The State ex rel. Homer v. Purl

• Decision Date: 13 May 1910
• Parties: THE STATE ex rel. J. HOMER WILLIAMS v. H. B. PURL et al., Constituting State Board of Dental Examiners
• Court: Missouri Supreme Court

128 S.W. 196

228 Mo. 1

THE STATE ex rel. J. HOMER WILLIAMS v. H. B. PURL et al., Constituting State Board of Dental Examiners

Supreme Court of Missouri

May 13, 1910

Peremptory writ denied.

Stubbs & Stubbs for relator.

(1) The finding against relator is general; there is no mention of any one of the specified charges but he is found guilty of them all by the statement that respondents "find ascertain and determine that said J. Homer Williams is guilty as charged of fraud, deceit and misrepresentation in the practice of dentistry and gross violation of professional duties." It seems to the relator that it is apparent from this first finding of the commissioner that respondents did him a manifest injustice, and for this simple reason Relator was entitled to be acquitted or condemned on the evidence produced at the trial, and not upon the secret, and unexpressed at the time, opinions of the respondents professional or otherwise. Relator was entitled to a fair trial. He did not get it. If respondents "knew," as they allege in their return, that there was no such thing as "re-enameling teeth," or making "teeth without bridges or plates" or if they "knew" there was no such thing as "gold alloy" filling, or that the relator could not cure pyorrhea because he was an advertising dentist, then they should have evidence of such facts at the trial, and not accept as proven facts against relator such assumed knowledge on their part, which was contrary to the evidence at the trial, and which is disproved and made ridiculous by their own testimony before the commissioner. (2) The second finding of the commissioner is to the effect that the respondents acted in good faith on the trial of relator, and that there was no evidence to the contrary before the commissioner. This finding responds to no issue tendered by the pleadings in this court. Relator has not charged respondent with bad faith. He does insist that he was done a manifest injustice by the finding and judgment, but does not charge ulterior motives in the respondents. (3) The evidence at the trial was not sufficient to warrant the finding and judgment against the relator; and on the determination of this question of fact his action is entitled to fall or stand; and the commission was not issued for the purpose of finding out or discovering other evidence than that produced at the trial in order to supply whatever may have been wanting at the hearing. (4) The commissioner begins by reporting to your honors that there was no substantial evidence that relator ever fulfilled such promise. The commissioner has the cart before the horse. The commissioner seems to assume that the burden is on the relator of proving his innocence; that relator is presumed to be "guilty as charged" until the contrary is established by "substantial evidence." There was no evidence on this question at all at the trial of relator. (5) That portion of the statute authorizing the respondent board to revoke a dentist's license for "fraud, deceit and misrepresentation in the practice of dentistry, or for gross violations of professional duties," is void for uncertainty; because the grounds for which it authorizes the revocation of a dentist's license have no fixed or determined meaning in law or elsewhere, but are left for interpretation to the caprice and whims, the never certain, ever changing notions of dental ethics of whoever happens at the time to compose the State Board of Dental Examiners. Section 8528, R. S. 1899, as amended in 1905; State ex rel. v. Board of Health, 103 Mo. 22; McCleary v. Adcock, 206 Mo. 550; Macomber v. Board of Health, 8 L. R. A. 586; People v. McCoy, 125 Ill. 289; Allison v. Gen. Cncl. Med. Ed. & Reg., 1 Q. B.; State ex rel. v. Med. Exrs., 34 Minn. 391; State ex rel. v. Goodier, 195 Mo. 551; State ex rel. v. Kellogg, 14 Mont. 426; Board of Health v. Roy, 22 R. I. 538; Meffert v. Board, 66 Kas. 710; Chapman v. Med. Exrs., 34 Minn. 387.

