#### In re Accusation Against DR. J. E. OWEN.

(Filed 12 December, 1934.)

1. Physicians and Surgeons A d — Truthful advertising hy dentist is not prohibited by O. S., 6649.

The grounds for i-evoeation of the license of a dentist under O. S., 6649, as amended by ch. 270, Public Laws of 1933, are solicitation of professional business and false advertising and the circulation of false claims or fraudulent or misleading statements, and the statute does not render truthful advertising and circulation of truthful statements by a dentist unlawful.

2. Same—

Advertising in newspapers and the maintenance of a large sign on the building in which he maintains his office does not constitute solicitation of professional business by a dentist, advertising and solicitation not being synonymous terms, and where it is not alleged that such advertising was false or misleading, it is not sufficient ground for the revocation of the dentist’s license.

3. Appeal and Error A e—

Where it appears on appeal that the rights of the parties do not depend upon the constitutionality of a statute invoked in the proceedings, the Supreme Court will not determine the question of constitutionality upon the appeal.

Appeal from *Pless, J.,*at June Term, 1934, of BuNCOmbe.

Reversed.

This was a proceeding instituted before tbe North Carolina State Board of Dental Examiners upon an accusation against Dr. J. E. Owen, *446a dentist licensed by tbe State, duly filed under tbe provisions of C. S., 6649, by Drs. Bennett, Little, and Wells, dentists.

Tbe accusation was beard and judgment entered by tbe Board of Dental Examiners, from wbicb tbe respondent, Dr. J. E. Owen, appealed to tbe Superior Court. Tbe case was transferred from Wake County to Buncombe County, where it was beard at term time upon an agreed statement of facts, and judgment was there entered revoking tbe license of tbe respondent to practice dentistry. From this judgment tbe respondent appealed to tbe Supreme Court, assigning errors.

*Harry A. Gorsdn and Marcus Erwin for appellant.*

*Sale, Pennell & Pennell for appellees.*

Sci-ieNCK, J.

Tbe portion of tbe statute, C. S., 6649, as amended by chapter 270, Public Laws 1933, pertinent to tbe accusation filed, reads: “Whenever it shall appear to tbe Board of North Carolina Dental Examiners that any licensed dentist practicing in tbe State has been guilty . . . of false notice, advertisement, publication, or circulation of false claims, or fraudulent or misleading statements of bis art, skill, or knowledge, or of bis method of treatment or practice, ... or has by himself of another solicited professional business, tbe board shall revoke tbe license of such person.”

Tbe accusation filed charges: (1) “That tbe said Dr. J. E. Owen has, since 18 June, 1933, by himself and by another, solicited professional business as a practitioner of dentistry by running paid advertisements, and/or solicitation for professional business in tbe *Asheville Citizen,”*and

(2) “That since 18 June, 1933, tbe said Dr. J. E. Owen has, by himself or another, solicited professional business by advertisements upon tbe buildings in tbe city of Asheville in which said Dr. J. E. Owen has bis offices, said signs or advertisements soliciting professional business all being painted in yellow and black colors,” and of large dimensions.

It will be noted that nowhere in tbe accusation is there any charge of false advertisement or publication, or of tbe circulation of any false claims or fraudulent or misleading statements. Tbe charge is (1) that tbe respondent solicited professional business as a practitioner of dentistry by running paid advertisements in tbe newspapers, and (2) that be solicited professional business by signs in colors and of large dimensions upon tbe building in wbicb be has bis office.

In tbe agreed statement of facts upon wbicb tbe case was beard in tbe Superior Court there is no mention of false advertisements, or of circulation of false claims or fraudulent or misleading statements. In this statement it is agreed (1) that tbe respondent caused to be published *447in newspapers of large circulation paid advertisements of bis work and prices charged, and (2) tbat tbe respondent maintained on tbe outside of tbe walls of tbe building in wbicb be bad bis office certain signs, advertising bis work and prices, painted yellow and black, and of large dimensions.

Tbe judgment below, entered upon tbe agreed facts, contains, *inter alia,*tbe following:“.... Tbe court being of tbe opinion tbat tbe respondent bas by bimself or others solicited professional business, as alleged in tbe accusation,” and concludes by adjudging tbat “tbe judgment of tbe North Carolina State Board of Dental Examiners in this cause is affirmed, and tbe license to practice dentistry in tbe State of North Carolina, heretofore granted tbe respondent, Dr. J. E. Owen, be and is hereby revoked. . . .”

Tbe respondent’s appeal from tbe judgment of tbe Superior Court raises tbe question as to whether tbe insertion of paid advertisements of bis work and prices by a licensed dentist in newspapers with a large circulation and by signs in flaring colors and of large dimensions constitutes such soliciting of professional business as is inhibited by tbe statute, as amended. ¥e think not.

Tbe offenses against wbicb tbe statute inveighs are (1) tbat of false advertising, and tbe circulation of false claims or fraudulent or misleading statements, and (2) tbat of soliciting professional business.

Advertising, or tbe circulation of statements, without tbe taint of falsity or fraud, either by newspaper or sign, although paid for, cannot be construed as a violation of tbe statute. Advertising and soliciting are not synonymous terms. If such were so^ every dentist who inserted a professional card in a registry, directory, or other publication, and paid for such insertion, or who placed upon tbe window or door of bis office, or upon tbe wall of tbe building in wbicb bis office is located, bis name followed by tbe word “dentist” would subject bimself to an accusation tbat might lead to tbe revocation of bis license. "We apprehend tbat such was not tbe purpose of those who drafted tbe statute. Tbe statute only makes tbe use of false advertising, or tbe circulation of fraudulent and misleading statements, unlawful, and tbe corollary follows tbat tbe use of truthful advertising and circulation of truthful statements are not unlawful. *Expressio unius est exclusio alterius.*There is no suggestion in tbe record of any soliciting by tbe respondent otherwise than by advertising in newspapers and by signs.

We do not pass upon tbe ethics of tbe advertising resorted to by tbe respondent in this case, but under tbe statute as drawn, in tbe absence of any allegation of falsity or fraud, we are constrained to bold that judgment below is erroneous. If tbe North Carolina Board of Dental Examiners desires to have further limited tbe nature and extent of adver*448tising to which, members of their profession may lawfully resort, their remedy lies with the Legislature and not the courts. The law-making branch of the Government, if in its wisdom it saw fit, might make unlawful any kind of advertising by members of the dental profession, whether false or otherwise, but as yet it has not done so.

In view of the foregoing, it does not appear that the enforcement of C. S., 6649, will result in injury to the respondent, and we are therefore not called upon to determine the constitutionality of the statute in this proceeding.

Reversed.