I dissent and adopt the opinion of the District Court of Appeal, First Appellate District, Division Two, as an expression of my views. The opinion of that court written by Mr. Presiding Justice Nourse is as follows: *Page 301
"This is an appeal from a judgment affirming an order of the dental board suspending petitioner's license to practice dentistry.
"The petitioner was tried by the dental board upon an information framed in four counts charging unprofessional conduct. The first count charged petitioner with aiding and abetting the corporation Painless Parker Dentist to practice dentistry unlawfully. The second count charged him with aiding and abetting an unlicensed person to participate in the profits of dental offices. The third count charged the use of an assumed and fictitious name — `Painless Parker Dentist', a corporation. The fourth count charged the use of an assumed and fictitious name — `E.R. Parker System'. The dental board found petitioner guilty on all four counts and suspended his license to practice for a period of five years.
"`Painless Parker Dentist' was incorporated by articles filed with the secretary of state August 4, 1915. The amount of the subscribed corporate stock was thirty dollars divided into three shares of ten dollars each. Its designated purposes were `to conduct, own, operate and control dental offices, to manufacture, buy, and sell dental creams, dental apparatus and supplies. E.R. Parker, one of the incorporators, changed his name to `Painless Parker' by decree of court and served as manager and chief surgeon of this corporation. Associated Dental Supply Company was incorporated by articles filed September 1, 1915. The general purposes of this corporation seem to have been the dealing in all kinds of dental supplies and similar merchandise. The petitioner was not a stockholder or incorporator of this corporation. The conduct of the business down to the date of the hearing before the dental board in August, 1929, has been a gradual lessening of the functions of the former corporation and a consequent increase in the functions of Associated Dental Supply Company until the latter secured practically full control of the business and financial operations. Fourteen dental offices were operated in this state by `dentists using the E.R. Parker system'. These offices were owned, or leased, by the Associated Dental Supply Company, which, in turn had some arrangement with the Painless Parker Dentist Corporation whereby these offices were `leased' to the latter but all *Page 302 the money taken in by these offices was paid directly to the Associated Dental Supply Company. Throughout this period (or at least for the last eight or ten years before the hearing) the Associated Dental Supply Company dealt directly with the managers of the local offices who in turn deposited all their receipts to the credit of that corporation. The Painless Parker Dentist Corporation has never paid a dividend, has no assets, and no funds on hand. So far as we can ascertain from the record it has never organized or operated as a corporation, has not, either directly or indirectly, assumed or exercised any control over any of the officers operated by the petitioner or over any of the licensed dentists employed therein; but has simply been used by Painless Parker the individual as his `alter ego' in his conduct of these dental offices, the principal use made of the corporation being the use of the term `Painless Parker Dentist' upon the doors, windows and letterheads of the petitioner. When this practice was discontinued and the term `Dentists using E.R. Parker System' was adopted does not appear from the evidence. But it does appear without any contradiction that the corporation, as such, has not functioned in the direct management or control of any of these dental offices and has not represented itself as a corporation practicing dentistry but has confined its activities to the appointment of petitioner as its manager, who, in turn, did manage the offices for the benefit of the Associated Dental Supply Company.
"In the first count it was alleged that `between the 4th day of August, 1915, and the 31st day of May, 1929', the petitioner did aid and abet an unlicensed person to practice dentistry `by permitting, allowing and authorizing said corporation (Painless Parker Dentist) to conduct, own, operate, and control dental offices throughout the state of California, where dental operations were performed, and carry on the practice of dentistry therein'. The basis of the charge is found in the provisions of section 11 of the Dental Act (Deering's General Laws, 1923, Act No. 2048), which declare the practice of dentistry to include one `(5) who manages or conducts as manager, proprietor, conductor, or otherwise a place where dental operations are performed'. By section 13 of the act unprofessional conduct *Page 303 is defined to include `aiding or abetting any unlicensed person to practice dentistry unlawfully'.
"In support of the judgment the respondents argue that any transaction within the purview of subdivision 5 of section 11 of the act constitutes the practice of dentistry; that a corporation may not be licensed to practice dentistry; that any licensed dentist who aids a corporation in the performance of any of the acts mentioned in subdivision 5 is aiding an `unlicensed person' to practice. The appellant argues that the provisions of that subdivision are unconstitutional in so far as they purport to prohibit an unlicensed person from managing the purely business or economic affairs of a dental office, and that the term `unlicensed' dentist refers only to a natural person who might be licensed under the act and not to a corporation owning or operating a dental office.
