The State ex rel. Flickinger v. Fisher
| Decision Date | 23 December 1893 |
| Citation | 24 S.W. 167,119 Mo. 344 |
| Parties | The State ex rel. Flickinger v. Fisher |
| Court | Missouri Supreme Court |
Peremptory writ denied.
Selden P. Spencer for relator.
(1) The relator herein is and has been for twenty years a dentist in lawful and actual practice in the city of St. Louis Missouri. He has conformed to every requirement of law regarding the practice of dentistry in this state, and has properly pursued every means expressly provided by law to secure the freedom from jury duty to which he claims he is legally entitled. (2) Dentists, or those corresponding to dentists, viz., barber surgeons were excused from jury service at common law. 3 Blackstone's Com. p. 364; 4 Ibid. p. 205. (3) The common law rule of exemption remains in force to-day unaffected by any subsequent affirmative statutes which do not expressly repeal it. King v Pugh, 1 Doug. 191. (4) The laws of Missouri applicable to St. Louis expressly exempt from jury duty every man "who is actually exercising the functions of a practitioner of medicine." R. S. 1889, p. 2162. (5) The general laws of the state provide that "no person exercising the functions of a practitioner of medicine * * * shall be compelled to serve on a jury." R. S. 1889, sec 6062. (6) One does not need to possess the title of M. D. in order to be a practitioner of medicine under the laws of this state. In 37 Mo. App., "practicing medicine" was held to include one who gave electrical baths. In Bibber v. Simpson, 59 Me. 181, the services of a clairvoyant were called medical services. (7) Dentists or doctors of dental surgery or doctors of dental medicine, as they are variously called profess publicly to treat the diseases, remedy the injuries, and alleviate the sufferings of the human body when such disease or injury or suffering is connected with the oral cavity, and thus hold themselves out as physicians, practicing in the specialty of dentistry. (8) Dentists are equally amenable to the law of malpractice as are oculists, aurists, laryngoscopists, or general practitioners. Simonds v. Henry, 39 Me. 156. In this case the court speaks of a dentist as a surgeon. Bogle v. Winslow, 5 Phil. 136. In this case the court speaks of a dentist as a medical practitioner and "physician." (9) Dentists are called into consultation by general practitioners when diseases of the oral cavity become manifest, as are oculists in regard to the diseases of the eye, or aurists when the ear is affected. Vide, the well known case of Hon. Wm. H. Seward, injured while secretary of state, of the United States -- jaw bone fractured, general surgery failing -- treatment of specialist (dentist) succeeding. (10) The medical schools of the university of Harvard, Pennsylvania, Maryland, Michigan, Iowa, Tennessee, California, etc., have dental departments conferring the degrees of D. D. S. or D. D. M. (11) The position of dentistry as a branch of medicine and surgery is sustained by the following case: Wilkins v. State, 113 Ind. 513.
J. L. Bruce and W. C. Marshall for respondent.
(1) The laws of the state of Missouri applicable to St. Louis hold every male citizen, resident of the city, who is sober and intelligent, of good reputation, subject to jury duty, unless he is expressly exempted by the general laws of the state, as provided for in that act; and that act provides that one who is "actually exercising the functions of a practitioner of medicine" shall not be compelled to serve on a jury. 2 R. S. 1889, secs. 8 and 9, art. 21, p. 2162. (2) Section 6879 of Revised Statutes, 1889 defines a practitioner of medicine to be one who shall profess publicly to be a physician and to prescribe for the sick, or who shall append to his name the letters (3) The relator does not pretend to be an does not append those letters to his name, but expressly declares that he is a "D. D. S.," and writes his name accordingly. Neither can he profess publicly to be a physician, because a physican is a person who has received a degree of doctor of medicine from an incorporated institution. One who is lawfully engaged in the practice of medicine -- Bouvier's Law Dictionary. (4) He can not, under the law, "prescribe for the sick." He has no more right to take charge of a case of cholera, typhoid fever, pneumonia or small pox, than any barber in St. Louis of the present day, because any person "practicing medicine or surgery in any of their departments" must be the holder of a certificate from the state board of health giving him the right to do so. R. S. of 1889, sec. 6871; State ex rel. v. Gregory, 83 Mo. 123. (5) Dentist: One who practices dental surgery and mechanical dentistry -- Century Dictionary. Formerly dentistry was purely mechanical, but now it has made such progress "as a science that its practitioners claim with much justice to be classed among the learned professions, nevertheless, his calling is mainly mechanical and the tools employed by him in his operations are purely so." Maxon v. Perrot, 17 Mich. 337. (6) Dentistry or odontology is extremely limited in the range of its subject-matter, but it affords great opportunities for refinements of technical skill and is given up to be a distinct branch of the profession. 