author: LAMM, J.

text:
    SAMUEL FELLER, Appellant, v. J. LUTHER LEE.
    In Banc,
    February 2, 1910.
    1. TAX SALE: Wrong Name. Where the entryman was Thomas M. Kean, a sale based on a judgment for taxes against 'Thomas McKean conveyed no title.
    2. -: Neither Actual Nor Record Owner. Where Rylett sold the land in March, 1891, by deed recorded April 23, 1892, a tax sale under a judgment against Rylett as owner' bearing date March 28, 1896, followed by a tax deed dated September, 1896, conveyed no title, nor color of title.
    3. LIMITATIONS: No Claim of Ownership. Possession alone is not sufficient to give title, however long. To finally ripen into a good title under the Statute of Limitations it must be under claim of ownership. A trespasser, in possession under no claim of ownership or title of any degree or character, admitting himself to hold by wrong and not by right, cannot acquire title by limitations.
    4. EJECTMENT: On Strength of Plaintiff’s Title: Common Source. Where there is a common source of title, either admitted or shown to exist, the rule that plaintiff in ejectment must recover upon the strength of his own and not on the weakness of defendant’s title, does not apply as to infirmities in the title anterior to the common source. So that where plaintiff claims as grantee of Rylett, and defendant under a tax deed and judgment against Rylett, it is immaterial whether Rylett ever really had any title or not; but the point for decision is, did plaintiff or defendant acquire what Rylett owned, whatever it was?
    5. -: -: Possession: Limitations. And where defendant, after acquiring such tax deed, went into possession under his deed, he is presumed to continue to hold under such deed, and cannot by mere change of mental attitude change his possession into that of a trespasser.
    6. -: Outstanding Title: Redemption. In order for a defendant in possession to defeat plaintiff in ejectment by a showing of an outstanding title in another, he must show a legal title. An outstanding equitable title, in another, such as the right of redemption, is not sufficient, especially where no equitable defense is pleaded.

      7. DEED OF TRUST: The Then Sheriff: Sheriff as Second Party. The deed of trust named the “sheriff of Webster county” as party of the second part, or his successors in trust, and provided that in case of default in payment of the principal or interest or taxes the whole of the indebtedness “at the option of the holder” should forthwith become due and payable, and “the said party of the second part, or in case of his absence, death, refusal to act, or disability in any wise, the then acting sheriff of Webster county, at the request of the legal holder of said noté or any of them, may proceed to sell,” etc. Held, first, that a sale by the sheriff in office at the time the sale was made and his deed in pursuance thereof, carried the legal title; and, sec'ond, the language used did not mean the sheriff in office when the deed of trust was made, nor the sheriff in office when default in payment was made, but it meant the sheriff in office when the holder of the notes requested the property to be sold. [Distinguishing McNutt v. Life Ins. Co., 181 Mo. 94.]
    Appeal from "Webster Circuit Court. — Hon. Argus Cox, Judge.
    REVERSED AND REMANDED (with directions).

      J. P. Smith, G. A. Newton, M. H. Winger and Karnes, Neto & Krauthoff fox appellant.
    (1) The circuit court properly held in the trial of this case that, since defendant had continually claimed title by virtue of his said tax deed and said tax deed came from a common source with plaintiff’s claim to title, and since defendant, in case judgment was entered in his favor, could properly have come into court after September 21, 1906, and pleaded his peaceable, adverse possession for a period of ten years under a claim of title based upon his said tax deed, he could not for the purpose of this case waive his claim to title under said tax deed and plead his possession alone, but that since he and plaintiff had continually claimed under a common source of title, defendant must stand or fall upon that title. (2) Defendant contends that inasmuch as the words “to his successor or successors,” which follow the words “party of the second part” in the habendum clause of the trust deed in question, do not appear in the granting-clause, there exists a repugnancy, and that the granting clause must govern and that no one could become trustee except the sheriff of "Webster county, Missouri, who was acting at the time said deed of trust was executed. If defendant’s contention is the law, then the court erred when it decided in the McNutt case, that the acting sheriff of Jackson county, at the time Eoland E. Conklin disqualified, became the trustee, for the reason that the granting clause in that case mentioned no one as trustee except Samuel M. Jarvis. It is evident in the case at bar, that the habendum clause is not repugnant to, but explanatory of, the granting clause. Plaintiff contends that under a reasonable and sensible construction of the deed of trust, in the case at bar, said deed was properly foreclosed and that said foreclosure in no way conflicts with the doctrine laid down in the McNutt case and that the intention of the parties was properly carried out. But even if there was any doubt as to the intention of the parties and more than one construction were possible, then that construction should be adopted which would make said deed of trust effectual and not defeat it.
   LAMM, J.

The suit is ejectment. On a trial, without the aid of a jury, judgment went for defendant, and the cause is here on plaintiff’s appeal.

Ouster is laid as of March 2, 1905. Other aver-ments of the petition are conventional. The land in. dispute is the East one-half of the Southwest quarter of section 4, township 28, range 17, Webster county. The answer admits possession and denies other aver-ments.

Plaintiff’s case on the proofs and admissions is this:

(1) An admission in open court that defendant was in possession.

(2) A quitclaim deed from John Rylett to I. S. Wilson, dated March 24, 1891, recorded April 23, 1892.

(3) A warranty deed from I. S. Wilson to Geo. B. Hayes, dated September 1, 1894, recorded September 5, 1894.

(4) A warranty deed from Geo. B. Hayes to E. Lemphere, dated September 4, 1894, and recorded two days later.

(5) A deed of trust from E. Lemphere, party of the first part, .to the “sheriff of Webster county, Missouri,” party of the second part — -Geo. B. Hayes, party of the third part, beneficiary, securing a principal note for $600 due in five years from September 5, 1894, and five annual interest notes for $48 each. (Plaintiff’s title hinging on a foreclosure of this deed of trust, its narrations will receive attention hereafter. For convenience it will be called ‘A.”) Bated the 5th of September, 1894, and recorded one day later.

(6) A trustee’s deed foreclosing A from H. S. King, sheriff of Webster county, Missouri, to E. R. Durham, dated May 9, 1903, recorded September 29, 1904. (Some of the narrations of this deed are pertinent to points considered and will receive attention later. For convenience this deed will be called “B.”)

(7) A quitclaim deed from E. R. Durham to “Dan F. Blake,” dated February 10, 1904, and recorded March 23, 1904.

(8) A trustee’s deed in bankruptcy from Daniel F. Blake as trustee to Samuel Feller, plaintiff, dated January 23, 1905, recorded two days later. This deed recited, inter alia, that said Blake was elected trustee in bankruptcy of the estate of Robinson Implement Company; that as such trustee he was ordered by the referee in bankruptcy to sell the assets of the bankrupt estate, including the land in question; that in pursuance of said order he sold the land to Feller, and, by virtue of the power of authority in the order of the sale, conveyed it to him.

(9) A quitclaim deed from “Dan P. Blake” to plaintiff dated February 18, 1905, recorded September 26, 1905.

(10) It was admitted that the note secured by A (Hayes, payee, and Lemphere, payor,) at the time of the foreclosure belonged to the bankrupt estate' of Robinson Implement Companythat E. R. Durham (purchaser under B) was at the time acting as temporary receiver of the said Implement Company, and that he purchased at the foreclosure sale for the benefit of said bankrupt estate; it was shown by plaintiff’s testimony and not contradicted that the deed from Durham to “Dan F. Blake” (No. 7) was made to said Blake in his capacity as trustee of said bankrupt estate; that plaintiff purchased at the sale of the assets of the bankrupt estate and received a trustee’s deed (No. 8) and that Dan F. Blake subsequently quitclaim-ed to plaintiff in order to convey the record title put in him by No. 7.

(11) It was admitted that the rents and profits were of the value of $2 per month.

(12) In making plaintiff’s case, other admissions were made in open court, vis., that James Goss was the sheriff of Webster county, from January 1,1893, to the thirty-first day of December, 1894; that he moved out of the county on March 1, 1900; that he moved back to the county on the 10th day of September, 1900; that he lived with his family in the county until the 16th day of March, 1903, and moved out of the county with his family on that date and has ever since resided out of it; that J. R. Ray succeeded him, his term running from January 1, 1895, to December 31, 1896; that he was succeeded by James Hailey, whose official term ran from January 1, 1897, to the end of December, 1900; that Hailey was succeeded by Julian, whose official term ran from January 1, 1901, to the end of December, 1902; and that H. S. King (trustee executing B) was the duly qualified and acting sheriff from January 1, 1903, up to and inclusive of December 31, 1904, and that he was such sheriff on'the date he foreclosed A.

