State ex rel. Granville v. Gregory
Decision Date | 31 October 1884 |
Citation | 83 Mo. 123 |
Parties | THE STATE ex rel. GRANVILLE v. GREGORY et al. constituting State Board of Health. |
Court | Missouri Supreme Court |
Mandamus.
WRIT DENIED.
Bryant, Holmes & Waddill for relator.
(1) The first ground of demurrer which questions the power of all educational institutions created under R. S., Art. X, p. 178, to issue diplomas, or to confer degrees upon their graduates, is not well taken. The act of March 3, 1874 (Laws, page 23) is still in force. R. S. sec. 3160 must yield to R. S. sec. 3161 , or they must nullify each other. State ex rel v. Heidorn, 74 Mo. 410. Educational institutions created under the general laws of this state have always had the power implied and necessarily incidental to the purposes of their formation, to confer degrees and issue diplomas both before and after the passage of the act of March 3, 1874, and regardless of said act. Morawetz on Corporations, secs. 152, 154, 189. (2) The second ground of the demurrer is likewise not well taken. The construction contended for by respondent would practically nullify section 1 and require all applications to be made under section 2 of the act in question, which manifestly was not the intention of the legislature, and is in the very teeth of the language it has employed to express its meaning: “If there be two affirmative statutes, or two affirmative sections of the same statute, on the same subject, the one does not repeal the other if both may consist together, and the court ought to seek for such a construction as will reconcile them together.” Bruce v. Schuyler, 4 Gil. (Ill.) 221; Fowler v. Pirkins, 77 Ill. 271; Warder v. Arell, 2 Wash. (Va.) 282. (3) The third ground of the demurrer has obviously no bearing on this case and is fully covered by what has been said supra. (4) The relator made his application in this case under section 1. The pleadings show that he presented his diploma to the State Board of Health for verification as to its genuineness; that it was duly verified by the affidavit of the relator, the holder and applicant, that he was the lawful possessor of the same, and that he was the person therein named; that said diploma was by the Board of Health found to be genuine and that the person named therein (who was the relator) was the person claiming and presenting the same, and the secretary of the board received from him the fee of one dollar, which he still retains. These facts clearly entitled him to the certificate mentioned in section 1, and the court should, therefore, award to the relator a peremptory writ of mandamus.
D. H. McIntyre, Attorney General, for respondent.
(1) The first ground of the demurrer is well taken. R. S., secs. 706 and 707; Bk. of Augusta v. Earle, 13 Pet. 519; Boone on Corporations, § 35; Morawetz on Corporations, § 149; Thomas v. R. R., 101 U. S. 71, 82; Dartmouth College v. Woodward, 4 Wheat. 636; McIntyre v. Ingraham, 35 Miss. 25; Gains v. Coats, 51 Miss. 335; Ruggles v. Collier, 43 Mo. 353. (2) The object of the legislature in the enactment of laws regulating the practice of medicine and surgery was the elevation of the standard of the proficiency of the profession, and at the same time as a necessary part of the same object to get rid of quacks and empirics, and the petition fails to aver even that the institution from which relator obtained his diploma was one of good standing. This fact must exist, otherwise no certificate can be granted, and whether the institution in a given case is of good standing or not, is a question for the board who are entitled to determine that fact on account of their superior knowledge of such institutions and their authority to issue said certificates. (3) The Kansas City Hospital College of Medicine is conducting its college for a pecuniary consideration and is therefore illegally chartered and organized (R. S., sec. 978), and if not so is exceeding its charter powers, and in either case the writ asked for should be denied.
This is an original proceeding in this court, having for its object our peremptory writ commanding respondents to issue and deliver to the relator a certificate, as provided for in the act of April 2, 1883, authorizing him to practice medicine in this state.
The issuance of the alternative writ has been waived, the petition therefor, by agreement, standing in lieu thereof.
The petition is as follows:
The demurrer of the respondents to the petition is based on these grounds: First. It nowhere appears in said alternative writ that the said Kansas City Hospital College of Medicine has any legal authority, or any authority whatever, to issue diplomas and confer degrees upon its so-called graduates. Second. It is not stated that said Kansas City Hospital College of Medicine is a medical institution in good standing, or that it was found to be such by the respondents, as required by the act to regulate the practice of medicine and surgery in the state of Missouri, approved April 2, 1883. Third. It does not appear that the relator presented himself to said board of health and offered to submit himself to such examination as said board should require, as required by the act last above mentioned.
The provisions of the act approved April 2, 1883, entitled “an act to regulate the practice of medicine and surgery in the state of Missouri,” so far as necessary for quotation, are these:
“SECTION 1. Every person practicing medicine and surgery, in any of their departments, shall possess the qualifications required by this act. If a graduate of medicine, he shall present his...
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