The State v. Doerring

• Decision Date: 06 March 1906
• Citation: 92 S.W. 489,194 Mo. 398
• Parties: THE STATE v. DOERRING, Appellant
• Court: Missouri Supreme Court

92 S.W. 489

194 Mo. 398

THE STATE v. DOERRING, Appellant

Supreme Court of Missouri, Division Two

March 6, 1906

Appeal from Jackson Criminal Court. -- Hon. Jno W. Wofford, Judge.

Affirmed.

Herbert S. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State; W. E. Owen of counsel.

(1) The law regulating the practice of dentistry in this State, and creating a State Board of Dental Examiners (Laws 1897, p 166), is not unconstitutional and void because violative of that provision of the Constitution (sec. 28, art. 4) which requires that no bill shall have more than one subject. The courts of this, and all other States having a similar provision in their Constitution, uniformly hold that all that is required to satisfy this provision of the Constitution is that the provisions of a statute shall be congruous, germane connected and fairly relate to the same subject; have a natural connection with it, and are the incidents or the means of accomplishing it, then the subject is single, and if sufficiently expressed in the title, is valid. St. Louis v. Tiefel, 42 Mo. 578; State ex rel. v. Mead, 71 Mo. 268; State v. Bennett, 102 Mo. 356; State ex rel. v. Hughes, 104 Mo. 640; State ex rel. v Miller, 100 Mo. 440; State ex rel. v. Bronson, 115 Mo. 271; Lynch v. Murphy, 119 Mo. 163. (2) Nor is said law obnoxious to said constitutional provision which requires that the subject shall be clearly expressed in the title. Bish. on Stat. Crimes, sec. 45. "Marginal notes, where they are parts of the authentic records of the statutes, and especially where they are in any way attached to the bill during its passage through the legislative body, may be regarded similarly to the title. And what is in form a marginal note may be a part of the statute itself." Bish. on Stat. Crimes, sec. 61; In re Venour's Settled Cases, 2 Ch. D. 525; Rex v. Mulverton, 5 A. & E. 854; Cooley's Const. Lim. (1 Ed.), pp. 143, 144; State v. Blackstone, 115 Mo. 424; State v. Murlin, 137 Mo. 305; State ex rel. v. Slover, 134 Mo. 16; State ex rel. v. Ranson, 73 Mo. 88; People v. Molineux, 53 Barb. 9; Leard v. Leard, 30 Ind. 171; Chambers v. State, 25 Tex. 307; State v. Clare, 5 Iowa 509; Van Riper v. Parsons, 40 N. J. L. 126; Bird v. Wasco Co., 3 Ore. 282. An act may be amended or revised or repealed and substituted by reference to the chapter, article or section of the original act, if the matter in the new act might have been incorporated in the original law under its title. Arnault v. New Orleans, 11 La. Ann. 56; State v. Garret, 29 La. Ann. 637; State v. Brown, 41 La. Ann. 771; People v. Hills, 35 N.Y. 449; Doggett v. State, 17 Neb. 143; State v. Babcock, 23 Neb. 128; People v. Judge, 39 Mich. 195; Callahan v. Chipman, 59 Mich. 616; Fenton v. Yule, 27 Neb. 758; State ex rel. v. Heege, 135 Mo. 112; State ex rel. v. County Court, 128 Mo. 440. (3) In this State no one has a vested right to practice the learned professions, or to continue the practice thereof, free from the control of the Legislature. The creation of a Board of Examiners with authority to determine as to who shall practice dentistry is a proper exercise of authority. Cooley on Torts, pp. 289, 290; Tied. on Police Powers, secs. 87, 88; State v. Hathaway, 115 Mo. 36; Austin v. State, 10 Mo. 591; Simmons v. State, 12 Mo. 268; St. Louis v. Steinberg, 69 Mo. 299; State ex rel. v. Gregory, 83 Mo. 123; State ex rel. v. Board of Health, 103 Mo. 22. (4) Said act does not invest said dental board with judicial functions. "A judicial duty within the meaning of the Constitution is such a duty as legitimately pertains to an officer in the department designed by the Constitution as judicial." State v. Hathaway, 115 Mo. 36; State ex rel. v. Seibert, 130 Mo. 202; State ex rel. v. Fladd, 108 Mo. 614. (5) The indictment in this case is good and need not set out the names of persons practiced on by defendant. State v. Little, 76 Mo. 52; State v. Smith, 60 Mo.App. 283; State v. Bennett, 102 Mo. 364. (6) There is no merit in the contention that the burden is on the State to prove that defendant does not belong to one of the classes (practicing dentistry) excepted from the operation of this law. Such exemption if existing must be insisted on by way of defense by the party accused. State v. O'Brien, 74 Mo. 549; State v. Crenshaw, 41 Mo.App. 24; State v. Smith, 60 Mo.App. 287; State v. Cox, 32 Mo. 568. (7) No evidence is admissible in this prosecution tending to show that defendant has complied with all the requirements of the law to entitle him to registration by the dental board, and that said board has wrongfully or arbitrarily denied him same. The requirement of this law is that no person shall practice or continue the practice of dentistry in this State without being registered by the board of dental examiners. Defendant is without this authority and cannot plead as an excuse that he vioated the law, because the dental board first violated the law in refusing him registration, and that therefore the inhibition of the State upon him is waived. Kansas City v. Flanders, 71 Mo. 281; State v. Jamison, 23 Mo. 330; State v. Huntley, 29 Mo.App. 278. If defendant has been wronged by any action of the dental board, he has a complete and adequate remedy by mandamus to compel said board to register him. State ex rel. v. Lutz, 136 Mo. 633. The burden is on defendant to show he had license. Schmidt v. State, 14 Mo. 137; State v. Durkin, 23 Mo.App. 387; St. Louis v. Weitzel, 130 Mo. 613; State v. Hathaway, 115 Mo. 36; St. Louis v. Lamp Co., 139 Mo. 571.

