228 Mo. 1 | Mo. | 1910
This is an original proceeding by mandamus, instituted by the relator in this court, to compel the respondents, the State Board of Dental Examiners, to rescind an order theretofore made by it revoking the license of relator to practice dentistry; to reinstate his original license; and to issue him a renewal license for the year 1909. An alternative writ was issued and served, and in due time respond
In pursuance to that order, the commissioner set the cause down for hearing and notified all the parties, who appeared and introduced their evidence. The commissioner heard all the evidence, made a finding of the facts, and reported them, with the evidence taken, to this court.
Since no question is raised as to the sufficiency of the pleadings, and as the findings of the commissioner are fairly embraced within the issues joined, it will be unnecessary to burden this opinion by setting out the pleadings, which are quite lengthly.
The report of the commissioner is in words and figures as follows:
“1. The commissioner finds that on October 29, 1908, respondents in this cause, constituting the State Board of Dental Examiners of the State of Missouri, heard complaints, and evidence thereon, against relator, J. Homer Williams, concerning his conduct in the practice of dentistry in this State, it being charged before said board that said J. Homer Williams had been guilty of fraud, deceit and misrepresentation in the practices of dentistry and of gross violation of professionel duties. Your commissioner finds that the evidence produced at such trial before said State Dental Board was as follows:
“First. The oral testimony of witnesses, Mrs. Eliza Lenheurr, Jean G. Strickland, Minnie Gail, Carrie Schmeltz, J. Homer Williams, Mrs. Jennie B. Williams, Dr. Charles George Loney, G. W. Stubbs, and Oliver R. Wroughton, also the- affidavits of W. A. Gipson, Herbert H. Clark and S. J. Polin, and certain
“Second. Relator J. Homer Williams produced before said dental board at said hearing his ledger or account book said to contain a description of the dental work done in his dental office and charges made for such work, and relator examined! said book for some minutes in the presence of said board, and thereupon announced that he was unable to find any charges for work done for twenty cents or twenty-five cents as advertised. Thereupon said books were passed to the members of the dental board who examined the contents thereof.
“Third. The members of the said State Dental Board, who conducted said trial, being all of respondents except Dr. H. B. Purl, who was absent, made an examination of the dental work done by relator upon the teeth of Mr. Jean G. Strickland, Miss Minnie Gail and Mrs. Carrie Schmeltz.
“Fourth. Said members of the State Dental Board also examined certain advertisements (copies of which were set out in the return to the alternative writ of mandamus) shown to have been inserted by relator in various newspapers, which advertisements were offered in evidence, and are as follows:
*9 EXHIBIT A.
SPECIAL. BEST TEETH. $1.
[Here is shown a picture of a plate with teeth, across which is-written “20-year guarantee.”]
Until May 1st we have decided to make our new gold dust plates with best teeth for one dollar. Do not cover roof of mouth; Lightest, plate known. Guaranteed to bite corn off the cob.
Best set of Teeth ..................................$ 1.00
Bridge Work Guaranteed............................ 2.75
12 K. Gold Crowns ................................ 2.50
Gold fillings .....................................50 up.
Silver fillings........................................20
Teeth extracted without pain........................20
“WILLIAMS PAINLESS DENTISTS.
1007 Main St.
Loose Teeth Tightened. Open daily. Sundays 9 to 4. Evening till 9..
EXHIBIT B.
$2. Loose Teeth Tightened.
[Here is shown a picure with a plate with teeth, across which is written “J. Homer Williams, 1007 Main.”]
BEST TEETH.
Are made by the original Williams system without bridges, or plates. Illustrated book free.
PYORRHEA CURED.
Prices until Sept. 20:
Full set of teeth......................................$2.00
Crowns ............................................... 2.00
Teeth extracted without pain.........................20
Bridge work.............. 2.00
Gold fillings .........................................50
Silver fillings .........................................20
[Here is shown a cut of plate with teeth, across which is written “FREE, NO MONEY.”]
EXHIBIT C.
We will do all cleaning, gold alloy filling and extracting by our new painless methods for only 25 cents, to pay part cost of material if you come before July 10.
Teeth re-enameled.
Teeth made without bridges or plates.
