State v. Missouri Dental Board

• Decision Date: 01 April 1920
• Docket Number: No. 21331.,21331.
• Parties: STATE v. MISSOURI DENTAL BOARD
• Court: Missouri Supreme Court

221 S.W. 70

282 Mo. 292

STATE v. MISSOURI DENTAL BOARD

No. 21331.

Supreme Court of Missouri, in Banc.

April 1, 1920.

Motion for Rehearing Denied April 30, 1920.

Application by the State of Missouri, on the relation of Morris Russell Wolfe, for writ of mandamus against the Missouri Dental Board. Peremptory writ issued to the extent only of commanding respondent to set aside its order canceling relator's certificate of registration as dentist.

This is a proceeding by mandamus. The petitioner alleges that on June 12, 1917, he was a practicing dentist duly registered and licensed; that on said date the Missouri Dental Board, the respondent herein, notified him that charges had been filed against him, alleging certain unlawful practices on his part, and that said board would conduct an investigation into said charges on the 9th day of July, 1917; that pursuant to said notice testimony was heard concerning the charges against relator, and that the testimony was taken down by a stenographer appointed for that purpose by the board; that, the hearing not having been completed on the 9th day of July, 1917, further testimony was taken by one of the members of the board, on the 23d day of July, 1917, which testimony was also taken down in shorthand; that thereafter, on the 15th day of May, 1918, the testimony taken on the 9th day of July, 1917, not having been transcribed, relator filed a motion before said board to require the official stenographer to transcribe and file said testimony with the board, and in his motion requested the board to take no final action upon the charges preferred against relator until such transcript should have been filed; that he was "given to understand that the motion would be sustained"; that on the 30th day of June, 1918, ho was informed by respondent that on the 11th day of June, 1918, it had made an order revoking relator's certificate of registration and his license; that from the 15th day of May, 1918, until the 30th day of June, 1918, relator had had no information from the board concerning its action in the premises; that in the early part of November, 1918, relator applied to respondent for a renewal of his license, which had then expired, and his application was denied. The petitioner further averred that the action of the board was void for the following reasons:

(1) No violation of law is alleged in the charges presented against relator.

(2) Respondent never acquired jurisdiction to hear and determine said charges because it failed to give relator the notice required by law relating to such proceeding.

(3) Under section 5493 of the Laws of Missouri 1917, p. 258, respondent is authorized to cancel either a certificate of registration or license, but not both, and having canceled both, the order is void.

(4) The evidence fails to show any violation of law on the part of relator.

(5) The act of 1917, supra, is unconstitutional and void. The relief sought is the cancellation of the order of revocation of the certificate and license, and that respondent be compelled to issue a license to relator.

Upon this application an alternative writ of mandamus was issued. Thereupon respondent filed its return, in which it admitted that relator was, prior to June 12, 1917, a practicing dentist in Kansas City, duly licensed under the laws of this state, admitted also its own legal existence, the filing of the charges above mentioned, and the taking of the testimony upon the charges as above set forth. Respondent also admitted that on the 11th day of June, 1918, it revoked relator's certificate of registration and license, and that it refused his application for a renewal license in November of the same year, for the reason that his certificate of registration had been revoked. Respondent averred that the case was continued from time to time until May 15, 1918, at which time relator appeared by attorneys before respondent, and made an argument and filed the motion relative to having the testimony transcribed; that the respondent board then took the case under advisement, and on the 11th day of June, 1918, rendered its decision, finding the relator guilty of fraud, misrepresentation, and deceit in the practice of dentistry, and other violations of the law, revoked his certificate of registration and license, and thereafter notified relator of this adverse finding. Respondent sets forth in its return a summary of the evidence upon which this finding was based, and avers that it acted in good faith in the premises. Respondent further avers that subsequent to the revocation of relator's certificate and license he nevertheless continued to practice dentistry, and was arrested, tried, and convicted in the criminal court of Jackson county, Mo., on January 13, 1919, for his alleged unlawful conduct, that relator has taken an appeal from that judgment, and that that appeal is now pending in this court, and that by reason of the pendency of that appeal relator has an adequate remedy, without a resort to the writ of mandamus.

To this return relator filed a reply, putting in issue various matters of fact alleged in said return, and praying the appointment of "a commissioner to take testimony" to "determine the issues here made." In his reply to the return, relator specifically denies that he had ever at any time printed, published, or circulated any false or unlawful advertisements, denies that any statements made in his advertising were false or calculated to deceive the public, and reiterates his charges of arbitrariness and bias and prejudice on the part of respondent toward relator. Thereupon respondent filed an answer to the reply to the return, and thus the issues were finally made up.

Pursuant to the prayer of relator, Hon. Fred A. Boxley of the Kansas City bar was appointed a commissioner to hear the testimony upon the issues of fact so made, proceeded to hear such testimony as was offered by the parties, and has filed his report herein, setting forth the facts found by him and his conclusions of law thereon. The commissioner's report is necessarily too long to justify reproducing it in entirety, but in substance the learned commissioner found and reported concerning the matters of law and fact in dispute, as follows:

(1) That defendant, in conjunction with his partner, one Dr. Erie J. Ackley, gave wide circulation to false and misleading advertisements concerning their skill and methods in the practice of dentistry, claiming that their operations were painless, and that if they inflicted pain the patient would not be required to pay;

(2) That the prosecuting witness was deceived thereby;

(3) That no notice was given to relator of the meeting of June 11, 1918, at which meeting respondent revoked relator's certificate and license;

(4) That there was neither charge nor evidence that either the certificate or license was fraudulently obtained;

(5) That respondent acted in good faith and not arbitrarily, but under a misconception of the law;

(6) That the charges preferred against relator fall within the purview of subsections 2 and 4 of section 5493 (page 258, Acts of 1917), supra, and that for a violation of those subsections respondent had power to revoke relator's license, but not to revoke his certificate of registration.

(7) That the act of 1917, supra, is not unconstitutional.

The special commissioner therefore recommends that the alternative writ should be made peremptory to the extent of requiring respondent to set aside its order revoking relator's certificate of registration, but that in the matter of the issuance of a license the discretion vested in respondent by the statute is not subject to control by mandamus, and to that extent the alternative writ should be quashed. Both parties filed exceptions to the report.

The substance of the commissioner's report, then, is that relator is guilty of the charges preferred against him; that the act in question is a valid law; that respondent exceeded its power in revoking both the...