"Bearing in mind that `the ultimate purpose of the act is to bring about and insure skill and proficiency in the practice of the profession' (Jacobs v. Board of Dental Examiners,189 Cal. 709, 714 [209 P. 1006, 1008]), it must be manifest that, if the quoted provisions of the act mean what the respondents contend that they mean, they are unconstitutional as placing unreasonable restrictions upon the conduct of a lawful business — restrictions which are not referable to the regulatory police powers of the state. (State v. Brown, 37 Wn. 97 [107 Am. St. Rep. 798, 68 L.R.A. 889, 79 P. 635]; Liggett Co. v.Baldridge, 278 U.S. 105 [73 L.Ed. 204, 49 Sup. Ct. Rep. 57].) In the Brown case the supreme court of Washington had under consideration the provisions of section 8 of the dental act of that state which declared it to be a misdemeanor to `own, run, operate or cause to be operated, or manage a dental office'. In holding that portion of the act unconstitutional the Washington court said that `To own and manage property is a natural right, and one which may be restricted only for reasons of public policy, clearly discernible. But', said the court, `we are unable to say or perceive that the health, moral, or physical welfare of the public, or any of the personal or property rights of its individuals, are endangered by the ownership and management of a dental office, so long as those employed therein to do the actual *Page 304 dentistry work are qualified and licensed as by law required.'
"In the Brown case the court gave the illustration of the widow of a licensed dentist who assumed control and management of the business of the office, and who, though she employed none but licensed dentists to perform the dental work, would be chargeable under the strict terms of the act. Other illustrations might be added. Thus the administrator, trustee or receiver duly appointed to manage the estate of a licensed dentist would, under our statute, be guilty of a misdemeanor. (Sec. 12.) The manager or proprietor of `a place where dental operations are performed' would include the manager and owner of every hospital and clinic permitting such operations, the many charitable agencies maintaining clinics, the infirmaries and guilds maintained and operated by the students in the universities and colleges, the many dental clinics maintained by parents' organizations for the benefit of school children, as well as the owners and managers of buildings where such operations are performed.
"Closely resembling the case at hand is Messner v. Board ofDental Exmrs., 87 Cal.App. 199 [262 P. 58, 60], where the court of the Third Appellate District annulled an order suspending the license of a dentist on the charge that an unlicensed person was the `manager' of his office. The court said that `Cohn had charge of the purely business end of the dental office, . . . but there is no evidence that he had or exercised the slightest control or direction of the professional work performed in such office.' In referring to the provisions of subdivision 5, the court said: `A reasonable construction of the quoted provisions of the statute appears to be that, to come within the terms thereof, one must in some manner, to some extent, directly or indirectly, control or direct some professional service of the kind that dentists are licensed to render.'
"This is about the same interpretation which was given the quoted portion of the section by the attorney-general of the state as early as 1918 when he advised the dental board that `so much of the business relating to his practice as does not concern the public may . . . be operated through the medium of a corporation. It is the evident intent of the act that the licensed dentist in his dealings with the public *Page 305 shall operate in his own name and that that name shall be the one under which he is licensed, but under the statute it is apparently not made of any concern to the public whether the business of the dentist other than as the public comes in contact therewith, is operated by the dentist himself or by a corporation to which he is responsible in connection therewith, or which may have an interest in the facilities employed or receipts from his practice.'
"The appellant insists that the foregoing interpretation was made at his request and that he has frequently informed the respondent board of his desire to conform to the law in this respect and has frequently requested the board to inform him of its desires and demands in that respect. In view of the uncertainty of the act, and in view of the fact that petitioner was charged with a violation of its terms over a period of fourteen years, we are inclined to petitioner's view of contemporaneous construction growing out of the interpretations of the board and of its legal advisor and the conduct of the board over that period of time. The ambiguity of the quoted portion of the statute is evident, and, whether we agree with the interpretation of the dental board and the attorney-general, that interpretation, employed over a long period of years, is nevertheless entitled to weight in this proceeding. Thus, in ThePocket Veto Case, 279 U.S. 655, 690 [73 L.Ed. 894, 49 Sup. Ct. Rep. 463, 470], the Supreme Court said: `that a practice of at least twenty years' duration "on the part of the executive department, acquiesced in by the legislative department, while not absolutely binding on the judicial department, is entitled to great regard in determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning'". (Quotation is from State v.South Norwalk, 77 Conn. 257, 264 [58 A. 759].) This principle is more liberally applied to the construction of statutes than to the provisions of a constitution. (6 R.C.L., p. 63, where many cases on the general principle stated in the Connecticut case are cited.)