Loose teeth tightened. All work guaranteed.
Send for free book about teeth.
DR. WILLIAMS, Specialist, 1007 Main St.
Sundays, 9 to 4. Hours 8 to 8.
“2. Tour commissioner finds the fact to be from the evidence that the respondents, constituting the State Dental Board, received all the evidence before said board, and had a full hearing in the matter of the trial of said complaints and charges against relator .1. Homer Williams, and that they carefully considered all such evidence; that such trial was conducted in a fair and impartial manner; and that in arriving at their conclusion and decision upon said charges the board did not act arbitrarily, but in good faith, and in conscientious performance of their duties as such board. No evidence to the contrary was ever, produced before me.
“3. Tour commissioner further reports that he has carefully examined the evidence adduced before said State Dental Board upon the said trial of J. Homer Williams, and from such evidence and examination thereof finds the fact to
“1. That he had advertised at certain times to do certain dental work for twenty cents and at other times for twenty-five cents, but that it appeared from his books that he had never made a charge of twenty cents or twenty-five cents for such work as advertised, but in all circumstances charged more than that amount for such work.
“2. That relator had repeatedly advertised that he would furnish to patients ‘the best set of teeth for one dollar’ and there was no substantial evidence to show that he had ever fulfilled such promise, but there was much evidence that it was impracticable if not impossible for a dentist to furnish ‘the best set of teeth for one dollar,’ as such set of teeth could not be bought by the dentist in the first place for less than two dollars, and to that cost must be added his labor of finishing and fitting the teeth to the mouth of the patient.
“3. That relator repeatedly advertised that he ‘re-enameled teeth,’ whereas there was no such thing
“4. That relator advertised ‘pyorrhea cured’ and it was the opinion of the members of the State Dental Board as skilled and experienced dentists, and they so testified, that the disease of pyorrhea was curable only in rare cases, if at all, in the early stages of the disease, and that it was_a misrepresentation and deceit to advertise a general and unqualified ability and promise to cure such disease.
“5. The relator advertised ‘teeth made without bridges or plates,’ whereas such work was unknown to dentistry. In defense of this advertisement relator produced before the commissioner and the members of the dental board a piece of dental work offered in evidence as a part of the testimony of Dr. C. G-. Loney, before the commissioner. Dr. Loney designated this as ‘saddle bridge’ that was at one time in common use with dentists but had now to a large extent been discarded. It had the appearance of ordinary bridge or plate work.
“6. That relator advertised ‘to make our new gold dust plates with best teeth for'one dollar,’ and to put in ‘gold alloy’ filling for twenty-five cents, thereby intending the public to understand that he furnished plates made of gold dust, and therefore of fine quality, with ‘best teeth’ for one dollar, and that he put in fillings of an alloy composed substantially of gold, for twenty-five cents; whereas it was shown by the evidence, and admitted by relator, that there was no such thing in dentistry as a plate made of gold
“7. That such advertisements of relator were intended to make the public believe that they would get something different and better than they actually did receive from Dr. Williams’s office, and something different and better than that which they would receive from the offices of other dentists, and that the same would he had at a much lower price than is usually charged by dentists; that such advertisements were, therefore, untrue and constituted ‘fraud, deceit and misrepresentation in the practice of dentistry.’ ”
The commissioner finds that the State Dental Board fairly concluded that the advertisements of relator were not truthful but were intended to deceive and defraud the public and did so deceive. And the commissioner further finds, both from the evidence submitted before the dental board, and also the evidence adduced by both sides before the commissioner, that said advertisements were intended to deceive and defraud the public, and the same constituted fraud, deceit and misrepresentation in the practice of dentistry.
