State ex rel. Granville v. Gregory

Decision Date31 October 1884
Citation83 Mo. 123
PartiesTHE STATE ex rel. GRANVILLE v. GREGORY et al. constituting State Board of Health.
CourtMissouri 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 ( Powers v. Barney, 5 Blatch. 203), 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.

SHERWOOD, J.

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 state of Missouri, at the relation of Edwin G. Granville, complains of the defendants, E. H. Gregory, G. M. Cox, J. C. Hearne, G. T. Bartlett, W. B. Connery, H. F. Hereford and Albert Merrell, and says that said defendants constitute the State Board of Health of Missouri: That on the 17th day of November, A. D., 1882, the Kansas City Hospital College of Medicine was duly created and became a body corporate and politic under and by virtue of the laws of the state of Missouri regulating the incorporation of benevolent, religious, scientific, educational and miscellaneous associations; that said Kansas City Hospital College of Medicine, in accordance with the provisions and requirements of its charter of incorporation, duly commenced and has ever since been engaged in the teaching of medicine and surgery, and those sciences a knowledge of which is necessary or proper for a full and adequate understanding of medicine and surgery in all their scope and branches; that the relator, the said Edwin G. Granville, was, on the 15th day of March, A. D. 1883, duly graduated by said Kansas City Hospital College of Medicine, and duly received a diploma from said Kansas City Hospital College of Medicine bearing date said 15th day of March, A. D. 1883, and said relator, the said Edwin G. Granville, thereupon became, and ever since has been, and now is, a graduate of medicine; that heretofore, to-wit, on or about the 5th day of September, A. D. 1883, the said relator duly presented his said diploma to the said defendants, as such State Board of Health of Missouri for verification as to its genuineness; that said diploma was duly verified by the affidavit of said relator (who was the holder thereof), that he was the lawful possessor of the same, and that he was the person therein named, which said affidavit was duly taken before the defendant, E. H. Gregory, who was the president of said State Board of Health of Missouri, and as such authorized to administer oaths, and said affidavit was duly attested under the hand of said defendant, E. H. Gregory, as such president, and the official seal of said State Board of Health of Missouri; that said diploma was by said defendants, as such State Board of Health of Missouri, found to be genuine as represented, and that said relator was the person named therein and claiming and presenting the same, and it thereupon became and was the duty of said defendants, as such State Board of Health of Missouri, to issue and deliver to said relator a certificate to that effect, signed by at least four of the members of said State Board of Health of Missouri, upon the payment by said relator to the secretary of said State Board of Health of Missouri of a fee of one dollar, which said fee of one dollar the said relator duly paid to, and the same was received by the defendant, J. C. Hearne, who was the secretary of said State Board of Health of Missouri, and by whom said fee is still retained; that the said relator duly demanded of the defendants as such State Board of Health of Missouri, the issuing and delivery to him of such certificate as aforesaid, which the said defendants, as such State Board of Health of Missouri, wrongfully refused and still wrongfully refuse to do, to the great and irreparable wrong, injury and damage of the said relator. And the plaintiff further states that the said relator will suffer great and irreparable wrong and injury, and is entirely without remedy for the redress thereof without the interposition of this court by its writ of mandamus directed to the said defendants, as such State Board of Health of Missouri, commanding and directing the performance and discharge of said duty. Wherefore, the plaintiff prays the court to issue and direct to said defendants a writ of mandamus, directing and commanding them as such State Board of Health of Missouri, to issue and deliver to the said relator the certificate of said State Board of Health of Missouri, signed by at least four of the said defendants as members thereof, to the effect that the said relator, Edwin G. Granville, did present his diploma from the Kansas City Hospital College of Medicine to the said State Board of Health of Missouri for verification as to its genuineness, that the said diploma was found to be genuine, and that the said relator was the person named therein, and was the person claiming and presenting the same.”

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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