(13) Plaintiff also offered in evidence a tax Judgment against the land, dated March 28, 1896, against John Rylett, owner, and followed that by putting in evidence a sheriff’s .tax deed pursuant to such judgment, conveying the land to defendants, said deed dated September 21, 1896, and recorded November 14, same year.

Defendant’s case was this:

(1) He put in evidence the plat book of land entries of Webster county showing the land entered from the Government by Thomas M. Kean, under date of 'September 5, 1857.

(2) Next, a tax judgment dated September 30, 1878, in a suit wherein “Thomas McKean” was defendant.

(3) Next a sheriff’s deed under such judgment to I. S. Wilson (grantee of John Rylett under No. 2 in plaintiff’s chain of title) which said deed bore date of March 26, 1880, and was recorded the next day.

(4) Oral evidence was elicited from defendant in person to the effect that he had been in possession for nine years and six months, had fenced the land, cleared off the timber from about thirty-five acres, put that much of it in cultivation, and “that he took possession of said land under the tax deed” (see No. 13 in plaintiff’s case made), “but that he ivas claiming said land by right of possession and not by right of title.” His other testimony tended to show that neither plaintiff, nor those under whom he claims, had ever been in possession.

(5) Through the cross-examination of defendant a correspondence got into the case, the letters passing between J. P. Smith, representing the title under the foreclosure of A, and defendant. The purpose of it was. to unite the two titles by buying or selling. In his letters defendant asserted that he had a tax title and wanted an offer on his own or a price on Mr. Durham’s title. In one he wanted to know if an abstract and warranty deed would be made if he made an offer. In another he contrasted his own title with that held by the other side and said his was as good as theirs. In another he said he thought he had a good title, referring to his tax title.

(6) A petition in a suit to quiet title. It was entitled Dan F. Blake, plaintiff, against the present plaintiff and defendant as eodefendants. The date of filing, whether summons was sued out on it, and the purpose of introducing it, are dark.

The court gave an instruction for plaintiff that the tax deed under which defendant claims was invalid, and then refused to instruct that A was properly foreclosed and that B conveyed title to Durham. Judgment for defendant on the merits following that refusal.

Defendant filed two motions here — one, to transfer to the St. Louis Court of Appeals — the other, to affirm because of no proper affidavit for appeal. Both motions were overruled. After these motions, defendant became voiceless, filing no brief.

Having- the burden of showing error to reverse the .judgment, plaintiff’s counsel undertake to state the position of defendant as well as their own below and here. As defendant stands mute we may indulge the presumption that he is satisfied with plaintiff’s statement of the contentions, vis.: On plaintiff’s behalf that there was a common source of title, John Ry-lett; hence, in order to prevail, plaintiff did not have to go beyond such common source in proof of title. On defendant’s behalf that there was no common source of title, that plaintiff must make out his case on the strength of his own and not on. the weakness of defendant’s title, hence should have traced title from the Government. Again, on plaintiff’s behalf that King was the proper sheriff to foreclose A — on defendant’s behalf that he was not and therefore no title passed by B to Durham.

On the record outlined can the judgment stand? We think not. This, because:

I. Plaintiff did not trace title to the Government. The land was entered by Thomas M. Kean. Wilson purchased at a tax sale based on a judgment against ‘ ‘ Thomas McKean. ’ ’ Counsel do not contend that sale and deed following conveyed the title of the entry-man, Thomas M. Kean. However, John Rylett conveyed to Wilson. The source or character of Rylett’s title is not disclosed. The date of his deed to Wilson was March 24, 1891, recorded April 23, 1892. Defendant’s paper title originated in a tax sale on a judgment against Rylett as owner bearing date March 28, 1896, and a tax deed following on September 21, 1896. Now if John Rylett be the common source of title, then plaintiff’s title is superior to defendant’s because the record title had passed out of Rylett to Wilson long prior to the tax suit, sale and deed through which defendant claims. Rylett owned nothing at that time, hence the sheriff’s deed to defendant conveyed nothing. To get around a common source of title, defendant, while admitting he went into possession under his tax deed and while his correspondence shows he rested on his tax-deed title and proposed to dicker, sell and convey on the basis of it, yet on the witness stand he seemingly saw a great light, to-wit, that he did not hold under his tax title but by virtue of a foothold under the doctrine of “squatter sovereignty” — pedis possessio, pure and simple. His testimony was that he “was claiming said land by right of possession and not by right of title.” By the phrase “right of possession,” he could not have meant title by limitation, for limitation had not run. He must have meant a squatter’s right and nothing else. But did he really mean what he said? Let us see. On such theory, however aged his possession, he could get no title by it. This because a trespasser, a mere squatter, in possession of land, under no claim of ownership or title of any degree or character, admitting himself holding by wrong and not by right, can not acquire title by limitation at all. A possession finally ripening into a good title under the statute of limitations must have the grace of being under a claim of right or ownership. It is the hud of such ‘ claim” that flowers finally into title by ten years ’ adverse possession. [Hunter v. Wethington, 205 Mo. 284; Sanford v. Kern, 223 Mo. 616; Hunnewell v. Adams, 153 Mo. 440; Stevenson v. Black, 168 Mo. l. c. 560 et seg.] So that it is quite apparent that defendant, in trying to avoid the peril of a common source of title which peril led him to repudiate holding under his tax deed, would have us believe he was holding possession as a squatter — a possession never to he blessed by any flux of time.

Let us suppose the ejectment suit had not been instituted until the ten-year limitation had run. Is it thinkable that defendant at the trial would not have claimed his tax deed- filled an office in establishing title, that he had ownership by continuous adverse possession under claim of right and under color of title?

Moreover, the law presumes every possession is consistent with some title. So a presumption arises that he who goes into possession of land under a deed, as defendant admits he did under the Rylett deed, continues to hold possession under such deed. The burden was on defendant to rebut the presumption. That burden he did not well carry. No such rebuttal will arise by a mere shift in mental attitude — a shift of position newly sprung to meet the exigencies of a law suit, ephemeral in character. There must be something palpable, some unequivocal act; for, as faith is shown by works, so defendant, if lie repent of bolding under bis deed, must bring forth frnit mete for repentance.

We conclude there was a common source of title, to-wit, John Rylett. That being so, the infirmities in John Rylett’s title, if any, were common infirmities affecting the common stem of the title and in no wise affecting the controversy between plaintiff and defendant. Nor does defendant bring himself within any exception to the doctrine of a common source of title. So that, whether that doctrine proceeds in the nature of estoppel or as a rule of mere convenience in trying title, it is applicable here. [Harrison Machine Works v. Bowers, 200 Mo. l. c. 234 et seq. and cases cited.]

Where there is a common source of title, agreed to, assumed or shown to exist, the rule that plaintiff, in ejectment must recover on the strength of his own and not on the weakness of defendant’s title, as to infirmities existing in title anterior to its common source, is departed from.

The point is ruled against defendant.

II. This brings us to other questions: The trustee named in A was the “sheriff of Webster county, Missouri, party of the second part.” The granting-clause of A ran: “Unto the said party of the second part.” The habendum clause ran: “To Have and to Hold the same with the appurtenances to the party of the second part, and to his successor or successors in trust, and to his or their grantees and assigns forever. In trust, however, for the following purposes:” (Here follows the declaration of trust.) After describing the principal note secured and five annual interest notes, the deed provides that if the principal and interest notes be paid when due and if the grantor, Lemphere, pay taxes to accrue and keep the premises clear of statutory liens until the secured indebtedness shall be paid, then the deed shall be void, etc. But if Lemphere refuse or fail to pay the debt or interest or any part thereof when due or payable or discharge such statutory liens, the holder of the indebtedness may pay the same, and such sums with eight per cent interest shall be a charge upon the premises and secured by A. It provides further that on the happening of any of the failures or refusals narrated, the deed shall remain in force and “at the option of the holder” of said indebtedness, the whole of the indebtedness shall become due and payable forthwith. Then follows this clause: “And the said party of the second part, o,r in ease of his absence, death, refusal to act, or disability in anywise, the then acting sheriff of Webster county, Missouri, at the request of the legal holder of said note or any of them, may proceed to sell the property hereinbe-fore described or any part thereof at public vendue to the highest bidder, ’ ’ etc.

