Waller v. State

• Citation: 68 S.W.2d 601
• Decision Date: 29 January 1934
• Docket Number: No. 4133.,4133.
• Parties: WALLER v. STATE.
• Court: Court of Appeals of Texas

68 S.W.2d 601

WALLER v. STATE.

No. 4133.

Court of Civil Appeals of Texas. Amarillo.

January 29, 1934.

Rehearing Denied February 26, 1934.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Complaint by the State of Texas against Harvey A. Waller to cancel defendant's license to practice dentistry. From a judgment canceling his license, defendant appeals.

Reversed and remanded.

Lackey & Lackey, of Stinnett, and Henry L. Ford and R. H. Hamilton, both of Amarillo, for appellant.

Edw. W. Thomerson and R. E. Underwood, Jr., both of Amarillo, for the State.

MARTIN, Justice.

The state of Texas, through the district attorney of Potter county, filed a complaint against Harvey A. Waller, a duly licensed and practicing dentist of Amarillo, Potter county, Tex., which contained certain allegations hereinafter set out, and asking for a cancellation of the dental license held by said Waller. Another was included with Waller as one of the defendants, but was dismissed out of the case.

The material portion of said complaint is in the following language:

"That defendants have been guilty of deception and misrepresentation for the purpose of soliciting and obtaining business in this, that the defendants have printed, or have caused to be printed, and circulated, or have caused to be circulated, a certain circular or pamphlet * * * said circular or pamphlet being as follows, to-wit:

"`Professional Denture Work.

"`Aker's Technique of Removable Bridge Work.

"`We are the only dentists in the Panhandle who are doing Professional Denture work and that is Artificial teeth made scientifically with reference to mandible, (the movements of the lower jaw). Every step in the construction of artificial teeth made by this method is done by measurements—doing away with all doubt, guess work and ill fits so commonly found in artificial teeth made by old methods.'

"The particular portion alleged to be false, untrue and calculated and intended to mislead and deceive prospective customers being that portion wherein it is stated, in substance, that the said defendants are the only dentists in the Panhandle who are doing the kind and character of work described in said circular or pamphlet, for, in fact and in truth, there are many dentists doing the kind and character of work described in this portion of the State of Texas."

Appellant filed answer, the nature of which it is unnecessary to notice.

The trial court submitted the case under a general charge to the jury, who found the appellant guilty as charged, and judgment was accordingly entered canceling appellant's license to practice dentistry, from which judgment this appeal is prosecuted.

Appellee's cause of action, if any it has, was filed under article 4549, R. S. 1925, reading as follows: "Any member of the Board of Examiners when it shall be made to appear to said member by satisfactory evidence that any person who has been granted a license to practice dentistry or dental surgery in this State has been convicted of a felony, or has been guilty of any fraudulent or dishonorable conduct or malpractice, or any deception or misrepresentation for the purpose of soliciting or obtaining business, shall report the same to the county or district attorney, who shall, if in his judgment the evidence is sufficient, file a complaint to the district court of said county, requiring accused to appear before said court, at a regular term of said court, and upon the trial of said cause, if the defendant is found guilty of said charge, said court shall revoke the license of said defendant. No one shall be required to stand trial, unless a copy of said charge shall have been furnished him at least ten days before said trial, and he shall be cited to appear under the same rules as govern other civil cases in said court."

The accusatory portion of appellee's petition is under and relates only to that portion of said article authorizing the cancellation of the license of any dentist who is guilty of "any deception or misrepresentation for the purpose of soliciting or obtaining business."

The charge of the court limited the accusation to a misrepresentation for the purpose of soliciting or obtaining business, and we decide here only questions relating to appellant's conviction as so limited. That portion of the court's charge deemed material to show the precise character of the accusation of which appellant was found guilty is in the following language:

"If you find and believe from the evidence that the defendant, Harvey A. Waller, circulated or caused to be circulated a circular or pamphlet containing the following language, to-wit:

"`Professional Denture Work.

"`Aker's Technique of Removable Bridge Work.

"`We are the only Dentists in the Panhandle who are doing Professional Denture work and that is Artificial teeth made scientifically with reference to mandible, (the movements of the lower jaw). Every step in the construction of artificial teeth made by this method is done by measurements—doing away with all doubt, guess work and ill fits so commonly found in artificial teeth made by old methods.'

"And if you further find and believe from the evidence that the portion of said advertising matter, wherein the defendant claims in substance, `We are the only dentists in the Panhandle who are doing professional denture work and that is, artificial teeth made scientifically with reference to mandible (the movements of the lower jaw),' was a misrepresentation by said defendant, made by him for the purpose of soliciting or obtaining business, you will find the defendant guilty * * *."

The validity of the quoted statute which furnished authority for the judgment herein is under vigorous attack. We have grave doubt as to the constitutionality of all that portion of the statute upon which the instant prosecution is based; but since a proper disposition we think can be made of the case without expressly deciding this question, it is our privilege, as well perhaps as our duty, to do so. 9 Tex. Jur. 467; Kean & Crofford Co. v. City of Dallas (Tex. Civ. App.) 244 S. W. 655. If we have doubt as to its constitutionality as written, we have none at all that the interpretation and application given it by the prosecution in the instant case renders it plainly unconstitutional. Otherwise expressed, the conviction here rests upon an accusation, charge, and evidence that could not be made the legal basis of depriving a citizen of Texas of the right to labor and enjoy the fruits of that labor in his chosen profession, and this though all that is charged and proven against him be true. It is not claimed any act of appellant was such as was reasonably calculated to or did in fact affect the health, safety, morals, comfort, or general welfare of the public, or any of its members. It is not contended that appellant was not equipped to do and could do proficiently and expertly everything he said he could do. It is not charged or proven that anybody was misled or deceived to his injury, or could have been, by his statements. Reduced to their last analysis, his statements amounted to no more than a claim that he was better equipped than his professional brethren to do a certain class of dental work and was doing such work better than they. Being equipped to do and able to do precisely the character of work he advertised, who could be injured by the representation that he could do it better than others, unless it be his competitors who lost business to him by reason of his statements? If the latter only, no contention could be made that legislative authority existed under the police power inherent in sovereignty to cancel a professional license upon any such narrow and selfish ground. That the practice of dentistry may be regulated and controlled by virtue of and under the police power of the state is not to be doubted, but there are well-defined limitations upon the exercise of this power, which we now notice. The Colorado Supreme Court, in holding unconstitutional a statute of similar import to the one under attack, delivered a spirited and well-considered opinion. We have found no more lucid statement of the legal principles which we think rule this case than is contained in the opinion of that court in the case of Chenoweth v. State Board of Medical Examiners, 57 Colo. 74, 141 P. 132, 134, 51 L. R. A. (N. S.) 958, Ann. Cas....