State v. McIntosh

• Decision Date: 02 July 1907
• Citation: 205 Mo. 589,103 S.W. 1078
• Parties: STATE ex rel. CRANDALL v. McINTOSH et al., Board of Dental Examiners.
• Court: Missouri Supreme Court

103 S.W. 1078

205 Mo. 589

STATE ex rel. CRANDALL v. McINTOSH et al., Board of Dental Examiners.

Supreme Court of Missouri.

July 2, 1907.

1. CONSTITUTIONAL LAW — VALIDITY OF STATUTE — WHO MAY QUESTION.

Laws 1905, p. 214, § 8527 [Ann. St. 1906, p. 4002], declares that any persons desiring to practice dentistry in the state, and who shall have a license from the dental board of another state, or who shall have received a diploma of a reputable dental college duly organized under the laws of Missouri or any other of the United States, shall have the right to apply to the Missouri dental board for examination as to proficiency, and to be licensed and registered. Held, that a citizen of Missouri never having been licensed by any dental board nor having obtained a diploma from a dental college was not entitled to urge that such section was unconstitutional as impairing the rights of citizens of the different states and foreign countries, because foreigners well equipped to practice dentistry in their country coming into Missouri without a diploma or license from a dental board, or graduates of dental colleges in the District of Columbia and citizens of other states where no license was required, and who were not college graduates, were not entitled to examination in Missouri.

2. SAME — RIGHT TO ALLEGE INVALIDITY OF STATUTE.

Laws 1905, p. 214 [Ann. St. 1906, p. 4002], creates a state board of dental examiners, and repeals all former acts relating to the practice of dentistry. Section 8527 declares that persons who have previously received a license to practice dentistry from the dental board of another state, or who are holders of a diploma from the faculty of a reputable dental college, shall be entitled to examination by the board for the purpose of receiving a license to practice in Missouri. Held, that a citizen of Missouri never having received a license to practice dentistry nor having obtained a diploma was not entitled to claim that such section was unconstitutional and that he was therefore entitled to examination by the board, since if the law was void there was no law under which he could claim the right of an examination.

3. MANDAMUS — SCOPE OF REMEDY — STATUTES — CONSTITUTIONALITY — DOUBTFUL RIGHT.

Where petitioner's legal right to an examination by the state dental board was not clear, he was not entitled to mandamus to compel such examination on the theory that the statute which excluded him was unconstitutional.

4. SAME — LACHES.

Where relator, a citizen of Missouri, had practiced dentistry therein for more than 12 years prior to the passage of Laws 1905, p. 214 [Ann. St. 1906, p. 4002], regulating the practice of dentistry within the state, but had never attempted to obtain a license nor to comply with either of the prior dental acts of 1883 or 1897, under which he could have obtained a license if qualified, both of which were repealed by the Acts of 1905, he was barred by laches from maintaining mandamus to compel the state board to examine and license him if qualified under the latter act.

5. CONSTITUTIONAL LAW — VESTED RIGHTS — PRACTICE OF PROFESSION.

A citizen of a state has no vested right to practice dentistry therein protected from regulation by a statute passed in the exercise of the state's police power.

Gantt, C. J., and Fox and Graves, JJ., concurring in all except fifth paragraph. Valliant, J., dissenting to first and fifth paragraphs.

In Banc. Mandamus by the state, on relation of U. G. Crandall, against R. D. McIntosh and others, composing the state board of dental examiners. Writ denied.

Mytton, Parkinson & Crow, for relator. W. E. Owen, for respondents.

LAMM, J.

This case stands on relator's demurrer to part of respondents' return to an alternative writ of mandamus. It appears from our records that an alternative writ was ordered to go, and that one went; but no such writ appears in our files. Since respondents appeared and pleaded, we shall treat the petition as equivalent to the writ for the purposes of the demurrer. Its averments were presumably copied into the writ. Hence, as a matter of grace, the one may stand for the other. State ex rel. v. Gregory, 83 Mo., loc. cit. 125, 53 Am. Rep. 565.

