The State ex rel. Wolfe v. Missouri Dental Board

• Decision Date: 22 July 1921
• Citation: 233 S.W. 390,289 Mo. 520
• Parties: THE STATE ex rel. MORRIS RUSSELL WOLFE v. MISSOURI DENTAL BOARD
• Court: Missouri Supreme Court

233 S.W. 390

289 Mo. 520

THE STATE ex rel. MORRIS RUSSELL WOLFE v. MISSOURI DENTAL BOARD

Supreme Court of Missouri

July 22, 1921

Writ granted.

Frank M. Lowe for relator.

(1) Mandamus is the proper remedy to insure relator the relief sought. State ex rel. Hagerman v. Drabelle, 191 S.W 694; State ex rel. McCleary v. Adcock, 206 Mo. 550 105 S.W. 271. (2) The law now being considered, except and only as to Section 5493 and Section 5495, Laws 1917, has never been construed or considered by any appellate court. (3) The certificate of registration is the only authority which an applicant must have that requires any examination or is granted or issued upon any requirement on the part of the applicant to do anything except, in applying for a license, he must pay one dollar. A certificate of registration means that the holder has passed the examination required under the law, and that the Missouri Dental Board after such examination, has been satisfied with such examination as to qualifications and moral character, and that the holder of such certificate is qualified to practice dentistry. The law provides that such a one, after receiving his certificate of registration (Sec. 5487, Laws 1917) shall apply to and receive from said board, a license, and there isn't a word giving to the dental board any discretion nor is there a single solitary requirement exacted of the holder of such certificate. This is the original license; the one that this relator obtained on the 23rd day of November, 1917. (4) Section 5489 (Laws 1917), provides that after a person shall have received a certificate of registration, then upon request and the payment to said board of one dollar, the applicant shall be entitled to a license. In the first provision found in Section 5487, the language of the act is that having obtained a certificate of registration such person shall receive a license, and there is no mention of the payment of even one dollar. (5) Section 5491 provides for the renewal of licenses, and as that is our case, surely if anywhere, we will find here some law giving to the respondent the right to exercise its discretion and refuse as it did in this case, the issuance of such renewal license. Under this provision the respondent has no discretion in the matter of the issuance of a renewal license. A man once having obtained a license can demand as a matter of right a renewal of it. Par. 8, sec. 5493, Laws 1917. (6) If the position taken by the respondent is the law, then every dentist in Missouri can be denied a license without trial, and prosecuted, convicted and sent to jail for failure to obtain a license. This relator has a certificate of registration. This court has held that he never was given a trial, and yet the respondent insists that he has been tried and convicted by it and his license revoked, and that under the law he cannot obtain a license.

Arthur N. Adams for respondent.

(1) This court having construed the dental law in a former case between the same parties and the same question being involved, that case is the law of this case and the question is res adjudicata. State ex rel. Wolfe v. Missouri Dental Board, 282 Mo. 292; Chouteau v. Gibson, 76 Mo. 38; Turnverein v. Hagerman, 232 Mo. 693; Kansas City v. Land Co., 260 Mo. 395; Harrison v. Jackson County, 187 S.W. 1183. (2) A correct interpretation of the dental law, considering the whole act and the purpose of the Legislature in passing it, gives the Missouri Dental Board a discretion in granting or refusing to grant renewal licenses. State ex rel. Wolfe v. Missouri Dental Board, 282 Mo. 292; State ex rel. Williams v. State Dental Board, 228 Mo. 1; State ex rel. Hathaway v. Board of Health, 103 Mo. 22; State ex rel. Granville v. Gregory, 83 Mo. 123; State ex rel. v. Goodier, 195 Mo. 551; State ex rel. v. St. Louis, 158 Mo. 514; State ex rel. v. Jones, 155 Mo. 576; Sec. 12636, R. S. 1919; State v. Doerring, 194 Mo. 398; State ex rel. Rosenblatt v. Heman, 70 Mo. 451. (3) The refusal to grant a license by the dental board is not a taking of property without due process of law. State v. Davis, 194 Mo. 501; State ex rel. v. Goodier, 195 Mo. 551; State v. Doerring, 194 Mo. 398; State ex rel. v. McIntosh, 205 Mo. 637. (4) Since relator has openly violated the law, by practicing dentistry without a license, he ought not to be heard to complain of the action of the board in refusing him a license. State v. Doerring, 194 Mo. 398; State ex rel. Hathaway v. Board of Health, 103 Mo. 30, 15 S.W. 322; State ex rel. v. McIntosh, 205 Mo. 589.

