(No. 5083. Decided December 22, 1904.)

L. D. SPENCER, Appellant, v. THE COMMERCIAL
COMPANY, Respondent.1

APPEAL-REVIEW-FINDINGS. Where, in an action tried by the court after waiving a jury, the evidence is not brought up and the findings are within the issues, and warrant the conclusions of law, the merits of the case are not reviewable.

COSTS-ATTORNEY'S FEES. In an action for damages for breach of the covenants of a lease, it is error to allow an attorney's fee of $100 in addition to the statutory fee.

APPEAL AND ERROR-EXCEPTIONS SUFFICIENCY. Error in allowing an attorney's fee is properly presented for review in the appellate court by excepting to the allowance when first set forth in the conclusions of law; and, when it is part of the judgment, it is deemed excepted to, and need not be urged in the court below.

APPEAL AND ERROR-DECISION-ATTORNEY'S FEE COSTS. Upon remanding a case wherein the only error was in allowing an attorney's fee in the sum of $100, the judgment will be affirmed except as to said sum, with instructions to the lower court to modify the decree, the costs of the appeal to be taxed in favor of the appellant.

Appeal from a judgment of the superior court for King county, Griffin, J., entered November 11, 1903, upon findings in favor of the defendant, in an action for damages for breach of covenant, after a trial on the merits before the court, a jury being waived. Modified.

G. Ward Kemp, for appellant.

Ira Bronson and Kenneth Mackintosh, for respond

ent.

DUNBAR, J.-This was an action brought to recover damages from the defendant for alleged violation of the covenants of a lease, the main contention being that the lessor ejected the lessee from the premises leased, and

Reported in 78 Pac. 914.

proceeded to collect the rents from the sub-lessees, to plaintiff's damage in the sum of $1,260, the value of the fixtures which plaintiff alleged he was deprived of, and the sum of $622.90, the value of the leasehold interest which defendant alleges he was deprived of, being the sum of $1,884.90 in all.

The question of the right of the appellant to the value of the fixtures was decided adversely to appellant's contention by this court in Spencer v. Commercial Co., 30 Wash. 520, 71 Pac. 53, upon a former appeal in this case. The case was tried by the court, a jury having been waived, and the court, after finding the execution of the lease, a copy of which it is not necessary to set out in this opinion, found, that during the month of August, 1899, the plaintiff surrendered and delivered possession of the premises to the defendant; that the defendant thereupon resumed possession thereof, and leased the same to the Seattle Cereal Company, and that the said Seattle Cereal Company thereupon became the tenant of the said premises, and so continued up to and until December 31, 1901, and that at the end of the said time the Seattle Cereal Company redelivered possession of said premises to defendant, and that the defendant thereupon resumed possession thereof; that subsequent to August, 1899, defendant received from the plaintiff no rent for said premises, and had no dealings of whatsoever kind with him in regard to said premises, but that, during all of said time, the said premises were in the possession of said Seattle Cereal Company as tenant of the defendant; and in August, 1899, plaintiff agreed with the defendant and the Seattle Cereal Company that he would surrender his lease, mentioned in finding No. 1, and would rent said premises from the Seattle Cereal Company; that, in compliance with said agreement, plaintiff, after August, 1899, paid no rent to said defendant, but

rented said premises from the Seattle Cereal Company. The appellant has not brought here the testimony in the case, so that the findings of fact must be accepted by this court as the facts proven. We think that they were within the issues, and that no other facts were necessary to be found by the court, and that the facts found by the court warrant the conclusions of law which followed. Neither are we able to conclude that the court abused its discretion in refusing the motion of the appellant for a new trial, so far as the merits of the controversy are concerned.

