Thrasher v. Board of Governors

• Decision Date: 14 February 1961
• Docket Number: No. 38858,38858
• Citation: 359 P.2d 717
• Parties: Warren T. THRASHER, Plaintiff In Error, v. BOARD OF GOVERNORS, Registered Dentists of Oklahoma, a statutory entity, Dr. Lacy H. Bell, Dr. Hayden Dillard, Dr. Floye E. Dickson, Dr. Wm. E. Cole, Dr. Fred Entriken, Dr. Norman T. Enmeier and Dr. Loyd E. Pace, Individually, and as Members of the Board of Governors, Registered Dentists of Oklahoma, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 717

359 P.2d 717

1961 OK 34

Warren T. THRASHER, Plaintiff In Error, v. BOARD OF GOVERNORS, Registered Dentists of Oklahoma, a

statutory entity, Dr. Lacy H. Bell, Dr. Hayden Dillard, Dr.

Floye E. Dickson, Dr. Wm. E. Cole, Dr. Fred Entriken, Dr.

Norman T. Enmeier and Dr. Loyd E. Pace, Individually, and as

Members of the Board of Governors, Registered Dentists of

Oklahoma, Defendants in Error.

No. 38858.

Supreme Court of Oklahoma.

Feb. 14, 1961.

As Amended Feb. 16, 1961.

Syllabus by the Court

1. Where plaintiff, a dental laboratory technician and operator of a dental laboratory, sought, in an action against the Board of Governors, Registered Dentists of Oklahoma, and its members, to restrain said defendants from enforcing The State Dental Act (Tit. 59, Chap. 7, S.L.1959, pages 225-245; Tit. 59 O.S.1959 Supp. secs. 327.1-327.52, both incl.) on the theory, among others, that said Act sets up no standards to govern said Board in issuing permits to operate dental laboratories in this State, but the only section (sec. 36; sec. 327.36, supra) of said Act providing for the granting of a permit to a person like plaintiff (and anyone similarly situated, who was engaged in said business on the effective date of said Act) merely states that, upon receipt of such application and a $1.00 fee, the Board 'shall grant' the permit, said theory, and the contentions in support, thereof, presented no ground for reversing the trial court's judgment.

2. Propositions, or assignments, of error on appeal, not supported by argument or citation of authority, present no ground for reversal.

3. Where, in the above described action, plaintiff contended that said Dental Act constitutes an unreasoanble and unwarranted exercise of the State's police power, by including in its definition of 'the practice of dentistry', work such as is customarily preformed by dental laboratory technicians in constructing, reproducing or repairing prosthetic dentures, bridges or other substitutes for natural teeth, and, in effect, authorizing such work to be done, by such technicians, only upon the work order of a licensed dentist; Held: That such work bears a sufficient relation to the public health and welfare that these features of the Act cannot be said to place it beyond the Legislature's regulatory power, nor to constitute it an ambiguous, arbitrary, unreasonable, discriminatory, unequal and monopolistic exercise of such power, in violation and/or abridgment of plaintiff's right to engage in a lawful business and his rights under Art. II, secs. 2, 7, and 32, of the Oklahoma Constitution and the Fifth and Fourteenth Amendments to the U. S. Constitution.

4. In construing the constitutionality of a statute, the Supreme Court is not authorized to consider its propriety, desirability, wisdom, or its practicability as a working proposition. Those questions are clearly and definitely established by our fundamental law to a certainty as functions of the legislative department of government. The function of the court is clearly limited to the determination of the validity or invalidity of the Act. There is a presumption that the Act is constitutional.

5. Where plaintiff's petition, in substance, alleges that defendants would, unless restrained, attempt to enforce all of the provisions of the State Dental Act in so far as they pertain to the pursuit of his occupation, thereby causing him, and others similarly situated, to suffer great and irreparable damage, but his pleadings alleged no facts demonstrating that such enforcement would result in any action, or prosecution, being brought under the Act's Sections 43 and 51, against him or persons similarly situated, they did not constitute a proper challenge of, nor invoke the court's jurisdiction to determine, the constitutionality of such provisions.

Appeal from the District Court of Oklahoma County; Clarence Mills, Judge.

Action by plaintiff, for himself and others similarly situated, employed as a dental laboratory technician and operator of a dental laboratory, to restrain the Board of Governors, Registered Dentists of Oklahoma and its members, as defendants, from enforcing the State Dental Act. From a judgment dismissing the action, after the sustaining of defendants' demurrer to plaintiff's petition, as amended, and his election to stand thereon, plaintiff appeals. Affirmed.

Edward M. Box, and George W. Gay, Oklahoma City, for plaintiff in error.

