State v. Brown

• Decision Date: 18 February 1905
• Citation: 79 P. 635,37 Wash. 97
• Parties: STATE v. BROWN.
• Court: Washington Supreme Court

79 P. 635

37 Wash. 97

STATE v. BROWN.

Supreme Court of Washington

February 18, 1905

Appeal from Superior Court, King County; Henry L. Kennan, Judge.

Edwin J. Brown was convicted of owning, etc., a dental office without a license, in violation of the dental law, and he appeals. Reversed.

John R Parker, for appellant.

Samuel R. Stern, for the State.

ROOT J.

Appellant was prosecuted upon an information charging him with 'the crime of owning, running, and managing a dental office or department in the state of Washington without a license,' in violation of an act of the Legislature approved March 18, 1901, commonly known as the 'Dental Law,' and found at pages 314 to 318, c. 152, of the published Session Laws of 1901. The portions of said act involved in this case are as follows, to wit:

'Any person or persons seeking to practise 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 practise of destistry 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 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. * * *

'Sec. 8. Any person who, as principal, agent, employer, employee, or assistant, who in any manner whatsoever shall practise dentistry or who shall own, run, operate or cause to be operated, or manage a dental office or headequarters 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 practise or do such act, a certificate from said board of dental examiners as herein provided, shall be deemed guilty of a misdemeanor. * * *

'Sec. 11. All persons shall be said to be practising dentistry within the meaning of this act who shall contrary to this act for a fee or salary or other reward paid either to himself or to another person for operations or parts of operations of any kind, treat diseases or lesions of the human teeth or of jaws or correct malpositions thereof, or who shall own, run, or manage a dental office or department in the state of Washington, without registering and procuring the license as herein provided.'

From a judgment of conviction, he appeals to this court.

Appellant contends that this statute is unconstitutional, and especially that portion requiring a license from the State Board of Dental Examiners as a prerequisite to owning, running, or managing a dental office or department. The validity of this statute, in so far as it requires a license from said board before one may 'treat diseases or lesions of the human teeth or of jaws or correct malpositions thereof,' has been heretofore upheld by this court. State ex rel. Smith v. Board of Dental Examiners, 31 Wash. 492, 72 P. 110; In re Thompson (Wash.; decided Dec. 22, 1904) 78 P. 899. These decisions sustain the statutory requirements for the 'practice of dentistry,' as that expression is commonly understood and as it is mentioned in section 4 of the act above quoted, where the disjunctive 'or' shows it to be clearly distinguished from the expression 'to own, operate or cause to be operated, or to run or manage a dental office or place for the practice of dentistry,' which follows. $The question is now presented as to the power of the Legislature to enact a law requiring an examination by and license from the State Dental Board, as a prerequisite to 'owning, running and managing a dental office or department.' Appellant contends that this is an unwarrantable infringement of a natural and constitutional right. Respondent maintains that it is justifiable as a legitimate exercise of the police power of the state. It will be conceded, we apprehend, that the portion of the law in question cannot be sustained, unless by virtue of the police power. This requires a consideration of the purpose, nature, and extent of that power. Courts and text-book writers have found it difficult to accurately define this power, and we find their conceptions of it expressed in varied forms. This court, in the case of State v. Carey, 4 Wash. 424, 30 P. 729, speaking through Mr. Justice Dunbar, quotes approvingly from the case of Lake View v. Rose Hill Cemetery, 70 Ill. 192, 22 Am. Rep. 71, where the court referred to this subject 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.' Speaking of it in the Slaughterhouse Cases, 16 Wall. 36, 87, 21 L.Ed. 394, Mr. Justice Field said: 'That power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society. * * * But under the pretense of prescribing a police regulation the state cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.' In Railroad Co. v. Husen, 95 U.S. 465, 24 L.Ed. 527, the Supreme Court of the United States, speaking through Mr. Justice Strong, said: 'The state may protect the lives, limbs, health, comfort, and quiet of all persons and their property.' From these and the many adjudicated cases touching the subject, the proposition is deducible that the police power may curtail the rights of the individual in so far as, and no farther than, the free exercise thereof is calculated to infringe upon the rights of others. Ordinarily a natural and constitutional personal right or privilege may be limited only when its free exercise threatens or endangers the moral or physical wellbeing of others, or their property; and rights and privileges concerning property may be circumscribed under like circumstances, or when the public, or some portion thereof, has an interest or is concerned in the use thereof. The police power does not justify the withholding from one individual of a natural privilege or right, in order that a corresponding advantage may be added to the rights or privileges of another. The restriction is permissible only as a preventive of evil results reasonably to be expected without such limitation. Russell on Police Power, pp. 34, 35, says: 'TO JUSTIFY THE STATE IN THUS INTERPOSING itS authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.' The foregoing quotation is the language of the Supreme Court of the United States in Lawton v. Steele, 152 U.S. 137, 14 S.Ct. 499, 38 L.Ed. 385. See, also, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. Our Constitutions, both federal and state, are jealous of the rights of the individual, and will permit of their abridgment only where the same is essential to the well-being and rights of others. In the case of State ex rel. Smith v. Dental Examiners, supra, this court, speaking through Mr. Justice Hadley, said: 'It is of the highest importance to the state that suffering and afflicted humanity shall not be subjected to the care and treatment of unlearned and unskilled persons. In its efforts to pevent such a misfortune to its people, the state may adopt a standard for the test of fitness to engage in the work of what should be a learned profession.' The reasoning and conclusion thus set forth, applied as they were to the 'practice of dentistry,' as commonly understood, are incontrovertible. But are the reasons herein assigned applicable to a statute requiring an examination by and license from a dental board before one may 'own, run, or manage' a dental office? Does the police power authorize the enactment of a statute making this requirement? We feel constrained to hold that it does not. It is solicitude for the physical well-being of the public, or that portion that may need dentistry work, which justifies...