State Ex Rel. Wolfe v. Missouri Dental Board , 289 Mo. 520 ( 1921 )

Original action in mandamus. Relator avers that in November, 1916, he, after an examination by respondent herein, received a certificate of registration as a dentist, and thereafter on November 23d 1916, he received from said Missouri Dental Board a certificate in the form of a license, being numbered 4530; that in November, 1918, he received from respondents his renewal license, likewise numbered 4530. The petition then avers:

"Relator informs the court that ever since November 30, 1918, he has been entitled as a matter of right, under the law, to an annual renewal license, as provided by law, and that he has made application therefor, requesting the respondent to issue to him such annual license, and upon each occasion has sent the fee of one dollar as provided for under the law; but without any lawful reason or excuse, and in violation of the mandatory provisions of the law, the respondent has refused and still refuses to issue to this relator the annual license to which under the law as a matter of right, he is entitled."

The petition then sets out in some detail the history of a former case between these parties, and the result thereof. [State ex rel. Wolfe v. Missouri Dental Board, 282 Mo. 292,221 S.W. 70.] He then avers that after the judgment in that case he tendered the fees for a renewal license, and that he has been at all times refused a renewal license on his certificate of registration. He sets out the letters from respondent's secretary returning his fee each time, and showing the refusal to issue to him a renewal license. There is much other matter alleged as occurring between relator and a member of the Dental Board, which can be noted if found material. In one letter from a secretary of the respondent it was stated that relator's renewal license had been revoked. We state this to explain fully the following prayer of relator's petition. This prayer reads:

"Wherefore, the premises considered, relator prays the court to issue its writ of mandamus to the end that respondent may be compelled:

"1. To set aside any order made revoking the renewal license granted to the relator for the year 1918.

"2. That respondent be compelled to set aside any order made at any time finding this relator guilty of any charges, for the reason that the court decided that the relator had never been lawfully put upon trial.

"3. That the respondent be compelled to issue to this relator a renewal license for the year 1921, in accordance with the application made by this relator, November 1, 1920."

Return was duly made to our alternative writ, which involves some matters which are perhaps beyond the real questions in the case. Motion was made to strike out these, which motion was taken with the case, and the case is before us upon a request for judgment upon the pleadings. The return contains a number of admissions, and also pleads fully respondent's theory of the case here previously. Notwithstanding the lengthy pleadings upon both sides there are under paragraph two of the return such admissions as will shorten very much the opinion in the case. In the previous case State ex rel. Wolfe v. Missouri Dental Board, it appears that the respondent therein had attempted to try Wolfe upon charges, and had found him guilty and revoked both his certificate of registration, issued in 1916, and his renewal license issued in November, 1918. Respondent admits that this court held that Wolfe had not been tried according to law, and that their order revoking such instruments were void. Admits further that relator has tendered his fee of one dollar for renewal licenses to November, 1920, and November, 1921, and that they have been refused. There is no pretense that relator had been tried on any charges by said board since the disposition of the case in 282 Mo. 292, supra. Other details will go with the opinion.

I. Many details in the instant case will be found in State ex rel. Wolfe v. Missouri Dental Board, 282 Mo. 292, 221 S.W. 70 et seq. Charges had been preferred against Wolfe and a futile trial followed. Up to this time Wolfe was not only a registered dentist, but held the usual annual license. Both his certificate of registration and his annual license were revoked by respondent on June 11, 1918. After going over the whole case, this court, thus ruled:

"The result of the whole matter is that we hold respondent's order revoking relator's certificate of registration andlicense to be void for the reasons stated in paragraphs 1 and 2."

Pending the case, supra, in this court, Wolfe was arrested for practicing dentistry without license, and convicted in the lower court. This case was appealed to Division Two of this court, and that court ruled, on the strength of State ex rel. Wolfe v. Missouri Dental Board, supra, that the judgment of the said Dental Board was void. [State v. Wolfe, 283 Mo. 29, 222 S.W. l.c. 442.] The judgment so declared void reads:

"The Missouri Dental Board, therefore, on the facts above found and stated, and on motion duly made and seconded and carried, hereby revokes the original certificate of registration issued to the said Morris Russell Wolfe and the license issued to him by the Missouri Dental Board under which he is now practicing dentistry, and from henceforth said original certificate of registration and said license to practice dentistry issued to him by this board are hereby revoked and for naught held."

