Wilkins v. State

• Decision Date: 02 March 1888
• Citation: 113 Ind. 514,16 N.E. 192
• Parties: Wilkins v. State.
• Court: Indiana Supreme Court

113 Ind. 514

16 N.E. 192

Wilkins

v.State.

Supreme Court of Indiana.

March 2, 1888.

Appeal from circuit court, Grant county; Robert T. St. John, Judge.

Hiram Brownlee and W. H. Carroll, for appellant. S. W. Cantwell, H. J. Paulus, and The Attorney General, for appellee.

Elliott, J.

The indictment upon which is founded the judgment from which this appeal is prosecuted, charges that the appellant did practice the profession of dentistry without having obtained a certificate from the board of examiners established under the act of March 7, 1887.

There is entire harmony in the adjudged cases upon the question of the power of the legislature to enact laws prescribing what qualifications a person shall possess who enters upon the practice of a profession requiring professional skill and learning. From the earliest years of the common law, men who engaged in the practice of the professions of law and medicine were required to possess skill and learning, and to obtain evidence of their qualification from the sources designated by law. A long and unwavering line of cases, extending from those early years of the law to the present, sustains this doctrine. Eastman v. State, 109 Ind. 273, 10 N. E. Rep. 97, and cases cited; Orr v. Meek, 111 Ind. 40, 11 N. E. Rep. 787; State v. Green, 14 N. E. Rep. 352. This firmly-settled doctrine is thus well stated in a late work: “Where the successful prosecution of a calling requires a certain amount of technical knowledge and professional skill, and the lack of them in the practitioner will result in material damage to one who employs him, it is a legitimate exercise of the police power to prohibit any one from engaging in the calling who has not previously been examined by the lawfully constituted authority, and received a certificate in testimony of his qualification to practice the profession. The right of the state to exercise this control over the skilled trades and learned professions, with the single exception in respect to teachers and expounders of religion, has never been seriously questioned.” Tred. Lim. Police Power, p. 200, § 87. In even stronger language, Judge Cooley affirms this general principle. Cooley, Torts, 289. This principle extends to many trades and professions; as pilots, engineers, and the like. Tred. Lim. Police Power, 624: Cooley, Const. Lim. 743. The legislative judgment that the welfare of the public requires that those practicing the dental profession shall possess the necessary skill and learning, and shall obtain a certificate, is probably conclusive; but, if it were not, the court must take judicial knowledge that it is a profession requiring skill. The fact that the dentist employs his professional skill upon an important part of the human body is, of course, known to every one, and cannot be unknown to the courts. As this is known, it must follow that it may also be judicially known that one unskilled in the profession may injure the person who employs him. As this is so then, as we have seen, the legislature may prescribe the qualifications of those permitted to practice the profession. The board of examiners established under the law is the lawfully constituted authority, and from it the certificate required by law must be obtained. The legislature, as the law-making power, has authority to prescribe the method of procedure. Its authority does not end with declaring what qualifications he who enters upon the practice of that profession shall possess. As it has plenary power over the whole subject, it alone must be the judge of what is wise and expedient, both as to the qualifications required, and as to the method of ascertaining those qualifications. The courts cannot exercise any supervisory power over the legislature as long as it keeps within the limits of the constitution. Fry v. State, 63 Ind. 552;Eastman v. State, supra; Cooley, Const. Lim. 202-206. It is established law that an act of the legislature cannot be annulled by the judiciary in any respect, unless it clearly contravenes some provision of the constitution. Doubt must be resolved in favor of the validity of the statute. Since this doctrine was announced by Chief Justice Marshall early in the history of our country, it has been inflexibly adhered to by all the courts. Cooley, Const. Lim. (5th Ed.) 218; Beauchamp v. State, 6 Blackf. 299;Railroad Co. v. Brown, 67 Ind. 49;Hedderich v. State, 101 Ind. 564, 1 N. E. Rep. 47; Robinson v. Schenck, 102 Ind. 307-319, 1 N. E. Rep. 698. As the legislature has exclusive power over the entire subject, it is our duty to uphold the statute as it comes to us from the legislature with the executive sanction. We cannot annul any part of the statute unless it clearly violates some provision of the constitution. We have given full consideration to the appellant's argument, but we are unable to perceive that it even proves that it is probable that some provision of the constitution has been violated; much less does it prove that it has been violated beyond doubt.

It is contended that the act is unconstitutional because it authorizes the Indiana Dental Association to appoint three members of the board of examiners. The argument is that the dental association is a corporation; and that the act, in authorizing it to appoint, enlarges its corporate powers, and therefore violates the constitution, by enlarging the powers of a corporation by a special act. In more particulars than one, this argument is unsound. It rests on an undue assumption. Authorizing a corporation to select persons to perform a duty in which the public are interested, is in no just sense the enlargement of corporate powers. The designation of the corporation as the selecting body is not the grant of corporate powers. This is very clear to our minds. Clearly, the legislature might repeal the act at pleasure; and this of itself proves that no corporate right is granted, for, if there was such a grant, there could be no valid repeal. It is quite as clear that a statute which directs a person, artificial or natural, to perform a particular act, is not, for that reason, transformed from a general into a special statute. But, granting (and the concession can only be made for the argument's sake) that the authority to appoint members of the board of examiners is a corporate act, still the concession would by no means lead to the conclusion that the statute infringes upon the constitution. The provision which it is asserted the act violates is this: “Corporations other than banking shall not be created by special act, but may be formed under general laws.” It cannot, with the faintest tinge of justice, be affirmed that the simple delegation of authority to appoint three men to perform duties affecting the public is the creation of a new corporation. Changes of infinitely more importance have been held not to create a new corporation. Wallace v. Loomis, 97 U. S. 146;...