State ex rel. Johnson v. State Board of Health.

the members of the board, being public officers, discharged their duty regularly and properly, in accordance with the law. [City of St. Joseph v. Farrell, 106 Mo. 1. c. 441.] Accordingly, the presumption follows, that when the board acted, a majority of the members thereof were present.

We must therefore rule the point against the relator.

Evidence.

II. Relator next assigns as error the admission of the testimony of Dr. Jose relative to the stateIncompetent ment made by Miss Boothby as to relatior having performed an abortion upon her. The learned Attorney-General, for respondents, insists that the practice and proceeding before the Board of Health 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 obtainable." As authority for such insistence the Attorney-General cites State ex rel. McAnally v. Goodier, 195 Mo. 551. That case was an original proceeding in prohibition, brought against the State Board of Health to prohibit it from proceeding with a hearing upon charges preferred against the relator. This court there held that prohibition would not lie, as the Board of Health is not a judicial body, but merely exercises ministerial functions. Based upon this enunciation, respondents would have us declare in the instant case that the board, being but an administrative or ministerial body, can consider evidence, making a finding, and render judgment thereon, when such evidence would admittedly have been inadmissible in a court of law. Such is not our conception of what is consonant with the policy of the law.

The statute under which respondents acted (Sec. 8317, R. S. 1909, now Sec. 7336, R. S. 1919) has been held to be highly penal in its nature. [State ex rel. Spriggs v. Robinson, 253 Mo. 271.] Such being the case it is to be construed stritly against respondents and liberally in favor of relator. [State ex rel. Spriggs v. Robinson, supra; State v. Koock, 202 Mo. 223; State v. McMahon,

State ex rel. Johnson v. State Board of Health.

234 Mo. 611.] Moreover, respondents cannot act arbitrarily, nor against the rules of evidence. [State ex rel. McCleary v. Adcock, 206 Mo. 1. c. 558.] The declaration attributed to the deceased young woman was not made under an impression of impending and immediate death, as evidenced by the decisively negative answer of Dr. Jose to the question, "Say anything about that she realized the end was near, or say anything about dying?" That being true, the statement would unquestionably, under the rules of evidence, have been inadmissible in a criminal proceeding before a court. [State v. Johnson 118 Mo. 491; State v. Colvin, 226 Mo. 1. c. 481; State v. Nocton, 121 Mo. 537; State v. Kelleher, 201 Mo. 614; State v. Gow, 235 Mo. 307.] And we see no just reason and find no precendent to the contrary in this State, as to why a similar rule should not prevail in a hearing before the State Board of Health, when a valuable privilege, if not a property right, depends upon the outcome of that hearing. To let down the bars and admit uncorroborated hearsay testimony, which the record here discloses constitutes the only possible positive evidence upon which the order of the board can be predicated, is not consistent with the practice which should be followed in inquir ies of even a quasi-judicial nature. The entire record being before us for review, and a careful scrutiny thereof having revealed no evidence corroborative of the declaration made by Miss Boothby, we hold that the admission and consideration of the testimony complained of was incompetent and prejudicial to the rights of the relator.

Reputation

III. Relator insists that error was committed in admitting the testimony of Dr. Gillham that "there was a great deal of belief that this man (referring to relator) did cause abortions," and the testimony of Dr. Hill to the effect that from conversations had by him with his patients he was very positive that relator had been producing abortions. To this contention we are constrained to give assent in, considering a similar question, BROWN, P. J.

and Hearsay.

State ex rel. Johnson v. State Board of Health.

speaking for the court in State ex rel. Spriggs v. Robinson, 253 Mo. 1. c. 285, 286, said: "Coming back to the facts in this case we find no insistence in the brief of the Honorable Attorney-General that the conviction and suspension of appellant can be substained . . . upon the evidence of Dr. Hiller to the effect that several physicians of Joplin had told him that appellant bore the reputation of being a criminal abortionist. It would certainly have been an insult to the intelligence of the age to contend that a judgment could be sustained on the mere hearsay evidence of Dr. Hiller, which ought not to have been admitted or considered by respondents.' (Italics ours). And so in the case under review, while we are in thorough sympathy with the laudable aim and purpose of the Board of Health to rid the medical profession of practitioners guilty of dishonorable conduct, we must nevertheless accord to the accused every right given him by the law. To render a conviction bottomed upon the veracity and competency of persons other than witnesses testifying under oath, which the record here would alone seem to warrant, would be contrary to the established principles of all law.

