City of Cherokee v. Perkins

Bishop, J. The district court proceeded upon the theory that the appellant city had no power to include doctors of dental surgery in the ordinance in question, and make them subject to its provisions. That a municipality cannot exercise a power unless it be expressly conferred by the legislature, or absolutely necessary to carry out some other power expressly conferred, is well-settled doctrine. That in case of doubt the existence of power will be denied is equally well settled. State v. Smith, 31 Iowa, 493. By section 700 of the Code the power is given cities and towns to regulate, license and tax “itinerant doctors, itinerant physicians and surgeons,” etc. The only question for our determination is whether a practitioner of dental surgery comes within the definition of itinerant doctors or itinerant physician and surgeon. It has been held that the term “dentist” and “surgeon” are not [407] interchangeable. People v. DeFrance (Mich.) 62 N. W. Rep. 709, 28 L. R. A. 139; State v. Fisher (Mo.) 24 S. W. Rep. 167, 22 L. R. A. 799. Certain it is that the professions are largely separate and distinct from each other. The practice of each is regulated by different chapters of the Code, and the legal rights, duties, and responsibilities of each are dissimilar in very many respects. In the opinion of the writer, there is every reason for holding the statutes applicable to dentists which could be urged in respect of physicians and surgeons, and that the legislature intended to include dentists in the general term “itinerant doctors.” The majority of the court, however, hold to the opinion that the provisions of the statute cannot be extended so as to include dental surgeons; that, if the legislature had intended to make them subject to the statutory provision, it would have so said in terms; that the expression ‘ ‘itine'rau t doctor,” as found in the statute, is to be classed with the succeeding expression, “itinerant physician and surgeon;” and that both relate to those persons who in some form, or following some school, practice either medicine or surgery, or both. The judgment of the district court is therefore AEEIRMEO.