“4. Your commissioner finds that it is admitted in the pleadings, that’relator, J. Homer Williams, was licensed by the State Board of Dental Examiners for the State of Missouri, as a dentist in the year 1903, and that he annually renewed his license as such dentist up to the 30th day of November, 1908, and that
“5. Upon the issue made by the return of the alternative writ of mandamus to the effect that ‘relator has since respondents revoked his said license, continued to publish these false and fraudulent advertisements; and that he has continued to practice dentistry in Kansas City in the State of Missouri, without having any license or authority so to do, in open defiance of laws of the State of Missouri, and is still doing so,’ the commissioner finds that relator, J. Homer Williams, did dental work for Mrs. Anna Metcalf in or about the month of March, 1909, and since the said State Dental Board refused to- renew his license to practice dentistry; that relator at said time put on a gold crown for said Anna Metcalf and received from her a check for $4 in payment for such dental work. Relator claims that he did not do this work for Mrs. Metcalf, but that it was done by Dr. Loney of his office, but Mrs- Metcalf positively identified relator as the one who did this work for her, and testified that the crown came loose a short time after it was put on, and that she then went back to relator’s office and the crown was then refitted by another dentist, whom she identified as Dr. Loney. The witness was a very intelligent one, and apparently entirely without prejudice or partiality, and was very positive in her identification of relator, and as to the work he did for her; and I do not think she could have been mistaken. ' •
“There was some testimony that Dr. Williams, the relator, had done some dental work for one George O. Mitchell, a detective, on December 22,1909, but such testimony was very unsatisfactory, and the commis
“As to relator’s advertisements since said date, it appears that Dr. Williams incorporated his business a few days after the date on which the dental board refused to renew his license, and that all advertisements thereafter have been published over the name of the corporation, ‘The J. Homer Williams Dental Company.’
‘ ‘ The commissioner returns a transcript of all the testimony offered before him, to which are annexed the original exhibits offered in evidence by the respective parties.”
Then follows the signature of the commissioner.
To the report of the commissioner the relator filed the following exceptions, omitting the title and caption:
“Comes now the relator and excepts to the report of the findings of fact of the special commissioner herein in the following particulars, to-wit:
“1st. Relator excepts to the findings and report of the said commissioner as found and made in paragraph two, to the effect that said respondents did not act arbitrarily in the premises, for the reason said report and finding is contrary to the evidence, is against the weight of the evidence, and is not supported by the evidence and contrary to law, and for further reason said finding and report are not authorized or warranted by the commission herein in that said commission directs the commissioner herein to report only the facts as to what evidence was offered, received and considered by the respondents at the original hearing before said board.
“2d. Relator excepts to all and singular the findings and report of said commissioner as found in
“3d. Relator excepts to the findings and report of said commissioner in paragraph five, to the effect that relator did dental work for Mrs. Anna Metcalf in or about the month of March, 1909, for the reason said finding is immaterial, is against the evidence and the weight of the evidence, and not supported by the evidence and is contrary to law, and for further reason said finding and report are not authorized or warranted by the commission herein, in that said commission directs the commissioner to report only the fact as to what evidence was offered, received and considered by the respondents at the original hearing before said board.”
I. The substance of the charge preferred against the relator was that he had committed fraud and deceit upon his patients and made misrepresentations to them in the practice of dentistry, and was guilty of gross violation of professional duties. Those charges were as follows (formal parts omitted): .
“Kansas City, Jackson County, Missouri,
“September 23, 1909.
“To the State Board of Dental Examiners for the State of Missouri.
“Dr. S. C. A. Rubey, Secretary, Clinton, Missouri.
“Charges of fraud, deceit and misrepresentation in the practice of dentistry, and of gross violation of professional duties, against J. Homer Williams, of 1007 Main street, Kansas City, Missouri, State of Missouri, county of Jackson, ss.