So that it appears that by the judgments in these two cases the judgment of the Missouri Dental Board was wiped from their record, and both the certificate of registration and the license remained in full tact for all purposes of the law. It is true that the license, which is a document issued annually, had expired, for the full period of its term was at an end. Shortly after the decision in State ex rel. v. Missouri Dental Board,282 Mo. 292, 221 S.W. 70, supra, the relator Wolfe having established the legality of both his certificates of registration, and his last license, applied for a renewal license. It was useless for him to apply sooner. Our opinion came down April 1st, 1920, and it is admitted that on May 17, 1920, the relator tendered the fee of one dollar and applied for a renewal license. Such license, had it been issued, would have run to November, 1920. It is also admitted in the return that on November 1st, 1920, the relator did make application for a renewal license from November, 1920, to November, 1921, and tendered the fee of one dollar. To the first application, supra, the Missouri Dental Board, through its secretary replied:

"Your letter requesting license and in which was inclosed one dollar received.

"I am herewith returning to you the one dollar for the reason that the Missouri Dental Board refuses to grant you a license to practice dentistry in the State of Missouri, because you have violated the Missouri Dental Law concerning dentistry; because you have published fraudulent statements as to your skill as a dentist; because you have circulated fraudulent statements as to your skill as a dentist. Because you have published and circulated misleading statements as to your skill and method of practicing dentistry; because you have published and circulated by letter circulation, newspaper, card or otherwise holding yourself out to the public as a practitioner without causing pain; because you have acted in this manner with a view of deceiving and defrauding the public; because you have violated the provisions of the act of the Legislature of 1917, concerning dentistry, beginning at page 252 and ending at page 268; because you have advertised that you could do dental work by mail; because after due notice given you and trial heard, you have been found guilty of the above charges by the Missouri Dental Board."

This court had previously ruled that relator had not been given a legal hearing, and yet the Missouri Dental Board, in the face of our ruling, was asserting their judgment by reiterating the old charges against relator, and closing with the language: "because after due notice given you and trial heard [the very thing this court said had not been done] you have been found guilty of the above charges by the Missouri Dental Board."

This letter does not prefer new charges against the relator, but reiterates the charges previously made, and the previous judgment of the board thereon, which judgment, this court had declared void. To the second application he received this reply of date November 11, 1920:

"Your letter containing one dollar received. I am very sorry to say that according to the records of the Dental Board your license is revoked. Therefore, I am returning your draft for one dollar."

Here again the Missouri Dental Board was asserting its judgment, when it had been declared void in Court in Banc, and on June 4, 1920, by Division Two in the criminal case. With persistency this board has clung to its judgment, in open defiance of the rulings of this court holding that it was void. No further charges have been lodged against Wolfe, and no trial given him upon further charges, or the previous charges, since we held the judgment of the board void. Respondent now clings to the theory that the issuance of the renewal license is a matter of discretion. When all the rubbish is eliminated from both petition and return, this is the simple issue in the case.

It stands undenied that relator has a certificate of registration, for we declared void the judgment revoking it. It stands undenied, that relator had his initial license, and had a license to practice in 1918, because we annulled the judgment revoking such license. So cleared of feeling (and there appears much of such on both sides) the real issue involved is a very simple one. We have thus eliminated the chaff from the wheat without action on the motion to strike out parts of the return. We are not bound by irrelevant matters in the pleadings, whether it appears in petition, or return. For the disposition of the case, we shall overrule the motion to strike out, but reserving to ourselves the right to eliminate from consideration all irrelevant matter in both pleadings. This we have done in the statement, supra, as to the material facts, and the simple issue left for decision. Relator has asked that, if we overrule the motion to strike out, we then consider the case as on motion for judgment on the pleadings. This we shall do, and the material facts we have garnered, supra, from such record.