"Applying the doctrine to the case at hand we find, first, that the statute is uncertain where it refers to one who `conducts as . . . proprietor . . . or otherwise a place where dental operations are performed' because if this language includes an owner of a dental office who merely controls *Page 306 the purely business side of the place it is unconstitutional (State v. Brown, 37 Wn. 97 [107 Am. St. Rep. 798, 68 L.R.A. 889, 79 P. 635, 638]; Liggett Company v. Baldridge,278 U.S. 105, 113 [73 L.Ed. 204, 49 Sup. Ct. Rep. 57]); and if the words `manage or conduct' cover such functions as do not `call for any of the professional skill required of a dentist but rather that of one trained in business transactions' (Messner v. Board, supra), then the inhibitions of the statute are beyond the scope of the police power of the state; and, second, the statute being uncertain in this respect, the petitioner was entitled to assume from the language of the information that he was required to answer that charge in the light of the interpretation placed upon the statute by the dental board and its legal advisor. For these reasons the demurrer to the first count of the information should have been sustained upon the grounds of uncertainty.
"The evidence taken in support of the allegations of the first count does not aid the pleading as it merely tends to prove that, after the incorporation of Painless Parker Dentist, the petitioner became its manager. (Here it should be added that, though the charge in the information covered a period of fourteen years, none of the evidence was tied to that period and much of it was not laid in the state of California whereas it appears that the petitioner was operating during that period in other states.) Upon this charge and evidence he was convicted of aiding and abetting an `unlicensed person to practice dentistry unlawfully'. In Ex parte Whitley, 144 Cal. 167, 180 [1 Ann. Cas. 13, 77 P. 879], the Supreme Court, referring to a similar statute, said: `But it must be remembered that the act regulating the practice of dentistry and similar acts are not passed to promote the personal ends of individuals, but as salutary enactments in the exercise of the police power of the state to legislate for the safety, health, and welfare of the people.' To reach this end the dental act has prescribed the method by which a person may obtain a license to practice dentistry, and from the language of the act, a license could be granted to a human being only and not to an artificial creation such as a corporation. The terms of the act, in so far as they relate to the licensing of individuals and to the practice of dentistry, show clearly that they *Page 307 were directed to persons as distinguished from corporations. Similar interpretations have been given to the act regulating the practice of architecture in Binford v. Boyd, 178 Cal. 458, 462 [174 P. 56]; People v. Allied Architects Assn.,201 Cal. 428, 435 [257 P. 511]; the State Medical Act in Pilger v. City of Paris D.G. Co., 86 Cal.App. 277, 281 [261 P. 328]; and the Nebraska Medical Act in State Electro-Med. Inst. v. State, 74 Neb. 40 [12 Ann. Cas. 673, 103 N.W. 1078]. In the latter case the Nebraska court said (p. 1079): `There was no necessity of legislation to prohibit corporations, as such, from practicing medicine. It is impossible to conceive of an impersonal entity "judging the nature, character and symptoms of the disease", or "determining the proper remedy", or giving or prescribing the application of the remedy to the disease. Members of the corporation, or persons in its employ, might do these things, but the corporation itself is incapable to do them. The qualification of a medical practitioner is personal to himself. The intention of the law is that one who undertakes to judge the nature of a disease, or to determine the proper remedy therefor, or to apply the remedy, must have certain personal qualifications; and, if he does these things without having complied with the law, he is subject to its penalties. Making contracts is not practicing medicine. Collecting the compensation therefor is not practicing medicine, within the meaning of this statute. No professional qualifications are requisite for doing these things.'
"In view of these authorities it would seem to follow that when the legislature declared it to be unprofessional for a licensed dentist to aid an `unlicensed person' to practice dentistry it had in mind the practice of dentistry which a licensed person might carry on — `some professional service of the kind that dentists are licensed to render' (Messner v. Board, supra) and did not contemplate a corporation which could not become licensed under the act and which could do no more than conduct the business side of the office.