“1. That on or about August 15, 1907, at the office of said J. Homer Williams, at 1007 Main street, Kansas City, Jackson county, Missouri, affiant, Jean O. Strickland, consulted the said J. Homer Williams professionally, and at affiant’s request he made an examination of affiant’s teeth and did then and there falsely and fraudulently represent and state to and agree with affiant after making said examination that he would fill affiant’s teeth with gold and would make affiant a gold bridge of four teeth and put in one gold' crown and. d'o first class work for the sum of thirty dollars. Whereas in truth and in fact, said J. Homer Williams did fill affiant’s teeth with cement and silver and did make a bridge of counterfeit of gold and did inferior work; that said representations and1 statements so made to affiant by said J. Homer Williams were false and fraudulent and that said work done by said J. Homer Williams was fraudulently done; that said representations and statements so made to affiant were well known by J. Homer Williams to be false and fraudulent at the time he made them, and were made by him for the purpose of inducing affiant to employ him for a fee, salary or reward to him to be paid to perform said dental work, that said J. Homer Williams
“2. That on or about March 28, 1908, at the office of said J. Homer Williams, at 1007 Main street,. Kansas City, Missouri, Miss Carrie Schmeltz consulted the said J. Homer Williams professionally and at her request the said J. Homer Williams made an examination of her teeth and did then and there falsely and fraudulently represent and state to her after making said examination that two of her front teeth were loose. Whereas, in truth and in fact, only one of said teeth was loose; that the said J. Homer Williams did then and there falsely and fraudulently represent and state to the said Carrie Schmeltz that a certain front tooth of hers was loose, when in truth and in fact said front tooth was not loose and the said J. Homer Williams well knew at the time he made said representation and statement that said tooth was not loose; that the said J. Homer Williams did then and there make said false representation and statement, knowing it to be false, for the purpose of procuring the said Carrie Schmeltz to submit to having said tooth treated by the said J. Homer Williams, and for the purpose of procuring wrongfully and fraudulently from the said CarrieSchmeltz a fee, salary or reward and the said J. Homer Williams did then and there, through said false and fraudulent representation and statement procure said Carrie Schmeltz to submit to having said tooth treated,, which was unnecessary, and did then and there wrongfully and fraudulently procure through said false and' fraudulent representation and statement from said Carrie Schmeltz a fee, salary or reward of ten dollars.
“3. That on or about June 8, 1908, Mrs. Eliza Lenheurr, of 4028 Highland avenue, Kansas City, Missouri, after reading an advertisement of the said J.
“That the said J. Homer Williams in the county of Jackson, in the State of Missouri, at 1007 Main street, Kansas City, on the 8th day of June, 1908, wrongfully and fraudulently procured from Mrs. Eliza Lenheurr two dollars lawful money of the United States in the manner aforesaid, in violation of his professional duty as a practicing dentist and in violation of the laws of the State of Missouri.
“4. That the said J. Homer Williams has for the past year published false and fraudulent advertisements in the Kansas City Star and the Kansas City Times, a newspaper in Kansas City, Missouri, with 'a large circulation; that the following is one of the advertisements published by the said J. Homer Williams:
*20 FREE, NO MONEY,
All cleaning, gold alloy fillings and extracting by our new painless methods, only 20 cents.
Pay part cost of material till Sept. 30. Crowns $2; Set of Teeth $2. Pyorrhea Cured.
Solid Teeth Made Without Bridges or Plates. Loose Teeth Tightened. All work guaranteed. Descriptive book mailed free.
J. HOMER WILLIAMS, 1007 Main St.
Open evenings till 8 o’clock. Sunday 9 to 4.
‘ ‘ The above advertisement appeared in the Kansas ■City Star on the following dates: September 3, 1908; September 14, 1908, and in other issues of said paper.
“That the said J. Homer Williams published these ■advertisements for the purpose of soliciting and procuring, wrongfully and fraudulently, patients to submit themselves to dental treatment by him, that the statements contained in said advertisements are false and that said J. Homer Williams well knew them to be false when he made them, and the said J. Homer Williams intended thereby to deceive the public and to impose on the credulous and ignorant.
“That said Jean Gr. Strickland does say that the conduct on the part of J. Homer Williams is inimical to the health, safety and morals of the public and does ask the State Board of Dental Examiners to investigate the- matter and things about which complaint is herein made and if you find them to be true, you revoke the license of the said J. Homer Williams.”
While there are several questions presented and argued by counsel, yet there are but two vital propositions presented by this record. The first is one of fact, and the second is one of law. We will dispose of these questions in the order named.
While the record in this case is quite voluminous, covering about one hundred and fifty pages of printed! matter, yet ■we have carefully read it throughout, and with great pains have considered and weighed the evidence applicable to each of said charges, and are fully satisfied that it sustains all four of them, as well as the findings made by the commissioner. In fact, we are unable to see how respondents or the commissioner could have reached any other conclusions than those, disclosed by this record.
We are, therefore, of the opinion that relator was-, properly found guilty of the charges preferred against" him by the respondents, and that the findings of the' commissioner are fully supported by the evidence pre- • served- in this record.