Conveyance B narrates, inter alia: “And, whereas, default was made in the payment of the said note, secured in said deed, by .reason whereof, I, H. S. King, sheriff of Webster county, Mo. and trustee, at the request of the legal holder of said note did proeeéd to execute the powers to me given by said deed, and having previously given twenty days’ notice of the sale hereafter mentioned, ’ ’ etc. Further along it narrates: “That, I, the undersigned trustee, and sheriff of Webster county, Missouri, in consideration of the premises and of the sum of four hundred dollars to me paid and credited on said note as above stated, and paying the expenses of said sale by the said E. R. Durham of the county of Jackson and State of Missouri, do hereby bargain, sell and convey unto the said E. R. Durham,’ etc.

The principal note secured by A fell due September 5, 1899. The foreclosure was on the 9th of May, 1905, and B was executed on that day. At the date of the execution of A, James Goss was sheriff of Webster county. At the foreclosure he was out of office and had not lived in the county since March 16, 1903., The foreclosure was made because of default iu the payment of the principal note. James Hailey was sheriff when the principal note became due and King was sheriff at the date of the foreclosure. Between Goss’s term and Hailey’s term, Ray held the office for a term, and between Hailey’s term and King’s term Julian held the office for a term.

On a record thus outlined more than one question is put to us. One is: Which of those sheriffs was clothed with power to make a sale under A? It seems defendant claimed below that (not King, but) Goss was the right party to act as trustee. Contra, plaintiff claimed below and claims here that King was the proper party. Another question is: Assuming the legal' title passed by the sale and that the outstanding title, if any, is a mere equity of redemption, then is such equitable right of redemption, if existent, a defense in straight ejectment dealing only with the legal title?

We will consider the last question first. .

(a) If there was a defective foreclosure and a consequent right of redemption left, who had that right ? Plainly Lemphexe and not defendant, a stranger to Lemphere’s title. But waiving that view, and conceding that a defendant in possession can show an outstanding title in another to defeat ejectment, he must at least show an outstanding legal title. Especially so in this case because his answer (barring an admission of possession) was a general denial with no equitable defense pleaded. That in straight ejectment, with no equitable defense interposed, a defendant in possession cannot defeat recovery because of a right to redeem from a defective and irregular foreclosure of a deed of trust, is steadily held by this court. [Biffle v. Pullam, 125 Mo. 108, and cases cited; Kennedy v. Siemers, 120 Mo. 73; Springfield Co. v. Donovan, 120 Mo. 423; Lanier v. McIntosh, 117 Mo. 508; Schanewerk v. Hoberecht, 117 Mo. 22; Cobe v. Lovan, 193 Mo. 235; Adams v. Carpenter, 187 Mo. l. c. 634-5.]

In the Lanier ease it was held: “A mere right of redemption in a third person, after foreclosure, is not such an outstanding title as will defeat a recovery in ejectment. The title ‘must be such a one as the owner of the title himself could recover on if he were asserting it in an action. It must be a present, subsisting and operative title.’ ”

The cases last cited proceed on the theory that the legal title is in the trustee of a deed of trust and is conveyed by an irregular and defective foreclosure subject to the right of redemption. The Schanewerk case, we think, must be .read in connection with Benton Land Co. v. Zeitler, 182 Mo. 251, which somewhat limits its application, but in no particular pertinent here. Deed of trust A conveyed the property to “the sheriff of Webster county. ’ ’ The name of no individual is mentioned. Now, “the sheriff of Webster county,” in the person of King, executed the trust and conveyed at least the legal title by B to Durham. The narrations of the trustee’s deed were true, prima facie. Any defect or irregularity in the foreclosure arises dehors these two deeds and the record of them, and rests in matter in pais. The defects and irregularities considered in the Schanewerk case and those following it, which did not prevent the vesting of the legal title in purchasers at foreclosures, were as vital and far-reaching as those (if any) in the sale in hand. It would seem, therefore, that the doctrine of those eases controls this one., viz.: That whatever the outstanding title, it is not a legal one but an equitable right of redemption, hence is no bar to recovery in ejectment where no equitable defense is interposed.

We might stop at this point and treat the case as determined, but there is another question urgently crying for settlement.

(b) That question is: Were there any irregularis ties in the sale in respect to the execution of the power vested in the sheriff by A? We think not. The ques-lion binges on getting at the meaning of tlie language used and thereby uncovering the intention of the parties to the contract, the deed of trust. [Linville v. Greer, 165 Mo. 380; Wolfe v. Dyer, 95 Mo. 545; Utter v. Sidman, 170 Mo. 284; Hanna v. Land Co., 126 Mo. 1; Knapp v. Publishers, 127 Mo. 53; Buxton v. Kroeger, 219 Mo. 224.]

To ascertain the intention of the parties to a deed or other contract the instrument must be viewed as a whole from end to end and corner to corner and interpreted in the light of the circumstances surrounding the parties, the object to be subserved, and with common sense. Attending to that instrument we see that Lemphere was giving security for a note due Hayes. For the purpose of that security a trust was created and the legal title was vested in the trustee, not out- and-out for all purposes, but merely for the purpose of executing the trust. [Benton Land Co. v. Zeitler, supra.] The trust created and power donated are limited by the fact that the trustee may never be called upon to act. His bare legal title is so modified by the purposes of the trust that the trust may terminate or fall in if the debt is paid. The dominant idea that the whole instrument is but a security for the debt must be kept steadily in view, and not only does the trust end and the legal title revest on the payment of the debt but the trustee in the deed of trust cannot convey his bare legal title by deed disconnected from executing the power donated. Not only so, but a succession of trustees is carefully provided. In certain named contingencies the original trustee becomes functus officio and his named successor is to execute the power. Now in this trust deed there is no hint that Lemphere and Hayes- were contracting that Goss, then sheriff, alone held a donation of power to execute the trust. To the contrary, the parties industriously and of set purpose provided for a line of succession to make the security effectual and easily accomplished by avoiding complications or accidents in tlie way of foreclosure. The foreclosure being of the very life of the contract, in very reason the languag-e used must he construed with reference to that capital event. Under the contract terms, the time of foreclosure was held potentially in the grasp of the owner of the indebtedness. The trustee could not legally move without his request. When the owner was ready to make the request and to'set on foot a foreclosure, what was he to do? Obviously, he would look about him to find the proper person to request. The whole instrument led up to the one crucial time and event. In casting about to discover the trustee, the owner found Gloss absent from the county and King to be the sheriff of Webster county. He was the “then” sheriff. The deed means that the then sheriff had power to act, and “then” refers to the time a foreclosure was demanded by the holder of the indebtedness. We cannot well construe the instrument to mean that Gloss, sheriff at the date of its execution but absent from the county and residing elsewhere at the date of the foreclosure, was the only person to act in foreclosing. And there is nothing in the instrument, as we see it, indicating that we must look around for the date of default in the payment of the secured note and search out who was sheriff at that particular time. Why do that? The time of default might hinge on the non-payment of an interest note or the happening of some other contingency mentioned in the deed. By an extension agreement, the date of default might be altered. So default might spring from the non-payment of taxes, etc. So there might be more defaults than one, happening at different times, and some of them might be waived. Again, the paper may have changed hands and information as to these .defaults may not be in possession of the present holder. Keeping in mind these usual incidents in the life of a deed of tru.st securing one or more notes, what sensible present purpose within the intent of the parties to the contract could be subserved by construing the phrase, “the then acting sheriff of Webster county, Missouri,” to mean the sheriff in office when the deed was executed or the sheriff in office on the springing of one or another default! Why say the mere time of default was of significance when the time of foreclosure obtrudes itself as the chief thing! Such construction of the contract would inevitably lead parties and courts afield to flounder in bogs of practical difficulties and uncertainties in construction, with no visible corresponding benefit attained, and no sensible purpose of law subserved.

Fflrthermore, it is believed that the custom has long been to select as the sheriff, clothed with authority under deeds of trust, couched in the terms of this, the one in office at the date of the foreclosure in the contingency of absence, death, refusal to act, etc. That is the simple plan, free from trouble and doubt, easy of determination and evidently the plan within the contemplation of the contracting parties as set forth in their language.

An analysis of the terms of the trust deed held in judgment in McNutt v. Life Ins. Co., 181 Mo. 94, shows that the contract language construed differs in (possibly) material features from that under consideration here. But the McNutt case apparently runs somewhat counter to the views entertained by us and herein expressed. That case was in Division Two. For the purpose, then, of preventing confusion in rules of law affecting real estate and tending to unsettle land titles in Missouri, and to procure a single, certain, clear and authoritative utterance of the whole court on the question, this case should be transferred to Banc to be ruled by all the brethren. We accordingly reverse the judgment and remand the case with directions to enter judgment for plaintiff for possession and rents at $2 per month from date of ouster.

