Allen v. . Carr, 210 N.C. 513

Clarkson, J.

The facts found by the court below fully set forth this controversy, and on them we think plaintiff’s application for mandamus to renew his license to practice dentistry properly denied.

Public Laws 1935, ch. 66, sec. 11, is as follows: “Any person who shall have been licensed by the North Carolina State Board of Dental Examiners to practice dentistry in this State who shall have retired from practice or who shall have moved from the State and shall have returned to the State, may, upon a satisfactory showing to said board of his proficiency in the profession of dentistry and his good moral character during the period of his retirement, be granted by said board a license to resume the practice of dentistry upon making application to the said board in such form as it may require and upon the payment of the fee of ten dollars. The license to resume practice, after issuance thereof, shall be subject to all the provisions of this act.”

The plaintiff contends that the above section is unconstitutional, on the following grounds: “That in requiring this plaintiff, who has been duly licensed to practice dentistry in North Carolina, to take a second examination while all other dentists in the State are required to take only one examination, section 11 of the Act of 1935 is unconstitutional, in that it denies the plaintiff the equal protection of the laws of North Carolina and is in direct conflict with the 14th Amendment of the Constitution of the United States. Said section of said act is also unconstitutional, in that it abridges the privileges and immunities of the citizens of the United States and is in direct conflict with the 14th Amendment to the Constitution of the United States, and is further in conflict with section 2, Article IY, of the Constitution of the United States. That section 11 of the Act of 1935, which authorizes the defendant board to require two examinations of this plaintiff while all other dentists are only required to undergo one examination is void and unconstitutional, in that it confers upon other dentists exclusive emoluments and privileges, and is, therefore, forbidden by section 7, Article I, of the Constitution of North Carolina. Said act of the Legislature and said act of defendant board is also unlawful and void, in that the plaintiff is deprived of a substantial property right other than by the law of the land, and is, therefore, in conflict with section 17, Article I, of the Constitution of the State of North Carolina. Said act of the Legislature and said act of the defendant board are likewise in conflict with sections 30 and 31 of the Constitution of the State of North Carolina.”

Plaintiff also contends: “That if it should be decided that section 11 of the Act of 1935 is not in conflict with those sections of the Constitution of the United States and the Constitution of North Carolina, as hereinbefore alleged, then said section of said act has no application to plaintiff, in that he has never retired from the practice of dentistry, but has been engaged in said practice continuously and without interruption since he was first licensed by the defendant board in the year 1897.”

We do not think that either of plaintiff’s contentions can be sustained. The act is, we think, constitutional in all respects. The plaintiff was duly licensed to practice dentistry on 11 May, 1897. In 1899 plaintiff left tbis State and did not return to North Carolina until about 1 February, 1936. He is now residing in Henderson County, N. C. Plaintiff has failed to renew bis license as required by Public Laws 1915, chapter 178, sec. 11, be does not now bold any license to practice dentistry in North Carolina, and the Act of 1935 provides the process by which be may be granted license to resume the practice of dentistry in North Carolina. Mann v. N. C. State Board of Examiners in Optometry et al., 206 N. C., 853.

The Supreme Court of the United States, in Graves v. State of Minn., 272 U. S., 425 (427), citing numerous authorities, says: “It is well settled that a state may, consistently with the 14th Amendment, prescribe that only persons possessing the reasonably necessary qualifications of learning and skill shall practice medicine or dentistry.”

The principle is well settled in this jurisdiction by a wealth of authorities. S. v. Van Doran, 109 N. C., 864; S. v. Call, 121 N. C., 643; S. v. Lockey, 198 N. C., 557 (Barber’s Act). The plaintiff, in conformity with the act of the General Assembly of 1935, filed his application to renew his license, and stood the examination required of him by the act. In doing this, we think, from his leaving the State and returning, that the construction he put on the act was correct and his complaint now is no defense. The court below found: “That said examination was duly given and the defendant board, within its authority and power and in the proper exercise of the duties and obligations imposed upon it by law, and in the exercise of its discretion, found that the plaintiff has not made, upon his examination, a satisfactory showing of his proficiency in the profession of dentistry; that without considering further facts, as permitted under the act, said defendant hoard, in the proper exercise of its duties and obligations under said act, and pursuant to its judgment and discretion, denied to the plaintiff a license to resume the practice of dentistry in North Carolina.”

In S. v. Hicks, 143 N. C., 689, it is held (1st headnote): “The Legislature has constitutional authority to regulate the practice of dentistry under Bevisal, sec. 4468, forbidding any person to practice who has not graduated at a reputable dental school and received a certificate of proficiency or qualification from the Board of Dental Examiners, etc.; under section 4470, making the requirements inapplicable to any person who was a dental practitioner in this State before 7 March, 1879, if or before 25 February, 1890, he should file a verified statement with the Board of Dental Examiners showing his name, residence, date of diploma or license, and date of commencing practice here; under section 3642, making it a misdemeanor to practice dentistry without first having passed the required examination and received the certificate.”

Tbe provisions of section 11, chapter 66, Public Laws 1935, bear alike upon all classes of persons referred to therein, and the requirement made by the board that the plaintiff make to it a satisfactory showing of his proficiency in the profession of dentistry is no discrimination against the plaintiff. We think that the facts bring plaintiff in the clear language of the act, and the act is constitutional and within the police power of the State to enact for the good and welfare of the State.

There is no finding of fact that the defendants, N. C. Board of Dental Examiners, arbitrarily abused its discretion, or in bad faith exercised its discretion, but refused the plaintiff license on the ground that plaintiff had not shown his proficiency in the profession of dentistry.

We do not think that the writ of mandamus should issue, and we think the case of Ewbank v. Turner, 134 N. C., 77 (83), is in point, as follows: “The law-making power having entrusted such examination to the board thus constituted, and required that the examination shall be satisfactory to them, and such requirements being reasonable and in violation of no constitutional provision, the courts cannot intervene and direct the board to issue a certificate to one who the majority of the board have held has not passed a satisfactory examination because upon the examination of experts the court or jury might think the examination of the plaintiff ought to have been satisfactory to the board. This is a matter resting in the conscience and judgment of the board, under the provisions of the law, and the courts cannot by a mandamus compel them to certify contrary to what they have declared to be the truth. Had the board refused to examine the applicant upon his compliance with the regulations, the court could by mandamus compel them to examine him, but not to issue him a certificate when the preliminary qualification required by law, that the applicant shall be found proficient and competent by the examining board, is lacking. Burton v. Furman, 115 N. C., 166; Loughran v. Hickory, 129 N. C., 281.” Barnes v. Comrs., 135 N. C., 27; Edgerton v. Kirby, 156 N. C., 347.

In 18 R. C. L., “Mandamus,” part see. 38, page 124, we find: “It is a well recognized rule that where the performance of an official duty or act involves the exercise of judgment or discretion, the officer cannot ordinarily be controlled with respect to the particular action he will take in the matter; he can only be directed to act, leaving the matter as to what particular action he will take to his determination. Therefore, where an officer, in the exercise of a discretionary power, has considered and determined what his course of action is to be, he has exercised his discretion, and his action is not subject to review or control of mandamus.”

For the reasons given, the judgment of the court below is

Affirmed.

Case Details

Case Name: Allen v. . Carr

Court Name: Supreme Court of North Carolina

Date Published: Oct 14, 1936

Citations: 210 N.C. 513; 187 S.E. 809; 1936 N.C. LEXIS 147

Court Abbreviation: N.C.