MISSOURI MEDICAL-PRACTICE ACT.

DECISION OF THE SUPREME COURT OF MISSOURI, in the case of The State ex rel. E. G. Granville vs. the State Board of Health.

THIS is an original proceeding in this Court, having for its object our peremptory writ commanding the 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. Conery, H. F. Hereford and Albert Merrill, 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. 183, 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 diploma to the State Board of Health for verification as to its genuineness. If the diploma is found to be genuine, and if the person named therein be the person claiming and presenting the same, the State Board of Health shall issue its certificate to that effect, signed by at least four of the members thereof, and such diploma and certiflcate shall be deemed conclusive as to the right of the lawful holder of the same to practice medicine in this State. If not a graduate, the person practicing medicine in this State shall present himself before said board and submit himself to such examination as the said board shall require, and if the examination be satisfactory to the examiners, the said board shall issue its certificate in accordance with the facts, and the lawful holder of such certificate shall be entitled to all the rights and privileges herein mentioned.

Section 2. The State Board of Health shall issue certificates to all who shall furnish satisfactory proof of having received diplomas or licenses from legally chartered medical institutions in good standing of whatever school or system of medicine; they shall prepare two forms of certificates, one for persons in possession of diplomas or licenses, the other for candidates examined by the board; they shall furnish to the county clerks of the several counties a list of all persons receiving certificates: provided, that nothing in this act shall authorize the board of health to make any discrimination against the holders of genuine licenses or diplomas under any school or system of medicine.

Section 3. Said State Board of Health shall examine diplomas as to their genuineness, and it the diploma shall be found genuine as represented, the Secretary of the State Board of Health shall receive a fee of one dollar from each graduate or licentiate, and no further charge shall be made to such applicant, but if it be found to be fraudulent, or not lawfully owned by the possessor, the board shall be entitled to charge and collect twenty dollars of the applicant presenting such diploma. The verification of the diploma shall consist in the affidavit of the holder and applicant, that he is the lawful possessor of the same, and that he is the person therein named; such affidavit may be taken before any person authorized to administer oaths, and the same shall be attested under the hand and official seal of such officer, if he have a seal. Graduates may present their diplomas and affidavits as provided in this act, by letter or by proxy, and the State Board of Health shall issue a certificate as though the owner of the diploma was present.

Section 4. All examinations of persons not graduates or licentiates shall be made directly by the board, and the certificates given by the board shall authorize the possessor to practice medicine and surgery in the State of Missouri.

1. The third ground of demurrer will not be discussed because of being irrelevant to the case made by the petitioner and foreign to its allegations.

2. In determining the first ground of the demurrer it is unnecessary to rule whether the act of March 3, 1874, which authorizes

board of directors or trustees of any college to confer degrees is still in force as a part of the general law for these reasons. The date at which the petition alleges the incorporation of the college from which relator claims to have received a diploma is December 17, 1882. This allegation, together with others of the petition, shows that such college was incorporated under the provisions of the general law relating to corporations, and more especially under section 974, et seq., which section provides for the incorporation of any school, college, institute, academy or other association formed for educational or scientific purposes, etc. By these general statutory provisions, which have been accepted and acted upon, an incorporation was effected as set forth in the petition and admitted by the demurrer, resulting in the establishment of "The Kansas City Hospital College of Medicine."

Now, when the legislature authorized, by a general law to that effect, the incorporation of colleges, it must be presumed to have been conversant with the effect of such a general enactment, and to have intended that the usual incidents and consequences should flow from such incorporations. Among the incidents and consequences which have been customary with institutions of this character are those of conferring degrees upon those of the students who, having pursued the curriculum, have graduated, and the issuance to them of diplomas bearing evidence of that fact. This has been done by such institutions since the thirteenth century. (2 Kent Com. 270.) A diploma is said to be "a document bearing record of a degree conferred by a literary society or educational institution" (Webst. Dict.) In short, a statement in writing, under the seal of the institution, setting forth that the student therein named has attained a certain rank, grade or degree in the studies he has pursued. If it be said that there is no express power granted to such an institution, by the general law of its organization, to confer degrees on its students, it may be with much force replied that neither is express power bestowed by that law to prescribe the course of study. the students shall pursue; to punish or expel them for misbehavior or immoral conduct; and yet no would doubt the power of such an institution in this regard, whether provided for in its charter or

not.

