State v. Boren

*533 Mallery, J.

(dissenting)—Rem. Rev. Stat. (Sup.), § 10031-6 [P.P.C. § 501-11], which provides: “A person practices dentistry . . . who owns, maintains or operates an office for the practice of dentistry, ...” (italics mine) contravenes Art. I, § 12, of the Washington constitution, which provides:

“No law shall be passed granting to any citizen, class of citizens, or corporation, other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.”

I do not question the right of the legislature to require a license for the practice of dentistry, but I cannot agree that the legislature can define something as dentistry which patently is not dentistry.

Any American citizen can own any tangible thing subject to ownership. Management and control of property is a prerogative of ownership of all who are sui juris.

The constitutional prohibition against special privileges and immunities bars the legislature from saying who can own what. To do otherwise, as in this case, is classification of property owners according to occupation. It is as unconstitutional as a classification according to race, creed, or color. Property rights cannot be subjected to a caste system without destroying the essence of our American constitutional system of government. That it has been done by indirection, and while attention is focused elsewhere, does not change its effect.

The particular use permitted of property is, of course, another matter. Zoning and safety requirement laws have been upheld as proper exercises of the police power, but they have no reference to, or limitation upon, the ownership and the right to control as such, within the limitations of the law. The legislature can say who may practice dentistry, but it cannot say who may own, maintain, or operate, a dental office. If it could do so, it could also say who may own barber shops or any other property used by licensees.

Let it be remembered that the adequacy of the dental premises or equipment has not yet been subjected to the *534 police power by any licensing provisions, and is not here in question. Neither is there here involved any question of wrongful advertising by which the public is misled, either as to the dentist personnel, their competency, or the nature of the service offered. Where equipment is not licensed, the only remaining concern of the state, upon which it can exercise its police power, is the competency of the operator.

The exercise of the police power in this case purports to protect the public from incompetency in dentistry. The state cannot control the dentist-patient relationship for any other purpose.

There seems to be a tacit assumption that all dentists who manage their own offices are good, and all others are bad, and that, because dentistry is a profession, the competency of its practitioners can be insured by requirements in addition to licensing. From decision to decision, there has been copied a touching picture of the dentist-patient relationship, which, if drawn merely to justify the licensing of the practice of dentistry, would have some cogency. Just what it proves with regard to a dentist’s private financial affairs and nonprofessional acts, or its bearing on the ownership and management of property, which is neither itself a profession nor a necessary incident to any profession, has never been pointed out.

There is no technique known to the courts by which the competency of a dentist can be determined, other than by his possession or lack of a license to practice dentistry. The law conclusively presumes that the possessor of such a license is competent and that all others are not.

Of course, licenses may be required for both professional and nonprofessional activities involving the health, safety, or convenience of the public. But, in all cases, the licensing procedure is conclusive upon the question of the right to do the licensed act, and no valid distinction can be shown which would destroy property rights incident to the professions and not do likewise, to all licensed .occupations.

Principles of law declared in cases involving constitutional questions, should have uniform, application. The dodge of “each case upon its own facts” should never be *535 used to destroy a constitutional right. Hence, if the majority opinion is sound in overruling the Brown case, it follows that, if an activity can be licensed under the police power, the ownership of all property connected therewith can be limited to licensees.

While exercise of the police power is indispensable to any organized society, and its absence is anarchy, still, unrestrained police power is found only under a despotism. Our American liberties inhere in the constitutional restraints upon the police power. It may be properly used only to promote the health, safety, and convenience of the public. When misused as an economic device to promote special privileges for individuals in the ownership and management of property, it becomes an instrument of regimentation. Titles of nobility could be no more objectionable.

Where, as here, the legislature has, by improper definition, grafted an economic discrimination prohibited by the constitution upon a measure otherwise within its power to enact, this court should segregate and invalidate the offending part, as was done in the Brown case.

Hill, J., concurs with Mallery, J.

July 19, 1950. Petition for rehearing denied.