II. Counsel for relator next insist that a perpetua! writ of mandamus should issue, notwithstanding the fact that relator was found to be guilty of the charges-preferred against him. The basis of that insistence is that the statute which authorized the State Board of Dental Examiners to revoke his license to practice-dentistry, is unconstitutional, null and void.
In order to determine that question it will be necessary to examine the provisions of the statute. It is section 8528, Revised Statutes 1899 as amended in 1905. [Laws 1905, p. 215.] It reads as follows as far as material to this cause:
“Any licensed dentist failing for a period of one-year after the 30th day of November in each year hereafter to procure a renewal license as in this article provided, shall forfeit his original license and registration, and said dental board may, by order of record, cancel and annul any such .original license and registration:
The constitutionality of this statute is challenged in the language of counsel for relator, for the reasons that it is “void for uncertainty; because the grounds for which it authorizes the revocation of a dentist’s license have no fixed or determined meaning in law or -elsewjhere, but is left for its interpretation to the ■caprice and whims, the never-certain, ever-changing •notions of dental ethics, of whoever happens at the time to compose the State Board of Dental Examiners.”
We are unable to lend our concurrence to these views of the learned counsel for the relator. The words of the statute, “fraud, deceit or misrepresentation,” 'have a well defined meaning not only at common law, hut also in all the branches of English literature; and when the Legislature used them is this statute, it is to be presumed that it used them in their plain, ordinary and usual sense.
The word “fraud” is defined in Webster’s dictionary as follows:
“1. Quality of being deceitful; deception deliberately practiced with a view to gaining an unlawful or unfair advantage; deceitfulness; deceit, trickery.
“2. Law. An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him, or to ■surrender a legal right; a false representation of a matter of fact (whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed) which deceives and
“3. The means by which deceit is practiced; an artifice by which the right or interest of another is injured; an injurious stratagem; a deceptive device; a trick.
“4. One that practices fraud; one who perpetrates a fraud; a fraudulent person or thing; a cheat; impostor; humbug; as, that man is a fraud; the play was a fraud. Colloq.
“5. State of being defrauded or beguiled. Obs. Milton.
“Syn. Deception, deceit, guile, subtlety, craft, wile, sham, circumvention, stratagem,'trick, imposition, cheat. ’ ’
The same author defines the word “deceit” in the following language:
“An attempt or disposition to deceive or lead into error; any declaration, artifice or practice, which misleads another, or causes him to believe what is false; a contrivance to entrap; deception; a wily device; a trick; fraud.
“2. Law. Any trick, collusion, contrivance, false representation, or underhand practice, used to defraud another. When injury is thereby effected, an action of deceit, as it is called, lies for compensation. See fraud. ’ ’
I have carefully examined most of the standard dictionaries, including law dictionaries, and find that all of them define the words “fraud,” “deceit” and “misrepresentation” substantially alike — all expressing the same ideas but in different words.
By reading the various charges preferred against relator, it will be seen that each of them charges him with the perpetration of some fraud, deceit or misrepresentation upon his patients, while in the practice of dentistry, and by means thereof he unjustly and illegally procured from them various sums of money.
All of these charges were clearly embraced within the provisions of section 8528 of the statutes. Counsel for relator, however, say that said section does not limit the board’s power to revoke a license for the perpetration of fraud, deceit, and misrepresentation, but that it also authorizes the board to revoke licenses where dentists have been found guilty of “gross violation of professional duties,” and that these words used in the statute have no well defined meaning either, in law or elsewhere, and the section for that reason should be declared unconstitutional.
If those words stood alone in the statute, there would be much force in that contention, but when we read the entire section together it clearly appears that the Legislature used those general words to cover offenses similar to and belonging to the same general class as those denounced by the special or particular words which precede them. This is a well established and familiar rule of statutory construction. [State v. Dinnisse, 109 Mo. 434; St. Louis v. Herthel, 88 Mo. 128; State ex rel. v. Bersch, 83 Mo. App. 657.]
We are, therefore, of the opinion that the peremptory writ of mandamus should be denied, and that the temporary writ heretofore issued should be quashed and for naught held. It is so ordered.
