State ex rel. Flickinger v. Fisher , 119 Mo. 344 ( 1893 )

Shekwood, J.

In this original proceeding for a mandamus, the single question presented is whether the relator, a dentist, and who appends to his name “D. D. S.,77 is liable to do jury duty under the laws of this state.

Among those exempt under the general laws of this state is a “person exercising the functions of a * * * practitioner of medicine.77 Revised Statutes, 1889, sec. 6062. Under the provisions of section 8 of article 21 of the scheme and charter, Revised Statutes, 1889, p. 2162, “Every male citizen of this state, resident in such city, sober and intelligent, of good reputation, "over twenty-one years of age, and not exempt from jury duty by the general laws of this state, or otherwise disqualified or excused as provided in this act, shall be deemed to be qualified for and subject to the performance of jury duty under the provisions hereof.77 Section 9 of the same article then proceeds to define who are exempt from .jury duty and among them specifies a person who is actually exercising the functions of, “a practitioner of medicine.7 7

Of laws in pari materia with those mentioned, is chapter 110, Revised Statutes, 1889, p. 1612. This chapter is entitled, “Medicine, Surgery and Dentistry,” and consists of three articles, the first “Medicine and Surgery;” the second, “Disposition of Human Bodies,” and the third “Dentistry.” These articles were originally separate acts, approved at different times. Laws of 1883, p. 114, approved February 20; Ibid. p. 115, approved April 2; and Laws of 1887, p. 215, approved March 31, relating to dead bodies. Those acts, however, like the diversified contents of the great sheet, knit at the four corners, that Peter saw in his vision, have been gathered together in all their incongruity in the present revision, and now form chapter 110.

Section 6871 of article 1 of that chapter provides that “every person practicing medicine and surgery, in any of their departments, shall possess the qualifications required by this article,” to-wit: If the applicant is a graduate of medicine, he must present his diploma to the state board of health, etc. And thereupon that board issues its certificate to the applicant, and such diploma and certificate are made conclusive of the right of the holder of the samé to practice medicine in this state. Other provisions are inserted in the section with respect to the steps necessary to be taken by those who are not graduates of medicine, but who also desire to practice it, etc. To this end two kinds of certificates are provided to be issued by the board, one for graduates who possess diplomas, and the other for those not graduates who have stood a successful examination before the board as to their qualifications, Without such certificate of one sort or the other, no one can lawfully practice medicine and surgery in any of their departments in this state. State ex rel v. Gregory, 83 Mo. 123.

Section 6881, of the same chapter and article, denounces certain penalties against those who shall practice medicine or surgery in this state without complying with the provisions of this article, to wit: a fine of not less than $50 nor more than $500, or by imprisonment in the county jail not less than thirty nor more than three hundred and sixty-five days, or by both such fine and imprisonment.

Section 6889 of article 3, entitled “Dentistry,” makes it unlawful for 'any person to practice dentistry or dental surgery in this state without being the possessor of. a diploma,,etc., etc. No provision, however, is made for the presentation of such diploma to the board of health, nor for any examination by that board of the applicant touching his qualifications. The applicant simply presents his diploma to the county clerk or city register, as the case may be, and receives a certificate, which is made “prima facie evidence of the right of the holder to practice wider this article.”

Section 6893 of that article prescribes a penalty for violating the provisions of such article, to wit, by a fine not less than $25, nor more than $200. These different penalties under articles 1 and 3 evidently go to show that the legislature regarded the violation of article 1 by a physician as a more serious offense, and, therefore, to be punished more severely than a violation of article 3 by a dentist. In a word, by those very penalties, they drew a distinction between a doctor and a dentist.

Relator relies on a certificate obtained under the provisions of article 3 aforesaid, from the city register, on presentation to the latter, by the relator, of his diploma, which certificate, among other things, states that relator’s name had been entered on the “Roll of Dental Surgeons,” in the city register’s office.

Looking at all these statutory provisions bearing-on the point in hand, the question mentioned at the outset recurs to the mind: Do those provisions, or any of them, exempt relator from the performance of jury duty? The general laws of this state as already seen, as well as the provisions of sections 8 and 9 of the scheme and charter, exempt only certain persons from the performance of that duty. Has relator brought himself within any exemption therein contained?

The prevalent rule in construing statutes is, that the expression of one thing is the exclusion of another. Anderson’s Law Dictionary, Expressio, etc. An express exception, exemption or saving excludes all others. Brocket v. Railroad, 14 Pa. St. 241. And when a general rule has been established by a statute with exceptions, the courts will not curtail the former, nor add to the latter by implication. Sutherland on Stat. Construe., sec. 328; Tyson v. Britton, 6 Tex. 222; Roberts v. Yarboro, 41 Tex. 450; U. S. v. Dickson, 15 Pet. 165.

