State v. McIntosh

• Decision Date: 02 July 1907
• Parties: STATE ex rel. BROWN v. McINTOSH et al., Board of Dental Examiners.
• Court: Missouri Supreme Court

103 S.W. 1071

205 Mo. 616

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

Supreme Court of Missouri.

July 2, 1907.

1. PHYSICIANS AND SURGEONS — DENTISTS — LICENSE.

Since Act March 19, 1897, p. 166, regulating the practice of dentistry within the state and providing for the licensing of dentists, which repealed Act 1883, p. 114, relating to the same subject, did not go into effect until June 20, 1897, an attempt by relator to register as a dentist on June 2, 1897, under the act of 1897, was ineffectual unless she complied with the former act.

2. SAME.

Acts 1883, p. 114, regulating the practice of dentistry, provided that any person holding a diploma from a reputable dental college or university established under the laws of one of the United States or a foreign country, and a bona fide practitioner of dental surgery within the state at the time of the passage of the act, was entitled to registration. Section 2 required the holder of a diploma to file a "sworn copy" with the county clerk, and in the city of St. Louis with the city register, of which the clerk or register should give a certificate, etc.; and section 3 declared that a bona fide practitioner of dentistry at the time of the passage of the act should within 90 days file an affidavit of the facts and receive a certificate in the same manner. Held, that where relator neither filed a sworn copy of her diploma nor pretended to be a bona fide practitioner prior to the passage of such act, nor to have filed an affidavit required of such practitioner, but did file her diploma with the register of the city of St. Louis, she was not properly registered under such act.

3. MANDAMUS — PRACTICE OF DENTISTRY — LICENSE — LACHES.

Laws 1897, p. 167, regulated the practice of dentistry, and section 4 declared that every person legally engaged in the practice of dentistry at the time of the passage of the act, desiring to continue in his profession, should file a specified certificate, and provided that the board might require the holder to prove that he was the lawful possessor of the same and that the certificate was obtained without fraud or false representation, and that the holder was entitled to the rights and privileges therein mentioned. Held, that where relator applied for registration as a practicing dentist, but continued to refuse to appear before the board and prove that she was the holder of a certificate of registration issued without fraud or false representation as the board required, until the act of 1897 was repealed by Laws 1905, relating to the same subject, she was guilty of such laches as precluded her right to mandamus to compel the state board to issue the license to her as a dentist entitled to practice under a prior act.

4. PHYSICIANS AND SURGEONS — LICENSE TO PRACTICE DENTISTRY.

Acts 1905, p. 214, regulating dentistry, prohibits any person not a "registered dentist" from practicing his profession. It provides that all persons desiring to "begin" the practice thereof holding a license from a state dental board or a diploma from the faculty of some reputable dental college shall have the right to apply to the board for examination and license if qualified, and that all dentists licensed by the board "or any previous board" are entitled to a renewal license on application each year. Held, that a dentist who had merely filed her diploma under a prior law with which she had not complied, and who had never been licensed by any previous board, was not entitled to a renewal license under the Act of 1905.

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

An individual has not a vested right to practice dentistry free from regulation or control by the state in the exercise of its police power.

In Banc. Mandamus by the state, on relation of Annie L. Brown, against R. D. McIntosh and others, composing the state board of dental examiners. Writ denied.

T. J. Rowe and Henry Rowe, for relator. W. E. Owen and Thompson & Campbell, for respondent.

LAMM, J.

This is an original proceeding in this court by mandamus to compel respondents, styled the "State Board of Dental Examiners for the State of Missouri" (Laws 1905, p. 214), hereinafter called the "board," to issue to relator a license, or "renewal license," to practice dentistry in accordance with sections 8527 and 8528 of the dentist act of 1905 [Ann. St. 1906, p. 4000 et seq.]. An alternative writ went, requiring respondents to issue such license immediately on receipt thereof, or appear and show cause why it has not been done. Respondents made return. On the coming in of that return, relator lodged a motion for judgment, that a peremptory mandamus go, non obstante. The case thus stands on an issue at law on any allegations of fact in the alternative writ not denied by the return, and on the allegations of new matter in the return, if any; all such allegations of fact, well pleaded, being taken as true for the purposes of the motion.

