State v. Adcock

• Decision Date: 06 November 1907
• Citation: 206 Mo. 550,105 S.W. 270
• Parties: STATE ex rel. McCLEARY v. ADCOCK et al.
• Court: Missouri Supreme Court

105 S.W. 270

206 Mo. 550

STATE ex rel. McCLEARY v. ADCOCK et al.

Supreme Court of Missouri.

November 6, 1907.

1. HEALTH — BOARDS OF HEALTH — NATURE OF DUTIES.

Boards of health are not judicial bodies. Their duties are administrative or ministerial, and for their refusal to perform a given duty mandamus will lie.

2. PHYSICIANS AND SURGEONS — ADMISSION TO PRACTICE MEDICINE — REFUSAL TO GRANT LICENSE — REVIEW.

Under Act March 21, 1903, p. 241 [Ann. St. 1906, § 8518-9], making it the duty of the state board of health, on receiving a prescribed fee from any student who matriculated in a medical college on or prior to March 12, 1901, etc., and who presents a diploma from a medical college of the state, to issue to such student a license to practice medicine, the board cannot arbitrarily refuse to issue a license, and an unwarranted exercise of their discretion in so doing is subject to review.

3. MANDAMUS — COMPELLING GRANT OF LICENSE — ADMISSION TO PRACTICE MEDICINE.

Under Act March 21, 1903, p. 241 [Ann. St. 1906, § 8518-9], making it the duty of the state board of health to issue a license to practice medicine to any student who matriculated in a medical college on or prior to March 12, 1901, and who presents a diploma from a medical college of the state, and pays a prescribed fee, mandamus lies to compel the board to issue a license to a student shown by the evidence to have matriculated prior to such date, and to have fulfilled such other requirements.

In banc. Mandamus by the state, on the relation of A. S. McCleary, against J. A. B. Adcock and others, constituting the state board of health of Missouri, to compel the issuance to relator of a license to practice medicine. Peremptory writ granted.

Relator, Dr. A. S. McCleary, graduated from the Eclectic Medical University, of Kansas City, Mo., March 24, 1904, and received his diploma therefrom on that date. This school is duly incorporated under the laws of Missouri, and has a four years' course of study. He claimed to have been a matriculant in said school in the fall of 1900, and therefore prior to March 12, 1901. On or about November 27, 1906, he presented to relators all the evidence required by the act approved March 21, 1903 (Acts 1903, p. 241, § 9), to entitle him to a license from respondents, who constitute the state board of health to practice medicine and surgery in the state of Missouri. Relator on said date tendered to respondents the required fee under the statute, but respondents refused to grant to relator a license, and thereafter relator applied to this court for a writ of mandamus, and the alternative writ was duly granted. Among other things stated in the alternative writ, we find: "That said board of health of the state of Missouri has failed, neglected, and still fails and neglects, to issue to relator a license to practice medicine in the state of Missouri; that said board is composed of seven physicians, five of whom are allopathic physicians; that said board is biased and prejudiced against relator; that relator is a matriculant and graduate of an Eclectic School of Medicine; that a majority of the members of said board of health belong to the regular or allopathic School of Medicine, a school or system of medicine entirely different and opposed to the school or system of medicine of which relator is a matriculant and graduate; that the school of medicine of which a majority or five of said members of said school board belong are opposed and averse to giving relator a license to practice medicine in the state of Missouri, because relator is a matriculant and graduate of a system of medicine differing from the system of medicine of which a majority of the members of said state board of health are graduates." The return of respondents is in this language: "Now, on this day, come the respondents, and, for return to the alternative writ herein, admit that it is true, as alleged in the alternative writ, that the respondents constitute the state board of health of Missouri, having been duly appointed and qualified as members of said board. They admit that on the 27th day of November, 1906, the relator appeared before respondents, as members of said board of health, in Kansas City, Mo., and tendered to them the sum of $15, the fee allowed by law. They admit that the relator then and there produced satisfactory proof of his good moral character; and they admit that he then and there produced satisfactory evidence that he graduated from the Eclectic Medical University on March 24, 1904, and received a diploma, properly signed by the officers and professors in said university, which diploma was dated March 24, 1904. But the respondents deny that the relator produced to them satisfactory proof that he matriculated in the Eclectic Medical University, or in the medical department of any university, school, or college prior to March 12, 1901, and for further return respondents say that relator produced before them at said time and place a paper which purported to be signed by an officer of said Eclectic Medical University, and which purported to be a receipt for the matriculation fee of relator in said university, and which purported to be signed November 12, 1900; that upon careful inspection of said receipt with a microscope it was discovered that the same was originally dated November 12, 1901, and that the same had been changed to 1900; that the relator produced before them certain affidavits, purporting to have been signed by teachers in said university, which affidavits stated that the relator had attended lectures in said university in the fall of 1900; that they examined certain records and papers of said university, but failed to find...