Noble v. State , 44 Ohio App. 10 ( 1932 )

John D. Noble was the defendant in the court below. He was arrested on process of a justice court charging him with the crime of performing dental operations without a license, and was tried, convicted and sentenced. Error was prosecuted to the court of common pleas, which court affirmed the judgment. Error is prosecuted to this court to reverse the judgment of conviction and the judgment of affirmance.

The New System Prosthetic Dental Laboratory, Inc., was incorporated under the laws of Ohio on the 16th day of October, 1930. The purpose clause of the charter or articles of incorporation contains the following language, "To own, run, operate or control rooms, offices, stores or parlors where dental work is done, provided or contracted for, and to employ licensed dentists to contract for, supply or furnish to all persons desiring such service of licensed dentists."

At the time of the trial below the defendant was the owner of 98 per cent. of the capital stock of this company, and was the general manager and president of the company. None of the stockholders or officers were licensed dentists.

There were a number of assignments of error, principally attacking the sufficiency and definiteness of the affidavit. It is enough to say that in our opinion no prejudicial error intervened in those respects.

However, it is further claimed that Section 1329, General Code, is unconstitutional, and this claim is assigned as the principal ground for reversal of this conviction.

A point is sought to be made and is stressed, based upon the theory that there is a distinction between so-called "mechanical" and "operative" dentistry. It is earnestly asserted that no license is required for doing mechanical dentistry, but only for practicing operative dentistry. Adopting our own definitions of these two terms, then, we are inclined to agree with this claim. If "mechanical dentistry" be the making of plates or sets of teeth, or fillings or crowns, and so forth, from impressions taken by a licensed dentist, then we are inclined to agree that such labor need not be covered by state license. But we include in the term "operative dentistry" all activities and examinations of the mouth of the patient leading to, and the making of, such impressions.

The proof in this case established beyond question of a doubt that this defendant acted for a period of time as manager of this company; that with few exceptions he interviewed the patients as they appeared, and made the initial examination and diagnosis; that he entered the result of his examination and diagnosis on a so-called chart; that the chart and patient were then sent to a licensed dentist in the employ of the company; that the licensed dentist was required to and did follow the diagnosis entered on the chart except for something that might arise while the dentist was performing the work prescribed by the diagnosis.

Counsel for defendant seems to urge and claim that this work performed by the defendant should be classed as "mechanical dentistry" and not "operative dentistry." With this claim we cannot agree. While it is true that Section 1329, General Code, enumerates certain operations and treatments that constitute dentistry, for which a license is required, yet the diagnosis of the needs of the patient is a presumed condition precedent to any operation or treatment. The patient goes to a dentist to ascertain whether the teeth or jaws need treatment for disease or dental work, or whether or not there are any malpositions or malformations that require attention, and the successful determination of such needs rests and depends upon the learning, skill and experience of the members of the dental profession, and presumably possessed by them exclusively.

Growing out of this claimed distinction, and grounded upon it, it is asserted that the statute is unconstitutional, and especially so if a license is required for one who performs only mechanical dentistry, including the diagnosis of the needs of the patients as performed by this defendant. We are of the unanimous opinion that this statute is constitutional, and that diagnosis is indispensably essential to and necessarily comprehended by and within the terms used to define operative dentistry or practicing dentistry in Section 1329, General Code.

Authorities have been cited to us to the effect that most of the states of the Union have declared constitutional like or similar statutes controlling and regulating the dental and medical professions.

It is sufficient to call attention to the authorities in the state of Ohio which are cited as support for the following text in 8 Ohio Jurisprudence, Section 289, page 412: "It is a well-settled principle of law that the legislature has the power, for the protection of the public, to regulate the practice of any particular profession which requires the possession of special knowledge, skill, and training in its exercise. Such professions include those of attorneys at law, dentists, pharmacists, and physicians and surgeons."

Finding no error in the record prejudicial to the rights of the defendant, the plaintiff in error here, the judgment is affirmed, with exceptions.

Judgment affirmed.

LEVINE, P.J., and WEYGANDT, J., concur.