The State ex inf. Otto v. Kansas City College of Medicine and Surgery

• Decision Date: 23 June 1926
• Docket Number: 26507
• Citation: 285 S.W. 980,315 Mo. 101
• Parties: The State ex inf. Robert W. Otto, Attorney-General, v. Kansas City College of Medicine and Surgery
• Court: Missouri Supreme Court

285 S.W. 980

315 Mo. 101

The State ex inf. Robert W. Otto, Attorney-General, v. Kansas City College of Medicine and Surgery

No. 26507

Supreme Court of Missouri

June 23, 1926

Ouster ordered.

North T. Gentry, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for relator.

(1) A proceeding by information in the nature of quo warranto by the Attorney-General will lie to forfeit the charter of a corporation for exercising corporate powers without authority or for the abuse, misuse or non-use of its corporate charter. Sec. 10276, R. S. 1919; State v Standard Oil Co., 218 Mo. 345-354. (2) Respondent corporation was organized under what is now Art. XI, Chap 90, R. S. 1919, relating to benevolent, educational and miscellaneous associations. No association, society or company formed for pecuniary profit in any form, shall be incorporated under this article. Sec. 10271, R. S. 1919; In re St. Louis Institute of Christian Science, 27 Mo.App. 640; State ex inf. v. Rod & Gun Club, 121 Mo.App 368. (3) The Attorney-General may institute proceedings by information in the nature of quo warranto against a corporation and thereby inquire into any alleged unlawful acts of or misuser or non-user of its franchise. Sec. 10276 R. S. 1919; State ex rel. v. Board of Trustees, 175 Mo. 58; State ex inf. v. Rod & Gun Club, 121 Mo.App. 368; State ex rel. v. Men's Club, 178 Mo.App. 568; Nicholas v. Evangelical Deaconess Home, 281 Mo. 190. (4) The charter of a medical school may be revoked by the courts when it confers degrees and issues diplomas without regard to the qualifications of the applicant to practice medicine. Ind. Med. Coll. v. People, 182 Ill. 274; Ill. Health University v. People, 166 Ill. 178; Edgar Coll. Institute v. People, 142 Ill. 363; State ex rel. Attorney-General v. College Co., 63 Ohio 341; 10 Cyc. (par. 13) 1291; 11 C. J. (par. 39) 1000. (5) It is and was the duty of respondent to comply with the terms of Sec. 7332, R. S. 1919, as amended, Laws 1923, p. 254, which requires that all persons desiring to practice medicine and surgery in this State shall appear before the State Board of Health and be examined as to their fitness to engage in such practice, and "they shall furnish satisfactory evidence of having received a diploma from some reputable medical college of four years' requirements, including two years' experience of operative and hospital work at the time of graduation." (a) When a corporation is organized under a general enabling act its charter consists of the provisions of the existing State Constitution, the particular statute under which it is formed, and all other general laws which are made applicable to the corporation formed thereunder, and of the articles of association filed thereunder. 14 C. J. (par. 108) 117; State v. Cummings, 13 Mo.App. 200; State ex rel. v. Nat. School of Osteopathy, 76 Mo.App. 443; Danville v. Danville Water Co., 178 Ill. 306; Interstate Cons. St. R. v. Massachusetts, 207 U.S. 84; Westport Stone Co. v. Thomas, 175 Ind. 327. (6) A "degree" is an academic rank recognized by colleges and universities having a reputable character as institutions of learning, and is a form of expression indicative of academic rank so as to convey the idea of scholastic distinction. 11 C. J. (par. 8) 983; State ex rel. v. Gregory, 83 Mo. 130; Steinhauer v. Arkins, 18 Colo.App. 51; People v. N. Y. Hom. Med. Coll., 20 N.Y.S. 379. (a) An "honorary degree" is a sign or token of honor; a title which is held without rendering service. Webster's Unabridged Dictionary. (b) When respondent issued honorary degrees or diplomas it was without the authority of its faculty. Also without authority of its trustees at the time but the acts of the secretary in issuing same were subsequently ratified by a meeting of the trustees only. No faculty meeting was ever held to pass on the issuance of "honorary degrees" and the records of the school show that the faculty never passed at any time on who should receive degrees of any kind. This was violative of its charter powers. Steinhauer v. Arkins, 18 Colo.App. 51; People v. New York Hom. Med. Coll., 20 N.Y.S. 379.

James R. Page and John V. Hill for respondent.

