The State ex rel. Crandall v. McIntosh

• Decision Date: 02 July 1907
• Citation: 103 S.W. 1078,205 Mo. 589
• Parties: THE STATE ex rel. CRANDALL v. McINTOSH et al., Board of Dental Examiners
• Court: Missouri Supreme Court

103 S.W. 1078

205 Mo. 589

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

Supreme Court of Missouri

July 2, 1907

Peremptory writ denied.

Mytton Parkinson & Crow for relator.

(1) The demurrer to part of respondents' return should be sustained for the reason that the acts, if any, of relator in violation of the prior laws, can only be punished as therein provided and can afford respondents no excuse in this case. Dent v. West Virginia, 129 U.S. 114. (2) The power of the State to regulate dentistry is based solely on the police power, and it has some limitations. State v Tower, 185 Mo. 100. (3) We do not complain of the ruling announced by this court in State v. Doerring, 194 Mo. 398, but that case, and the cases cited and followed by the court, do not apply to the facts in the case at bar. (4) Mandamus is relator's only remedy. State v. Doerring, 194 Mo. 398. (5) The act is unconstitutional and void because it prohibits a person taking an examination to ascertain his qualifications for practicing dentistry, however well qualified he may be, in the following cases: First. Where a young man has qualified himself to practice the profession out of college by his own industry and has not been licensed to practice by this or any other State in the United States. Second. Where a person learned in his profession comes to this State from a foreign land, becomes a citizen, and has not been licensed by any State or graduated from a college chartered by one of the States. Third. A person learned in the profession who has practiced for many years in a State that does not require a license and who has not graduated at a college, chartered by a State. Fourth. Where a person has graduated at a first-class college not chartered by one of the States of the Union and practiced his profession according to the laws of a territory or in the District of Columbia, however learned he may be. U. S. Const., 14th amendment; Const. of Mo., art. 2, secs. 4, 15, 30; art. 4, sec. 53; State v. Geavit, 65 Ohio St. 308; Dent v. W. Va., 129 U.S. 114; State ex rel. v. Mercantile Co., 184 Mo. 184; State v. Cantwell, 179 Mo. 263; St. Louis v. Galt, 179 Mo. 8; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376; State ex rel. v. Ashbrook, 154 Mo. 375; State ex rel. v. Washburn, 167 Mo. 680; State v. Julow, 129 Mo. 163; Dunne v. Railroad, 131 Mo. 1; State v. Walsh, 136 Mo. 400.

W. E. Owen for respondents.

(1) The demurrer to paragraphs three, four and five of respondents' return is not well taken. 1. So long as relator bids defiance to the law by openly practicing dentistry without a license, he cannot be heard to complain of the action of the dental board in refusing him a license. State ex rel. v. State Board of Health, 103 Mo. 30. 2. If relator, as he pleads, "is now and for many years has been fully qualified to and for twelve years consecutively next before the filing of this petition, has been engaged in the practice of dentistry and during said time has enjoyed a large practice among all classes of people," then he had ample and abundant opportunity to apply for and to receive an examination by the State Dental Board, and if found qualified, to become a duly licensed and registered dentist under the Dental Act of 1897. 3. For twelve years relator has practiced dentistry without a license, in violation of three separate dental acts. He never was a licensed practitioner of dentistry; and therefore never had, nor could he acquire, a legal right to practice, for one minute, without such authority. And it follows that he did not acquire a property or vested right in a profession that he was, during all that time, illegally engaged in practicing. (2) The dental act complained of is not violative of section 1, of article 14, of the Constitution of the United States, nor of the several provisions of the Constitution of the State of Missouri cited in relator's brief. State v. Davis, 194 Mo. 485; State v. Doerring, 194 Mo. 398; State ex rel. v. Board of Health, 103 Mo. 22; State ex rel. v. Lutz, 136 Mo. 633; State ex rel. v. Gregory, 83 Mo. 123; State ex rel. v. Sternberg, 96 Mo. 299; State ex rel. v. Garesche, 36 Mo. 261; State ex rel. v. Polk County, 29 Mo. 521; Simmons v. State, 12 Mo. 268; Austin v. State, 10 Mo. 591; Dent v. West Virginia, 129 U.S. 114; Hays v. Missouri, 120 U.S. 68; Barbier v. Connolly, 113 U.S. 32; Cooley on Torts, pp. 289, 290; Tiedeman on Police Power, secs. 87, 88; State v. Hathaway, 115 Mo. 36. (3) 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. 19 Am. & Eng. Ency. Law (2 Ed.), 763; Davis v. San Francisco, 63 Cal. 581; Wright v. Kelley, 43 P. 565; State v. Lanier, 47 La. Ann. 586; Smyth v. Titcomb, 31 Me. 272; State v. Douglass Co., 18 Neb. 506; People v. Stevens, 2 Add. Pr. Ns. (N. Y.) 348; Ex parte Lynch, 15 S.C. 524; State v. Haygood, 30 S.C. 524; League v. DeYoung, 2 Tex. 497; State ex rel. Ashbrook, 154 Mo. 384.

