author: RAILEY, C.

text:
    THE STATE ex rel. A. M. CONWAY, Appellant, v. F. B. HILLER et al., Constituting State Board of Health.
    Division One,
    December 8, 1915.
    1. APPELLATE JURISDICTION: State Board of Health a Party. The jurisdiction, of the members of the State Board of Health is coextensive with the State, and hence they are classed as State officers; and an appeal from the judgment of a circuit court quashing a writ of certiorari issued against the members of said board on behalf of a physician whose license to practice medicine had been revoked by them, is to the Supreme Court.
    2. CONSTITUTIONAL QUESTION: Raised in Motion for New Trial: No Bill of Exceptions. An attack upon the validity of a certain statute, made for the first time in the motion for a new trial, if -the abstract contains no part" of the bill of exceptions, cannot be considered on appeal. A motion for a new trial is not a part of the record proper, but a part of the bill of exceptions, wherein must be preserved an exception to the overruling of the motion; and if the abstract contains no bill of exceptions, any assignment made in the- motion for a new trial alone cannot be considered on appeal, although that motion is printed in the abstract as a part of the record proper.
    3. STATE.BOARD OF HEALTH: Review of Action: No Bill of Exceptions. Notwithstanding the fact that appellant’s abstract does not contain a bill of exceptions and the validity of the statute under which his license to practice medicine was revoked, raised for the first time in the motion for a new trial filed in the circuit court, cannot be considered on appeal, the duty still remains on the court to determine the legality of such revocation upon the record before the State Board of Health, and certified upon writ of certiorari to the circuit court.
    4. -: Review of Evidence: Certiorari. As a general rule .the writ of certiorari brings up only the record proper of the tribunal to which it is addressed, and does not bring up the .evidence; but in a case in which the State Board of Health has revoked the license of a physician, he may have the proceedings of said board reviewed under the provisions of section 8317, Revised Statutes 1909.

      5. -: -: -: Questions for Review. Where the evidence and record before the State Board of Health have upon certiorari been certified to the circuit court, and the decision of .the board sustained and the writ of certiorari quashed, two propositions are presented for determination on the record made before the board: (a) Does the complaint filed before the board state a good cause of action for revoking relator’s license by the board under the statute (Sec. 8317, R. S. 1909); and (b)', Was the evidence adduced before the board sufficient to sustain the charges contained in the complaint and to warrant the board in revoking relator’s license and in inflicting the penalty entered?
    6. PHYSICIAN: Grounds for Revoking License: Dishonorable Conduct. Allegations in the complaint and proof showing that defendant, in a local option town and county, in the course of six weeks filled out 778 blank prescriptions for whiskey alone, to be used as a beverage, by inserting in each of them the name of the purchaser, signing his own name thereto as a physician, and charging and receiving therefor twenty-five cents for each prescription so made out and signed, establish the charge of “guilty of unprofessional and dishonorable conduct,” since every such prescription constituted a crime against the State, and authorized the State Board of Health to revoke, for a period of ten years, his license, or other right to practice medicine, however derived.
    Appeal from Cole Circuit Court. — Hon. John M. Williams, Judge.
    Affirmed.

      Sebastian <£> Sebastian for appellant.
    (1) The license of a practicing physician is a valuable privilege and property right, which can only be revoked by due process of law. State ex rel. v. McElhanney, 246 Mo. 606. (2) The State Board of Health can only revoke a physician’s license, for unprofessional and dishonorable conduct, when the act specified comes clearly within the definition of Sec. 8317, R. S. 1909. State ex rel. v. Robinson, 253 Mo. 287. (3) This statute is highly penal and must be strictly construed. A physician cannot be held to have violated its provisions unless his acts come within the letter and the spirit of the law. Bishop on Written Law, secs. 189 and 194; State v. Baleh, 178 Mo. 392; State v. McMahan, 234 Mo. 614. (4) Where a statute specifically names several matters or things which shall be governed by its provisions, and then by general language undertakes to include other acts and things, not specifically named, it must be construed as to apply only to the things or acts of the same general nature as those set out. St. Louis v. Kaine, 189 Mo. 309; State ex rel. v. Berryman, 142 Mo. App. 373; State ex rel. v: Robinson, 253 Mo. 287. (5) The Constitution of this State vests the. power to make law in the General Assembly. Article 16, section 1, and article 3 prohibit executive officers from performing legislative functions. The maxim, Delegaba potestad non pobesb delegare, is fully expressed in these provisions of the Constitution. Cooley on Constitutional Law (5 Ed.), p. 139. (6) The writing of prescriptions for whiskey is not one of the acts designated by the statute as unprofessional or dishonorable conduct, nor is it one of the same general nature as the things definitely set out. State ex rel. v. Robinson, 253 Mo. 271; 30 Cyc. 1555. (7) If it could be contended that the State Board of Health could make the writing of prescriptions for whiskey unprofessional or dishonorable conduct, then there is nothing in the record of this ease to show that they had ever undertaken to do so. The rule is, in such cases, that the complaint must allege and prove that the offense which is the basis of the complaint is one which -is violative of the statute. The revocation of relator’s license to practice medicine was without authority or sanction of law. Board v. Eisen, 123 Pac. 52; McCommer v. Board of Health, 8 L. R. A. (N. S.) 58; State ex rel. v. Kellogg, 36 Pac. (Mont.) 957.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondents. ■
    (1) A constitutional question must be raised at tbe first opportunity, else it is waived. Tbe first opportunity in this case was in relator’s application for the writ. Raising the question for the first time in the motion for a new trial was too late. Sheets v. Insurance Co., 226 Mo. 617; Hartzler v. Street Ry. Co., 218 Mo. 564; Lobmeyer v. Cordage Co.; 214 Mo. 687. (2) The party asserting the unconstitutionality of a statute must point out the specific provision of the Constitution violated. Lohmeyer v. Cordage Co., 214 Mo. 688; Excelsior Springs v. Ettenson, 188 Mo. 129; Davis v. Thompson, 209 Mo. 196; Independence v. Knoeper, 205 Mo. 342. (3) Section 8317, R. S. 1909, includes acts other than those specifically named, as unprofessional or dishonorable conduct. People v. Apfelbaum, 251 111. 22; Berry v. State, 135 S. W. 1; Morse v. State Board of Med. Ex., 122 S. W. 446; Meffert v. Packer, 1 L. R. A. (N. S.) 814; Meffert v. Packer, 195 U. S. 625; State ex rel. v. Goodier, 195 Mo. 556; Spurgeon v. Rhodes, 167 Ind. 11; Wolf v. State Board Med Ex., 109 Minn. 360; State v. Board, 34 Minn. 387; State v. Board, 32 Minn. 324; State Board v. McCoy, 125 111. 289; State Board v. Roy, 48 Atl. 802; In re Newell Smith, 10 Wend. 449; State ex rel. v. Hathaway, 103 Mo. 29. (4) Section 8317 is not unconstitutional because it authorizes the State Board of Health to revoke a license to practice medicine for unprofessional or dishonorable conduct. People v. Apfelbaum, 251 111. 22; Berry v. State, 135 S. W. 1; Oil Co. v. State, 48 Tex. Civ. App. 179; Morse v. State Board of Health, 122 S. W. (Tex.) 448. (5) A license to practice a profession is not a contract. State v. Gazlay, 5 Ohio, 22; Cohen v. Wright, 22 Cal. 317; Ex parte Yale, 24 Cal. 242; Lanquille v. State, 4 Tex. Ap-p. 320; Simmons v. State, 12 Mo. 279; State ex rel. v. McIntosh, 205 Mo. 636; State ex reí. v. Gregory, 83 Mo. 123; State v. Hathaway, 115 Mo. 36; State v. Davis, 194 Mo. 501; State ex rel. v. Goodier, 195 Mo. 551; State v. Doerring, 194 Mo. 398. (6) The Board of Health may revoke a license for the same causes for which it may refuse to issue it. See. 8317, R. S. 1909; State ex rel. v. Goodier, 195 Mo. 560; Meffert v. State Board of Med. Ex., 1 L. R, A. (N. S.) 816, 195 U. S. 625; People v. Apfelbahm, 251 111. 25. (7) The granting or refusing to grant a license to practice medicine, or the revocation thereof by the board, is not the exercise of judicial power. Spurgeon v. Rhodes, 167 Ind. 12; State ex rel. v. Goodier, 195 Mo. 560. (8) The findings of a medical board in a proceeding to revoke a physician’s license are conclusive upon the courts. 3 Cyc. 1557; Meffert v. State Board of Med. Ex.. 1 L. R. A. (N. S.) 816, 195 U. S. 625; Munk v. Frink, 116 N. W. 528; Walker v. McMahan, 116 N. W. 528. (9) The practice in revocation proceedings before a medical board is more flexible than that allowable in the courts, and any evidence which tends to prove or disprove the point in issue may be introduced, although not the best evidence which might be had. 30' Cyc. 1557; Traer v. State Board Med. Ex., 106 Iowa, 559. (10) The doctrine of ejusclem generis is only a rule of construction to be applied as an aid in ascertaining the legislative intent, and does not control where it clearly appears from the statute as a whole that no such limitation was intended. 36 Cyc. 1120; State v. Smith, 233 Mo. 257; Henderson v. Railroad, 81 Mo. 607; 2 Lewis’s Sutherland on Stat. Const. (2 Ed.), secs. 363, 364, 437; Grimes v. Reynolds, 184 Mo. 698-. Of the legislative intent: Darlington L. Co. v. Railroad, 216 Mo. 671; Clark v. Railroad, 219 Mo. 524; Glaser v. Rothschild, 221 Mo. 180; Scott v. Royston, 223 Mo. 631; Eruixi v. Meredith, 145 Mo. App. 586; Hicks v. MeCown, 144 Mo. App. 544; Granitoid Co. v. George, 150 Mo. App. 650; Louisiana Pur. Ex. v. Schnurmacher, 151 Mo. App. 601; Hawkins v. Smith, 242 Mo. 688; Spicer v. Spicer, 155 S. W. 382; Blanchard Co. v. Hamblin, 162 Mo. App. 242; Christie L. & P. Co. y. Hamblin, 144 S. W. 882; State ex rel. v. See-horn, 246 Mo. 568; State ex inf. v. Amick,-247 Mo. 271; Pub. Co. v. McNichols, 153 S. W. 562; Rodgers v. Nat. Council, 155 S. W. 875; State ex inf. v. .Railroad, 238 Mo. 605; State v. Robinson, 163 Mo. App. 221; Her-berg v. Railroad, 164 Mo. App. 514; Gantt v. Brown, 238 Mo. 560; State v. Schenk, 238 Mo. 429; Moon v. Western U. Tel. Co., 164 Mo. App. 175; Shohoney v. Railroad, 231 Mo. 157; State ex inf. v. Oil Co., 218 Mo.' 354. Of the doctrine of ejusdem generis: Ex parte Smith, 231 Mo. 119; State v. Eckhart, 232 Mo. 52; Warner v. Cartersville, 142 Mo. App. 127; State v. Smith, 233 Mo. 257; State ex rel. v. Harter, 188 Mo. 528. (11) A license to practice medicine may be revoked for acts that were not grounds for revocation at the time they were committed, but were afterwards made so by statute. Meffert v. State B. of Ex., 1 L. R. A. (N. S.) 818, 195 U. S. 625; State Board of Health v. Roy, 22 R. I. 538; State v Schaffer, 129 Wis. 465. (12) The portion of the statute making unprofessional or dishonorable conduct a ground- of revocation of a license to practice medicine is reasonable, definite and certain. People v. State Bd. Health, 125 111. 289; State ex rel. v. State Med. Ex., 34 Minn. 391; State ex rel. v. Goodier, 195 Mo. 551; State v. Med. Ex. Bd., 32 Minn. 324; Aitón v. Medical Ex., 13 Ariz. 358; Wert v." Clutter, 37 Ohio St. 350'; Forman v. Board of Health, 162 S. W. (Ky.) 798; Richards v. Simpson, 47 L. R. A. (N. S.) 915; People ex rel. v. Reid, 136 N. Y. S. 430; State ex rel. v. Board of Health, 103 Mo. 283; Meffert v. State Bd. Med. Ex., 1 L. R. A. (N. S.) -811, 195 U., S. 625; People v. Apfelbaum, 251 111. 22; Berry v. State, 135 S. W. 631; Morse v. Board Med. Ex., 122 S. W. 448; Spurgeon v. Rhodes, 167 Ind. 11; Wolf v. Board Med. Ex., 109 Minn. 360; State y. St. Ry. Co., 146 Mo. 167; Kennedy v. Board of Reg. Med., 108 N.' W. 730.
   RAILEY, C.