Tom Harley, Oklahoma City, for defendants in error.

Mosteller, Fellers, Andrews, Snider & Baggett, and James F. Davis, Oklahoma City, for the Oklahoma State Dental Ass'n, Amicus Curiae.

BLACKBIRD, Vice Chief Justice.

Plaintiff in error, a dental laboratory technician and operator of a dental laboratory, commenced this class action for himself, as plaintiff, and others similarly situated, against defendants in error, as defendants, to restrain defendants from enforcing or attempting to enforce '* * * any of the terms and provisions * * *' of House Bill ('H. B.') No. 697 enacted by the Twenty-Seventh Oklahoma Legislature (Tit. 59, Chap. 7, S.L.1959, pages 225-245; Tit. 59 O.S.1959 Supp., §§ 371.1-327.52, both incl.) entitled 'The State Dental Act' in so far as 'same relates to the regulation, control or licensing of dental laboratory technicians, and in so far as the same pertains to the regulation, licensing, control, direction or operation of dental laboratories within the State of Oklahoma * * *.' The parties appear here in the same relative positions they occupied in the trial court, and will hereinafter be referred to by their designations there.

In his petition, plaintiff alleged that the various provisions of said State Dental Act, therein complained of, are unconstitutional for various reasons, which, in so far as pertinent to the issues argued in this appeal, will be hereinafter set forth and dealt with. He also alleged, among other things, in substance, that, unless restrained, defendants would attempt to enforce such allegedly unconstitutional provisions and compel him, and others similarly situated to operate 'their business and vocation' in accord therewith. In an amendment to his petition, plaintiff alleged, in substance, that according to the Act, he and others similarly situated are entitled, as a matter of right, to have 'licenses' to pursue their vocations issued to them by 'the Board Of Governors, Registered Dentists of the State of Oklahoma', merely upon paying a fee of $1.00; but that said Board has attempted to prescribe a form of 'Application for permit to operate dental laboratory in the State of Oklahoma' (a copy of which was attached to said pleading) which contains a questionnaire for prospective applicants for such licenses to answer, that includes 'questions not prescribed or contemplated by such Legislative Act and not in keeping with any standard fixed * * * (by it) * * * which said questions are by their very nature an unlawful, capricious, arbitrary and unconstitutional invasion * * *' of private rights. Plaintiff also alleged that the application form attempts 'to require and compel this plaintiff to accept and agree to abide by all of the terms and provisions of House Bill 697, notwithstanding the unconstitutionality thereof.'

The trial court sustained defendants' demurrer to plaintiff's petition, as amended, and upon plaintiff's election to stand on said pleading, entered judgment dismissing the action. From said judgment, plaintiff has lodged the present appeal.

Defendants concede the right, plaintiff asserts in Proposition I, to bring this action, for himself and others similarly situated. Therefore, that proposition presents no issue, and requires no treatment, herein.

Under his Proposition III, plaintiff asserts that for the first time in Oklahoma history, dental laboratory technicians and those operating dental laboratories have, by House Bill 697, been recognized as being separate, distinct and apart from the dental profession and 'must henceforth be so treated.' Although we think the language, in which this Proposition is stated, is perhaps too broad, it is a fair interpretation of House Bill 697, to say that it recognizes that a man may be a dental technician, or operator of a dental laboratory, without practicing dentistry within the meaning of the Act, and, to that limited extent, we will agree with the asserted proposition, for the purpose of dealing with plaintiff's arguments premised thereon.

Under his Proposition II, plaintiff contends that the questioned provisions of House Bill 697, constitute 'an arbitrary, capricious, and unconstitutional delegation of Legislative powers' because--unlike said law's provisions concerning the practice of dentistry and dental hygiene--they set forth no standard by which the qualifications of a dental laboratory technician may be determined. (As will be noted, this argument complains of a feature of the Act, of which plaintiff sought, in his petition's amendment, to take advantage and there use, as the basis for his objection to the form of application prescribed by the Board of Governors). As defendants point out, the Act delegates no discretion to anyone that should prevent plaintiff, and others similarly situated, from obtaining licenses to pursue their occupations. Section 36 thereof (Tit. 59 O.S.1959 Supp. § 327.36) specifically provides:

'Upon this Act becoming effective, all persons, firms or corporations then engaged within this State in the business of a dental laboratory, as herein defined, together with the name or names and addresses of all persons, firms, corporations or partnerships, and with the names of all personnel employed, shall within sixty (60) days file with the Secretary of the Board of Governors a written application, the form of which shall be prescribed by the Board of Governors, for a permit to operate a dental laboratory in this State, together with a fee of One Dollar ($1.00).

'Upon the receipt of such application and fee, the ...