Going into Banc and being reheard there, the foregoing Divisional opinion of Lamm, J., is adopted as the unanimous opinion of the Court in Banc. The judgment is accordingly reversed and remanded with directions given in that opinion.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. ABBOTT et al. v. ADCOCK et al., Appellants.
    In Banc,
    February 2, 1910.
    1. PHYSICIAN: License: Reputable College: Burden. Under tbe Act of 1907 (Laws 1907, p. 359, sec. 3), requiring all persons desiring to practice medicine or surgery to appear before tbe State Board of Health for examination and present satisfactory “evidence of having received diploma from some reputable medical college of four years’ requirements at the time of graduation,” the burden is on the applicant to show to the board that the medical college whose diploma he holds is a reputable medical college, and he must show that to the reasonable satisfaction of the board, as a necessary condition of his right to an examination for a license to practice.
    2. -: -: -: Standards. The State Board of Health had the power, under said act, to adopt and promulgate fixed rules and regulations as a standard by which a medical college would be adjudged to be “reputable,” not for the purpose of refusing to a graduate of a medical college which did not measure up to the standard an examination touching his qualifications, but for the purpose of giving notice, in advance, of the minimum amount of work that would satisfy the board that a medical college was reputable. But though such rules were entirely void, the board was under no legal obligation to examine an applicant until he furnished satisfactory proof that the medical college from which he graduated was “reputable.”
    3. -: -: -:-: Refusing Examination. If the applicant to the State Board of Health for an examination and license to practice medicine, tender satisfactory evidence that the medical college from which he holds a diploma is a reputable medical college, the board cannot arbitrarily refuse him an examination because the medical college has not complied with rules and regulations fixed by the board as a minimum standard of instruction, etc. The proof being offered, the board must determine whether or not the medical college is reputable, and it cannot determine it in the negative on the ground that the college has not complied with standards previously fixed by it.
    4. MANDAMUS: Action Demanded. A writ of mandamus will not issue until a legal reguest for action has been made to the ministerial officer, and illegally been declined.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.
    REVERSED' AND REMANDED (with directions).

      Elliott W. Major, Attorney-General, Charles G. ReveÜé and James T. BlairAssistant Attorneys-General, for appellants; Morton Jourdan of counsel.
    (1) The burden was on the relators to furnish evidence to the State hoard that Barnes University was a “reputable” medical college at the time rela-tors were graduated. 1. The statutes, as amended in 1907, expressly required that all applicants for examination before the State Board of Health “shall furnish satisfactory evidence of having received diploma from some reputable medical college of four years requirements at the time of graduation.” Laws 1907, p. 360. This language is susceptible of no other construction than that the burden was upon the relators, when they applied for examination, to produce evidence of the reputability of Barnes University. State ex rel. v. Chittenden, 112 Wis. 584; State ex rel. v. Coleman, 64 Ohio St. 387. 2. Relators did not at any time offer to produce to the state board any evidence as to the reputability of Barnes University. It is not to be presumed that if relators had proffered the requisite proof the state board would have refused to hear it. State ex rel. v. Chittenden, 112 Wis. 584. (2) Relators having failed to comply with the statute, this suit cannot be maintained. 1. Relators having failed to furnish the state board any sort of evidence as to the reputability of Barnes University, cannot invoke the writ of mandamus. The burden being placed by statute upon relators to take the initiative and offer tbe proof, thereby to set the board in motion, and relators having failed to comply with this condition precedent, they cannot maintain this proceeding. The language of the statute is plain and unequivocal. Re-lators cannot predicate a right to recover upon the mere fact, if it was a fact, that Barnes University was, or is, reputable. The People ex rel. v. Dental Eixmrs., 110 Ill. 186. 2. Manifestly, relators cannot ground a right to the writ upon the fact that Barnes University was and is a reputable school, had they proved it never so well. People ex rel. v. Dental Exmrs., 110 Ill. 186. Either (1) the Board of Health must decide that the college is reputable, or (2) the board, on the evidence produced to it by relators, as the statute requires, must act so arbitrarily and oppressively as to warrant judicial interference, else the writ cannot go. (3) The decision of the board in 1907 that Barnes University was not reputable did not excuse relators from offering the evidence required of them by the statute. No presumption can be indulged that had relators produced to the board, as the statute required, the evidence which they produced on the trial, the board would have refused to hear it or would have refused to find the college reputable. State ex rel. v. Chittenden, 112 Wis. 584; State ex rel. v. Med. Col., 64 Ohio 387. The point to be determined was the reputability of Barnes University at the time relators were graduated and presented themselves for examination. The facts before the board in November did not lose all their evidentiary force by the mere lapse of time. State ex rel. v. Chit-tenden, 112 Wis. 579; Board of Health v. People, 102 Ill. App. 616; State ex rel. v. Coleman, 64 Ohio St. 387. No effort to secure a reinvestigation was made, and no effort to remove, or suggestion looking toward the removal of the board’s impression that tbe college was not reputable, was made. State ex rel. v. Obittenden, 112 Wis. 580. (4) Tbe statute was notice that relators must prove Barnes University’s reputability. State ex rel. v. Webster, 150 Ind. 615. (5) Tbe trial court simply usurped tbe board’s functions and permitted the proof, which tbe statute (Laws 1907, p. 360) requires to be submitted to tbe board, to be offered, for tbe first time, to tbe circuit court of tbe city of St. Louis. State ex rel. v. Obittenden, 112 Wis. 575; State ex rel. v. Gtregory, 83 Mo. 136; State v. Medical College, 60 Ohio St. 123. (6) Relators, in proceedings by mandamus, must always show a clear and specific right to tbe relief claimed. State ex rel. v. McIntosh, 205 Mo. 635; State ex rel. v. Bridge Co., 206 Mo. 134; Kirchgessner v. Board of Health, 53 N. J. L. 596. Tbe writ should never be granted in doubtful cases. State ex rel. v. Bridge Oo., 206 Mo. 147; State ex rel. v. Buhler, 90 Mo. 570; 2 Spelling on Mandamus, sec. 1441.

      W. D. Harris, G. D. Corum and J. S. McIntyre for respondents.
    (1) Tbe State Board of Health of Missouri is an administrative and not a judicial body, and its acts are subject to review by tbe courts. And mandamus is tbe proper procedure for such review. State ex rel. v. Board of Health, 103 Mo. 29; State ex rel. v. Lutz, 136 Mo. 633; Board of Health v. People, 102 Ill. App. 616; State ex rel. v. G-oodier, 195 Mo. 560; State ex rel. v. Adcock, 206 Mo. 550. (2) Under tbe laws of this State tbe State Board of Health has no authority to adopt and promulgate fixed rules and regulations as tbe standard by which the various medical colleges of this State will be adjudged reputable or non-reputable within tbe meaning of tbe statute relating, to tbe practice of medicine and surgery. The word ‘'reputable” as applied to medical colleges means reputation and must be proven in the same way. State ex rel. v. Lutz, 136 Mo. 639; State Board v. People, 123 Ill. 227; State ex rel. v. Chittenden, 112 Wis. 584; People ex rel'. v. State Board, 110 I1L 180. (3) Where the acts of the State Board of Health are oppressive, arbitrary, manifestly unjust and against the weight of the evidence, relief will be granted by the courts where such instances are brought before the courts in a mandamus proceeding. State ex rel. v. Board of Health, 103 Mo. 29; State ex rel. v. Lutz, 136 Mo. 633; Board of Health v. People, 102 Ill. App. 616; State ex rel. v.’ Adcock, 206 Mo. 550; State ex rel. v. Lutz, 136 Mo. 639; State Board v. People, 123 Ill. 227; State ex rel. v. Chitten-den, 112 Wis. 584; People ex rel. v. State Board, 110 Ill. 180.
   WOODSON, J.

This was a proceeding in mandamus, instituted in the circuit court of the city of St. Louis, at the June term thereof, 1908, by relators against respondents and appellants to compel the latter to examine them, touching their qualifications and fitness to practice medicine and surgery in the State of Missouri.

An alternative writ was issued and duly served upon respondents, who, in due time, filed their return thereto. A trial was had, which resulted in findings for relators, and a judgment making the alternative writ of mandamus theretofore issued permanent, etc. After taking proper steps in that direction, respondents duly appealed the cause to this court.

In order to properly understand the issues joined and the legal propositions presented to us for determination, it will be necessary for us to set out the pleadings filed in the case.

