State ex rel. Flickinger v. Fisher

24 S.W. 167, 119 Mo. 344, 1893 Mo. LEXIS 129
CourtSupreme Court of Missouri
DecidedDecember 23, 1893
StatusPublished
Cited by10 cases

This text of 24 S.W. 167 (State ex rel. Flickinger v. Fisher) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Flickinger v. Fisher, 24 S.W. 167, 119 Mo. 344, 1893 Mo. LEXIS 129 (Mo. 1893).

Opinions

Shekwood, J.

In this original proceeding for a mandamus, the single question presented is whether the relator, a dentist, and who appends to his name “D. D. S.,77 is liable to do jury duty under the laws of this state.

Among those exempt under the general laws of this state is a “person exercising the functions of a * * * practitioner of medicine.77 Revised Statutes, 1889, sec. 6062. Under the provisions of section 8 of article 21 of the scheme and charter, Revised Statutes, 1889, p. 2162, “Every male citizen of this state, resident in such city, sober and intelligent, of good reputation, "over twenty-one years of age, and not exempt from jury duty by the general laws of this state, or otherwise disqualified or excused as provided in this act, shall be deemed to be qualified for and subject to the performance of jury duty under the provisions hereof.77 Section 9 of the same article then proceeds to define who are exempt from .jury duty and among them specifies a person who is actually exercising the functions of, “a practitioner of medicine.7 7

Of laws in pari materia with those mentioned, is [349]*349chapter 110, Revised Statutes, 1889, p. 1612. This chapter is entitled, “Medicine, Surgery and Dentistry,” and consists of three articles, the first “Medicine and Surgery;” the second, “Disposition of Human Bodies,” and the third “Dentistry.” These articles were originally separate acts, approved at different times. Laws of 1883, p. 114, approved February 20; Ibid. p. 115, approved April 2; and Laws of 1887, p. 215, approved March 31, relating to dead bodies. Those acts, however, like the diversified contents of the great sheet, knit at the four corners, that Peter saw in his vision, have been gathered together in all their incongruity in the present revision, and now form chapter 110.

Section 6871 of article 1 of that chapter provides that “every person practicing medicine and surgery, in any of their departments, shall possess the qualifications required by this article,” to-wit: If the applicant is a graduate of medicine, he must present his diploma to the state board of health, etc. And thereupon that board issues its certificate to the applicant, and such diploma and certificate are made conclusive of the right of the holder of the samé to practice medicine in this state. Other provisions are inserted in the section with respect to the steps necessary to be taken by those who are not graduates of medicine, but who also desire to practice it, etc. To this end two kinds of certificates are provided to be issued by the board, one for graduates who possess diplomas, and the other for those not graduates who have stood a successful examination before the board as to their qualifications, Without such certificate of one sort or the other, no one can lawfully practice medicine and surgery in any of their departments in this state. State ex rel v. Gregory, 83 Mo. 123.

Section 6881, of the same chapter and article, denounces certain penalties against those who shall [350]*350practice medicine or surgery in this state without complying with the provisions of this article, to wit: a fine of not less than $50 nor more than $500, or by imprisonment in the county jail not less than thirty nor more than three hundred and sixty-five days, or by both such fine and imprisonment.

Section 6889 of article 3, entitled “Dentistry,” makes it unlawful for 'any person to practice dentistry or dental surgery in this state without being the possessor of. a diploma,,etc., etc. No provision, however, is made for the presentation of such diploma to the board of health, nor for any examination by that board of the applicant touching his qualifications. The applicant simply presents his diploma to the county clerk or city register, as the case may be, and receives a certificate, which is made “prima facie evidence of the right of the holder to practice wider this article.”

Section 6893 of that article prescribes a penalty for violating the provisions of such article, to wit, by a fine not less than $25, nor more than $200. These different penalties under articles 1 and 3 evidently go to show that the legislature regarded the violation of article 1 by a physician as a more serious offense, and, therefore, to be punished more severely than a violation of article 3 by a dentist. In a word, by those very penalties, they drew a distinction between a doctor and a dentist.

Relator relies on a certificate obtained under the provisions of article 3 aforesaid, from the city register, on presentation to the latter, by the relator, of his diploma, which certificate, among other things, states that relator’s name had been entered on the “Roll of Dental Surgeons,” in the city register’s office.

Looking at all these statutory provisions bearing-on the point in hand, the question mentioned at the [351]*351outset recurs to the mind: Do those provisions, or any of them, exempt relator from the performance of jury duty? The general laws of this state as already seen, as well as the provisions of sections 8 and 9 of the scheme and charter, exempt only certain persons from the performance of that duty. Has relator brought himself within any exemption therein contained?

The prevalent rule in construing statutes is, that the expression of one thing is the exclusion of another. Anderson’s Law Dictionary, Expressio, etc. An express exception, exemption or saving excludes all others. Brocket v. Railroad, 14 Pa. St. 241. And when a general rule has been established by a statute with exceptions, the courts will not curtail the former, nor add to the latter by implication. Sutherland on Stat. Construe., sec. 328; Tyson v. Britton, 6 Tex. 222; Roberts v. Yarboro, 41 Tex. 450; U. S. v. Dickson, 15 Pet. 165.

Here, relator claims the force and benefit of a certain exception which, he asserts, takes his case out of the operation of the general statute which compels the performance of jury duty by all male citizens, resident, etc., etc. In order to avail himself of such exception, he must show that his case falls strictly within it, since exceptions, privileges and exemptions are not favored in the law. And, in this investigation, the familiar rule laid down by Lord Bacon is peculiarly apposite, “that, as exceptions strengthen the force of a general law, so enumeration weakens, as to things not enumerated.” Page v. Allen, 58 Pa. St. 338.

Service on juries is one of the general burdens imposed upon the male citizens of a state, and all men who receive the advantages of government are bound to contribute to its support; and “none can claim exemption, unless the exemption be so clearly expressed in the statute as to admit of no other construction.” [352]*352Miller v. Kirkpatrick, 29 Pa. St. 226. The state has an inherent and indisputable right to the service of all her male citizens as jurors, and, therefore, any statute which strips the government of any portion of its prerogative in this regard, by giving.exemption from this, general burden, should receive a strict construction. Academy v. Philadelphia County, 22 Pa. St. 496.

Here, it can not be successfully claimed that relator finds any exemption in the terms

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Bluebook (online)
24 S.W. 167, 119 Mo. 344, 1893 Mo. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-flickinger-v-fisher-mo-1893.