The return in this case expressly states that the reasons respondent refused to renew relator's license were that after November 30, 1918, he "continued to practice dentistry in Kansas City, Missouri, without a license and without any authority so to do in open defiance of the law, and continued to publish false and fraudulent statements and is still doing so; respondent says relator, during the time he has been practicing dentistry, has published false statements as to his skill as a dentist and has circulated fraudulent statements and has published and circulated misleading statements as to his skill and method of practicing dentistry, and has held himself out to the public as a practitioner without pain, and has advertised that he could practice dentistry by mail. Respondent in the exercise of its discretion refused relator his license because he has continued to practice dentistry without a license and continued to advertise false and fraudulent statements." The return clearly shows that these charges against relator do not pertain to his practice without a license during the life of the license which the board unsuccessfully attempted to revoke, and shows that the board does not allege or contend that the license in question in the previously decided case was not valid until the time fixed for its expiration under the statute. The illegal practice alleged is that done by relator since the expiration of the license dealt with in the decision in the former case.
The allegations of the return are not denied by relator. They must be considered as admitted by the pleadings. Section 12636, Revised Statutes 1919, expressly provides that the dental board may revoke a license "or refuse to grant a license" if the applicant has been guilty of "the publication or circulation of any fraudulent or misleading statements as to the skill or method of any licensee or operator," or when a dentist advertises himself "as a practitioner without causing *Page 539 pain, or advertising in any other manner with a view to deceiving or defrauding the public, or in any way that will tend to deceive or defraud the public."
It therefore appears that it is charged in the return and admitted by relator that relator did the things because of which the statute authorizes the board to refuse a renewal license to relator. That this section is not confined to the original license quite clearly appears. It is specifically made applicable to "licensed" dentists and to a "licensed or registered dentist." This language shows the section cannot well be construed to apply only to the original license. It authorizes the board to refuse a license for reasons which could hardly arise until after the dentist has once been licensed and has been engaged in the practice. For instance, the license may be refused: "If such license or registered dentist shall employ or permit any person not regularly registered and licensed to practice dentistry to practice the same in the office or under the control or direction of such licensed or registered dentist;" or, "In case any dentist should fail, neglect or refuse to keep his office and dental equipment in a thoroughly clean and sanitary condition." These clearly indicate that it was the renewal license which was authorized to be refused. In the majority opinion it is now said that the admitted facts which, under the statute as I now construe it and as this court unanimously construed it in State ex rel. Wolfe v. Dental Board, 282 Mo. 292, 221 S.W. 70, show relator's guilty of the things which authorize the board to refuse to license him, are wholly irrelevant. First, it is stated that this court is not called upon "first to 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." This argument is intended as an answer, even though it be assumed that the board has a discretion under the statute and that the pleadings show the averment in the return and the admission by the motion which would warrant *Page 540 a refusal of the desired license. It has no bearing if the statute is to be construed as previously done in the majority opinion, since that construction would end the matter. The parenthetical clause recognizes this as the hypothesis upon which the argument is made. So far as this argument is concerned, therefore, it is to be examined in the light of relator's admission that he has been guilty, subsequent to November 30, 1918, of acts which warrant the board in refusing him a renewal license. It is said the board must accord him a hearing and that the fact that he has not had one precludes consideration of his admission of guilt. The difficulty with this is that relator has sought no hearing. He not only has asked for none but, as the return charges and relator admits, he has refused to cease his admitted violation of the law and has refused so much as to discuss such a cessation, and announced, through his attorney, that the reason for his refusal was that he was "so well loaded that" he wanted to "show his hand." The result of the position taken by the majority in this connection is, therefore, that though it be conceded relator is guilty of acts which justify the board in denying him a renewal license and that the statute gives them a discretion in such a case, yet relator can escape the penalty the law requires to be imposed and compel the board to renew his license, guilty though he be, by the simple expedient of refraining from asking for a hearing and refusing to have the matter of his guilt considered by the board at all. That relator could have required the board to grant him a hearing may be conceded. That he can refuse to have the matter determined by the board and thereby put himself in a position to compel the board to give him a license despite his admitted infractions of the law, and thus deprive the board of the power which the statute vests in it to deny a license because of the things he admits he has done, does not seem to me to be a tenable position. Yet that is what the majority opinion means in the argument set out above. *Page 541
It is also argued that the letters written by the secretary of the board show the refusal to renew relator's license was grounded upon the finding of the board which was held void in our previous decision. The license dealt with in that case expired November 30, 1918. The return in this case avers and relator admits that the violations of the law upon which respondents now stand were committed "after November 30, 1918." Paragraph III of the return makes it entirely clear that the misdoing relied upon by the board to justify its refusal to renew relator's license occurred after the date mentioned. It says so in so many words. It is true that the letter of May 22, 1920, mentions the alleged trial and finding held void in our previous decision, but it includes, also, many general charges of violations of the dental law. The other letter merely states that the records of the board show relator's license has been revoked and that his dollar is therefore returned. These letters do not justify the holding that is made that they conclusively show that the sole reason for refusing the renewal license was the previously made void effort to hold a hearing. But suppose they did. Relator now admits that he had frequently, if not continuously, violated the law since the hearing to which the opinion refers. Since this is true, what difference does it make even if the board did, in May, 1920, assign an unsound reason for refusing then to renew the license? The subsequent course of relator was a continuance of the violation for which the futile attempt to try him had been made. A mistake in a letter in May would not deprive the board of the power to act upon subsequent offenses in November, if otherwise it had power to act. It will hardly be contended that the letter of the secretary early in November is of great consequence. Again, though the effort to try relator in 1918 was futile and the revocations based upon the attempted finding then made were void, this did not render the violations which the board then attempted to examine any less efficacious *Page 542 to sustain a subsequent refusal to renew relator's license. The fact the violations had occurred, if they did, would just as well support such refusal after the futile hearing had been had as it would have done before. The implication in the majority opinion that because the effort to try relator proved to be fruitless, therefore his misdeeds were wiped out entirely and could not be thereafter considered by the board at all, introduces a new conception of the effect of proceedings had without jurisdiction.
So far as concerns the argument under (3) in Paragraph IV of the majority opinion, the statute furnishes the answer and this has already been considered.
With the facts admitted as charged and the powers of the board such as shown by the statute quoted, I am unable to agree to the majority opinion. Relator has not shown any arbitrary or oppressive action by the board. He admits facts which show it did its duty when it refused to license him. He admits he refused to take up the matter of his misconduct and even discuss it with the board.
The majority opinion seems to place too much stress upon general language used in sections of the statutes other than Section 12636. This statute expressly gives discretion to the board. Its particular provisions cannot be held destroyed by general language used elsewhere unless well known canons of construction are to be abandoned.
It may be added that the decision which the majority opinion overrules is well supported by Section 12636 and, in my opinion, is sound law.
Very respectfully I dissent. David E. Blair, J., concurs in these views. *Page 543