The petition was as follows (formal parts omitted) :

“The State of Missouri, at the relation of James Wesley Abbott, Charles Horace Cullers, Elmer Lee Cox, William S. Clarenbach, John Ulysses Day, Claude Emerson Duvall, Francis Howard Emmons, Florence Onrat Egers, Emily Statella Fluesmieir, Orion Asbury Grantham, William Gregory Gunn, Joseph. Taylor Griest, William Walton Haven, William Francis Hager, Louis Phillip Habig, Charles Lonis Mosley, Jr., Martin Mehrle, Nina Henry Maynard, Edna Jane Miller, Amalie Marie Napier, Mary Myrtle Ozias, Nicholas John Pippert, Peter Alois Pfeffer, George Earl Paul-lus, Bert Byrd Parrish, Leslie Cornelius Randall, Oda Lavinia Seabaugh, Howard Workman and Hugh Benjamin Waters, complains of the defendants, J. A. B. Adcock, A. H. Hamel, Ira W. Upshaw, W. S-. Thompson, R. IT. Goodier, J. T. Thatcher and Frank J. Lutz, constituting the State Board of Health of Missouri, and says that defendants now, and at all the dates hereinafter mentioned, were the duly appointed and acting members of the State Board of Health of Missouri, and constitute said board, and as such board it is their duty, among other things, to examine all qualified persons who appear before such board at such time and place as the said board may direct, to determine the fitness of such persons to engage in the practice of medicine and surgery in this State.
“Relators state that the Barnes University of St. Louis, Missouri, was, on the 11th day of June, 1892, and is now, a body corporate and politic, organized under and by virtue of the laws of the State of Missouri, regulating the incorporation of benevolent, religious, scientific and educational institutions, and that said Barnes University, in accordance with the provisions and requirements of its charter of incorporation, and the laws of this State, ever since its incorporation, has been engaged and is now engaged in the teaching of medicine and surgery, and those sciences the knowledge of which is necessary and proper for a full and adequate understanding of the science of medicine and surgery in all its scope and meaning.
“Relators state that they are citizens of the State of Missouri, and that on the 9th day of May, 1908, they and each of them were duly graduated by the Barnes University aforesaid, and that on the 9th day of May, 1908, relators and each of them received a diploma from said Barnes University, and that thereupon they and each of them became, and ever since has been, and now are, graduates of medicine from said institution.
‘ ‘ Relators state that, at the time of their matriculation, in said university, about four years ago, they were advised by reputable physicians and surgeons in whose judgment they had confidence, that the said Barnes University was a reputable school of medicine, of high standing in the community where it is situate, and elsewhere, and that relators, and each of them, relied upon the information thus acquired, and therefore entered said university and took up the course of study therein prescribed, and relators state that during all the period of their course of study at said institution they believed that said Barnes University was a reputable institution, and further believed they would be accorded the same rights by the defendant board as graduates of other reputable medical colleges in this State. And relators now charge the fact to be that said institution is reputable, that its curriculum is well selected and thorough; its instructors and lecturers among the best, and that the course therein required to be pursued by its students is as thorough as that of any other institution of like kind in this State or elsewhere.
“Relators state that, on the — day of ——, 190 — , defendants appointed P'rof. R. C. F. Dunhaupt, as official examiner of defendant board of the city of St. Louis, to act in the place and stead of the county school commissioners of the various counties throughout the State, and that by said appointment and authority then and there vested in him by said board in its interpretation and construction of the laws of this State, it became the duty and right of the said Dunhaupt to examine into the scholastic attainments of such persons as might appear before him for that purpose, and to certify to said board whether or not such persons satisfactorily passed an examination before him equivalent to a grade from an accredited high school, state normal school, college, university or academy. Relators state that they did appear before the said Dunhaupt and underwent an examination before him upon all branches then and there submitted to them, and received from the said Dunhaupt a certificate certifying that they and each of them had satisfactorily passed an examination before him and had procured a grade upon such examination equivalent to a grade from an accredited high school, state normal school, college, university or academy.
“ Relators further state that on or about the — day of May, 1908, they and each of them executed and filed with the defendant Board of Health the regular official form of application for examination, provided by said board, wherein they requested to be examined by said Board of Health at the St. Louis University, in the city of St. Louis, Missouri, on the first, second and third days of June, 1908. Relators further state that they and each of them attached to said application and delivered to defendant, in connection with said application for examination, the sum of fifteen dollars, that being the usual, customary and regular fee required by said Board of Health from all persons desiring to take a medical examination before said board; that said applications, and each of them, were accompanied by the certificate of the said Dunhaupt, certifying that the scholastic attainments of the relators, and each of them, were satisfactory, and that in said examination relators, and each of them, had obtained a grade equivalent to a grade from an accredited high school, state normal school, college, university or academy, and that said application was accompanied by a diploma issued to the respective relators by the said Barnes University, and relators state tbat said application was also accompanied by the affidavits of tbe said Dnnbanpt, showing the grade and proficiency of each of the relators, actually shown, and fairly and justly earned by each of said applicants upon said examination before the said Dunhaupt, and that said application was also accompanied by a certificate of graduation of each of the relators, from an accredited high school, state normal school, college, university or academy.
“The relators further state that the defendant board found the certificates of the said Dunhaupt to be genuine and essential in particulars, and such as is customarily and universally acted upon and accepted by said board, and that relators were the persons named in the respective certificates, and that each of the said diplomas issued to each of the relators by the said Barnes University, and presented to the defendants herein, were found by the said defendants to be genuine diplomas, and that relators are the same persons whose names appear in said respective diplomas, and that re-lators were the rightful owners and holders thereof and the persons named therein.
“Eelators further state that they complied in all particulars with all the usual and customary requirements exacted by said board, but that notwithstanding relators’ compliance therewith, defendants returned said filing fee to relators, and to each of them, but retained their applications, which said applications are now on file among the records of the defendant.
“Eelators allege that defendants then and there, arbitrarily and oppressively, advised relators that they would not be allowed, or permitted to take an examination before the defendant board, for the purpose of procuring a license to practice medicine in this State, and defendants assigned as an alleged reason for their refusal to permit relators to be - examined, that said Barnes University was not ‘an accredited school by the Missouri State Board of Health.’
“Relators further state that on the morning of the first day of June, 1908, and prior to the beginning of the examination of applicants before said board, for the purpose of procuring certificates entitling them to practice medicine and surgery in this State, the re-lators, and each of them, presented themselves before the defendant board, then being in session at the St. Louis University in the apartment where the said board was preparing to hold an examination, and re-lators then and there notified defendants that they were there for the purpose of being examined by said board in order that said board might determine their fitness to engage in the practice of medicine and surgery in this State, and in the event they passed a sufficient and satisfactory examination that they be delivered a certificate under the hand of said board, authorizing the relators, and each of them, to engage in the practice of their chosen profession.
“Relators state that on said first day of June, they were ready, willing and able to furnish, and then and there did offer to furnish to said board, satisfactory evidence of the qualifications of each of the re-lators, to said defendants, of their preliminary qualifications, to-wit, certificates of graduation from an accredited high school, state normal school, college, university or academy, and a certificate from the said Dunhaupt certifying that they, and each of them, had satisfactorily passed an examination before him equivalent to a grade from an accredited high school, state normal school, college, university or academy, and that relators were also ready and willing to furnish, and able to furnish a certificate of graduation to each of said relators from an accredited high school, state normal school, college, university or academy, and were then and there ready and willing to furnish, and offered to furnish said defendant board, satisfactory evidence of having received diplomas from the said Barnes University as aforsaid; and relators also offered to comply with all the requirements of the law made necessary as a condition precedent to their examination by said board, and offered to, and were able to comply with all the usual, ordinary and customary requirements heretofore made by said board, but re-lators allege that after defendants had proceeded with the examination, for the space of one day, of the persons who then and there appeared before them, including relators, for the purpose of undergoing an examination to determine whether or not they were capable and fit to receive a certificate from said board, for the purpose of enabling them to practice medicine and surgery in this State, that said board, on the second day of said examination, then and there directed, ordered and commanded all the graduates of the said Barnes University to withdraw from the room where said examination was about to be commenced and conducted, and the defendant board then and there announced that the relators, and each of them, would not be permitted or allowed to take said examination, and in the event that the relators, or any of them, should refuse to leave the room, and should insist on taking said examination, that their papers would not be graded or considered by said board, but would be thrown out into the waste basket; and that thereupon the relators, over their protest, and in violation of their rights, were forced and compelled by defendants to withdraw from said room, and were then and there and thereby deprived and denied the privilege of taking the examination before said board.
“Relators, on their information and belief, state that defendants, without authority or color of law, have devised and promulgated a set of rules and regulations as a standard of equipment, and a method of instruction and laboratory work which the defendants arbitrarily and oppressively insist must be complied with by said Barnes University, before its graduates are entitled to undergo an examination before said board, and before said board will consider tbe same to be a reputable medical college. But relators state that said board.did not notify said Barnes University, or the board of trustees, or faculty thereof, or these relators of such rules, regulations and requirements; and failed and arbitrarily refused to allow said Barnes University, and its board of trustees and faculty, an opportunity to show said board what its equipment and teaching facilities were and are; that relators had been registered as regularly matriculated students of said university, and of the medical department thereof, for a period of over four years, and defendants could have easily obtained access to said registration and have informed the relators, and each of them, as to any action upon its part with reference to its estimate of the standing of said Barnes University, but the said defendants failed and neglected to do so.
“Relators state that Barnes University aforesaid is a reputable medical college of this State; that its curriculum requires a course of four years’ attendance before graduation therefrom; that it is provided with a corps of experienced, proficient and learned and profound lecturers, teachers and instructors, and is also provided with such apparatus as is necessary for the successful teaching and exemplification of the science of medicine and surgery; and that in all of its departments the said institution compares favorably with, and is, and has been, equal to the best institutions of the kind in this and other states; and the said university, for fifteen years last past, has been’ recognized by the various state boards of health of Missouri as being a reputable medical college, and has been recognized by defendants, individually and as a board, as being reputable and thorough in all respects.
“Relators allege that they, and each of them, demanded of the defendants, as such State Board of Health of Missouri, the right and privilege of forthwith nnderg’oing an examination upon all the subjects embraced by the laws of the State, touching their qualifications in medicine and surgery, in order that said board might determine whether relators, and each of them, possessed the requisite knowledge and qualifications to obtain a license to practice medicine and surgery, in accordance with the law of this State, but that defendants, and each of them, wrongfully, unreasonably, oppressively, arbitrarily, and without color of authority, refused and still wrongfully, unreasonably, oppressively and arbitrarily, and without any cause, refuse to allow the relators, or any of them, to appear before said Board of Health, and then and there undergo an examination before said board, in order that said board might determine whether or not they were entitled to engage in the practice of medicine and surgery in this State.
“Relators further allege that they, and each of them, cannot practice medicine or surgery in this State unless and until their competency to engage in that profession has been submitted to and passed upon by said board, and that by the refusal of the defendants to permit the relators to undergo such an examination, they have suffered, and are suffering irreparable wrong and injury, and are entirely without a remedy for the redress of their wrongs without the interposition and intervention of this court by its writ of mandamus, directed to said defendants, and each of them, commanding and directing the performance and discharge of their duty under the law of this State.
“Wherefore, relators pray this Honorable Court to issue its writ of mandamus directing and commanding the defendants, as the State Board of Health of Missouri, to forthwith permit the relators, and each of them, to appear before said board and undergo the usual examination accorded to other applicants before said board, touching the relators’ qualifications to practice the science of medicine and surgery in this State, and that this Plonorable Court will frame and issue such writ or writs as may be found necessary and expedient to cause said board to do that which in justice and right ought to be done in the premises.”