Appellant Conway filed in this court an abstract of record, and the Attorney-G-eneral has filed a counter-abstract of record. It appears from appellant’s abstract that on April 27, 1910, 'Emmett McDonnell and two other citizens of Boone county, Missouri, filed complaint before the State Board of Health against said Conway, who was a physician, authorized to practice medicine in -said county, charging him with unprofessional and dishonorable conduct. The petition to said board specified the grounds on which they sought to have the license of said Conway revoked and will be referred to hereafter. A copy of this complaint was served on Dr. Conway and a hearing was had before the State Board of Health in Jefferson City, Missouri, on May 24, 1910. Dr., Conway appeared before the aforesaid, board and objected to the hearing for the alleged reason that said board of health was without authority or jurisdiction to hear or determine the charges made against him.

A number of witnesses were introduced by the complainants and examined on the part of the prosecution. Their evidence tended to sustain- the specifications that Dr. Conway had written a large number of u-hishey prescriptions which called for no other ingredients than whiskey, and which were used as a beverage instead of medicine. He had charged twenty-five cents apiece for each prescription. No evidence was offered in behalf of Dr. Conway, and said board, after the hearing aforesaid, annulled and held for naught, for a'period of ten years, Dr. Conway’s right, permit and license to practice medicine in the State of Missouri.

At the July term, 1910, Dr. Conway, as relator, filed in the circuit court of Cole County, Missouri, a petition for a writ of certiorari, against the members of the State Board of Health, and set out in said petition the original complaint and all other proceedings alleged to have taken place before said board, leading up to his conviction on the 27th of July, 1910.

A writ of certiorari was issued by the Cole Circuit Court, directed to the members of the State Board of Health, commanding them to have before the circuit court of said county, on the 3rd of August, 1910, the complaint and charges in the matter aforesaid, together with all the records and proceedings of said board, and a complete transcript of all the evidence pertaining to the revocation of said Conway’s license to practice medicine in Missouri, etc. This writ was duly served upon the members of said board, and they accordingly made return to said circuit court of all their proceedings, including petition, all papers filed with them, and all the evidence taken by them, together with their findings' and orders. Thereupon, the Attorney-General filed a motion in the circuit court to quash the writ of certiorari, for the reasons alleged therein. Said motion to quash was sustained by the circuit court, and the finding of the State Board of Health in revoking the license of Dr. Conway to practice medicine and surgery in the State of Missouri was sustained. The writ of certiorari was dismissed and for naught held. A general judgment was rendered in favor of the State Board of Health and all costs incurred in said proceeding taxed against relator Conway.

On the same day of rendition of judgment, appellant’s abstract recites that he filed a motion for a new trial, and that the same was overruled. It likewise recites that an affidavit for appeal was filed and an appeal granted relator to the Supreme Court of Missouri. It also recites that the court granted relator leave to prepare and file his hill of exceptions before or during the first day of the July term. Said abstract contains the following:

“Within the time allowed by the court, relator presented his bill of exceptions, which was duly signed, sealed, and by order of record, filed in this case and made a part of the record thereof.”