W. E. Owen and A. N. Adams for respondent.

(1) The duties of the dental board are of an administrative or ministerial character, and, therefore, as long as its acts are within the scope and exercise of a reasonable discretion it is free to act. This discretion must always be reasonably exercised, and if, under the facts, there is a fair, reasonable and substantial basis to sustain the act and findings of the board in revoking the license of relator, such discretion cannot be controlled by writ of mandamus, although the court might on weighing the evidence have possibly come to a different conclusion from that reached by the board. State ex rel. v. Board of Health, 103 Mo. 22; State ex rel. v. Board of Health, 115 Mo. 36; State ex rel. v. Goodier, 195 Mo. 551; State ex rel. v. Adcock, 206 Mo. 550; State ex rel. v. Gregory, 83 Mo. 123. (2) The examination and investigation of the truth or falsity of the charges against relator before the board is not required to take on the formality of a judicial investigation, nor must the technical rules of evidence applicable to that examination be followed. The law contemplates that a plain, honest, and common-sense investigation be made in good faith, as thorough as may be had on evidence obtained on either side, like an investigation that fair minded men would make in their own business, concerning the alleged misconduct of one of their own employees. State ex rel. v. Goodier, 195 Mo. 551; State ex rel. v. Board of Health, 103 Mo. 22; State ex rel. v. Board of Health, 115 Mo. 36; Meffert v. Medical Board, 66 Kas. 710; State v. Duluth, 53 Minn. 238; Traer v. Medical Board, 106 Ia. 559; People v. Thompson, 94 N.Y. 451; Munk v. Frink, 116 N.W. 525; People v. Smith, 200 Ill. 444. (3) The Dental Statute, sec. 8528, R. S. 1899, as amended by Laws 1905, authorizing the dental board to revoke an original license, "for fraud, deceit, or misrepresentation in the practice of dentistry, or for gross violations of professional duties," is not void for uncertainty and indefiniteness in its provision; its interpretation is not left to the whim and caprice of a dental board, but the terms of the statute have a settled meaning, not only according to common sense and experience, but under the law. (a) The regulation of the practice of medicine, dentistry, law, and all the learned professions is fully within the police power of the State; and the Legislature has plenary power to prescribe the rules and regulations under which dentists may be licensed to begin the practice, or upon which licenses may be refused, or upon which a license once issued may be revoked; and the Legislature may provide that, for the same causes for which a license may be refused in the first instance, it may thereafter be revoked by the dental board, which is but the administrative agent of the State, and represents the power of the State acting through such administrative body. State ex rel. v. Board of Health, 103 Mo. 22; State ex rel. v. Board of Health, 115 Mo. 36; State ex rel. v. Gregory, 83 Mo. 123; State ex rel. v. Adcock, 206 Mo. 550; State ex rel. v. Medical Board, 34 Mo. 387; State ex rel. v. Medical Board, 32 Minn. 324; Board of Health v. McCoy, 125 Ill. 289; Williams v. People, 121 Ill. 84; Hawker v. New York, 170 U.S. 189; Dent v. West Virginia, 129 U.S. 114; Gray v. Conn., 159 U.S. 74; Reetz v. Mich., 188 U.S. 550; Meffert v. Packer, 66 Kan. 710; 1 L. R. A. (N. S.) 811; Affirmed in 195 U.S. 625; Board of Health v. Roy, 22 R. I. 538; Smith v. Medical Examiners, 117 N.W. 1118; State ex rel. v. Lutz, 136 Mo. 633; State ex rel. v. McIntosh, 205 Mo. 636; State v. Kellogg, 14 Mont. 426; State v. Schultz, 11 Mont. 429; State ex rel. v. Adcock, 225 Mo. 335. (4) As a general rule a writ of mandamus will not issue where the right of the relator depends on holding an act of the Legislature unconstitutional. State ex rel. v. McIntosh, 205 Mo. 589; Hart v. Folson, 70 N.H. 213; Morse v. State Board, 122 S.W. 449; State v. Douglass Co., 18 Neb. 506; Ex parte Mackey, 15 S.C. 330; 19 Am. and Eng. Ency. Law (2 Ed.), p. 763.

OPINION

In Banc.

Mandamus.

WOODSON J.

This is an original proceeding by mandamus, instituted by the relator in this court, to compel the respondents, the State Board of Dental Examiners, to rescind an order theretofore made by it revoking the license of relator to practice dentistry; to reinstate his original license; and to issue him a renewal license for the year 1909. An alternative writ was issued and served, and in due time respondents filed their return. The reply denied certain allegations contained in the return, and thereby tendered certain issues of fact for determination. Thereupon the court appointed Mr. Elliott H. Jones of the Kansas City bar, a special commissioner to hear the evidence, make a finding of the facts, and report them, together with the evidence taken in the cause, to this court.

In pursuance to that order, the commissioner set the cause down for hearing and notified all the parties, who appeared and introduced their evidence. The commissioner heard all the evidence, made a finding of the facts, and reported them, with the evidence taken, to this court.

Since no question is raised as to the sufficiency of the pleadings, and as the findings of the commissioner are fairly embraced within the issues joined, it will be unnecessary to burden this opinion by setting out the pleadings, which are quite lengthly.

The report of the commissioner is in words and figures as follows:

"1. The commissioner finds that on October 29, 1908, respondents in this cause, constituting the State Board of Dental Examiners of the State of Missouri, heard complaints, and evidence thereon, against relator, J. Homer Williams concerning his conduct in the practice of dentistry in this State, it being charged before said board that...