The alternative writ followed the petition and was in the ordinary form, and, after service thereof was had upon the respondents they filed the following return (Formal parts omitted):

“Come now J. A. B. Adcock, A. H. Hamel, Ira "W. Upshaw, W. S. Thompson, R. H. Uoodier, J. T. Thatcher and Frank J. Lutz, constituting and comprising the State Board of Health of the State of Missouri, and for their joint and separate return to the writ of mandamus heretofore issued in this cause, say that the relators ought not to have a peremptory writ of mandamus herein, for the following reasons, to-wit:
“1. The defendants state and say that they have no information or knowledge as to the truth of the statements and allegations set forth and contained in relators’ petition, and the alternative writ herein, and, therefore, deny generally each and every allegation therein set forth and contained, except that they admit that they were at all times therein mentioned, and now are, the duly appointed, qualified and acting members of the State Board of Health of the State of Missouri, and constituting and comprising said board.
“2. Defendants further state and say that the Barnes University and Medical College, from which relators profess to have been graduated and hold diplomas, was, and is, not a reputable medical college of four years’ requirements, as provided and required by the said State Board of Health, in their schedule of requirements adopted July 11th, 1907, and defined in section 3 of ‘An act to regulate the practice of medicine, surgery and midwifery, and to prohibit treating the sick and afflicted, without a license, and to provide penalties for the violation thereof, ’ of the Acts of 1907, State of Missouri.
“3. That on July 11th, 1907, the defendants herein, in pursuance of a report of a committee of said Board of Health, duly authorized and appointed to investigate as to the equipments and facilities for teaching of the various medical colleges throughout the State, provided and adopted a schedule of minimum requirements as a standard by which medical colleges should he rated and classified as accredited and reputable, and whose students, after being graduated therefrom, should be admitted to the examination of the said State Board of Health for licenses to practice medicine and surgery in the State of Missouri, and further provided and directed that any and all medical colleges, in meeting 1he requirements of said schedule, should he given until October 1, 1907, in which to supply and provide such deficiencies, and to bring their said schools or institutions up to the standard required; and that each and every medical college so notified complied with the requirements therein specified, save and except the Barnes University and Medical College, and that the Barnes University and Medical College was, by authority of the said State Board of Health, on the 22nd day of July, 1907, duly notified and apprised of its deficiencies in said behalf, and requested to provide the facilities necessary and required to bring said institution up to the standard as provided by said hoard; that said Barnes University and Medical College, through its officers and agents, ignored said request and failed and refused to obey the instructions of said State Board of Health, and to supply and provide the necessary facilities by way of equipments, laboratory work and clinical instructions, and have wholly ignored the same. That thereafter, on October 28th, 1907, the said Barnes University and Medical College was again duly notified and reminded of its failure to supply the delicien-cies in laboratory equipments as required by said State Board of Health, and given until November 21st, 1907, in which to comply with said rules and requirements; and was duly notified that unless said deficiencies be supplied within said time said Barnes University and Medical College would not be accredited, and its students not be entitled to examination for licenses to practice medicine and surgery in the State of Missouri; that said schedule or standard was reasonable, fair and proper, and the requirements made upon said Barnes University and Medical College were reasonable, just and proper,' and were not oppressive upon said institution, and could have been supplied and provided with but little difficulty and expense to said institution. That each and every other medical college in the State of Missouri complied with said schedule, standard and requirements, save and except the said Barnes University and Medical College. Defendants further state that said institution again ignored and disregarded the requests of the said State Board of Health, and failed and refused to comply with the same. That said requirements so made of the Barnes University and Medical College as aforesaid, and the schedule and standard adopted by the said State Board of Health were such as the said State Board of Health had authority under the law to require, make and provide; and that it was the duty of the said Barnes University and Medical College to comply with the same and to conform its said curriculum to the standard prescribed; and it was the duty of the said State Board of Health to refuse to recognize the said Barnes University and Medical College as an accredited and reputable medical college and to examine its students after graduation, upon its failure to comply with the same and conform to the standard prescribed.
“And the defendants further state that the authority to determine what was, and is, an accredited and reputable medical college in this State was conferred upon them by the Legislature and the laws of this State; that they have investigated the matter in question, and have determined, as they have a right under the law to do, that the said Barnes University and Medical College was not, and is not, an accredited and reputable college within the meaning of said law; this being true said decision is final, and not subject to review by this court.
“Wherefore, defendants say by reason of the premises, plaintiffs should not have peremptory writ herein, but that the same should be denied, and the costs hereof- taxed against the plaintiffs.”

