Wilson v. Com.

• Decision Date: 13 October 1904
• Citation: 119 Ky. 769,82 S.W. 427
• Parties: WILSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

82 S.W. 427

119 Ky. 769

WILSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 13, 1904

Appeal from Circuit Court, Hardin County.

"To be officially reported."

R. H Wilson was convicted on three indictments for violating the dental law, and he appeals. One conviction affirmed, the others reversed.

O'Meara & James, for appellant.

N. B Hays and Loraine Mix, for the Commonwealth.

BARKER J.

The law under which these prosecutions were had is an act entitled "An act to amend the charter of the Kentucky State Dental Association," approved May 10, 1886 (2 Acts 1885-86, pp. 523, 524, c. 1017), which, so far as pertinent is as follows:

"Section 1. The board of examiners of the Kentucky State Dental Association shall keep a record, in which shall be registered the names and residence or place of business of all persons authorized under this act to practice dentistry or dental surgery in this State.

"Sec. 2. Every person now legally engaged in the practice of dentistry or dental surgery in this State at the time of the passage of this act, shall, within six months thereafter, cause his name and residence or place of business to be registered with said board of examiners, upon which said board shall issue a certificate to such person, duly signed by a majority of the members of said board, and which certificate shall entitle the person to whom it is issued to all the rights and privileges set forth in section 1 of an act approved April 8, 1878, to amend an act, entitled 'An act to incorporate the Kentucky State Dental Association."'

"Sec. 4. Any person who shall, in violation of this act, practice dentistry or dental surgery in the state of Kentucky, for fee or reward, shall be subject to indictment by the grand jury of the county in which the offense is committed; and, upon conviction, shall be fined in the sum of not less than fifty dollars nor more than two hundred dollars for each offense."

Three indictments were returned against appellant by the grand jury of Hardin county, Ky. for violations of this act by practicing dentistry without a certificate. Each covers the same period of time, being one year prior to the 19th day of November, 1903. They are precisely alike in every respect, except that in each one the name of a different patient appears upon whom the practicing was done. That containing the name of Sam Bell as the patient operated on was tried first, under a plea of not guilty, with an agreed statement of facts. The trial resulted in the appellant being found guilty, and his fine fixed at $60. Afterwards those containing the names of Virgie Greenwell and Elie Lewis were tried under the plea of not guilty and also the plea of former conviction, with the same agreement of facts as in the first case. These trials resulted in appellant's conviction, and a fine of $51 in each case. From these judgments the appellant has appealed to this court.

Two propositions are insisted upon for reversal: First, that the act creating the Kentucky Dental Association, as amended by the acts of April 8, 1878 (1 Acts 1877-78, p. 97, c. 847), May 10, 1886 (2 Acts 1885-86, p. 523, c. 1017), and May 1, 1893 (Acts 1891-93, p. 840, c. 189), in so far as it required the appellant, who had been practicing dentistry in Kentucky since 1864, to register, is unconstitutional; second, if this be not sound, then the judgment of conviction under the first indictment is a bar to the prosecution of the other two. The case of Commonwealth v. Basham, 101 Ky. 170, 40 S.W. 253, in principle involves the very case we have here on the first proposition. There Basham had practiced dentistry prior to 1878, but, failing to register under the provisions of the amendment of 1886, was indicted. A general demurrer to the indictment was sustained by the circuit court, and it was dismissed. This judgment was reversed on appeal, the court holding that the act of 1878 and the amendments of 1886 and 1893 constitute one law regulating the practice of dentistry in Kentucky, and that, although the defendant had begun the practice of his profession prior to 1878, his failure to register was a violation of the amendment of 1886, which required every person practicing dentistry at the date of its enactment to register. While the opinion does not discuss the constitutionality of the act, that was, necessarily, upheld in order to reverse the case. The constitutionality, however, of a similar act was expressly decided in the case of the Kentucky Board of Pharmacy, etc., v. Cassidy, 74 S.W. 730, 25 Ky. Law Rep. 102, and the authorities bearing upon the question are therein reviewed at length. These cases are conclusive of the first judgment against appellant, as that involves only the question of the constitutionality of the act under which it was rendered.

The pleas of former conviction to the second and third indictments present valid defenses. As said before, they cover the same period of time as that occupied by the first. The statute provides that upon conviction for a violation of the act "the defendant shall be fined in the sum of not less than fifty dollars nor more than two hundred dollars for each offense." 2 Acts 1885-86, p. 524, c. 1017, § 4. The...