"Putting it in a different form, the evidence discloses that some fourteen years prior to the filing of the information the Painless Parker Dentist Corporation, in some manner not made to appear, appointed the petitioner as its general *Page 308 manager and then ceased to function as a corporation. The petitioner had complete control and management of all the dental offices, employed licensed dentists as local managers of each office, who in turn employed licensed dentists to perform all the dental operations performed therein. If we could treat the corporation as the employer under this evidence we would still be forced to the conclusion that it was not practicing dentistry under the true meaning of the statute. In this respect the case is the same, except as to the number of operations performed, asRenwick v. Phillips, 204 Cal. 349, 350 [268 P. 368, 369], where the Supreme Court, in affirming a judgment annulling an order of the medical board revoking Renwick's license to practice medicine and surgery, said: `The petitioner was a licensed chiropodist. The said Roy Finney conducted a chiropodist parlor, equipped with a variety of foot remedies and appliances which he prepared and sold there. He employed the petitioner and respondent herein to act as a chiropodist in connection with his said establishment and to give such treatment and perform such operations as only could be done by the holder of a regular chiropodist's license so to do. In so far there was nothing illegal or unprofessional in the relations or conduct of Dr. Renwick in his connections with said Finney at the latter's place of business.'
"There is a clear distinction between this principle and that involved in the cases cited by respondent. People v.California Pro. Corp., 76 Cal.App. 354 [244 P. 1089], andPeople v. Merchants Pro. Corp., 189 Cal. 531 [209 P. 363], were quo warranto proceedings to oust the corporations from the practice of law. The principle is stated in the latter case at page 538, where the court said: `The essential relation of trust and confidence between attorney and client cannot be said to arise where the attorney is employed, not by the client, but by some corporation which has undertaken to furnish its members with legal advice, counsel and professional services. The attorney in such a case owes his first allegiance to his immediate employer, the corporation, and owes, at most, but an incidental, secondary and divided loyalty to the clientele of the corporation.' To the same effect is Midland Credit Adjustment Co. et al. v.Donnelley, 219 Ill. App. 271. People v. Painless ParkerDentist, 85 Colo. 304 [275 P. 928], was also a quo warranto *Page 309 proceeding heard on a demurrer to a petition which alleged that the corporation was practicing dentistry and advertised to that effect. These allegations being admitted on the demurrer the supreme court of Colorado held that the corporation was employed in an illegal practice as no corporation could be licensed to practice dentistry. People v. State Board, etc., 85 Colo. 321 [275 P. 933], was a proceeding in prohibition which was heard and determined on the record in the former case. As this record disclosed that the corporation was practicing dentistry the supreme court correctly denied the petition for prohibition to restrain the dental board from trying petitioner on a charge that he was aiding the corporation to practice illegally. Pilger v.City of Paris etc. Co., 86 Cal.App. 277 [261 P. 328], merely holds that the corporation was not liable for the negligence of its employees in a chiropody department maintained by the corporation in its store because the corporation could not practice chiropody.
"The cases cited follow the general rule of the authorities which is that the true purpose and intent of regulatory statutes of this character is that one who undertakes to judge the nature of a disease or other bodily ailment, or to determine the proper remedy, must have certain personal qualifications, and that, from the nature of these required qualifications a corporation may not be licensed to practice the profession. Adopting this rule the authorities then hold that when the regulatory statute refers to the licensing of `persons' it intends natural and not artificial persons. (Pharmaceutical Soc. v. London Prov. Suppl. Assn.,Ltd., 5 L.R. [Appeal Cases] 857.)