(1) Respondent was entitled to the right of a trial by a jury. The request and demand for this right was timely made. "The right of a trial by jury shall remain inviolate." Section 17, Bill of Rights, Missouri Constitution, 1875. "As heretofore enjoyed" means and is construed as known and used before, under the common law. Manufacturing Co. v. Milling Co., 79 Mo.App 153; State v. Bockstruck, 136 Mo. 335; State v. Hamey, 168 Mo. 167; Berry v. Railroad, 223 Mo. 358. The courts cannot deprive one of a trial by a jury where that right was allowed before the adoption of our Constitution. Minium v. Solel, 183 S.W. 1027; Elks Inv. Co. v. Jones, 187 S.W. 71. At common law in England, the right of a trial by jury was uniformly accorded in all cases where a property right was involved, and it was universally held that a proceeding to forfeit the charter of a corporation involved a property right. Prior to the year 1215 the right of a trial by a jury in England was only accorded by the common law. In that year it was written into the Magna Charta that, "no free man shall be hurt, either in his person or his property, unless by lawful judgment of his peers or equals." Rex v. Bennett, 2 Strange, 995; Neville v. Paine, 1 Croke Eliz. 304 (A. D. 1582); Rex v. Francis, 2 Term Reports (King's Bench) 484; Rex v. Phillips, 1 Burrows (King's Bench) 293; King v. Carpenter, 2 Shower (King's Bench) 47; Rex v. Malden, 4 Burrows, 2135; King v. Bridge, 1 Wm. Blackstone, 47; 5 Bacon's Abridgement, 188; Bracton's Note Book, 241, 862, 1228, 1666; Keilway (King's Bench) p. 151, par. 47, 49; 1 Coke Institutes, 155b, 156a, note; Case of Abbott of Strata Marcella, 9 Coke, 24a; Attorney-General v. Farnham, Hardres (Exchequer, Eng.) 504; 3 Nelson, Abridgement, 42; 14 Petersdorf, Abridgement, 97 et seq.; 2 Coke's Institutes, 494, 496; Rex v. Higgins, Raymond T., 484; Rex v. Cambridge, 4 Burrows, 2010; Rex v. Mein, 3 Term Reports (King's Bench) 596; Angell and Ames on Corporations, sec. 741; Chapter 29, Magna Charta, 1215. Chapter 29, Magna Charta 1215, and the law of England insofar as they are not repugnant to or inconsistent with our Constitution, or have not been amended by our Legislature, are now and have been the law of this State since January 19, 1816. Sec. 7048, R. S. 1919. In a case decided in 1731 a rule was granted to show cause why an information in the nature of quo warranto should not go against the defendant. His counsel asked the court to determine the point on the rule and not put defendant to the expense of a jury trial, but the court made the rule absolute, thinking it fit to have the question of fact determined by a jury. King v. Pool, 2 Barnard, 93. In King v. Clark, 1 East (King's Bench) 38, the court said: "The question is put too much 'in dubio' by the affidavit by either side for the court to say that it is not proper to be inquired into by a jury." Similar remarks were made in the case of Clark v. Bingham, 2 East, 308. It was the universal and uniform rule in quo warranto proceedings at common law, brought to vacate, or forfeit charters of corporations, to accord the respondent a trial by jury to determine the facts, and the great weight of authority in America is to that effect. People v. Sackett, 14 Mich. 243; People v. Albany Railroad Co., 57 N.Y. 161; People v. Doesburg, 16 Mich. 133; Harbaugh v. People, 33 Mich. 241; State v. Norton, 46 Wis. 332; State v. Burnett, 2 Ala. 140; Lee v. State, 49 Ala. 43; Commonwealth v. Woelper, 3 Serj. & Rawle, 29; Commonwealth v. Smith, 45 Pa. 59; State v. Funck, 17 Iowa 367; State v. Norwalk Turnpike Co., 10 Conn. 157; People v. Cicott, 15 Mich. 326; State v. Messmore, 14 Wis. 115; State v. Foster, 32 Kas. 14, ex gratia; Paine on Elections, sec. 903; Reynolds v. State, 61 Ind. 392; Wood, Mandamus & Quo Warranto, p. 234; High, Extr. Legal Remedies, secs. 740, 741; People v. Richardson, 4 Cowan, 97, 100, note; State v. Addison, 6 Wall. 291; Van Dorn v. State, 34 Fla. 62; Donnelly v. People, 11 Ill. 552; Wight v. People, 15 Ill. 417. The latest case decided in this State in an opinion written by Judge Faris in which this question was thoroughly discussed, Judge Faris said: "The personal views of the writer are that present a timely request for a jury in the trial of an information in the nature of quo warranto, having for its object the forfeiture of the franchise or the confiscation of the whole or a part of the property of a corporation, such request ought to be granted and the case sent down to a circuit court to be tried by a jury on issues of fact framed by this court." This opinion was concurred in by Lamm, C. J., and Graves, Bond and Walker, JJ. State v. Arkansas Lumber Co., 260 Mo. 212. (2) The court erred in striking out portions of respondent's answer and thereby depriving it of the right to show the real facts in connection with the purposes for which the school is being conducted, and whether or not the present condition of the school is caused by this respondent, or the wrongful and malicious acts of the agents of the State who are seeking to forfeit its charter. (3) Information in the nature of quo warranto will lie to forfeit the charter of a corporation. Sec. 10276, R. S. 1919. The relator, however, refused to bring itself within the provision of this statute; refused to comply with the provisions of the statute; refused to file its information in the county in which the corporation was organized, and this court upheld relator in its refusal, and denied respondent the rights given to it under this section of the statute. (4) To forfeit a corporate franchise it must be shown either...