15 Ency. Brit. p. 797. Dentistry is a distinct and limited department of the medical art. Whitcomb v. Reid, 31 Miss. 569. (7) The object of the legislature in the enactment of laws regulating the practice of medicine and surgery was the elevation of the standard of the proficiency of the profession, and accordingly required, as a part of that object those practicing medicine, shall possess the necessary skill and learning, and, as an evidence that they do possess it, must obtain a certificate from the state board of health. This provision is conclusive as to the right to practice. State ex rel. v. Gregory, 83 Mo. 123; Wilkins v. State, 113 Ind. 513. (8) The jury commissioner is constituted a quasi judicial tribunal for hearing claims for exemption, and if any one feels himself aggrieved by his decision an appeal is provided for. State ex rel. v. Primm, 50 Mo. 87.
OPINION
In Banc
Mandamus.
In this original proceeding for a mandamus, the single question presented is whether the relator, a dentist, and who appends to his name "D. D. S.," is liable to do jury duty under the laws of this state.
Among those exempt under the general laws of this state is a "person exercising the functions of a * * * practitioner of medicine." Revised Statutes, 1889, sec. 6062. Under the provisions of section 8 of article 21 of the scheme and charter, Revised Statutes, 1889, p. 2162, "Every male citizen of this state, resident in such city, sober and intelligent, of good reputation, over twenty-one years of age, and not exempt from jury duty by the general laws of this state, or otherwise disqualified or excused as provided in this act, shall be deemed to be qualified for and subject to the performance of jury duty under the provisions hereof." Section 9 of the same article then proceeds to define who are exempt from jury duty and among them specifies a person who is actually exercising the functions of "a practitioner of medicine."
Of laws in pari materia with those mentioned, is chapter 110, Revised Statutes, 1889, p. 1612. This chapter is entitled, "Medicine, Surgery and Dentistry," and consists of three articles, the first "Medicine and Surgery;" the second, "Disposition of Human Bodies," and the third "Dentistry." These articles were originally separate acts, approved at different times. Laws of 1883, p. 114, approved February 20; Ibid. p. 115, approved April 2; and Laws of 1887, p. 215, approved March 31, relating to dead bodies. Those acts, however, like the diversified contents of the great sheet, knit at the four corners, that Peter saw in his vision, have been gathered together in all their incongruity in the present revision, and now form chapter 110.
Section 6871 of article 1 of that chapter provides that "every person practicing medicine and surgery, in any of their departments, shall possess the qualifications required by this article," to-wit: If the applicant is a graduate of medicine, he must present his diploma to the state board of health, etc. And thereupon that board issues its certificate to the applicant, and such diploma and certificate are made conclusive of the right of the holder of the same to practice medicine in this state. Other provisions are inserted in the section with respect to the steps necessary to be taken by those who are not graduates of medicine, but who also desire to practice it, etc. To this end two kinds of certificates are provided to be issued by the board, one for graduates who possess diplomas, and the other for those not graduates who have stood a successful examination before the board as to their qualifications. Without such certificate of one sort or the other, no one can lawfully practice medicine and surgery in any of their departments in this state. State ex rel v. Gregory, 83 Mo. 123.
Section 6881, of the same chapter and article, denounces certain penalties against those who shall practice medicine or surgery in this state without complying with the provisions of this article, to wit: a fine of not less than $ 50 nor more than $ 500, or by imprisonment in the county jail not less than thirty nor more than three hundred and sixty-five days, or by both such fine and imprisonment.
Section 6889 of article 3, entitled "Dentistry," makes it unlawful for any person to practice dentistry or dental surgery in this state without being the possessor of a diploma, etc., etc. No provision, however, is made for the presentation of such diploma to...
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