II. If the granting of a license to a registered dentist is not discretionary, then this board should be compelled to issue the license requested by relator. Relator is a registered dentist, because this court declared void the judgment and order of the Missouri Dental Board, which revoked it. Respondent hangs all hopes on the last paragraph of the opinion of our recent brother, WILLIAMSON, in State ex rel. Wolfe v. Missouri Dental Board, 282 Mo. l.c. 301, 221 S.W. l.c. 73. It is there stated that this board had a discretion in the mere matter of issuing a license. This paragraph of the opinion was not really necessary to the case in hand, but I fear we misconstrued the Act of 1917 (Laws of 1917, p. 252) in stating that there was any discretion as to the mere issuance of a license. This calls for a review of the act. Judge WILLIAMSON in the previous case with becoming modesty said: "The statute can hardly be regarded as a model of lucidity." May I, with less modesty, be permitted to add that the Act of 1917 is a model of verbosity, tautology, redundancy, and prolixity. All essentials of this lengthy act could be stated with clarity in a few concise sections, and the law made intelligible. One of the chief objects of the law is to get the cash with which to run the Missouri Dental Board. To this end we have two fees to be paid before a qualified citizen can (as he must under the act) place his name plate, in letters not less than two inches high, on the front door of his dentist's office. First, he must apply for and obtain an examination by the Missouri Dental Board, which application must be accompanied with a fee of $25. This fact is emphasized by the $25 prerequisite appearing five times in the act. If the applicant fails and wants another examination, a ten-dollar bill must be dropped into the till of the Missouri Dental Board. Then for fear the Missouri Dental Board would run out of funds, the law requires the applicant, after he has been examined and given a certificate of registration, which certificate vouches for his educational and moral qualifications to practice dentistry, and before he can practice under his certificate of qualification (or registry as the law calls it), to get a license from the Missouri Dental Board, and pay one dollar therefor. [Sec. 5489, Laws 1917, p. 256.] This license must be renewed on or before November 30th of each year, and casually the applicant must drop into the till of the Missouri Dental Board one dollar, each time. [Sec. 5491, Laws 1917, p. 257.] No examination is required for this license. It is a fee proposition, pure and simple. It serves no substantial purpose other than the contribution annually of the dollar to the secretary of the Missouri Dental Board. True it must be posted in the office, but the posting of the certificate of registration would serve the same end, because it bespeaks the qualification of the party. The whole trouble in this case is occasioned by the requirement of these two instruments from the dental practitioner. The distinction between the two was overlooked in the remarks made in the last paragraph of our previous opinion. The certificate of registration is the instrument issued after a satisfactory examination. It is in the granting or refusing of instruments of this kind that the courts have ruled that there was a discretion in the examining board. But even this is not an unregulated discretion. It is one which may be reached by the courts. Arbitrary action can always be reached through the courts. [State ex rel. v. Adcock, 206 Mo. 550.] The relator in this case passed his examination and received not only his certificate of registration (which he now holds, untarnished, by virtue of our previous ruling) but also his license to practice. It is a renewal license that he seeks in the instant case. Is he entitled to it? We think so. By Section 5487 of the Act of 1917, page 254, it is provided:

"From and after the passage of this act it shall be unlawful for any person to practice dentistry in the State of Missouri or to attempt, or to hold himself or herself out as a dentist until said person or persons shall first comply with the following requirements: be examined and registered by said board, and after receiving a certificate of registration the person receiving the same shall file such certificate of registration with the clerk of the county court of the county or counties in which he or she resides or desires to practice dentistry, and shall have the same recorded and a certificate showing the filing and recording of the same, with the book and page where recorded endorsed thereon under the hand of the clerk and the seal of said court; andthereafter any such person shall apply to and receive a licensefrom said board, which license shall attest the qualifications of the person named therein and shall give the person named therein the right to practice dentistry for the term mentioned in said license, which term in all cases shall end on the 30th day of November of each year, and shall be dated on the date such license is issued."