Attending to the narrations of the alternative writ, they are, in a nutshell, that relator, on the 4th day of June, 1897, and long prior thereto, was, since that time has been, and now is, a bona fide practitioner of dentistry and dental surgery in the city of St. Louis, lawfully so engaged; that on the date first aforesaid she was duly registered as a qualified dentist by the register of said city in accordance with the provisions of section 2 of the dentist act of 1883 (Laws 1883, p. 114); that on or about said date (to wit, June 4, 1897), with a fee of $1, she filed with the board the certificate of said register, certifying she was a licensed dentist under the dentist act of 1897 (Laws 1897, p. 166), and had fully complied with the law; said certificate (omitting signature, seal, and countersigning) being as follows: "I, Henry Besch, register of the city of St. Louis, do hereby certify that Annie L. Brown, licensed dentist, under an act to repeal article 3d of chapter 110, Revised Statutes of Missouri of 1889, and to enact a new article in lieu thereof, to be known as article 3d of chapter 110, approved March 19th, 1897, has this day recorded his certificate in the office of the city register, as required by section 8 of said act;" that said certificate was filed within 90 days after the act of 1897 became a law; that by virtue of the provisions of that act it was the duty of said board to issue a license to her; that in violation of their duty they failed and neglected so to do; that, the premises considered, she became and was a licensed dentist, was and is a bona fide practitioner of dentistry, etc., and since June 4, 1897, until November 30, 1905 (and ever since), has lawfully practiced her profession in St. Louis, as a reputable, proficient, legal, and duly qualified dentist; that on May 10, 1906, relator made requests and demands upon said board (sending another dollar and a recertification of the registration hereinbefore set forth) as follows (omitting caption and signature): "On the 4th day of June, 1897, and for a long time prior thereto, I was legally engaged in the practice of dentistry in the city of St. Louis, Missouri, and was duly qualified to practice dentistry, and was properly registered as such by the register of the city of St. Louis, and that I filed with the state board of dental examiners of the state of Missouri the certificate of the register of the city of St. Louis which certified that I was a licensed dentist under the act of March 19th, 1897, and that I had fully complied with the law. That with said certificate I made a tender of payment of the fee required by law (section 8527, Rev. St. Mo. 1899 [Ann. St. 1906, p. 4002]) of one dollar. That said certificate and tender was filed and made within ninety days after the act entitled `Dentistry Act' of March, 1897, became a law, to-wit, on or about June 4th, 1897. That under and by virtue of the provisions of said act entitled `Dentistry' approved March 19th, 1897, and which is now section 8527, Rev. St. Mo. 1899 [Ann. St. 1906, p. 4002], it was the duty of the state board of dental examiners to issue to me a license, which they, in violation of their said duty failed and neglected to do. You will find herewith enclosed a copy of the certificate which was filed with said board on or about June 4th, 1897, and one dollar to pay the fee of one dollar required by act approved April 12th, 1905, entitled `An act to regulate surgery.' See Laws 1905, page 214. My address is Carleton Building, northeast corner of Sixth and Olive streets, St. Louis, and my signature is at the end of this communication. You will therefore issue to me a license in accordance with the provisions of said section 8527, Laws 1905, page 214. Yours very respectfully."

It is alleged that on receipt of the foregoing communication the board returned to relator the one dollar, but retained the register's certificate inclosed; and its secretary sent relator the following reply on May 12, 1906, to her requests and demands: "Dr. Annie L. Brown, St. Louis, Mo. — Dear Doctor: Your letter of the 10th inst., addressed to the dental board containing fee of one dollar received, replying to which will say that soon after your first application for registration before this board, I wrote you that the board desired further information with reference to your registration and requested that you appear before the board at its meeting in Kansas City, May 10th, 1898, or at any subsequent meeting thereof and prove that you were the lawful possessor of the city registrar's certificate and that same was obtained without fraud or false representation. You failed to appear at that meeting and did not appear at any subsequent meeting of the board during the six years that law was in operation. Since that time however, another law has been passed, under the terms of which the board is not authorized to register you except upon examination. I therefore herein return the dollar you enclosed. Yours truly."

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