No bill of exceptions is set out in the record, nor is there anything contained therein, which indicates that any of the other printed matters, in the abstract of record, were incorporated in or made a part of said hill of exceptions. None of the proceedings or evidence set out anywhere in the record is said to be contained in said bill of exceptions. There is nothing in the abstract of record indicating that any matters of exception are contained in the bill of exceptions. The record proper purports to contain the motion for a new trial, and an alleged exception to the overruling of same, but none of these matters appear in the alleged bill of exceptions. The abstract filed by appellant sets out an incomplete synopsis of the' testimony heard by said board, but no part of same appears in the bill of exceptions, nor is it called for therein.

The counter-abstract of respondents contains substantially the testimony as given before the board, and said testimony sustains, in the main, the charges and specifications contained in the complaint before said board.

We here state a brief synopsis of the specifications contained in said complaint:

Said McDonnell, Stevens and Goldsberry, citizens of Columbia, Missouri, charged, that one A. M. Conway had been for many years a practicing physician, located in Columbia, Missouri, and that he became a registered physician on the 17th day of August, 1874, under the Acts of said year at page 111; that on said date, he registered as such physician, with the clerk of the county court of Boone county, Missouri. For their complaint, they charge, that said Conway was then, and for a long time past had been, guilty of unprofessional and dishonorable conduct in the following particulars, to-wit:

1. That soon after the adoption of the. Local Option Law in the city of Columbia, Missouri, which occurred on the 5th day of February, 1908, the defendant secured an office in the Orear Building in said city; that prior to said time the defendant had no practice and bad been making Ms living by peddling teas, coffees and spices; that within a very short time after opening an office as aforesaid, the stairway and hall of said building was frequented by negroes, inebriates, loafers, objectionable and offensive persons going to and from defendant’s office in quest of and obtaimng perscriptions for whiskey; that his office was more or less crowded with such applicants for whiskey prescriptions at all hours of the day and until late at night, and at times on Sunday; that by reason of the noise and offensiveness of the aforesaid conditions, other tenants occupying the second and third floors of said building complained to the owner thereof and protested against further occupancy of said building by this defendant and threatened to abandon their leases if defendant was permitted to remain, whereupon the owner terminated defendant’s tenancy and procured his removal from said building; that this defendant then obtained permission from the private owner to open an office in the old city police court room in a building until a short time prior thereto occupied by the City of Columbia for police headquarters, jail, and water and light office; that after some time defendant moved his office to the ground floor of said building in a room located on a side street and abutting on an alley next to a livery stable, a place wholly unfit and unsnited in every respect to a legitimate medical practice and within surroundings exceeding well adapted to writing illegal whiskey prescriptions,- that defendant continues now to maintain such office and has no apparent medical practice other than the writing of whiskey prescriptions.

2. That during a portion of the year 1909, the defendant made his home with a relative, one F. M. Lowery, and occupied an upstairs room as a bed chamber; that defendant placed, or had placed, against the side of the house, a ladder extending up to the window of defendant’s room; that a great many persons were seen and known to have climbed up said ladder to defendant’s window and procured whiskey prescriptions from him; this practice became so annoying to the said F. M. Lowery that he drove defendant from his home.

3. That until recently there has been located in the city of Columbia a drug store known as “The West End Pharmacy;” that said drug store was formerly owned and operated by Oscar Barrett, but that in the month of January, 1910, said Oscar Barrett was prosecuted for violations of the 'Local Option Law and his store closed by the authorities; that said store was soon thereafter, within a few days, re-opened under the management of one Ollie Tyson, who continued to conduct the business from the 1st day of February, 1910, until the 14th day of March, 1910, when said store was again closed by the authorities for like violations, and the said Ollie Tyson, under an arrangement with the authorities, turned over all prescriptions filled by him in said store from the 1st day of February, 1910, until the 14th day of March, 1910; that during said month of February, 1910, there were filled at said store, 561 prescriptions, of which mimber 544 were written by the defendant and filled by said-store and icere for one pint of whiskey each, without any other ingredient; that from the 1st day of March, 1910, to the 14th day of March, 1910', said store filled 242 prescriptions, of which 234 were written by this defendant and were for one pint of whiskey each, without any other ingredient; that while said store was running unmolested hy the authorities the defendant was known to frequent said store and had made as many as seven or eight trips a day thereto; that defendant is known, in addition to the business done through the above named store, to have issued a large number of other prescriptions which were filled at other drug stores.

4. That on the 26th day of March, 1910, this defendant issued a prescription to a negro, Grant Gilmore, without having made any examination whatever of said negro, said prescription being issued for one pint, of whiskey to he-used as a beverage, and for which said negro paid the sum of twenty-five cents; that on said date last named, the defendant issued for one William Douglass, also a negro, a prescription for one pint of- whiskey to be used as a beverage, without having made any examination of said negro, and for which prescription said negro paid defendant the sum of twenty-five cents; that on said occasion there were so many applicants at defendant’s office for prescriptions that they had to line up and wait their turn, there being as many as seven or eight in line at once; that defendant almost invariably asked the applicant only for his name and- gave him the prescription without any further question or examination; that most of the applicants for prescriptions were negro laborers, returning from their daily labors with their dinner pails on their arms and apparently in the best of health; that this defendant had blocks of prescriptions for one pint of whiskey already filled in, with the exceptions of his signature, the date and the name of the party to whom the prescription was to he issued.

5. That this defendant has solicited patronage of the character set forth in this complaint; that he has been known to give numbers of prescriptions to parties, said prescriptions being issued in blank or to fictitious persons, and distributed to divers persons unknown to defendant and not seen or examined by him.

Complainants further state that by the aforesaid acts of the defendant the community has been long suffering; that his conduct is a menace to the morals of our people; that the truth hereof they stand ready to prove. They therefore pray that the license, or other right to practice, however derived, of the said A. M. Conway, be revoked and for naught held.

As heretofore stated, upon, the filing of said complaint, appellant Conway was cited before the aforesaid board, and appeared in answer to said citation. The following witnesses were introduced before said board in behalf of the prosecution, to-wit: Emmett McDonnell, L. T. Searcy, J. A. Stewart, Dir. Woodson Moss, Dr. J. E. Thornton, E. G-. Davis, Dr. N. D. Rob-nett, R. M. Wyatt, Jesse M. Whitesides, Dr. A. E. Kampschmidt and John L. Henry.

It appears from the abstract of record filed herein by the Attorney-General, and which has not been controverted, that Emmett McDonnell testified before said board as follows:

He was acquainted with relator and had known him four or five years; that immediately after local option went into effect in Boone county, relator opened an office in Columbia, Missouri, for the practice of medicine and that prior to that time he had been engaged as an agent selling some kind of groceries for a grocery firm; that he lived in the neighborhood of Dr. Conway and that the latter A reputation for professional conduct as a physician was bad; that on the evening of March 26th, previous to the trial, he visited relator’s office at two different times. He saw relator offer a paper to Hopp> and saw that it was a prescription for which relator received fifty cents; that it had relator’s name signed to it; that on the same evening he was in Dr. Conway’s office and there were about half a dozen negroes lined up, and relator was writing prescriptions for them. He just asked their names and later on, others came in, to the number of ten, and relator was as busy as he could be. He never looked up, but would ask, “What is your name?” and they would tell him their names. He had the prescription already filled out. Witness was within three or four feet of relator while he was writing the prescription which had been previously filled out, and he would put their names in the prescription and would sign his name to them; that each of these negroes paid him twenty-five cents for each prescription. Witness identified 561 prescriptions for whiskey, 544 of them with relator’s signature thereto, which witness testified was the genuine signature of relator. Witness also identified 242 other prescriptions marked “ Exhibit No. 2” for whiskey, and signed by relator, and that the signature thereto was the genuine signature of relator; that one Ollie Tyson conducted a drug store in Columbia, Missouri, during the month of February and the first ■part of March, 1910, and this drug store had the reputation of being very bad in reference to the selling’ of intoxicating liquors.

