(dissenting): The only authority resting in the board is found in the words “it shall have a common seal, and shall formulate rules to govern its actions.” But its actions so far as involved here had already been expressly ordered, directed and prescribed by a power even higher than itself — the legislature. For when the act was passed in 1901 it was provided that—
“All such candidates except as hereinafter provided, shall submit to an examination of a character to test their qualifications as practitioners of medicine or surgery, and which shall embrace all those topics and subjects a knowledge of which is generally required by reputable medical colleges of the United States for the degree of doctor of medicine; . . .” (Gen. Stat. 1915, § 10199.)
This is perfectly plain. When an applicant presents himself it is the duty of the board in its examination to test his qualifications in the subjects required by the schools indicated. No matter how high a grade any such school may possess the board need not take its say so as to the applicant’s qualifications. And no matter how distasteful to any member of the board such a school may be it is none the less the board’s duty to test the applicant’s qualifications in the subjects thus unmistakably pointed out by the legislature. And yet it is stipulated that—
“After taking a part of said examination Dr. C. P. Menninger, a member of -the board notified this plaintiff that he could not further proceed with the examination, and refused to let him further proceed with said examination and gave as his sole and only reason therefor that the applicant had studied medicine a part of the time at the Kansas City College of Medicine and Surgery at Kansas City, Missouri, which the board did not recognize.”
That is to say, there is no pretense that the plaintiff is not fully and completely qualified in all respects as the statute prescribes and requires, but because the board had not seen fit to recognize a cer*820tain medical college, therefore — not that it will not issue the applicant a diploma — it will not even examine him. The consequence is that this action or whim of a mere ministerial board with clearly defined and limited powers serves as a repeal of the statute passed by the legislature and as an impasse to one who may be in all respects fully entitled to admission.
Whenever, those who make the law see fit to change it there will be time for those whose duty it is to obey it to interpose the excuse now put forward. As was well said by Mr. Justice Johnston in The State v. Wilcox, 64 Kan. 789, 68 Pac. 634, in speaking of the board:
“It is vested with discretion to determine the standing of medical schools from which the diploma comes, and also whether a physician who submits to an examination possesses the requisite character, learning, and skill, but it is not an arbitrary, capricious and unrestrained discretion.” (p. 792.)
It was held in Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247, that—
“The state [not some board] . . . may prescribe the qualifications of persons desiring to practice medicine. . . .” (Syl. ¶ 1.)
In the opinion, Mr. Justice Greene said:
“The board ... is not a judicial tribunal. While it may be said to act gwasi-judicially, it is only a ministerial board and performs no judicial functions.” (p. 715.)
I think the writ should issue.