The judgment rendered, however, granted to the respondent, the defendant in the action below, an attor ney's fee of $100, in addition to the statutory attorney's fees. It has been so often decided that the granting of attorney's fees in cases of this kind was error that it is no longer a proper subject for discussion. It is contended, however, by the respondent that this question was not raised by the appellant in the lower court, and that he has no right to present it here. The finding, however, was objected to by the appellant at the earliest opportunity, by excepting to this allowance, which was set forth in the conclusions of law. And again, it is a part of the judgment, which is deemed excepted to.

As no good purpose would be subserved by the reversal of the judgment and the retrial of the cause by reason of this error alone, we will follow the rule announced in Trumble v. Trumble, 26 Wash. 133, 66 Pac. 124, and affirm the judgment except as to the allowance of the $100 as attorney's fees, and remand the cause with instructions to the lower court to modify the decree in that regard; the costs of the appeal to be taxed in favor of appellant.

FULLERTON, C. J., and ANDERS, HADLEY, and MOUNT, JJ., concur.

(No. 5103. Decided December 22, 1904.)

In the Matter of the Petition of E. G. THOMPSON for a
Writ of Habeas Corpus.1

DENTISTRY-LICENSE TO PRACTICE-CONSTITUTIONAL LAW. The legislative power to restrict and regulate occupations which affect the public comfort and health extends to the practice of dentistry.

SAME ARBITRARY RULES. Laws 1901, p. 315, § 1, providing for the examination and licensing of dentists, is not unconstitutional as a delegation of legislative power to a board, by reason of the fact that the board of examiners may adopt arbitrary rules; since it will be presumed that the rules will be reasonable, and, if void or arbitrary, they may be reviewed and do not render the act void.

SAME-QUALIFICATIONS OF DENTISTS-REASONABLENESS OF REGULATIONS. Laws 1901, p. 315, § 1, providing as qualifications of dentists, that the applicant for a license to practice shall be possessed of a diploma from a dental college in good standing, shall be of good moral character, etc., contains no unreasonable requirements.

Application to the supreme court, filed April 9, 1904, for a writ of habeas corpus. Writ denied.

John R. Parker and E. J. Brown, for petitioner.

Fremont Campbell, Charles O. Bates and Walter M. Harvey (Samuel R. Stern, of counsel), for respondent.

MOUNT, J.-Application for a writ of habeas corpus. Petitioner was convicted of the crime of practicing dentistry without having first obtained a certificate authorizing him to practice dentistry within the state. He prosecutes this writ, claiming that the dental act, under which he was convicted, is unconstitutional, because, (1) it is in derogation of his personal rights; (2) it has attempted to delegate arbitrary legislative power to the board of

1Reported in 78 Pac. 899.

Opinion Per MOUNT, J.

[36 Wash. dental examiners; and (3) because the act provides that no applicant shall be eligible to take an examination before said board unless he has a diploma from a dental college. We shall consider these questions in the order stated.

(1) The right to pursue a lawful occupation is, of course, conceded, but there are certain occupations, in themselves lawful, which are subject to legislative restriction and regulation for the preservation of comfort, health, and life. It is now generally, if not universally, held that the practice of dentistry is one of the occupations reasonably falling within the legislative right of regulation. This court recently so held in State ex rel. Smith v. Board of Dental Examiners, 31 Wash. 492, 72 Pac. 110, which was a case involving the constitutionality of the act in question in this case.

(2) The act, in so far as it is subject to attack upon the other points, is as follows:

"84. Any person or persons seeking to practice dentistry within the state of Washington, or to own, operate or cause to be operated, or to run or manage a dental office or place for the practice of dentistry in the state of Washington after the passage of this act, shall file his or her name, together with an application for examination, with the secretary of the state board of dental examiners, and at the time of making such application shall pay to the secretary of the board a fee of $25, and present him or herself at the first regular meeting thereafter of said board to undergo examination before that body. No person shall be eligible for such an examination unless he or she shall be of good moral character and shall present to said board his or her diploma from some dental college in good standing and give satisfactory evidence of his or her rightful possession of the All persons successfully passing such examination shall be registered as licensed dentists in

same.