On July 27, 1908, relators filed in said court in said cause (omitting caption and signatures) the following reply:

“Come now plaintiffs, and for their joint and separate reply to the return of defendants, made herein to the writ of mandamus heretofore issued in this cause, say that said return constitutes no defense and sets forth no reason why a peremptory writ of mandamus should not go herein.
“For another and further reply, plaintiffs deny each and every one of the statements and allegations set forth and contained in said return.
“For another and further reply, plaintiffs say that defendants have — without authority or color of law — devised, adopted and promulgated the schedule of requirements referred to in defendants’ return herein, and that defendants have arbitrarily and oppressively devised and promulgated said schedule of requirements and made the same the standard by which medical colleges in this State shall be rated and qualified as reputable — within the meaning of section 3 of ‘An act to regulate the practice of medicine, surgery and midwifery, and to prohibit the treating of the sick and afflicted without a license, and to provide penalties for the violation thereof,’ as amended in the Acts of 1907, State of Missouri; and that because, in the opinion of said State Board of Health, said Barnes University has failed to comply with the requirements of said schedule, said State Board of Health has arbitrarily and oppressively refused to allow plaintiffs to he admitted to the examination of said State Board of Health for licenses to practice medicine and surgery in the State of Missouri, in direct violation of their authority and duties, under the law of the State of Missouri made and provided in such cases.
“For further reply, plaintiffs specifically deny that said State Board of Health did, on or about the 22nd day of July, 1907, or any time subsequent thereto, duly notify and apprise said Barnes University of said schedule and requirements, or that it had adopted any schedule of requirements at all to determine whether said Barnes University was a reputable college — within the meaning of said act.
“Plaintiffs further state that the laboratory apparatus and equipment of said Barnes University was equal to or greater than that prescribed in said schedule of requirements adopted by said State Board of Health, and that in all other respects — the length of term, method of instruction, and the other requirements entitling its students to a diploma — said Barnes University complied with, equalled or exceeded the requirements contained in said schedule adopted by said board.
“And plaintiffs further aver and charge the fact to be that other persons were admitted by the State Board of Health to take its examination for the purpose of procuring licenses to practice medicine and surgery, which said persons held diplomas from medical colleges which had not complied with, said requirements of said schedule so adopted by said board.
“Plaintiffs further state that, at the time said schedule was adopted and promulgated by said board, they, and each of them, had already entered upon their fourth year of study in said Barnes University, and that the requirements — as set forth in said schedule — ' relate to instructions given during the first three years of the course of medicine in said Barnes University, and that in this respect the course of study in said Barnes University conforms with' that of all other reputable medical colleges; and that said State Board of Health has, for a great many years up to and including June, 1907, permitted the graduates of said Barnes University to take its said examinations for the purpose of procuring licenses to practice medicine and surgery, and plaintiffs further aver and charge the fact to he that the laboratory equipment and facilities for teaching medicine and surgery in said Barnes University were better during the session which closed in May of 1906 than any previous session of said college.
“Plaintiffs further state that a large number of them have been admitted to examinations by the state hoard of other states, and received licenses to practice medicines and surgery in said State.”

The facts of the case are comparatively few, and practically undisputed; and they are substantially as follows:

On and prior to the institution of this suit the Barnes University, an institution of learning, was duly organized and incorporated under the laws of the State of Missouri, and was authorized, among other things, to teach and instruct persons in the science of medicine and surgery. During the same time appellants constituted the State Board of Health, having been duly appointed and qualified as such, and were acting in that capacity during that time. Relators were regularly graduated from the medical department of said university of the class of 1908, and each held a diploma issued therefrom in the manner and form provided for by its charter and by-laws. Subsequently thereto each of the relators in proper time and in due form filed his application for an examination by said board, to be held on the first, second and third days of June, 1908, touching his qualifications to practice medicine and surgery in this State, as provided for by the Act of 1907 (Laws 1907, p. 360), accompanied by a certificate from Prof. Dunhaupt, the official examiner of said board, showing he possessed the requisite scholastic attainments, together with a deposit of the proper license fee of $15.

Prior thereto, to-wit, on July 11, 1907, said board formulated and adopted the schedule of minimum requirements as a standard by which medical colleges should be rated and classified as accredited and reputable, as referred to in the petition, and whose students, after being graduated therefrom, should be admitted to the examination of the said board of health for licenses to practice medicine and surgery in this State; and provided further that all such colleges should have until October 1, 1907, in which to comply with said minimum requirements, and to bring their said schools up to said standard. All medical colleges of the State complied with said requirements except said Barnes University. On July 22, 1907, after an investigation made, but before the date fixed, said board notified said university of its failure to comply with said standard. Either for a valid or invalid excuse said notice was ignored by said university. On October 28, 1907, said university, still neglecting to bring its standards up to the requirements of the board, was again notified of said deficiency, and was again requested to bring its medical department up to said standard, on or before November 21, 1907, and notified that unless it did so it would not be so accredited, and its diploma would not entitle its students to an examination for licenses to practice medicine and surgery in'this State. Said school again declined to comply with said requirements, which will be noticed during the course of the opinion.

There is no pretense that the standard fixed by the board was arbitrary or unreasonable, or unjust, or oppressive.

In pursuance to their applications filed for examination, as before stated, relators appeared before said board, in the city of St. Louis, on said first, second, and third days of June, 1908, and requested that they be given the examination, as provided for by sáid Act of 1907, but none of them offered any evidence whatever to said board tending to show that the medical department of said Barnes University was a reputable medical college as provided for by said act. Thereupon the Board of Health declined to examine any of them, and returned to them their said diplomas, certificates and license fees.

This suit is predicated upon those facts.

I. Counsel fox appellants insists that the judgment of the trial court is erroneous, for the reason that relators furnished no evidence to the Board of Health tending to show that Barnes University was a reputable medical college at the time they graduated therefrom, as required by section 3 of -an act approved April 4, 1907 (Laws 1907, p. 359). Said section, in so far as it is material to the propositions involved in this case, reads as follows:

“All persons desiring to practice medicine or surgery, in this State, or to treat the sick or afflicted, as provided in section 1 of this act, shall appear before the State Board of Health at such time and place as the board may direct, and shall there be examined as to their fitness to engage in such practice. All persons appearing for examination stall mate application, in writing, to the secretary of said board thirty days before the meeting. They shall furnish satisfactory evidence of their preliminary qualifications, to-wit: A certificate of graduation from an accredited high school or state normal school, college, university or academy, a certificate from the county school commissioner, certifying that they have satisfactorily passed an examination equivalent to a grade from an accredited high school or state normal school, college, university or academy. They shall also furnish evidence of having received a diploma from some reputable medical college of four years’ requirements at the time of graduation.”

By reading that section of the act it will be seen that it requires three things of each applicant who desires to be examined, touching his qualifications to practice medicine and surgery in this State, namely: first, that he shall make application in writing to the secretary of the board thirty days before the meeting thereof; second, that he furnish to the board satisfactory evidence of his scholastic qualifications, as therein provided for; and, third, that he shall also furnish to the board satisfactory evidence of having received a diploma from some reputable medical college of four years’ requirement at the time of his graduation.

The act mentioned does not undertake to state what medical colleges are or what are not reputable within the meaning thereof; but by clear implication it leaves that question for the determination of the Board of Health. This is made manifest by the act requiring the proof of reputableness to be furnished to the board when the applicant presents himself for examination, and by withholding from the board the authority to issue the license until such satisfactory evidence is furnished. There is no pretense, in this case that relators or any of them furnished or offered to furnish any evidence whatever tending to show that the Barnes University, the one from which they had graduated and from which they held their diplomas, was a reputable medical college within the meaning of that act. In our opinion the language of this act is susceptible of no other construction than that it placed the burden upon the relators, when they presented themselves for examination before the board, to prove to its satisfaction by satisfactory evidence the reputableness of Barnes University, and especially the medical department thereof.

In the consideration of a similar statute to ours, the Supreme Court of Wisconsin, in the case of State ex rel. v. Chittenden, 112 Wis. l. c. 584, used this language: “The learned circuit court erred in holding, as it seems to have done, that every time a person presents himself before the hoard as a candidate for a state license to practice dentistry, tenders his dollar, presents his diploma, and makes proof of the statutory requisites for the granting of his application, other than that of the reputability of the school graduating him, it is the duty of the hoard to make an original investigation of and determination as to that subject, by direct evidence of the character of the school at the time of the candidate’s graduation, regardless of whether any evidence on the question is tendered by him or any request is made for such investigation. The burden in such case is on the candidate to demonstrate to the satisfaction of the board the reputability of his alma mater, not on the board to establish or disprove it. If he (relator) had accepted that burden and offered proof to show that his alma mater was reputable, doubtless the board would have received and considered it in connection with all other information in its possession. Where the facts are so easily ascertainable as they were in this case, . . . assuming, as we must, that the board would be actuated ... by the single desire to deal justly, . . lapse of time after one investigation sufficient to allow a new class of graduates to come from the school would secure a reinvestigation if that was requested, accompanied by a reasonable showing of a material change in regard to the matters in which it was found deficient upon the previous investigation.” The Wisconsin statute simply left the repu-tableness of the applicants’ alma mater to the examining board, and did not, as does this act, expressly require the applicant for a license to furnish satisfactory evidence thereof to the Board of Health. See Laws of Wisconsin 1901, chap. 306, p. 418.

And in reference to a similar question, the Supreme Court of Ohio said: “Nor do we find any provision which makes it the duty of the boards to determine in advance of an application for a certificate to practice medicine, whether a person holds a diploma from- a medical institution of the proper standing. It is only when a diploma is presented upon such application that the action of the board can be invoked.” [State ex rel. v. Coleman, 64 Ohio St. l. c. 387.]