Further questions, including the unconstitutionality of the act under which respondents have proceeded, are urged by relator. From the views thus far indicated it is apparent, however, that the order made by respondents will have to be annulled, for which reason it is unnecessary for us to rule upon the additional errors assigned.

Our order is that the action of respondents in suspending the license of relator to practice medicine and surgery be quashed, and that the judgment of the circuit court affirming and upholding such action be reversed.

All concur, except James T. Blair, C. J., and David

E. Blair, J., who dissent.

288 Mo.-43

State ex inf. Chinn v. Hollowell.

THE STATE ex inf. JAMES H. CHINN, Prosecuting Attorney, ex rel. J. F. BOTTS, v. LILLIE L. HOLLOWELL, Appellant.

In Banc, July 8, 1921.

1. COUNTY SUPERINTENDENT: Qualifications. A person who, at the time of her election in April, 1919, held a certificate of the board of regents of a state normal school; which was also authenticated by the State Superintendent of Public Schools, authorizing her to teach the branches of study therein named in the public schools of Missouri for a period of two years, was qualified to hold the office of county superintendent of public schools.

2.

:

State Certificate. In 1911, Section 10929, Revised Statutes 1919, was amended by striking out the word "life" and all that part thereof relative to the teacher's certificate being issued by the State Superintendent of Public Schools, leaving a "state certificate authorizing the holder to teach in the public schools of Missouri" as the only requirement necessary to qualify a teacher to hold the office of county superintendent; and a certificate issued by the board of regents of a state normal and authen. ticated by the State Superintendent of Public Schools is a "state certificate authorizing the holder to teach in the public schools of Missouri." The law in force in April, 1919, did not require a person elected to the office of county superintendent to ucld a life certificate, or a certificate issued by the State Superintendent as the result of an examination, but only required the qualifying certificate to be a "state certificate."

Appeal from Schuyler Circuit Court.-Hon. N. M. Pettingill, Judge.

REVERSED AND REMANDED (with directions).

Higbee & Mills for appellant.

(1) The court erred in rendering judgment of ouster. On the agreed statement of facts, the evidence and the pleadings, appellant was eligible and possessed the

State ex inf. Chinn v. Hollowell.

qualifications for the office of county superintendent. The certificate issued to her by the First District Normal School is a state certificate within the meaning of Sec. 10929, R. S. 1919, as amended by Laws 1911, pages 404 to 405, as it authorized her to teach in the public schools of any county in the State. (2) The state certificate mentioned in line 13, Section 10929, R. S. 1919, was a life certificate granted by the State Superintendent as the result of an examination. This section, as amended (Laws 1911, p. 404 in line 13) reads: or shall hold a state certificate "authorizing him to teach in the public schools of Missouri." The italicized words were stricken out, and the words in quotation, following "certificate, added by the amendment. It is apparent that a state certificate may be issued by one other than the State Superintendent. They are general words, ejusdem generis, meaning a certificate from any normal school, or the normal department of the State University, or Lincoln Institute, or the State Superintendent; otherwise, the amendment is an abortion. There is no particular teacher's certificate denominated eo nomine a state certificate. If there is anything in Section 11073 supposed to conflict with this construction, it must yield to the amendment above mentioned. The controlling words are, "a certificate authorizing them to teach in the public schools." (3) The certificate held by Mrs. Hollowell, if not within the letter, is a state certificate within the spirt and meaning of Section 10929, as amended by the Act of 1911. Perry v. Strawbridge, 209 Mo. 639; 36 Cyc. 1108C; Broom's Legal Maxims (7 Ed.) 685, 686.

Shelton & Shelton and Fogle & Fogle for relator.

(1) Appellant must have been qualified to hold the office of County Superintendent of Public Schools of Schuyler County, at the time of her election. She could not qualify afterwards. She must have held the qualifying diploma or certificate at the very time of her