L. T. Searcy, living at Columbia, Missouri, testified that he was prosecuting attorney and had previously been county clerk of Boone county, and assessor for six years; that the reputation of the Tyson Drug Store for illegal sale of whiskey was bad. He further testified that he was .acquainted with the signature of relator, and that the latter wrote 544 of the prescriptions contained in “Exhibit No. 1,” which was 561 prescriptions for intoxicating liquors; that these prescriptions were delivered to witness by the proprietor of the Tyson Drug Store when it ceased to operate, and covered a period of February, 1910, and fourteen days in March, 1910. Witness identified the prescriptions contained in “Exhibit No. 2” as having béen written by relator and as having his genuine signature thereto, with which he was acquainted, and which exhibit consisted of 242 whiskey prescriptions, 234 of them having been written by relator, and were written between the first of February, 1910, and the 14th of March, 1910, inclusive.

Exhibits 1 and 2 were introduced in evidence. These exhibits are not set out in either .abstract of record, and are not before this court.'

J. A., Stewart, engaged in the real estate business at Columbia, Missouri, testified that he had been presiding judge of the county court for two terms; that he was acquainted with Dr. Conway, and also his signature; that he had examined the prescriptions contained in exhibits 1 and 2, and that they were signed by relator. He further testified that relator’s reputation in reference to professional conduct as a physician was bad.

Dr. Woodson Moss testified that he had been a practicing physician at Columbia since June, 1874, and was on the medical staff of the State University; that he had known relator for about forty years; that they were together at the medical school; graduated at the same time; that relator’s general reputation at Columbia, in reference to his general conduct as a physician, was bad.

Dr. J. E. Thornton said he had known relator five' or six years; that he was acquainted with his general reputation in the community in reference to his general conduct as a physician, and that it wag bad.

E. Gr. Davis testified that lie liad lived in Columbia for'twenty-six years; was in tlie livery business, and had known relator about a year; that his place of business was located so he could see the people that visited the office of relator; that the majority of the people visiting relator’s office were negroes, and that he had seen quite a number come and go out of his office.

Dr. N. D. Eohnett testified that he had lived in Columbia, and was engaged in handling vehicles at his placq of business near the Tyson Drug Store. The latter, in his opinion, was purely a whiskey drug store; that it was visited by people who were continuously drinking; that he knew relator, and saw him go in and out of the drug store; that he visited that drug store several times a day.

E. M. Wyatt testified that he was constable of Columbia township; that he was acquainted with relator and was in the <3ffice of the latter on the 26th of March, 1910; that when he went in relator’s office, two men were standing at the counter. Eelator was writing a prescription. After they left, two darkies came up and relator wrote one of them a prescription. After he wrote it, he saw witness standing there, and the latter asked relator if the parties were sick that he wrote the prescription for, and he told witness to attend to his own business and he would attend to his. He said relator never asked any questions of the applicants for the prescriptions while he was there, nor did he make any examinations of said applicants.

Jesse M. Whiteside testified that he was deputy constable of Columbia township, and that he was with witness Wyatt on said occasion. His testimony was substantially the same as Wyatt’s.

Dr. A. E. Kampschmidt testified that he lived in Columbia, and had been practicing medicine for about four years; that he had known relator about three years, and was acquainted with his general reputation in that community in reference to his general conduct as a physician, and that it was bad.

John L. Henry testified that he was clerk of the county court and had been since the 1st of January, 1907; that he was acquainted with O. L. Tyson, who was the proprietor of the drug store in Columbia during the months of February and March, 1910; that Tyson filed with ivitness a list of the names of the parties for whom he had filled prescriptions for intoxicating liquor. Witness identified the prescriptions filed with him in the list marked “Exhibit 1” for the first part of the month of March, 1910', there being’ 242 prescriptions, and covering a period from the 1st of February to the 14th of March; that he did not have the list filed by Tyson for the month of February, 1910, and that the list had been misplaced. The prescriptions were introduced in evidence and from the prescriptions themselves. it appears that relator, from the 1st day of February, 1910, to the. 11th of March, 1910 inchbsive, issued 778 prescriptions calling for whiskey.

It appears from the abstract of record, in behalf of the Attorney-General, that before any testimony was introduced before the State Board of Health relator objected to the introduction of any evidence under the charges preferred, for the reason that he was a practitioner of medicine more than five years before the creation of the State Board of Health, which was created in the session of the Legislature of 1883, and which expressly excepted from its provisions any physician or doctor who had been engaged in the practice of medicine and surgery for a period of five years next before the passage of said act, and that the State Board of Health had no jurisdiction over him. It was .admitted that relator was a practicing physician at Columbia, Missouri, at the time the complaint was filed against him, and that lie was duly registered as a physician on the 17th of August, 1874.

.With the foregoing evidence before it, the State Board of Health annulled and for naught held, for a period of ten years, Dr. Conway’s right, permit and license to practice medicine and surgery in the State of Missouri. Thereupon, relator filed in the circuit court of Cole county aforesaid, his petition for a writ of certiorari, and in said petition set out. the complaint of McDonnell and others to the Board heretofore referred to. He likewise stated the history of the proceeding's before said board which culminated in the revocation of his license to practice in said 'State for the period of ten years. He alleged in said petition that said proceedings were without the course of the common law and that no jurisdiction was obtained. over him, as he was a duly registered and practicing physician before the statute creating the State Board of Health was ever passed. Pie averred that he was duly registered in the office of the county clerk of Boone county, prior to September 1, 1874, and that such registration entitled him to practice medicine and surgery in said State, and that by reason thereof he was excepted from the operation of said statutes creating the State Board of Health, and by subsequent amendments thereto or new sections added, and that all the acts, doings and proceeding's of respondents as such Board of Health as to relator are void and of no effect. Pie averred that relator had a natural and constitutional right, as physician and surgeon, to practice medicine and surgery in said State, and the act of the General Assembly of 1909 deprived or attempted to deprive him of such right and privilege, and that the'same was unconstitutional and void as to liini. He further averred that said Board of Health had exceeded its jurisdiction, and for that reason its acts, doings and proceedings are void. He averred that there was no evidence upon which to base snch finding and judgment of respondents, and. their acts were oppressive and void. It was further averred that none of the charges contained any grounds empowering respondents to revoke relator’s right, however acquired, to practice medicine and surgery in this State, and that the acts of such board were void. It is averred that the statute under which respondents proceeded to hear, try and determine said charges was unconstitutional and void as to relator. Said petition’then concluded with a prayer asking for the issuance of' a writ of certiorari} directed to respondents in their official capacity as aforesaid, requiring them, and each of them, to certify to said court a full and complete copy of the charges and all other acts and proceedings in the trial of relator upon said charges, as well as the evidence, finding and judgment of said board upon said charge against relator, and directing them to return said copy to said circuit court on or before August 1, 1910, etc.

The writ of certiorari was in the usual form, and served upon the members of the Board of Health as heretofore suggested.

The motion to quash said writ filed by the Attorney-General recited that relator’s petition did not state facts sufficient to constitute a cause of action against respondents. It also charges that the petition filed by relator does not show that respondents have committed any acts which are not authorized by law, or that they have violated the Constitution or laws of Missouri, but such petition shows that respondents have exercised only such powers as they legally were entitled to exercise under the laws of this State. Said motion further charges that relator’s petition shows upon its face, that respondents have not been guilty of any abuse or misuse of their rights and powers granted to them by the State of Missouri. The said motion asked the circuit court aforesaid to dismiss relator’s petition for a writ of certiorari, and to quash the writ formerly issued by the circuit court at relator’s cost.

It appears from relator’s abstract that on November 26,1910, upon the issues joined, before Judge Wm. H. Martin, by agreement of counsel, all the evidence returned by the respondents in obedience to the writ aforesaid, and all proceedings and orders of the Board of Health returned in obedience to the writ of certiorari, were submitted and considered in evidence in the case.

Then follows a synopsis of the alleged testimony taken before said board. The testimony set out in relator’s abstract of record is incomplete and only partially given, as shown by the abstract filed by the Attorney-General. This evidence, as well as all the proceedings heretofore mentioned, are not called for in the bill of exceptions or made a part of same so far as this record discloses.