Note the language "and thereafter any such person shall apply to and receive a license from said board." The word "shall" should be supplied before the word "receive," supra. At the end of this same section it is said "he must procure from the board . . . a license."

Section 5489 of the Act of 1917, page 256, says: "After a person shall have been registered and shall have received a certificate of registration showing that the applicant is qualified to practice dentistry in this State, then upon requestof such person and the payment to said board of the sum of onedollar the applicant shall be entitled to a license, authorizing the applicant to practice dentistry and dental surgery in the State of Missouri under this act."

Again note the language, "shall be entitled to a license," and he is thus entitled "upon request . . . and the payment to said board of the sum of one dollar." This is the first or original license issued after the party has been examined, found qualified, received his certificate of registration, and had such certificate recorded in the county of residence. There is no discretion to be found in the language used as to this first license. Why should there be a discretion, since the Missouri Dental Board had just examined the party and found him qualified for the practice and morally fit for the profession? Bear in mind that the certificate of registration must be recorded within six months after its issuance, or it becomes invalid. [Sec. 5492, Laws 1917, p. 256.] So that there was no reason to grant discretion to the board in issuing a mere license, when it must so shortly follow the complete examination of the party.

We now come to the law as to renewals of this original license. It is found in Acts of 1917, Laws 1917, page 257, Section 5491, which reads:

"All persons who have been regularly registered and licensed as dentists under the provisions of this act shall be entitled to have their license renewed upon application to said dental board on or before the 30th day of November in each calendar year next succeeding the expiration of the license then held by such applicant. All applications for renewal of license, as herein provided, shall be accompanied with a fee of one dollar, and each new license so issued shall be kept and displayed, as herein provided for original licenses."

Is there discretion lodged in the board in the performance of this act? We say not. The law says applicants for a renewal license "shall be entitled to have their license renewed" upon the payment of a fee of one dollar. Of course the applicant must be regularly registered and previously licensed before he is entitled to a renewal license. If the applicant is duly registered and has been previously licensed, then the law says such "applicant shall be entitled to a license." There is no discretion found in this language. If the prerequisites exist, the renewal license must follow the application, as the night follows the day.

The only thing in the entire act indicating discretion in the issuance of a mere license is this found in closing portion of Section 5495d., Laws 1917, page 263: "After the applicant has been granted a certificate of registration showing the applicant to be entitled to a license, then the applicant, upon application to the board, may be licensed and authorized to practice dentistry as provided by this act."

The foregoing refers to the initial license just after the examination, and the issuance of the certificate of registration. It does not affect relator's case, even if it be conceded that the initial license was within the discretion of the board, a matter we do not concede. This Section 5495d is largely a rehash of Section 5487, the mandatory language of which we have set out in the first place. Relator is duly registered and received his initial or first license. What he wants is a renewal license, and this, under Section 5489, supra, is not a matter of discretion.

Why should there be discretion in the mere issuance of yearly licenses? As said, the whole tenor of the act indicated that the real purpose of renewal license is to get one dollar each from the dentists of the State in order to keep the Missouri Dental Board and its work going. In this feature it differs from the law governing doctors and lawyers. With dentists the certificate of registration is the instrument that bespeaks qualification educationally and morally. As long as that document is in the hands of the dentist, his moral and educational qualifications are vouched for by the solemn judgment of the Missouri Dental Board. The law simply requires that the applicant for a renewal license shall be a person duly registered and previously licensed by the Missouri Dental Board, and that he accompany his application with one dollar. [Sec. 5491, supra.] Upon what is discretion to be exercised? The records of the board show the registration and initial license, and it requires but a glance at the records to determine whether these facts exist. If they exist, the board cannot say they do not exist. [State ex rel. v. Adcock,206 Mo. 550.] There is no place for discretion there. If the application for renewal is accompanied with the dollar, that fact is before the board, and there is no room for discretion there. If this law required of the applicant for a renewal license the making of some showing as to his work under his certificate of registration and previous license, or some showing as to his then moral and educational standing, or some showing as to his conduct under the ethical standards of the profession, then there might be a discretion lodged in the board. But the law makes no such requirements. He is only to make application for such license and accompany the same with one dollar. There is no place for discretion.