In this country "a corporation has authority to do any act which is expressly or implicitly authorized by its charter." "Charters of incorporations frequently prescribe only the main objects of the companies formed under them, authority to use the means necessary to attain these objects must, therefore, be supplied by implication." "Hence it is but reasonable to suppose that where the legislature incorporates a company for the purpose of carrying on a particular business, the intention is that the company shall carry on the business in the usual manner, and that it shall have authority to exercise all powers necessary for the purpose.' "Charters must be construed in the light of custom; such transactions as are customary or usual in the prosecution of a business of the kind in which a corporation is engaged, are impelidly authorized by its charter." Morawets on Private Corp. 151, 152, 189, and cases cited. In Barry vs. Merchants' Exchange Co., 1 Sandf., ch. 289, Vice Chancellor Sandford said: "A corporation, in order to attain

its legitimate objects, may deal precisely as an individual may who seeks to accomplish the same ends." A variety of instances illustrative of this rule may be met with in the authorities, where a corporation, without being specially empowered by charter so to do, in the transaction of its legitimate business may buy, sell or mortgage land, execute notes or bonds, and perform other business acts germane to the purposes of its creation, except when restrained by law. (White Water Canal Co. vs. Vallette, 21 How. 424; Bostock vs. Railway Co., 4 El. and Bl. 819; Ex parte Birmingham Banking Co., L. R. 6, Ch. 83; Ketchum vs. Buffalo, 14 New York, 356.) And it will not be inappropriate to remark, what is well known, that one of the strongest incentives to diligence, industry and habits of good order on the part of students in the pursuit of their studies, is found in the prospect and in the fact that at the end of their arduous collegiate journey, they will receive from their alma mater a lasting testimonial of their toils and their scholastic merits, in the shape of a diploma. These considerations induce the belief that the college of medicine in question, under power necessarily implied from its being incorporated for a certain purpose, could lawfully issue and deliver to its graduates diplomas giving evidence of the matters therein recited. But whether this be true or untrue does not affect the determination of the point in hand; for a corporation when acting within the apparent scope of its charter, when doing acts prima facie legitimate on their face, acts which seem to bear the impress of being germane to the purpose for which it was formed and usual in the ordinary exercise of the powers which the charter confers;-such acts will be presumed infra vires, and the burden of maintaining the contrary lies on him who asserts it. In the absence of proof, no legal presumption obtains that the law in the given instance has been violated; on the contrary, the same favorable intendments will be indulged respecting these artificial bodies, as would be entertained towards natural persons, and these law-made entities are to be held within the benefit of the rule which imputes innocence rather than wrong to the conduct of men. (Morawets' Priv. Corp. 154, and cases cited. Ang. and Ames on Corp. 111, and cases cited; 2 Waite Act. and 'Def., 334.) Now, matters which the law presumes need not be stated in pleading. (R. S. 1879, Sec. 3,543.) The act of issuing and delivering a diploma to the relator being, apparently, within the corporate capacity under the terms of the law of the organization of the college, will, therefore, be presumed legal and within legitimate limits, and this presumption being indulged, obviates any supposed necessity for a direct statement of the possession of corporate capacity to do the act in question. It results that the first ground of the demurrer must be ruled against the respondents.

The second point made by the demurrants will now be discussed in connection with the statute on which it is bottomed. What is the purpose of that statute its central and dominant idea? By what instrumentalities and what methods was that purpose to be effectuated, and that idea clothed with the garments of practical performance? An answer to these questions solves the sufficiency of the petition on the point now being considered. An attentive reading of the statutory provisions already quoted, together with others