The Ohio statute, like the one in Wisconsin, merely submitted the question of reputableness to the board, without requiring the candidate for examination to furnish any evidence. That fact adds force to those rulings when we apply them to the case at bar, for the reason that our statute, in express terms, places the burden of satisfying the Board of Health of the reputableness of the school of which the candidate is a graduate.

If that was all that there is in this case, then we could properly reverse the judgment, remand the cause, quash the alternative writ of mandamus and direct the circuit court to dismiss the suit; but that is not all that is presented by the record, and presented by counsel for determination.

II. If we correctly understand the position of counsel for relators, they do not controvert the soundness of the conclusions reached in the previous paragraphs, hut contend that “under the laws of this State the State Board of Health has no authority to adopt- and promulgate fixed rules and regulations as the standard by which the various medical colleges of this State will he adjudged reputable o,r non-reputable within the meaning of the statute, relating to the practice of medicine and surgery. The word ‘reputable’ as applied to medical colleges means reputation and must be proven in, the same way. ’ ’ The following authorities are cited in support of that contention: State ex rel. v. Lutz, 136 Mo. l. c. 639; Illinois State Board v. People ex rel., 123 Ill. 227; State ex rel. v. Chittenden, 112 Wis. l. c. 584; People ex rel. v. Ill. State Board, 110 Ill. 180.

In our opinion counsel for relators misconceive the meaning and object of the rules and regulations adopted by the Board of Health fixing the standards by which various medical colleges would be adjudged reputable, within the meaning of the act under consideration. That rule simply provides that all medical colleges, wherever located (and not simply those situate in this state), which should on or before October 1st, 1907, conform to the standards specified in the schedule of minimum requirements, adopted by the board on July 11th, 1907, “should be rated and classic fied as accredited and reputable, and whose students, after being graduated therefrom, should be admitted to the examination of the State Board of Health for licenses to practice medicine and surgery in the State of Missouri,” without being required to furnish other proofs of reputableness, and thereby save each of them the time, cost and expense of furnishing the proofs required of them by said act. In other words, the board, by said rules, undertook to require all medical colleges to adopt such standards as would establish and prove their reputableness in all cases, and thereby remove those burdens from each student who applied for a license, as provided -by said act. But said rules of the board do not provide that no graduate from any medical college which had not conformed to those requirements should not be examined touching his qualifications to practice said professions.

This construction of that rule seems to have been adopted subsequent to the origin of this controversy, and not prior thereto. Evidently the framers thereof entertained no such idea, for there is no such intention expressed in the rule itself. Neither the rule nor the board is responsible for this erroneous construction.

In our opinion, since the act left it to the board to pass upon the reputableness of all medical colleges, whose graduates applied to it for examination, and to determine 'the character of the evidence by which said fact was to be established, said rules were not only reasonable and just but were also wise and proper. All medical colleges and their students were thereby notified in advance as to what would satisfy the board as to the reputableness of each college. The diploma alone from all colleges which had adopted those standards would entitle the holder thereof to take the examination without further ado. Otherwise many students might innocently be induced to attend colleges which were not, in fact, reputable, and consequently said students would thereby be prevented from establishing their reputableness. In all such cases a great hardship would be visited upon all such graduates, but under these rules of the board no injustice could be done to any college or to any graduate thereof.

Beyond that, the adoption of said standards by the board, if the colleges will only conform thereto, would have a direct tendency to uplift and better medical instruction, place the State’s institutions of learning upon a higher plane, and reduce the practice of medicine and surgery to a more perfect science, all of which would result in great good to suffering humanity.

But suppose, for argument’s sake, we are in error in our views before expressed regarding the meaning and object of said rules of tbe board .establishing said standards, and that it was the intention of the board to thereby notify, in advance, all persons who might present themselves for examination for licenses to practice medicine and surgery, that it would examine no one except those who presented a diploma from some one of the medical colleges which had adopted said standards. Still, that would no more excuse the applicant for examination from tendering to the board such evidence as he might have, tending to prove that his alma mater was a reputable school within the meaning of said act, than would the adoption of a rule by a judge upon the bench, promulgated a year in advance, to the effect that on and after a certain date he would try no case except where the plaintiff held a certificate from a minister of the G-ospel stating that he belonged to a church which believes in and teaches the Christian religion, would excuse the plaintiff from offering whatever evidence he might have tending to prove his case, even though he held no such certificate. Both, such rules of the board and of the court, would be illegal and void, and would constitute no legal bar to the applicant’s right to stand the examination for his license, nor to the plaintiff’s right to have his case tried according to law. Nor could the adoption of such a rule of the board or by court be construed to mean that the board in the one case, or the court in the other, had thereby refused and determined not to examine a particular person for a license to practice medicine, or to try a particular case filed in said court. Such a board or such a court might change its mind before the date fixed arrived, and before either was called upon to act in a concrete ease. As long as a man or a body of men fill any official position, the law presumes be or they will perform their duties whenever any matter is legally presented to them for action, notwithstanding general declarations previously made to the contrary. This is true for the obvious reason that no officer can legally act or illegally decline to act until a matter is legally presented to him, calling for his official action in the premises.

It is only where some rule, ordinance, statute or other rule of conduct is relied upon in a particular case conferring or withholding some legal right can the courts or litigants question their validity. They may be unconstitutional, null and void, or invalid for any other reason, still that fact would he no excuse for a person’s refusal or declination to perform some duty imposed upon it or him by some other valid law. This was expressly held in the case of State ex rel. v. Taylor et al., 224 Mo. 393, decided by this _ court In Banc, at its last sitting. There the constitutionality of an act was questioned because one section thereof provided, that before the remonstrators ag’ainst the organization of drainage districts would be permitted to contest its validity, they must first give bond for costs, etc. The court there held that the unconstitutionality of said statute was no excuse for said defendant’s declination to appear and defend against said proceedings. The same is true in the case at bar, for the reason that if the rules of the board establishing the standards for medical colleges are absolutely void, still that fact would be no excuse for a graduate therefrom, applying for examination for a license to. practice medicine, to refuse to furnish satisfactory proof of the fact that his alma mater was a reputable school, as he is required to do by said Act of 1907. So, it must follow that it is wholly immaterial as to what was the general intention of the board in that regard so long as these particular relators omitted to furnish or offer to furnish any such evidence, and so long as the board had not refused to act in their particular case. Until that was done there was no just cause for saying the board had declined to perform its official duties, as was shown by the rulings made by the Wisconsin and Ohio courts.

In no such case had the board been legally or properly called upon to examine the applicant touching his qualifications to practice medicine and surgery; and until such demand is made and such proofs are furnished the board is under no legal obligation to examine him or any of them.

So, under either view of the case, whether we consider the rules of the board valid or invalid, re-lators are not entitled to have the alternative writ of mandamus made peremptory, for the reason that the board has not been legally called upon to give them the examination which they ask this court to compel it to give them.

It is elementary that a. writ of mandamus will not issue commanding an inferior court, tribunal or ministerial body to act until it is first established by the evidence that said court, tribunal or ministerial body has been legally requested to act, and that it has illegally declined to do so. This court in the case of State ex rel. v. Associated Press, 159 Mo. l. c. 421, in passing on this question, said: “It is fundamental in the law of mandamus that it is indispensable to granting the writ that a prior express and specific demand be made of respondent of that which relator seeks, and that a refusal of such demand occurred before relator has any standing in court, or his application for the writ contains any ground for relief. ’ ’

We are, therefore, clearly of the opinion that the judgment of the court making the alternative writ of mandamus peremptory was erroneous.

III. The relators are not without remedy, if they possess the necessary qualifications to. practice medicine and surgery in this state. If they possess the necessary scholastic attainments and diplomas from some reputable college, and if they can produce before the Board of Health satisfactory evidence of the reputableness of said college, then doubtless the hoard will, upon proper request, give them an examination, as provided for by the Act of 1907, and, if found qualified, the hoard will presumably issue to them licenses to practice medicine and surgery in this State; but, if after such showing the board should unjustly and arbitrarily refuse or decline to examine relators, it would then he time enough to institute mandamus proceedings against the hoard, requiring it to act in the premises. [State ex rel. v. Adcock, 206 Mo. 550.]

The judgment is reversed, and the cause remanded with directions to the circuit court to quash the alternative writ of mandamus heretofore issued by it, and to dismiss relators’ petition.

All concur, except Lamm, J., who dissents.