Relator alleges he was born in the United States, is a citizen of the United States, and a resident of the state of Missouri; that he is now a practicing dentist, has been one for many years, and is a person of good moral character and reputation; that he has not been licensed by this or any other state of the United States to practice dentistry; that he has no diploma of any dental college organized under the laws of this or any other state of the Union; that during the aforesaid time he has been fully qualified for, and for 12 consecutive years next before the filing of his petition he has been engaged in, the practice of dentistry, and enjoyed a large practice among all classes of people; that in 1905 the Legislature of Missouri passed an act attempting to regulate the practice of dentistry in the state of Missouri — relator here sets forth the provisions of section 8527 on page 214, Laws of 1905 [Ann. St. 1906, p. 4002] — and avers that respondents (naming them) are the duly organized board of examiners provided by said act; that by the terms of the act of 1905 it is unlawful for any person to practice dentistry in Missouri, however well qualified such person be, unless he possess the particular qualifications set forth in said act; that on the ____ day of April, 1906, relator made written application, duly sworn to by him, to said board for an examination as to his qualifications to practice dentistry, which application, omitting caption and signature, is in the following words: "The undersigned respectfully represents to your honorable body that he is of good moral character and possesses sufficient knowledge, experience, and practice to successfully pass an examination to authorize your honorable body to issue to him a license to practice dentistry in the state of Missouri and, in addition to possessing the necessary knowledge to pass an examination that would entitle him to a license, applicant has had many years experience in the practice of dentistry. Your petitioner states that he has no diploma from a college, that he has not been licensed to practice dentistry in the state of Missouri at any time, and that he has not been licensed in any other state in the United States for the practice of dentistry. Your petitioner therefore respectfully prays the board to make an examination as to his qualifications and knowledge of dentistry, so that a license may be issued, entitling your petitioner to practice dentistry in the state of Missouri." That said application was refused by said board through a communication from its secretary. Thereby relator's fee of $10 was returned and he was informed that, under the facts disclosed in his application, he was not eligible to examination.

The petition grounds relator's right to relief on the theory that the dentist act of 1905 is unconstitutional in the following respects: First, it violates the fourteenth amendment to the federal Constitution, which provides, among other things, that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." It avers said act is an attempt upon the part of the state of Missouri to abridge the privilege of relator as a citizen of the United States in depriving him of property without due process of law, for that he is thereby denied the right and privilege of practicing a profession which he has qualified himself to practice by many years of labor and industry. Second, that the act violates the rights of relator guarantied to him by section 4, art. 2, of the Constitution of Missouri [Ann. St. 1906, p. 128], providing "that all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry. * * *" Relator avers that said act attempts to deprive him of the right to the enjoyment of the gains of his own industry, that he has spent many years of time and much labor to qualify himself for practicing dentistry, and it is attempted to deprive him of the right to practice his profession, for which he has fully qualified himself. Relator alleges that the said dental act is in conflict with, and attempts to deprive him of his rights as guarantied by, section 15, art. 2, of the Constitution of Missouri, which prohibits the General Assembly from passing ex post facto laws, laws impairing the obligation of contracts or retrospective in operation, or making any irrevocable grant of special privileges or immunities. Relator alleges that said act is violative of his rights as guarantied by section 30, art. 2, of the Constitution of Missouri, to wit, the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law; that relator having qualified himself by industry and labor, as aforesaid, is being deprived without a hearing of the benefit of many years of labor and industry, deprived of earning a livelihood, is deprived not only of a hearing in court, but is refused a hearing by the board created by said act. It is alleged the act in question is further unconstitutional and void because it is in conflict with section 53 of article 4 of the Constitution of Missouri. That section of the Constitution prohibits the passing of special and local laws in many particulars therein enumerated. It is alleged that the dental act grants the privilege to one class of citizens to practice dentistry in the state of Missouri, and denies the privilege to another class equally well qualified, if not better,...