Relator’s abstract states that the case was then taken under advisement until the March term, 1911, and that judgment was entered by the circuit court aforesaid in favor of the State Board of Health; The court sustained the action of respondents in relation to the revocation of the license of said Conway to practice medicine and surgery in the State of Missouri. The court likewise dismissed the writ of error formerly issued and quashed and held the same for naught. Said court adjudged.that respondents, constituting the State Board of Health, should go hence without day, and recover from said Conway their costs and charges laid out and expended, and that execution issue therefor.

After this judgment was entered, the abstract of record presented by relator discloses that he filed a motion for a new trial, containing some six grounds, which it is not necessary to set out at present. At the conclusion of this motion, said abstract recites t-bat it was overruled and to the overruling of same he, at the time, duly excepted and saved his exceptions. This motion for a neiv trial and the alleged action of the court thereon, are not shown to he a part of the hill of exceptions, nor is there anything in the record tending to show that either are called for in the said hill. The motion for new trial improperly appears as a part of the record proper in the case.

An affidavit for appeal was filed, and the appeal allowed to this court. Relator’s abstract then recites that within the time allowed hy the court, relator presented his hill of exceptions, which ivas duly signed, sealed, hy order of record, filed in this cause and made a part of the record thereof.

The foregoing contains a full history of all the proceedings in the cause. No distinction is made between the record proper and matters of exception. In fact, there is nothing in the record tending to show that any of the matters heretofore set out are contained in the bill of exceptions, which it is alleged was signed and filed in the cause. On the record thus made, the questions of law will be presented in the opinion which is to follow.

The jurisdiction of respondents as members of the State Board of Health is co-extensive with the boundaries of the State, and hence they arc classed as State officers. In view of section twelve of article 6 of our Constitution, the case was properly appealed to the Supreme Court. In State ex rel. v. Higgins, 144 Mo. l. c. 412, the Court in Banc, referring' to above section of our Constitution, said:

“A State officer within the meaning of that section -is one whose official duties and functions' are coextensive with the boundaries of the State.”

In State ex rel. v. Bus, 135 Mo. l. c. 334, the Court in Banc said:

“Tims the Constitution gives the Supreme Court appellate jurisdiction in cases whore any ‘State officer’ is a party [Sec. 12, art. 6, and amendment adopted in 1883.] This, court held that the expression ‘State officer,’ as there used, applied only to such officers as had jurisdiction throughout the State and' did not apply to an officer whose jurisdiction was confined to a county, as a sheriff or clerk of a circuit court. [State ex rel. v. Dillon, 90 Mo. 229; State ex rel. v. Spencer, 91 Mo. 206.] ”

Appellant attacks the validity of section 8317, Revised Statutes 1909, in his brief, for the alleged reason that the General Assembly could not impose upon said State Board of Health the functions which our C'onstitution devolved upon said Assembly, etc., but in view of the record presented here, we are precluded from reviewing or discussing said constitutional question.

The only thing to be found in appellant’s abstract of record, from cover to cover, relating to a bill of exceptions is the following:

“And thereupon the court granted• relator leave to prepare and file his bill of exceptions before or during the first clay of the July term, 1911, and granted an appeal of this cause to the Supreme Court of the State of Missouri. And within the time allowed by the court, relator presented his bill of exceptions, which was duly signed, sealed, and by order of record, filed in this case and made a part of the record thereof.”

Ho part of the alleged bill of exceptions is set out in the record, nor does it appear that any of the matters contained in said abstract appear in the bill of exceptions, or that any of them are called for therein. None of the 778 prescriptions calling for whiskey alone, which were signed by relator, filled out and filed between February 1,1910, and March 14,1910, have been set out or preserved in the bill of exceptions, although introduced in evidence by respondents.

The alleged constitutional . question supra was raised for the first time in the alleged motion for a new trial, which appears as a part of the record proper in said abstract. No motion for a new trial is set out or called for in the bill of exceptions, and hence there could be no exceptions saved to the action of the court in overruling same. The alleged bill of exceptions does not contain or call for the evidence, or any of the records, pleadings or proceedings in said cause. In short, there is practically no bill of exceptions in the record, and therefore nothing before us for review, but the record proper. [St. Louis v. Young, 248 Mo. 346; St. Louis v. Henning, 235 Mo. l c. 51; Owens v. Mathews, 226 Mo. 77; Hays v. Foos, 223 Mo. 421; State ex rel. v. Adkins, 221 Mo. l. c. 120; Thompson v. Ruddick, 213 Mo. 561, 564-5; Stark v. Zehnder, 204 Mo. 442; Harding v. Bedoll, 202 Mo. l. c. 630-1; Reno v. Fitz Jarrell, 163 Mo. 411.] There are maoty other cases in the appellate courts of this State to the same effect.

In St. Louis v. Young, 248 Mo. l. c. 347-8, Judge Lamm, in behalf of this división, said:

“The abstract is constructed on a plan steadily condemned by this court as so inherently bad as to be fatally defective, viz., it commingles in an undistinguishable mass matter of exception with record proper and matter contained in record entries, without an earmark to guide us in telling where one begins or the other leaves off. In that fix we cannot know what is in the bill of exceptions. The rule is that since matters of exception must be in the bill of exceptions, the abstract of the bill should show that matters of exception are in the bill. There is only one reference in the abstract to a bill of exceptions and that (at its very close) relates to the filing of one within the leave granted. New rule 31 does not help appellant. ' -
“The judgment below being presumptively correct and finding it responsive to the pleadings, it is affirmed under the authority of many cases. We cite some as samples. From these discern all: Reno v. Fitz Jarrell, 163 Mo. l. c. 413; State v. Baty, 166 Mo. 561; Clay v. Publishing Company, 200 Mo. l. c. 672-3; Stark v. Zehnder, 204 Mo. l. c. 448-9; Gilchrist v. Bryant, 213 Mo. l. c. 443; Harding v. Bedoll, 202 Mo. 625; Kololtas v. Railroad, 223 Mo. 455; Wallace v. Libby, 231 Mo. 341; Keaton v. Weber, 233 Mo. l. c. 694.
“ While the point is not raised by counsel yet that is immaterial. This court may raise it su,a sponte. [Hutson v. Allen, 236 Mo. 645.]”

The other cases cited are fully in line with those quoted from, and clearly hold that on the record presented here, we have no' alternative, except to determine thé case upon the record proper. The alleged constitutional question is not therefore before the court, and cannot be considered by us. .

With the constitutional question, attempted to be raised by appellant, eliminated from our consideration, it still remains our duty to determine the case upon the record made before the State Board of Health, and certified to the circuit court of Cole county, Missouri.

As a general rule the writ of certiorari brings up only the record proper of the tribunal to which it is addressed, but does not bring up the evidence (State ex rel. v. Goodrich, 257 Mo. l. c. 48; State ex rel. v. Wiethaupt, 254 Mo. l. c. 329; State ex rel. v. Casey, 210 Mo. l. c. 246; State ex rel. v. St. Louis, 207 Mo. 354; State ex rel. v. Wooten, 139 Mo. App. l. c. 236; State v. Gilbert, 164 Mo. App. l. c. 143); but in cases of this character where the State Board of Health has revoked the license of a physician, he may have the proceeding’s of said board reviewed under the provisions of section 8317, Revised Statutes 1909. Said, section reads as follows:

“If the licentiate appear either in person or by counsel, the board shall proceed with the hearing’ as herein provided. The board may receive and consider depositions and oral statements and shall cause stenographic reports of the oral testimony to be taken and transcribed, which, together with all other papers pertaining thereto, shall be preserved for two years. If a majority of the board are satisfied that the licentiate is guilty of any of the offenses charged, the license shall be revoked for such period of time as may bo agreed upon. Any person whose license has been or shall be revoked by the board shall have the right to have the proceedings of said board revoking his license and all the evidence therein reviewed, on a writ of certiorari, by the circuit court of the county in which said board held its session when said license was revoked. Said writ shall issue upon the petition of the person whose license shall have been revoked to said court or to the clerk thereof in vacation at any time within ninety days after such revocation, and shall command the said board and the secretary thereof to certify to said court the record and proceedings of said board, and a complete transcript thereof, and of all the evidence therein pertaining to the revocation of said license. The petitioner for the writ of certiorari shall set forth the rights of the petitioner and the injuries complained of by him and shall be verified by him. If the proceedings of the board shall be sus-' tained or upheld by the circuit court, its orders, decisions or judgments revoking said license shall remain and continue in full force and effect. And any such license so revoked by the board shall, pending said review on certiorari, stand revoked and so remain until the proceedings of the board relating thereto shall be quashed or otherwise annulled by the circuit court on said writ of certiorari. Testimony may be taken by deposition, to be used in evidence on the trial of such charges before the board in the same manner and under the same rules and practice as is now provided for the taking of depositions in civil cases. — [Laws 1901, p. 207; amended, Laws 1907, p. 359, Laws 1909, p. 667.] ”

The complaint and evidence before said board is set out in our statement of the case. Notice was given appellant; he appeared at the hearing, objected to the jurisdiction of said board over him, took no further part in the proceedings before said board, but filed in the circuit court of Cole county, Missouri, where the hearing' was had, a petition for certiorari, etc.

