dentist to advertise prices for professional services. Delaware, Illinois, New York, and Wisconsin have similar statutes regulating the practice of dentistry, and providing against "advertising by means of a large display, glaring light signs, or containing as a part thereof the representation of a tooth, teeth, bridge work or any portion of the human head." Delaware, Illinois, Maryland, and New York prohibit a dentist from "employing or making use of advertising solicitors or free publicity press agents." Illinois provides against advertising "free dental services or examinations as an inducement to secure dental patronage." There are ten states which prohibit advertising "to perform any dental operation painlessly." We are not unmindful that the statutory enactments of other states governing professional conduct of dentists have no direct bearing upon the legal questions involved herein, but such legislation, which in most instances is an adoption of the rules of ethics of the American Dental Association, is at least illuminating relative to the trend of legislation to protect the public against fraud and deception.

The Legislature, in enacting these drastic regulations, was not dealing with a trade or business, but with a profession whose members deal with the public under an intimate and confidential relationship. The patient ordinarily has implicit confidence in his dentist. He knows not the intricacies of the treatment nor the reasonable value thereof. He submits to treatment with an abiding faith that his dentist is efficient and will deal honorably with him. Hence cases involving the regulation of a trade or business, in which every person has a right to engage, have slight analogy to the one under consideration.

The plaintiff has been privileged to practice his profession by virtue of a license granted by the state, and, in order to obtain the same, it was necessary for him to conform to certain rules and regulations enacted for the protection of the public. That, after the issuance of the license, the state, in the exercise of its police power, may also prescribe reasonable rules and regulations governing the subsequent conduct of the licensee, naturally follows. It would likewise seem well founded in law that one who aspires to treat human ailments and thereby invite the confidence of the public to an exceptional degree should be compelled to submit to such regulations as will guard the public as far as possible against fraud and deception. In other words, the extent to which the police power may be exercised depends largely upon the manner and degree in which the public welfare is involved. We conclude then that, while the right of the plaintiff to practice his profession is a valuable one and is in the nature of a property right of which he cannot be arbitrarily deprived, it is, nevertheless, a privilege subordinate to the duty of the state to enact reasonable laws to protect the public health and safety.

Courts, with good reason, have refused to define police power, for to do so might thus limit it to the detriment of the public welfare, in the light of changing social and economic conditions. The law should follow closely in the wake of an advancing civilization. Regulation of professional conduct deemed unduly drastic ten years ago might well be considered reasonable under present-day conditions. As well said by that eminent jurist, Mr. Justice Field, speaking for the United States Supreme Court, in Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 233, 32 L.Ed. 623: "The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fraud."

In the enactment of the legislation above set forth, providing for the revocation or suspension of a license to practice dentistry, did the Legislature go beyond the proper exercise of the police power? Is there any reasonable relation between the questioned prohibitory provisions of chapter 166, p. 210, Laws 1933, and the object or purpose which the Legislature had in mind, viz., the protection of the public against fraud and deception in the practice of dentistry? Certainly the need of such legislation rests primarily upon...