In re Decorion
In re Decorion
Opinion of the Court
The facts of appellant’s case are not in dispute. The appellant at the time of filing his application for a certificate of massage was exempted from taking an examination in order to be entitled to a certificate under section 13, (1), (b), of the Act, he having met the condition of previous practice of massage and satisfied the requirements of paying a registration fee and of submitting a medical report. Prior thereto, however, he had been convicted twice of felony, one conviction for sexual intercourse with a female under the age of sixteen years and the other for abortion which was then on appeal and thereafter affirmed by this court (see Territory v. Decorion, 38 Haw. 121). In addition he had been convicted twice of the misdemeanor of practicing medicine without a license on occasions intervening the convictions of
A bare reading of Act 192, supra, suffices to show that its dominant purpose is to protect the public frequenting the privacy of massage parlors from persons either unfit or incompetent to practice massage as well as to insure the fitness and competency of those practicing massage. To give effect to that purpose, the reasonable interpretation of the Act as a whole from its nature and context is that it is directory as to the manner of exercising the powers of the hoard by treating the power to refuse separately from the. power to grant a certificate. In correlation, it provides a discretionary power of refusal in any case falling within the provisions of section 6, (3), and at the same time provides a mandatory power of grant in any case not falling within those provisions when the applicant in that case has satisfied pertinent requisites of section 15 and 13. Illustrative thereof, the Act directs that “the board shall issue a certificate” to an applicant on condition that he passes the required examination (§15) and that an applicant “shall be entitled to a certificate * * * without an examination” on condition that he has engaged continuously in the practice of massage before the enactment and has paid a registration fee and submitted a medical report '(§ 13, [1], [b]), unless the applicant meet
The second ground of appeal questions the constitutionality of section 6, (3), of the Act as applied to a person convicted of a felony. The pertinent part of that section reads: “The board may refuse to grant * * * a certificate * * * to a person convicted of a felony or misdemeanor involving such moral turpitude as the hoard may determine.” (Emphasis added.) The appellant in-A'okes the doctrine of ejusdem generis as a rule of statutory construction on the theory that the phrase “a felony or misdemeanor” constitutes an enumeration of specific words and that the clause relative to moral turpitude follOAving it is a general clause. He argues therefrom that the legislature intended the clause to refer to the Avord “felony” as Avell as to the Avord “misdemeanor” next preceding that clause. But neither is the phrase an enumeration of specific words nor the clause folloAving it a general one. On the contrary, the reverse is true and none
The phrase “a felony or misdemeanor” enumerates general words and operates to exhaust the whole class of crimes. It does not purport to make any differentiation between the kind or species of crimes, but without regard thereto employs two general terms in the alternative which by statutory definition are descriptive of the two main divisions of all crimes in the Territory according to the extent that they are punishable. (See R. L. H. 1945, § 10602.) By that definition misdemeanors, because they are punishable to a lesser extent, are unequal in rank to felonies, even though some misdemeanors involve greater moral turpitude than some felonies. (See Fimara v. Garner, 86 Conn. 434, 85 Atl. 670, 671.) But most felonies involve moral turpitude and most misdemeanors do not. In contrast to such general phrase, the clause following it in the section is specific and operates to exclude all crimes not tainted with an inherent baseness, the words “moral turpitude” as used therein as being involved in crime denoting an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man or to society in general, contrary to the accepted and customary rule of right and duty between men. (See Ng Sui Wing v. United States, 46 F. [2d] 755; In re Henry, 15 Idaho 755, 99 Pac. 1054; United States ex rel. Berlandi v. Reimer, 30 Fed. Supp. 767, 768.)
No rule of construction is required to ascertain the meaning of the quoted and pertinent part of section 6, (3). Ordinary rules of grammar suffice where, as here, there is nothing manifested to the contrary. Pursuant to those rules, the final and specific clause of such seetioh relative to moral turpitude exclusively qualifies and solely refers to the general term of “misdemeanor” as the next preceding word. The clause thereby narrows the broad meaning
Decree affirmed.
S. L. H. 1947, Act 192, § 13, (1), (b) : “All persons, massage parlors or salons, who were engaged in the actual and continuous practice of massage in the Territory of Hawaii prior to the passage of this Act, shall be entitled to a certificate of registration under this Act without an examination, upon payment of a registration fee and a medical report as set forth in this section above.”
S. L. H. 1947, Act 192, § 6, (3) : “The board may refuse to grant or may revoke a certificate to a person guilty of fraud in passing the examination; to a person convicted of a felony or misdemeanor involving such moral turpitude as the board may determine; to one addicted to liquor or drug habits or for the failure to display the certificates as provided in this Act.”
Reference
- Full Case Name
- IN THE MATTER OF THE APPLICATION OF BERNALDO DECORION
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- Published