State ex rel. Johnston v. Lutz

• Decision Date: 23 December 1896
• Citation: 38 S.W. 323,136 Mo. 633
• Parties: The State ex rel. Johnston v. Lutz et al
• Court: Missouri Supreme Court

38 S.W. 323

136 Mo. 633

The State ex rel. Johnston v. Lutz et al

Supreme Court of Missouri

December 23, 1896

Peremptory writ awarded.

Pope & Belch for relator.

(1) Mandamus is the proper remedy for relator in this case. Mansfield v. Fuller, 50 Mo.App. 338; State ex rel. v. Joplin Waterworks, 52 Mo.App. 312; Barnes v Gottschalk, 3 Mo.App. 111. (2) The relator has done all that is required of him by the law, and the issuing of the certificate is a mere ministerial act, the performance of which may be compelled by mandamus. State ex rel. v Hathaway, 103 Mo. 22; State ex rel v. Strother, 42 Mo.App. 343. (3) Section 8 of the board's rules can not apply to relator, he having graduated before the rule was put in force.

R. F Walker, attorney general, for respondents.

(1) The granting of certificates to holders of diplomas involves matters of judgment and discretion on the part of the state board of health and will not be enforced by mandamus. Wherever an element, shred or degree of discretion enters into a duty to be performed, the functions of mandatory authority are shorn of their potency and become powerless to dictate terms to that discretion. State ex rel. v. Gregory, 83 Mo. 123; State ex rel. v. Hathaway, 103 Mo. 22; State Med. Ex. Board, 32 Minn. 324; People v. Dental Ex., 110 Ill. 180. (2) Relator had his remedy at the time the board refused to recognize his diploma. It was not mandamus, but by procuring from the college issuing the diploma a list of its matriculates and the basis of their matriculation. This would have removed the only objection urged by the board and rendered its duty merely ministerial. Not having done this, the board was left in the exercise of its judgment and discretion, and mandamus is not the remedy. (3) It is elementary that the state may, in the exercise of its police power, prescribe the conditions upon which persons may, within its borders, engage in the skilled trades and learned professions and, if it is deemed wise so to do, provide a board of experts for each calling to conduct examinations and prescribe rules upon the compliance with which persons may be authorized to ply trades or practice professions. Tiedeman on Police Power, section 87; State v. Hathaway, 115 Mo. 36.

Burgess, J. Barclay, J., concurring.

OPINION

In Banc.

Mandamus.

Burgess J.

This is a proceeding by mandamus to compel the respondents, as the state board of health, to issue to the relator a certificate authorizing and permitting him to practice medicine and surgery in this state.

On the eighteenth day of March, 1896, relator was graduated at the Physio-Medical College of Indiana, located at Indianapolis in that state, and on the same day received therefrom a diploma, regular in form, and signed by the professors in said college. In the month of July next thereafter he appeared before said board of health, presented his diploma, tendered the fee of $ 1 allowed by statute in such cases, and made application for a certificate authorizing him to practice medicine and surgery in this state. The certificate was refused on the ground as alleged in the return to the writ that the college issuing the diploma was not, in the judgment of the board, a "medical institution in good standing," within the meaning of the statute; the grounds of this conclusion being that the board had, prior to the presentation of the diploma by relator, passed a resolution and mailed a copy of same to each medical college in the United States requiring them to furnish the board, on or before January 1, 1896, a list of their respective matriculates and the basis of their matriculation, and that the said Physio-Medical College had not complied with this order; and also upon the further ground that upon announcing its refusal to grant the certificate, the board stated to relator that it would permit him to be examined, and, if found qualified, grant him a certificate. Relator declined to be examined, and instituted this proceeding against the board.

On April 19, 1894, the board of health adopted a rule prescribing certain conditions upon which medical students might be admitted to the lecture course, and requiring the secretary of the board to notify all medical colleges that said rule would go into effect February 1, 1895; and on the twenty-eighth day of October, 1895, said board passed another resolution requiring all medical colleges in the state of Missouri to report to the board by January 1, 1896, a list of all their freshmen class, sessions of 1895 and 1896, with the qualifications on which they were admitted to the school.

In order to make all the resolutions adopted by the board apply alike to all medical colleges in the United States said board on said twenty-eighth day of October, 1895, further resolved that, "as a further condition of the recognition of any medical college as being in good standing the college shall furnish the secretary of the state board of health, on or before January first every year, a complete list of all of its matriculates together with the basis upon which such applicant matriculated giving the name of the institution from which a degree or certificate of graduation was obtained, or the name of the state official conducting the examination, or the college previously attended, together with the date when the degree or certificate was issued. This last to be sworn to by the executive officer of the college and attested by the secretary under the seal of the college."

On January 6, 1896, the board of health passed another resolution instructing its secretary to refuse registration of the diplomas of any medical college which had not complied with the conditions imposed upon colleges by the resolution above quoted of October 28, 1895, and published in the Missouri Sanitarian of the month of November next following. At the same time it was further ordered that copies of the Sanitarian in which all the proceedings of the board were from time to time published be sent to all the medical colleges in the United States.

It was shown by the secretary of the board that he sent copies of the Missouri Sanitarian containing all of said resolutions, to all of the medical colleges in the United States, including that of which relator was a graduate, but he did not state when or how they were sent, whether by mail or otherwise. Dr. Lutz a resident of the city of St. Louis Missouri, and president of the board, testified that in the latter part of October, 1895, so far as he could recollect, he sent a printed notice of the requirements of the board in a properly sealed envelope to every medical college in the United States, setting forth the...