GRAVES, J. J. T. Blair, C. J., dissents in separate opinion, and D. E. Blair, J., concurs in the opinion of the Chief Justice.

OPINION

In Banc.

Mandamus.

GRAVES J.

Original action in mandamus. Relator avers that in November, 1916, he, after an examination by respondent herein, received a certificate of registration as a dentist, and thereafter on November 23d, 1916, he received from said Missouri Dental Board a certificate in the form of a license, being numbered 4530: that in November, 1918, he received from respondents his renewal license, likewise numbered 4530. The petition then avers:

"Relator informs the court that ever since November 30, 1918, he has been entitled as a matter of right, under the law, to an annual renewal license, as provided by law, and that he has made application therefor, requesting the respondent to issue to him such annual license, and upon each occasion has sent the fee of one dollar as provided for under the law; but without any lawful reason or excuse, and in violation of the mandatory provisions of the law, the respondent has refused and still refuses to issue to this relator the annual license to which under the law as a matter of right, he is entitled."

The petition then sets out in some detail the history of a former case between these parties, and the result thereof. [State ex rel. Wolfe v. Missouri Dental Board, 282 Mo. 292, 221 S.W. 70.] He then avers that after the judgment in that case he tendered the fees for a renewal license, and that he has been at all times refused a renewal license on his certificate of registration. He sets out the letters from respondent's secretary returning his fee each time, and showing the refusal to issue to him a renewal license. There is much other matter alleged as occurring between relator and a member of the Dental Board, which can be noted if found material. In one letter from a secretary of the respondent it was stated that relator's renewal license had been revoked. We state this to explain fully the following prayer of relator's petition. This prayer reads:

"Wherefore, the premises considered, relator prays the court to issue its writ of mandamus to the end that respondent may be compelled:

"1. To set aside any order made revoking the renewal license granted to the relator for the year 1918.

"2. That respondent be compelled to set aside any order made at any time finding this relator guilty of any charges, for the reason that the court decided that the relator had never been lawfully put upon trial.

"3. That the respondent be compelled to issue to this relator a renewal license for the year 1921, in accordance with the application made by this relator, November 1, 1920."

Return was duly made to our alternative writ, which involves some matters which are perhaps beyond the real questions in the case. Motion was made to strike out these, which motion was taken with the case, and the case is before us upon a request for judgment upon the pleadings. The return contains a number of admissions, and also pleads fully respondent's theory of the case here previously. Notwithstanding the lengthy pleadings upon both sides there are under paragraph two of the return such admissions as will shorten very much the opinion in the case. In the previous case State ex rel. Wolfe v. Missouri Dental Board, it appears that the respondent therein had attempted to try Wolfe upon charges, and had found him guilty and revoked both his certificate of registration, issued in 1916, and his renewal license issued in November, 1918. Respondent admits that this court held that Wolfe had not been tried according to law, and that their order revoking such instruments were void. Admits further that relator has tendered his fee of one dollar for renewal licenses to November, 1920, and November, 1921, and that they have been refused. There is no pretense that relator had been tried on any charges by said board since the disposition of the case in 282 Mo. 292, supra. Other details will go with the opinion.

I. Many details in the instant case will be found in State ex rel. Wolfe v. Missouri Dental Board, 282 Mo. 292, 221 S.W. 70 et seq. Charges had been preferred against Wolfe and a futile trial followed. Up to this time Wolfe was not only a registered dentist, but held the usual annual license. Both his certificate of registration and his annual license were revoked by respondent on June 11, 1918. After going over the whole case, this court, thus ruled:

"The result of the whole matter is that we hold respondent's order revoking relator's certificate of registration and license to be void for the reasons stated in paragraphs 1 and 2."

Pending the case, supra, in this court, Wolfe was arrested for practicing dentistry without license, and convicted in the lower court. This case was appealed to Division Two of this court, and that court ruled, on the strength of State ex rel. Wolfe v. Missouri Dental Board, supra, that the judgment of the said Dental Board was void. [State v. Wolfe, 283 Mo. 29, 222 S.W. 441.] The judgment so declared void reads:

"The Missouri Dental Board, therefore, on the facts above found and stated, and on motion duly made and seconded and carried hereby revokes...