Said board certified to the circuit court aforesaid a copy of the complaint, record entries, proceedings and evidence, relating to appellant’s hearing before said board, and the case was heard in the circuit court upon the pleadings, record and evidence certified by said board. The decision of the latter was sustained, and the writ of certiorari quashed.

Two propositions are presented on the record made before said board: (a), Does the complaint filed before the board state a good cause of action under said section 8317; and (b), Was the evidence adduced at the hearing before said board sufficient to sustain the charges made in the complaint, and to warrant said board in revoking appellant’s license to practice medicine in Missouri for ten years"!

The evidence is clear and convincing that appellant, in the town of Columbia, county of Boone and State of Missouri, did fill out, sign as a physician, and deliver to various persons in said town, during February, 1910, and up to the 15th of March in said year, 778 prescriptions for whiskey, without any other ingredients being called for therein, to be used as a beverage, and for which he received twenty-five cents for each alleged prescription so made out and signed; that all of these prescriptions were filled at the drug store mentioned in evidence and presumably the whiskey was furnished as called for in each prescription. In other words, the complaint alleges, and the evidence shows, that appellant, in a local option town and county, was engaged in the wholesale business of filling out blank prescriptions for whiskey alone, to be used as a beverage, by inserting in said blank prescription, the name of purchaser and signing his own name thereto, as a physician, and for which he charged and received twenty-five cents for each of said prescriptions.

The complaint and evidence show that he sold largely to negroes, and that his general reputation in regard to such matters was bad. He was present at the hearing before the board and failed to testify or to meet in any manner the damaging testimony produced there by complainants. He’ was engaged in this disreputable business at a great seat of learning, where hundreds of students are attending school, and yet does not offer any excuse in the record here for prostituting his office as physician, and bringing disgrace upon the profession to which he belonged.

Section .8317 supra provides that:

“The board may refuse to license individuals of bad moral character, or persons guilty of unprofessional or dishonorable conduct, and they may revoke licenses, or other rights to practice, however derived, for like causes, and in cases where the license had been granted upon false and fraudulent statements, after giving the accused an opportunity to be heard in his defense before the board as hereinafter provided. Habitual drunkenness, drug habit or excessive use of narcotics, or producing criminal abortion, or soliciting patronage by agents, shall be deemed unprofessional and dishonorable conduct within the meaning of this section, but these specifications are not intended to exclude all other acts for which, licenses may be revoked.”

It needs no citation of authorities to demonstrate that appellant’s conduct aforesaid, as disclosed by the undisputed facts in the record, was both unprofessional and dishonorable. In addition to the foregoing, every prescription of above character which appellant signed as physician and delivered, and upon which whiskey was obtained as a beverage, constituted a crime against this State.

Section 5784, Revised Statutes 1909, reads as follows:

“Any physician, or pretended physician, who shall make or issue any prescription to any person for intoxicating liquors in any quantity, or for any compound of which such liquors shall form a part, to be used otherwise than for medicinal purposes, or who shall issue more than one prescription at the same time to any one, for intoxicating liquors, or for any compound of which such liquors shall become a part, or who shall make or issue any prescription contrary to any existing law, shall be deemed guilty of a misdemeanor, and upon conviction be punished by a fine of not less, than forty nor more than two hundred dollars. ”

While appellant might have been successfully prosecuted under the statute last quoted, it does not militate in the least against the right of the State Board of Health, under the circumstances detailed in this record to revoke his license.

The record of said board is free from error, and the revocation of appellant’s license to practice medicine and surgery in Missouri for ten years was fully justified by the record in this cause. The judgment of the circuit court, sustaining the action of said board, is accordingly affirmed.

Brown, G., concurs in result.

PER CURIAM. — This cause coming into Banc from Division No. One, the opinion of Ratley, C., is adopted as the opinion of the court.

Woodson, C. and Graves, J., concur; Bond, Blair and Bevelle, JJ., concur in result only, and Faris and Walker, JJ., dissent.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    C. W. BARNES, Appellant, v. CITY OF KIRKSVILLE.
    In Banc,
    December 8, 1915.
    1. CONSTITUTIONAL LAW: Title: Four Councilmen in Title: Two in Body of Act. The title of an act authorizing a city of the third class to elect a mayor and four councilmen at large, the body of which provides for the election of four councilmen as a maximum, but permits the election of three or even two according to the population of cities adopting the act, 'is not violative of the Constitution, since the title is a fair forecast of the contents of the bill and its subject.
    2. -:--: Population. Nor does the body of the act use words of present meaning when referring to the population which shall entitle certain cities to organize thereunder, but a simple inspection of its language demonstrates that it only means the future population which those cities must have that are to elect two or three or four councilmen according to tlie apportionment made by the act.
    3. -: Commission Form of Government: Special Law. The Act of 1913, authorizing cities of the third class, after having adopted it, to elect a mayor and two, three or four councilmen at large, is not a special or local law. Both in its title and body, its words of classification according to population are applicable to all cities which now do or in the future may fall within these specifications.
    4. -:--: Fifth Class of Cities. The said act does not alter the preexisting classification of a city adopting it as one of the third class, but leaves it, and all other cities which, may adopt its provisions, in the same class in which they belonged prior to its enactment. It merely gives to them, for purposes of administration, similar governmental powers and functions, and expressly provides that all these new methods of administration may be surrendered and those which such cities formerly had may be resumed, at any time, at the option of the voters. It does not create a fifth class of cities.
    5. COMMISSION FORM OF GOVERNMENT: Not Sovereignties.
    Municipalities which have adopted the statute' providing for commission form of government and are governed by commissioners are in no sense sovereignties, and do not fall within the constitutional provisions apportioning the powers of sovereign States.
    Appeal from Adair Circuit Court. — Hon. Charles D. Stewart, Judge.
    Affirmed.