In the issuance of a certificate of registration, and in the revoking of such certificate, or a license issued thereunder, after a trial, there is no doubt more or less discretion lodged in the Missouri Dental Board, but this is not an unregulated discretion. [State ex rel. v. Adcock, supra.] In the mere issuance of a renewal license, there is no discretion, under the Act of 1917, now Chapter 112, Revised Statutes 1919. The closing paragraph of the opinion in State ex rel. Wolfe v. Missouri Dental Board, 282 Mo. 292, 221 S.W. l.c. 73, in so far as it indicates that there was a discretion, is wrong. An examination of the whole act does not sustain it.

III. It is arged that the rule, as to discretion, announced in the previous case, is stare decisis, or resadjudicata. Counsel use the words res adjudicata. This is not a second appeal, but a new case. But even upon second appeal, and where the case has been retried nisi on the basis of a ruling by this court, we have reserved our right to correct our ruling on second appeal. [Mangold v. Bacon, 237 Mo. l.c. 513 et seq.] We feel that what was said in the former opinion was an inadvertence, which should be corrected upon a thorough review of the whole act. The remarks were applicable to the certificate of registration, or to a trial for the revocation of it, or a license issued thereunder, but not to a mere renewal application, and the license to be issued on same. Had the law required the application for a renewal license to make a showing with his application, the question might be different. If it requires no showing, as indicated in a previous paragraph, then there is no place for the exercise of discretion.

IV. It will be noted that, in the foregoing we have not considered that portion of the return by which respondents undertake to justify their act by pleading that relator has violated the dental statutes, as to advertising and other things. We did this for several reasons, viz: (1) This portion of the return was wholly irrelevant in this action. In mandamus in this court we are not called upon to first determine the facts of a violation of law authorizing action upon the part of the board. The board must first hear and determine the matter (if authorized to exercise a discretion) and we pass upon their record. There is no claim in this return that relator had been heard on any charges since the trial which we held void. The action of refusing would be arbitrary, unless relator had been given a hearing by the board. Such board cannot arbitrarily refuse the license, and then undertake to have this court determine the facts in the first instance as is sought to be done in the instant case. For this reason we dismissed these portions of the return as wholly irrelevant to the issues involved here. (2) There is another more forceful reason for excluding this portion of the return. Since the last trial in this court, the only action taken is evidenced by the two letters from the secretary of the board, in which the action of the board is placed upon the ground that their records (the judgment which this court vacated) showed that relator's license had been revoked upon charges covering all the things mentioned in the return. Respondents cannot blow hot and cold. Their record shows that their refusal was based upon their old judgment, and not otherwise. (3) Section 12636 urged, if it were in this case at all, does not go to the extent claimed by respondent's counsel. This section says: "Said dental board shall have power to revoke a certificate of registration or a license issued thereon upon any one of the following causes:" There follow eight specific grounds or causes upon which a revocation of certificate of registry or of license may be ordered. But not that the power conferred is to revoke something already done, and to revoke for cause, and upon a hearing as provided for by the next section. The power granted is to revoke something already done, and not to refuse to act, for the reasons stated. It is true that there is added to the 8th sub-divisions of causes for which the certificate of registration or license may be revoked, a statement that they may be refused for the same reasons. This can only refer to the original certificates of registration, and the initial license issued thereunder. It can not refer to a mere renewal license, without nullifying all the remainder of the law.

It follows that our alternative writ of mandamus should be made absolute, and it is so ordered. All concur, except J.T. Blair,C.J., who dissents in separate opinion, and D.E. Blair, J., who concurs in the opinion of the Chief Justice.