OPINION

FOX, J.

This cause is here on appeal by the defendant from a judgment of conviction in the criminal court of Jackson county, Missouri, at Kansas City, for practicing dentistry without being a duly and legally registered dentist and without a license therefor and without any other legal authority so to do. The information in this cause was filed by the prosecuting attorney of Jackson county on the 28th day of December, 1903. Omitting formal parts the offense was thus charged:

"Now comes Roland Hughes, prosecuting attorney for the State of Missouri, in and for the body of the county of Jackson, and upon the affidavit of S. C. A. Rubey hereto annexed and herewith filed, informs the court, that D. L. Doerring, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 10th day of March, 1902, at the county of Jackson, State of Missouri, did unlaw-fully and willfully practice dentistry and dental surgery, by performing dental operations, treating diseases and lesions of the human teeth and jaws, and by attempting to correct malpositions and by filling teeth, for a fee, salary and reward to him, the said D. L. Doerring, to be paid, without being then and there a duly and legally registered dentist, and without having a license therefor, and without any other legal authority so to do, said unlawful practice of dentistry and dental surgery by him the said D. L. Doerring not being then and there performed while a bona-fide student of dentistry, in the pursuit of clinical advantages while in attendance upon a regular course of study in a reputable dental college, and not under the direct supervision of a preceptor, who was at the time a licensed dentist in said State, and he, the said D. L. Doerring, not being then and there a legally qualified physician in the regular discharge of his duties, against the peace and dignity of the State."

Defendant filed his motion to quash this information for the reasons assigned in said motion, that the information failed to state facts sufficient to constitute an offense under the laws of this State and that the act of the Legislature, commonly called "The Dentistry Act," upon which this charge was predicated, was unconstitutional and void. This motion was taken up by the court and overruled. At the commencement of the trial the defendant objected to the introduction of any evidence in this case under the information filed for the following reasons:

"1st. That article 3 of chapter 128 of the Revised Statutes of Missouri of 1899, said article being the law that the defendant is charged with having violated, and being an act passed in 1897, by the General Assembly of the State of Missouri, entitled 'An act to repeal article 3 of chapter 110 of the Revised Statutes of Missouri of 1889, and to enact a new article in lieu thereof, to be known as article 3 of chapter 110,' is unconstitutional and void and of no force or effect in that said act is in contravention of the provisions of section 28 of article 4 of the Constitution of the State of Missouri.

"2nd. That said act of the Legislature of 1897 is in contravention of article 2, section 30, of the Constitution of the State of Missouri, in that it deprives certain classes of persons, citizens or individuals of property or rights without due process of law.

"3rd. Because said act of the Legislature of 1897 is in contravention of article 2, section 15, of the Constitution of the State of Missouri, in that said act is an ex posto facto law, or law impairing the obligation of contract, and retrospective in its operation.

"4th. Because said act of the Legislature of 1897 is unconstitutional in that it confers judicial power upon the State Board of Dental Examiners not authorized by article 6, section 1, of said Constitution."

Which said objections were by the court overruled. The cause was then submitted to the court without the aid of a jury, upon the following agreed statement of facts:

"First. That the law relative to the practice of dentistry and dental surgery in the State of Missouri was, first, 'An act entitled an act to regulate the practice of dentistry in the State of Missouri,' passed and approved February 20 1883; that...