Here, relator claims the force and benefit of a certain exception which, he asserts, takes his case out of the operation of the general statute which compels the performance of jury duty by all male citizens, resident, etc., etc. In order to avail himself of such exception, he must show that his case falls strictly within it, since exceptions, privileges and exemptions are not favored in the law. And, in this investigation, the familiar rule laid down by Lord Bacon is peculiarly apposite, “that, as exceptions strengthen the force of a general law, so enumeration weakens, as to things not enumerated.” Page v. Allen, 58 Pa. St. 338.

Service on juries is one of the general burdens imposed upon the male citizens of a state, and all men who receive the advantages of government are bound to contribute to its support; and “none can claim exemption, unless the exemption be so clearly expressed in the statute as to admit of no other construction.” Miller v. Kirkpatrick, 29 Pa. St. 226. The state has an inherent and indisputable right to the service of all her male citizens as jurors, and, therefore, any statute which strips the government of any portion of its prerogative in this regard, by giving.exemption from this, general burden, should receive a strict construction. Academy v. Philadelphia County, 22 Pa. St. 496.

Here, it can not be successfully claimed that relator finds any exemption in the terms of the statute, for certainly he is not a “practitioner of medicine and surgery in any of their departments,” as defined ,in section 6871, nor does he exhibit the qualifications required by that section, to wit, a diploma from a legally chartered medical institution in good standing, and a certificate from the board of health. His contention, stripped of all verbiage and disguises, and stated baldly and boldly, simply is, that, inasmuch as he possesses a diploma, granted him by a reputable dental college, and a certificate of the city register showing the filing of that diploma and the enrollment of his name on the “Roll of Dental Surgeons,” that, therefore, he is entitled to the same exemptions from jury service as if, instead of qualifying under the provisions of section 6889, he had actually qualified under those of section 6871. This contention, for reasons already given, can not prevail; it will not bear a moment’s scrutiny. Either relator is a practitioner of medicine and surgery, or he is not. If not, that determines this litigation against him; if he is such practitioner, then this fact avails him nothing until he complies with the terms and conditions of section 6871 and its associate sections. The law, by the terms it employs, means a lawful “practitioner of medicine,” not one who fails to comply with its requirements. Relator makes no pretense of such compliance. The statute in question being couched in unambiguous terms, its words are to be taken “in their pláin or ordinary and usual sense. R. S. 1889, see. 6570.

Relator evidently feels unsteady on his logical legs if his sole reliance is -to be on the statutory exemptions heretofore noted, and so he' resorts to the lexicographers, and quotes from the Century Dictionary, where “Dentist” is thus defined: “One whose profession it is to clean and extract teeth, repair them when diseased, and replace them when necessary by artificial ones; one who practices dental surgery and mechanical dentistry; a dental surgeon.” If relator had delved more deeply into the science of definitions, and had turned another page of the same work, he would have found “Chiropodist. One who treats diseases or malformations of the hands or feet; especially a surgeon for the feet, hands and nails; a cutter or extractor of corns and callosities; a corn doctor.” So that if relator is exempt from jury duty because, as he says, he “treats professionally diseases of the oral cavity,” so, also, is his less pretentious professional brother, who, with equal scientific skill, treats diseases or malformations of the hands or feet, and who is content to be dubbed “corn doctor.” Certainly the argument and the definition which would support the exemption of the dentist as a “practitioner of medicine and surgery,” would also equally support that of his cognate scientist, albeit of humbler professional pretensions.

The disposition of persons to magnify and exalt their callings or occupations has become wonderfully prevalent in these latter days. He who shoves a jack-plane and wields a saw is no longer a “carpenter,” but an “architect and builder;” the solicitor of orders from our retail merchants is no longer a “drummer,” but a “commercial traveler;” and the loquacious individual who scrapes your chin is no longer a “barber,” but a “tonsorial artist.”

But this euphemistic style of dressing things in different and more high-sounding verbiage does not alter their essential nature, nor have the least tendency to evade the force and effect of the statutes pointing out those who are subject to jury duty, and those exempt therefrom.

The premises considered, we hold that, on the facts presented in this record, relator is not exempt from jury duty, and hence deny the peremptory writ.

Barclay, G-antt and Burgess, JJ., concur; Black, C. J., and Brace and Macfarlane, JJ., dissent.