      A. Doneghy for appellant.
    (1) The constitutional provisions contravened by the act are as follows: “No bill . . . shall contain more than one subject, .which shall be clearly expressed in the title” — Art. 4, sec. 28; “The General Assembly shall not pass any local or special law.”— Sec. 53, art. 4; “The General Assembly shall provide, by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the power of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.”— Sec. 7, art. 9. (2) The title of the act tells the members of the legislative body that it is an act which is to apply to all cities of the third class, and that it provides for the election of four councilmen at large in all such cities. The body of the act provides for two councilmen in cities of a certain population, three in another and four in certain others. Esspressio unius, etc. And, in the body of the act (Sec. 2, p. 518), when it comes to provide for the number of councilmen, it reads: “Cities having a population of three 'thousand and less than twelve thousand shall proceed to the election of a mayor and two conncilmen;” twelve and less than twenty, mayor and three councilmen; and in cities having a population of twenty thousand and not more than thirty thousand, shall proceed to the election of a mayor and four councilmen. This section, and other sections, do not provide for cities that now have or may hereafter have a population of more than twenty and not more than thirty thousand .population. This court judicially knows that, at the time of the passage of the act, the cities of Springfield and Joplin were each cities of the third class and each contained more than thirty thousand population, and therefore the act could not operate on them and they could not, under it, elect four councilmen at large; and this court also knows that there are now no cities in this State of more than twenty and not more than thirty thousand, so that the act itself does not provide for four councilmen in any existing city that can come under its influence. The title is therefore subject to the criticism that it does not clearly express the subject, and, more, it is misleading. Cooley, Con. Lim. (5 Ed.), p. 172. (3) It is a local or special law in that it can not operate alike on all cities that adopt it. Cities of different population will be subject to different laws and restrictions. Note, Secs. 2, 4, 5, 6, 7, 8, 9, 14, 16. Murname v. St. Louis, 123 Mo. 470; Henderson v. Koenig, 168- Mo. 356. (4) It violates section seven of article nine of the Constitution in that it divides cities of the third class into different classes and thereby creates or attempts to create a prohibited class. Section one clearly indicates its purpose to be that cities that adopt it shall no longer belong to the constitutional class to which the Legislature had placed them, but "may become organized under the provisions of this act.” And section 22 provides how a city that has once adopted it can throw aside its new uniform and regulations and go back and again drill in the class to which it formerly belonged or to which it may then be entitled to go into on account of population. The following sections of the act could only apply to cities of the third class having a population of less than thirty thousand; section two makes provisions for a mayor and four councilmen in'cities having more than twenty and less than thirty thousand, and no provisions which can apply to cities of the third class which have thirty thousand or more. Section five provides different election machinery according to population. Section six provides for a different law-making body according to population; section nine provides a different scale of salaries and a different mode of prescribing the salary according to population; section fourteen, in regard to civil service rules, is subject to the same criticism; section sixteen prescribes different rules as to financial statements. That the act creates, or attempts to create a forbidden class of cities, is more readily seen when we come to apply it to a city of the fourth class, for when such a city organizes under the act it ceases to operate under any of the laws of a city of the fourth class, but is, from that time forward, without ever having in the manner prescribed by statute, elected to become a city of the third class, made subject to all laws applicable to cities of the third class, not repugnant to the act, and no longer subject to the statute in regard to fourth .class cities. Under the provisions of the act in question it is impossible for all cities adopting it to be governed by the same laws and be subject to the same restrictions. State ex rel. v. Borden, 164 Mo. 221; St. Louis v. Dorr, 145 Mo. 466; Owen v. Baer, 154 Mo. 434; Hall v. Sedalia, 232 Mo. 344.

      Weatherby & Frank for respondent.
    (1) The courts before pronouncing a statute unconstitutional, should be satisfied beyond a reasonable doubt of its vice, all presumptions being in favor of its constitutionality. Bank v. Clark, 252 Mo. 20; State v. Buente, 256 Mo. 227; Bledsoe v. Stallard, 250 Mo. 154; State ex rel. v. Kirby, 168 S. W. 746; Kansas City v. Land Co., 169 S. W. 62. (2) The act of the Forty-seventh General Assembly does not violate section 28 of article 4 of the Constitution which provides, “No bill . . . shall contain more than one subject, which shall be clearly expressed in the title.” State ex rel. v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo. 163; State ex rel. v. County Court, 128 Mo. 441; State ex rel. v. Vandiver, 222 Mo. 221; O’Brien v. Ash, 169 Mo. 299; Ex parte Loving, 178 Mo. 194. (3) The act in question does not violate section 53 of article 4 of the Constitution which provides, “The General Assembly shall not pass any local or special law.” State ex rel. v. Pond, 93 Mo. 606; Ex parte Swan, 96 Mo. 44; State v. Moore, 107 Mo. 78; Cole v. Dorr, 22 L. R. A. (N. S.) 534; State ex rel. v. Mankato, 41 L. R. A. (N. S.) Ill; State ex rel. v. Clayton, 226 Mo. 292. (4) The act in question does not violate section 7 of article 9 of the Constitution which provides, “The General Assembly shall provide by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four and the power of each class shall be defined by general laws so that all such municipal corporations of the same class shall possess the same powers and be subject to the same laws.” Laws 1913, see. 1, p. 517; State ex rel. v. Clayton, 226 Mo. 292. (5) All cities and towns in the 'State, containing 3,000 and less than 30,000 inhabitants which shall elect to be a city of the third class, shall be cities of the third class. R. S. 1909, secs. 8526, 8529. (6) Any third class city in the State of Missouri, or any city acting under a special charter, although they may have a population of more than 30,000 inhabitants, nevertheless remain third class cities until they elect otherwise.
   BOND, J.

This is a suit for salary alleged to be due plaintiff as marshal of the city of Kirksville. The defendant, the city of Kirksville, answered that on the 10th of March, 1914, at an election duly held, it adopted the provisions of the act of the General Assembly (Laws 1913, p. 517) permitting cities of the third class and others to organize thereunder and to exercise the powers of government therein specified; that it became duly organized and officered as provided in said act and vested with all the powers and privileges granted thereby; that in the exercise of such powers and duties its mayor and councilmen-passed a resolution on April 13, 1914, terminating the office of plaintiff as marshal of said city and elected another in his place who has since discharged the duties of the office.

Plaintiff replied that said act providing for such organization was void under section 53, article 4, of the Constitution in that it was a local or1 special law, and also under section 7, article 9, of the Constitution in that it provided for more than four classes of cities.

Upon the issues joined the cause was submitted to the court upon the following agreed statement of facts:

“For the purpose of dispensing with the introduction of evidence in the trial of the above cause, it is agreed, subject to the objection of either party hereto for incompetency, that the plaintiff was on the - day of April, 1913, duly elected and commissioned to the office of marshal for a term of two years and entered upon the discharge of the duties of said office and discharged the duties thereof until the 13th day of April, 1914; that on the-day of June, 1892, said city of Kirksville was organized as a city of the third-class, and divided into four wards; that said city has refused to pay plaintiff the salary of the marshal’s office ever since the 13th day of April, 1914; that ordinance No. 1862 was passed by the council and approved by the mayor prior to the election and commission of plaintiff and was at said time in full force and effect, and provided a salary of fifty dollar's per month; that on the 10th day of March, 1914, pursuant to a petition of the electors of said city of Kirksville equal in number to more than twenty-five per centum of the votes cast for all candidates for mayor at the last preceding city election of said city prior to the filing’ of said petition, and pursuant to a proclamation calling aforesaid special election, a special election was duly had and held on said 10th day of March, 1914, at which special election the terms and provisions of an act of the Forty-seventh General Assembly of the State of Missouri, entitled, ‘An act providing for an alternative form of government for cities of the third class and cities now having or that may hereafter have a population entitling them to become cities of the third class, and certain cities under special charters, making provisions for the election of a mayor and four councilmen at large, for a method of nominating candidates, for office at a primary election, for electing candidates selected at such primary election at a general election, providing for the appointment of various city officers, and providing for the initiative and referendum in municipal legislation, and further providing for the recall of any elective officer, which shall become effective only in the event of an adoption of the provisions of this act by the vote of the electors of any of said cities, and providing for the renunciation of the provisions of this act when once adopted, with an emergency clause,’ approved March 28, 1913, and found in the Laws of Missouri of 1913, at pages 517 to 533 both inclusive, was by said city of Kirksville duly adopted and said city organized under the provisions of said act; that return of said election was duly made; thereafter on the 7th day of April, 1914, at a general election duly had and held in said city one Charles E. Still was elected mayor of said city and Thomas Rainey and Rapheal M. Miller were elected councilmen at large of said city; that return of said election was duly made and thereupon said last-named mayor and councilmen at larg’e of said city took the oath of office and were commissioned as such officers and entered upon the discharge of the duties of their respective offices; and at all times since they have been the only persons holding or claiming to hold the office of mayor and councilmen in said city and at all said times have discharged the duties of said offices; that on the 13th day of April, 1914, aforesaid mayor and council of said city, by a resolution, entitled, ‘A resolution terminating the term of office of certain city officials in the city of Kirksville, Missouri,’ passed and adopted on the 13th day of April, 1914, and signed and approved by the mayor on said date, declared by aforesaid resolution that the term of office of plaintiff as marshal of said city of Kirksville ceased and determined on said 13th day of April, 1914; thereafter and on said 13th day of April, 1914, the mayor and council aforesaid by unanimous vote of said mayor and council elected one George M. Malone to the office of city marshal; that said George M. Malone took the oath of office prescribed by statute and was duly commissioned as marshal of said city by the mayor of said city and did duly file a bond as required by statute, which said bond was by the mayor of said city approved, and said George M. Malone ever since said last-named date has performed all the duties of the office of marshal of said city and has received the salary provided by ordinance therefor.”

