State v. Knowles

• Decision Date: 15 February 1900
• Parties: STATE v. KNOWLES.
• Court: Maryland Court of Appeals

45 A. 877

90 Md. 646

STATE v. KNOWLES.

Court of Appeals of Maryland

February 15, 1900

Appeal from criminal court of Baltimore city; Daniel Giraud Wright Judge.

"To be officially reported."

W. H Knowles was indicted for practicing dentistry without having received a certificate from the state dental board of examiners. From an order sustaining a demurrer to the indictment, the state appeals. Reversed.

Argued before MCSHERRY, C.J., and PAGE, PEARCE, FOWLER, BOYD, JONES BRISCOE, and SCHMUCKER, JJ.

Atty Gen. Goither, Henry Duffy, and E. P. Keech, Jr., for the State. A. S. J. Owens, for appellee.

PEARCE J.

The appellee was indicted in the criminal court of Baltimore city under the act of 1896 (chapter 378), which repealed and re-enacted, with amendments, article 32 of the Code of Public General Laws of Maryland, entitled "Dentistry." He demurred to the indictment upon the ground that the act is unconstitutional. The demurrer was sustained, the indictment was quashed, and the state has appealed.

The act mentioned created a state dental board of examiners, consisting of six members, charged with the duty of issuing certificates to those entitled under the act to practice dentistry in the state. The fifth and twelfth sections alone concern this appeal, and these are as follows:

"Sec. 5. Any person twenty one years of age, who has graduated at, and holds a diploma from, a university or college authorized to grant diplomas in dental surgery by the laws of any one of the United States, and who is desirous of practicing dentistry in this state, may be examined by said board with reference to qualifications, and after passing an examination satisfactory to the board, his or her name, residence or place of business, shall be registered in a book kept for that purpose, and a certificate shall be issued to such person. Any graduate of a regular college of dentistry, may, at the discretion of the examining board, be registered without being subjected to an examination."

"Sec. 12. Nothing in this article shall be so construed as to interfere with the rights and privileges of resident physicians and surgeons, or with persons holding certificates duly issued to them prior to the passage of this act; and dental students operating under the immediate supervision of their instructors in dental infirmaries or dental schools chartered by the state of Maryland."

This act is assailed on the ground that it violates the twenty-third article of the Maryland declaration of rights and the fourteenth amendment to the constitution of the United States. The contention is twofold, viz.: (1) That the board may, if it chooses, refuse to examine one holding a diploma from a college or university authorized to grant diplomas in dental surgery, and can thus arbitrarily deny the right to practice dentistry in this state, to any one holding such diploma, however skilled in his profession, or however qualified to pass an examination; and that as the test of constitutionality is, not what has been, but what may be done or refused under the law, this grant of arbitrary power to do or to refuse to do must invalidate the law. And (2) that the language of the act, "may be examined with reference to qualifications," is so vague and indeterminate as to permit an examination upon any subject which the whim, caprice, or hostility of the board may suggest, and thus again confer upon the board unreasonable and arbitrary power, equally fatal to the validity of the law. If either of these contentions were well founded, we should be compelled to pronounce the law unconstitutional, because we are in hearty accord with the declarations of the supreme court of the United States in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, that, "when we consider the nature and theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power." But we cannot deduce a grant of arbitrary power from any reasonable construction of the language of this act. Upon the first point of the appellee his position is that, as the word "may" occurs twice in section 5, and as there can be no question that in the later clause it is employed in its usual and natural sense, the same sense is necessarily and unalterably impressed upon its employment in the former clause. But he has produced no authority for this position, and we do not think any satisfactory reason can be given for announcing so inexorable a rule of construction. It may, indeed, well be conceded that, where a word susceptible of more than one meaning is repeated in the same act or section of an act (either meaning being in each case open to reasonable adoption), a presumption arises, more or less forcible according to the circumstances, that it is used throughout in the same sense; but where the subject-matter to which the word refers is not the same in both clauses, or where the surrounding circumstances are different, this presumption must yield to an adverse presumption, furnished by an analysis of the various purposes of the law, and of the language in which those purposes are expressed. Now, it is too plain for controversy that the appellee is correct in saying that the last "may" is used in a permissive sense, because it is expressly coupled with "discretion," which negatives the possibility of its use in a mandatory sense. But, if the same sense is to be impressed upon its use in the preceding clause, the result will be to nullify the law; and this result cannot be tolerated if it can be avoided by any fair and reasonable construction of the whole section. In order to reach such fair and reasonable construction, let us suppose for a moment the latter clause to be eliminated from the law. How, then, would the word "may" in the former clause be understood? Would it not necessarily be...