LAMM, J. Gantt, C. J., concurs in result and in all but fifth paragraph; as to that he expresses no opinion; Burgess, J., concurs; Valliant, J., concurs in result and in paragraphs 2, 3 and 4 and dissents from paragraphs 1 and 5; Fox, J., concurs in result, expressing no opinion as to the constitutionality of the parts of the act challenged, but holding that even conceding the act unconstitutional in the particulars suggested by relator, then the board is without authority to make an examination, hence they cannot be compelled to make one; Graves, J., concurs in result and in everything except the fifth paragraph and on that he expresses no opinion; Woodson, J., did not sit.

OPINION

In Banc

Mandamus.

LAMM J.

This case stands on relator's demurrer to part of respondents' return to an alternative writ of mandamus. It appears from our records that an alternative writ was ordered to go, and that one went; but no such writ appears in our files. Since respondents appeared and pleaded, we shall treat the petition as equivalent to the writ for the purposes of the demurrer. Its averments were presumably copied into the writ. Hence, as a matter of grace, the one may stand for the other. [State ex rel. v. Gregory, 83 Mo. 123.]

Relator alleges he was born in the United States, is a citizen of the United States, and a resident of the State of Missouri. That he is now a practicing dentist, has been one for many years and is a person of good moral character and reputation; that he has not been licensed by this or any other State of the United States to practice dentistry; that he has no diploma of any dental college organized under the laws of this or any other State of the Union; that during the aforesaid time he has been fully qualified for, and for twelve consecutive years next before the filing of his petition, he has been engaged in, the practice of dentistry and enjoyed a large practice among all classes of people; that in 1905 the Legislature of Missouri passed an act attempting to regulate the practice of dentistry in the State of Missouri -- relator here sets forth the provisions of section 8527 on page 213, Laws 1905 -- and avers that respondents (naming them) are the duly-organized board of examiners provided by said act; that by the terms of the Act of 1905 it is unlawful for any person to practice dentistry in Missouri, however well qualified such person be, unless he possess the particular qualifications set forth in said act; that on the -- day of April, 1906, relator made written application, duly sworn to by him, to said board for an examination as to his qualifications to practice dentistry, which application, omitting caption and signature, is in the following words:

"The undersigned respectfully represents to your honorable body that he is of good moral character and possesses sufficient knowledge, experience and practice, to successfully pass an examination to authorize your honorable body to issue to him a license to practice dentistry in the State of Missouri and in addition to possessing the necessary knowledge to pass an examination that would entitle him to a license, applicant has had many years experience in the practice of dentistry.

"Your petitioner states that he has no diploma from a college, that he has not been licensed to practice dentistry, in the State of Missouri, at any time and that he has not been licensed in any other State in the United States for the practice of dentistry.

"Your petitioner therefore respectfully prays the board to make an examination as to his qualifications and knowledge of dentistry so that a license may be issued, entitling your petitioner to practice dentistry in the State of Missouri."

That said application was refused by said board, through a communication from its secretary. Thereby relator's fee of ten dollars was returned and he was informed that, under the facts disclosed in his application, he was not eligible to examination.

The petition grounds relator's right to relief on the theory that the Dentist Act of 1905 is unconstitutional in the following respects:

First. It violates the fourteenth amendment to the Federal Constitution, which provides, among other things, that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." It avers said act is an attempt upon the part of the State of Missouri to abridge the privilege of relator as a citizen of the United States, in depriving him of property without due process of law, for that he is thereby denied the right and privilege of...