The trial court found the -issues for defendant and against the plaintiff, from which the plaintiff has appealed to this court.

I.

The plaintiff (appellant) does not assail in this action the existence of defendant as a municipal corporation of the third class, since that status is conceded both by the pleadings and the agreed statement of facts. What the appellant seeks to recover by this suit, is the compensation which, would be due him as marshal of the city of Kirks-ville under its incorporation as a city of the third class according to the terms of an ordinance duly enacted by it.

To this demand the only defense is that appellant was legally removed from the office of marshal on April 13, 1914, by the mayor and council of said city in pursuance of the powers vested in them by the terms of the act of the Legislature providing for tlio assumption of other governmental powers after an organization as prescribed by the act. [Laws 1913, pp. 517 et seq.]

This narrows the controversy to a single inquiry, for it is agreed that respondent complied with the conditions attached in the act to the grant of powers therein-specified and thereafter duly removed the appellant from the office of marshal and elected another, hence, the only question left is the constitutional validity of the act empowering respondent to terminate appellant’s term of office. [Laws 1913, p. 524, sec. 10.]

Before passing on the objections of appellant to this enabling act, it is well to note that none of the objections involved a disincorporation of defendant as a municipal body, nor its right to exist as a city of the third class, and hence we are not precluded from considering such objections by the rule that the corporate existence of a municipal corporation can only be attacked by the State through its proper officers. [State ex inf. v. Fleming, 147 Mo. l. c. 12; Kansas City v. Stegmiller, 151 Mo. 189; Burnham v. Rogers, 167 Mo. 17; Bradley v. Reppell, 133 Mo. 545; State ex rel. v. Mineral Land Co., 84 Mo. App. l. c. 39.]

II.

The first objection to the validity of the act under review is that the title is not adequately descriptive of the body of the act.

The title is quoted in extenso in a former paragraph. It provided for the election of a mayor and four couneilmen, and provides also for the adoption of its provisions by cities “now having or that may hereafter have a population entitling them to become cities of the third class.” It is contended that the first of these provisions does not describe the contents of the bill, since although- the body of the bill provides for the election of four councilen as a maximum, yet it also permits three or even two couneilmen to be elected according to the popoulation of the cities adopting the act when the election shall- be held. There is no merit whatever in this objection. The title expresses the full limit of the couneilmen to be elected by the cities having the largest population within the prescribed limits at-the time the election is held. Such a definition of the purpose of the bill fairly and reasonably embraces a provision therein for a less number of couneilmen accord^ ing as the population of the city, desirous of embracing the provisions of the bill, shall be less than that required for the election of the full number of councilmen mentioned in the title. If the title points to the election of four couneilmen no one could be misled as to the provisions of a bill which provided not only for four but for a lesser number of couneilmen.-)

Neither is there any force in the further contention that the body of the bill (section 2) uses words of present meaning when referring to the population ■which, shall entitle certain cities to organize thereunder. A simple inspection of the language of this section discloses that it can only mean the future population which those cities shall have who are to elect two or three or four councilmen as may happen under the apportionment made by the bill. The words of this section, necessarily and of their own force, carry a future sense and meaning and are intended to be applicable to the subsequent time when cities on account of their growth in population shall be entitled to hold the elections provided for in the bill, and this conclusion.is further demonstrated by'the fact that the language of the title in referring to the holding of such elections is expressly put in the future tense.

Our conclusion is that the foregoing objection as to the title of this bill, if not trivial, is destitute of any logical or leg’al force, and that neither the letter nor the spirit of the Constitution (art. 4, sec. 28) was violated when this act was passed.

In the exposition of that constitutional provision it has been uniformly ruled that it only requires that the title shall be a “fair forecast of the contents of the bill” and its subject, so as not to mislead the lawmakers or the people. And where the subsequent provisions of the bill are within the radius of that subject, it does not violate the Constitution. [State ex rel. v. Revelle, 257 Mo. l. c. 538, and cases cited; Burge v. Railroad, 244 Mo. l. c. 91.]

III.

The other objections are that the act under review is local and special, and that it creates a fifth class, whereas the Constitution only provides for a division of the cities of the State into four classes. [Constitution, art. 9, sec. 7; Calland v. Springfield, 264 Mo. l. c. 301.]

We are unable to perceive any force in either of these contentions. A glance at the terms of the act shows that its words of classification according to poponlation, both in the title and in the body of the bill, are applicable to any and all cities which shall or may in the future fall within these specifications. In snch cases the rule is too well settled for cavil both here and elsewhere that the act is not obnoxious to the constitutional prohibition against certain special laws. [State ex rel. v. Southern, manuscript opinion; State ex rel. v. Clayton, 226 Mo. 292; State ex rel. Hunt v. Tausick, 35 L. R. A. (N. S.) 802; State ex rel. Simpson v. Mankato, 41 L. R. A. (N. S.) 1111; Munn v. Finger, 51 L. R. A. (N. S.) 631; Walker v. Spokane, 24 Am. & Eng. Ann. Cases, 994; Mayor v. State, 35 Am. & Eng. Ann. Cases, 1213.]

As to the objection that the act creates a fifth class of cities, the answer is, that the bill does not alter the preexisting classification of the city of Kirksville as one of the third class, but leaves it, and all other cities which shall adopt its provisions, in the same class to which they theretofore belonged. It merely gives to them for purposes of administration, similar governmental powers and functions, and expressly provides that all these new methods of administration may be surrendered and those which such cities formerly had may be resumed at any time at the option of the voters.

Indeed all these contentions as to constitutionality made by appellant in the present case were ruled adversely when the same points were made against the act of the General Assembly whereunder the city of St. Joseph was permitted to' organize as a city of the first class. In-that case a mandamus to compel the city to proceed under its former charter as a city of the second class was sought on the theory that the new act (approved January 14, 1909) was unconstitutional in the several respects which are now urged against the bill under review. But the court held after a clear and careful analysis of the grounds of attack in that case, which were similar to those relied upon in this case, that there was no merit in, any of the contentions and denied-'the writ of mandamus. [State ex rel. v. Clayton, 226 Mo. 292.]

IV.

. The cases cited above from other jurisdictions and the terms of the act under review and those of a similar act passed in 1913 and applicable to cities of the second class (Laws 1913, p. 453, sec. 49) demonstrate that the State 0£ ]yQggourt j[g on]y following the trend of those measures of reform previously enacted in the leading States of the middle west and in other portions of the country for the eradication of inefficiency in the. working of their governmental agencies. The object of this and similar legislation is to give the cities of the State an opportunity to adopt what is termed the commission form of government, the chief excellence of which is the concentration of municipal power into the hands of a few men or responsible agents who are usually put at the head of the several departments necessary to the conduct of the business of cities. The general plan was early put into operation at Galveston, Texas (after the storm of 1900), and has spread over the country with remarkable yapidity. Up to the present time the agents have not exceeded' five and are termed comniissioners. They are selected by means of a short ballot and are usually subject to a recall. The union in their hands of quasi-judicial as well as administrative authority does not violate the constitutions of the various States, since it has been uniformly held that the municipalities so governed are not in. any sense sovereignties and hence do not fall within the provisions of the constitutions wliich apportion the powers of sovereign States. The salutary measures enacted by tbe Legislature of this State on tliis subject reflect credit on that body and must result in tlie protection of urban life and the promotion of civic betterment.

The act under review was devised and in our opinion will contribute to these ends and was enacted under full constitutional warrant. The learned trial court reached that conclusion and the judgment is affirmed.

All concur except Woodson, G. J., who dissents.