"The second count charged the petitioner with unprofessional conduct in that he aided an unlicensed person named Ramona McShane to practice dentistry unlawfully in that he permitted her to participate in the profits of the dental office owned and operated by `Painless Parker Dentist, a corporation'. The evidence in support of the charge was that in 1920 the Associated Dental Supply Company was in need of funds and for that reason executed a trust agreement selling trust certificates in small denominations. Ramona McShane purchased 151 shares at $1 a share. Interest in the nature of dividends was paid to each certificate holder until 1929 when the loan was repaid and the trust *Page 310 dissolved. As the Painless Parker Dentist Corporation leased dental offices from the Associated Dental Supply Company the respondents found that Ramona McShane participated in the profits of the Painless Parker Corporation, that she therefore practiced dentistry unlawfully, and that the petitioner aided and abetted her in so doing. It would be just as reasonable to say that every stockholder of a bank which has loaned money to the owner of a building in which some dentist has practiced without a license is an aider and abetter in the unlawful practice of dentistry. To interpret the statute as contended for by respondents would make it unconstitutional for the reasons heretofore given, whereas, if the statute is given a reasonable and constitutional interpretation the information and the evidence both demonstrate that Ramona McShane was not practicing dentistry within any sound construction of the act.
"The third count purported to charge petitioner with practicing under an assumed or fictitious name in the use of the term `Painless Parker Dentist' and the fourth count charged a similar breach of the act in the use of the term `E.R. Parker System'. The evidence was that petitioner, by decree of court, changed his name to `Painless Parker'. This name was used by him in his practice of dentistry. The name Painless Parker Dentist was not fictitious. (Spreckels v. Grace Darling Hosp. Assn., 28 Cal.App. 646, 648 [153 P. 718]; Wetenhall v. Mabrey, 209 Cal. 293 [286 P. 1015]; Andrews v. Glick, 205 Cal. 699, 701 [272 P. 587].) There is no evidence in the record to sustain the allegations of this count. All the evidence shows without conflict that petitioner was practicing under the name given him by decree of court which was the name under which he was licensed to practice by respondents.
"The fourth count purported to charge petitioner with the practice of dentistry under the false and fictitious name of `E.R. Parker System'. E.R. Parker is the name under which petitioner was engaged in business prior to the decree changing his name to `Painless Parker'. Under that name he promulgated the system of studying and teaching the practice of dentistry including both the business details and technical matters of the profession. For this purpose manuals and other printed documents were prepared and circulated for the use of those engaged in the dental practice *Page 311 and in many of the offices maintained by petitioner the words `dentists using the E.R. Parker System' were prominently displayed. In support of the allegations of this count the evidence showed no more than that the petitioner used the expression in the teaching of the practice of dentistry. Under no possible theory could the transactions detailed be treated as the practice of dentistry.
"Finally it is argued that the respondents usurped their authority in this proceeding when they compelled the witnesses French, Jacobs and Cage to appear before them and give testimony against the petitioner. The argument is that because of section 12 of the Dental Act these witnesses were each guilty of a misdemeanor if the charges contained in the information against the petitioner were true, and that they were, therefore, entitled to be excused from giving testimony against themselves under the provisions of section 13, article I, of the Constitution.
"When the witnesses were called they were advised by their attorneys that they need not testify upon the ground that their testimony might incriminate them, but the respondents refused to heed their objections and ordered them to testify after counsel for the dental board had read to the witnesses the provisions of section 1324, Penal Code, and, pretending to act in accord therewith, undertook to grant them immunity from prosecution if they would so testify. This section of the Penal Code had been repealed in 1917, and hence was not available at the time of the hearing which was in September, 1929. There can be no doubt that these witnesses were led into a false sense of security by the pretended reliance of respondents upon the repealed section and by the pretended assurance of immunity to them which neither the respondents nor their counsel had any possible right to grant. This action of the board is not defended on this appeal and in view of the rule of Ex parte Clarke, 103 Cal. 352 [37 P. 230], and Hickman v. London Assurance Corp., 184 Cal. 524, 531 [18 A.L.R. 742, 195 P. 45], we cannot see how it could be defended. If this evidence is to be disregarded there is no evidence to support any charge in the information as the case presented by the dental board rests (with certain exceptions which are immaterial) upon the evidence which the board compelled these witnesses to give in disregard of their constitutional *Page 312 rights. The great weight of the authorities is to the effect that evidence so taken must be treated as no evidence, while on the other hand authorities may be found holding that evidence, no matter how illegally obtained, must be given its full weight. We do not need to decide that question here because we are satisfied from a review of the entire record that all the evidence, including that illegally obtained, wholly fails to support any charge in the information."
The judgment should be reversed, with instructions to the trial court to enter its order annulling the order under review.
Rehearing denied.
Langdon, J., and Tyler, J., pro tem., dissented.