State ex rel. Indiana State Board of Dental Examiners v. Boston System Dentists

• Decision Date: 30 March 1939
• Docket Number: 27170.
• Citation: 19 N.E.2d 949,215 Ind. 485
• Parties: STATE ex rel. INDIANA STATE BOARD OF DENTAL EXAMINERS v. BOSTON SYSTEM DENTISTS, etc.
• Court: Indiana Supreme Court

19 N.E.2d 949

215 Ind. 485

STATE ex rel. INDIANA STATE BOARD OF DENTAL EXAMINERS v. BOSTON SYSTEM DENTISTS, etc.

No. 27170.

Supreme Court of Indiana

March 30, 1939

Appeal from Newton Circuit Court; Geo. F. Sammons Judge.

Omer Stokes Jackson, Atty. Gen., Thos. Longfellow, Deputy Atty Gen., and J. Edwin Smith, of Gary, for the State.

Oscar Thiel, of Gary, and Bess Robbins, of Indianapolis, for appellee.

SHAKE Judge.

The state, on the relation of the Board of Dental Examiners sought to permanently enjoin appellee from practicing dentistry and from doing certain specific acts which licensed dentists are prohibited from doing by the statute regulating that profession (section 63-501 et seq., Burns' 1933, section 5586 et seq., Baldwin's Ind.St.1934). The trial court denied the injunction. The alleged errors relate to the striking out of parts of the amended complaint and to the overruling of the motion for a new trial, by which it was assigned that the decision was contrary to law and that certain testimony offered on behalf of the appellant was improperly excluded.

The original dental practice act, adopted in 1913, made it unlawful for 'any person' to practice dentistry without a license issued by the state board. This provision is still in effect (Acts 1913, Ch. 138, § 1, p. 340, section 63-501, Burns' 1933, section 5586, Baldwin's 1934). Appellee was incorporated under the general laws of this state on March 2, 1917 'for the purpose of engaging in and carrying on the business of dentistry and every branch thereof; the manufacturing, buying, selling and dealing in dental supplies, artificial dentists' crowns and bridge work, porcelain and gold inlays and other merchandise; printing and advertising and doing all other acts connected with or incident to the business of dentistry or any branch thereof'. By an amendment to the act of 1913, effective March 9, 1917--7 days after appellee's incorporation--it was provided: '* * * That it shall not be unlawful for any one duly licensed so to do, to practice dentistry, or to hold himself out as a practitioner of dentistry, under the name of any legally incorporated dental company, existing and in operation prior to the taking effect of this act.' Acts 1917, Ch. 160, § 7, pp. 665, 667, section 63-523(6), Burns' 1933.

The specific acts which the state sought to enjoin, other than the practice of dentistry, were offenses for which a license to practice dentistry may be revoked by the state board. It is conceded that the appellee is not, and has never been, licensed to practice dentistry, so that said specific acts are unimportant in the consideration of this appeal. The substantial question presented is, whether the appellee was engaged in the practice of dentistry, and what rights, if any, it possessed under its charter and the act of 1913 as subsequently amended. The appellee contends, in support of the judgment denying the injunction, that: (1) It was not engaged in the practice of dentistry as defined in the statute; (2) the businss in which appellee was engaged was specifically authorized by its charter and Section 7 of the act of 1917, quoted above; (3) the remedy of injunction is not proper because the practice of dentistry without a license is made a misdemeanor, punishable by fine and imprisonment; (4) that to grant the injunction would amount to a forfeiture of appellee's charter, which is a contract between it and the state, and destroy its vested rights, in violation of the principles of constitutional law.

The appellee maintained in the city of Gary an office with the usual facilities used by practicing dentists it owned the equipment and paid the operating expenses; two licensed dentists used said facilities and carried on a dental practice in said office; the fees collected for the services performed by these dentists were received by a cashier employed by appellee and remitted by her to its treasurer in Chicago; said dentists received from appellee, by way of remuneration, salaries fixed by contract and commissions depending upon the volume of income. The appellee's method of doing business constituted the practice of dentistry on its part. It occupied the relation of master toward the licensed dentists, who performed the actual services, and they were its servants for hire. Under the laws of this state the practice of dentistry is regarded as a skilled profession. Wilkins v. State, 1888, 113 Ind. 514, 16 N.E. 192. Upon principle the regulation of the dental profession is not generally dissimilar in effect to that imposed upon the practice of medicine. Douglas v. Noble, 1923, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590. This court has held that a corporation may not engage in the practice of medicine directly, or by employing licensed persons for that purpose. Iterman v. Baker, Ind.Sup.1938, 15 N.E.2d 365. The same rule is applicable to the practice of dentistry and, under the undisputed...