State v. Chapman

• Decision Date: 08 June 1903
• Citation: 69 N.J.L. 464,55 A. 94
• Parties: STATE v. CHAPMAN.
• Court: New Jersey Supreme Court

55 A. 94

69 N.J.L. 464

STATE

v. CHAPMAN.

Supreme Court of New Jersey.

June 8, 1903.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Cumberland County.

Martin V. Chapman was convicted of practicing dentistry without a license, and brings error. Affirmed.

Argued November term, 1902, before the CHIEF JUSTICE, and VAN SYOKEL, PITNEY, and FORT, JJ.

Wheaton Berault and Howard Carrow, for plaintiff in error.

J. Hampton Fithian and Halsey M. Barrett, for the State.

FORT, J. The defendant was convicted in the Cumberland county quarter sessions for practicing dentistry without being legally licensed to so practice in this state.

That the defendant did not have a license to practice dentistry in this state from the State Dental Board was proven at the trial by Independent evidence, as well as by the defendant's own admission. The defensd was that the defendant was a practicing dentist in this state in 1872, and has been since that date, and that any statute which attempts to impose upon him a condition not existent at the time he entered upon such practice is unconstitutional, because it (1) impairs his vested rights and (2) is ex post facto.

It is conceded that there is no justification for the indictment in this case except under section 12 of the act of 1898, entitled "An act to regulate the practice of dentistry in the state of New Jersey, and to repeal certain acts now relating to the same," approved March 17, 1898. P. L. 1898, p. 119. Prior to the passage of the act of 1898 there had been statutes regulating registration for and the practice of dentistry, but none of these were in force when the indictment upon which the defendant was convicted was found, nor at the date alleged in the indictment as the time when the offense was committed. The act of 1898 expressly repealed all previous acts on this subject. P. L. 1898, p. 128, § 17. If, therefore, the act of 1898 is unconstitutional in the respects alleged, the conviction cannot stand. The laws regulating dentistry are of later enactment than those regulating the practice of medicine, but the principles underlying their legality are the same. A statute of West Virginia similar in import to the New Jersey act of 1898, except that it regulated the practice of medicine, was sustained, as a valid exercise of the police power of the state, by the Supreme Court of the United States. Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623; State v. Creditor (Kan.) 24 Pac. 346, 21 Am. St. Rep. 306; Hockett v. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201.

Nor is such legislation ex post facto. Hawker v. New York, 170 U. S. 189, 18 Sup. Ct 573, 42 L. Ed. 1002. See, generally, text and notes in Am. & Eng. Ency. of Law (2d Ed.) vol. 22, pp. 781, 782, and the cases cited. The Constitution of New Jersey in no wise prohibits such legislation in any respect in which it would not be equally interdicted by the Constitution of the United States, unless it can be said that such legislation interferes with the natural and unalienable right of "acquiring, possessing and protecting property" guarantied by article 1, par. 1, of our state Constitution.

A calling, business, or profession chosen and followed is property. Barr v. Essex Trades Council, 53 N. J. Eq. 101, 112, 30 Atl. 881; Slaughter House Cases, 10 Wall. 36", 21 L, Ed. 394. The Legislature can no more destroy a business by statute without providing for compensation, than it can authorize a corporation to take a piece of real estate for public use except upon compensation. But does the act of 1898 take the defendant's property or calling from him? We do not so construe it or its effect it is simply a regulation of the use of one's property rights or business, controlling the conditions under which it may be enjoyed or pursued. It is within the power of the state to place reasonable regulations upon the business or calling of any person. The court in State v. Creditor, supra, says: "The power of the Legislature to regulate the practice of medicine, dentistry, or surgery is undoubted; it is an exercise of the police power of the state for the protection of the health and the promotion of the comfort and welfare of the people. It may provide that only those possessing skill and learned in these professions shall be permitted to practice; may prescribe the nature and extent of the qualifications required, and the rules for ascertaining and determining whether those proposing to practice come up to the statutory standard. If the regulations and conditions are adopted in good faith, and they operate equally upon ail who may desire to practice and who possess the required qualifications, and if they are adapted to the legislative purpose of promoting the health and welfare of the people by excluding from the practice those who are ignorant and incapable, then the fact that the conditions may be rigorous, impolitic, and unjust will not render the legislation invalid." The following cases sustain the rule here declared: State v. State Med. Ex. Board, 32 Minn. 324, 20 N. W. 238, 50 Am. Rep. 575; Hewitt v. Charier, 16 Pick. 353; Eastman v. State, 109 Ind. 278, 10 N. E. 97, 58 Am. Rep. 400; Hedderieh v. State, 51 Am. Rep. 768. For 80 years New York has had such a statute, and her courts held it valid. Sheldon v. Clark, 1 Johns. 513. Arkansas has sustained a statute for the regulation of dentistry. Gosnell v. State, 52 Ark. 228, 12 S. W. 392.

The defendant, conceding for that purpose that the act of 1898 was valid, contends that he was practicing dentistry in the state In 1873, and he was by the act entitled "An act to regulate the practice of dentistry and protect the people against empiricism in relation thereto in the state of New Jersey," approved March 14, 1873 (P. L. 1873, p. 52), licensed by the state to practice dentistry by section 9 of that act. This act created a board of examiners, and provided that after its passage it should be unlawful for any person to engage in the practice of dentistry within the state unless such person be graduated and receive a diploma from the faculty of a college, chartered as in the act provided; and by section 9 It was provided as follows: "Nothing in this act shall apply to persons who shall be engaged in the practice of dentistry in this state at the time of the passage of this act" P. L. 1873, p. 53. Two supplements were passed to the act of March 14, 1873, one in 1880 and the other In 1884, but neither of these supplements affected the rights of the defendant here to practice his profession under the authority of section 9 of the act of March 14, 1873. The supplements of 1880 and 1884 are each amendments to section 1 of the act of 1873, and neither can be said to repeal,...