(concurring).
The dissenting opinion from the holding of the majority opinion states that the latter dogmatically holds that since the enactment of the Administrative Hearing Commission Act of 1965, appellant Board has lost all statutory authority to make any initial determination as to the fitness of applicants for licensure. That is not what the majority opinion says. It merely points up that the licensing agency has lost all statutory authority to conduct eviden-tiary hearings into the qualifications of applicants for licensure. The majority opinion correctly applies State ex rel. American Institute of Marketing Systems, Inc. v. Missouri Real Estate Commission, 461 S.W.2d 902, 906 (Mo.App.1970), in its reference that it is only after denial of an application that a hearing on qualification is to be held by the Administrative Hearing Commission. With respect to appellant Board’s refusal to permit respondent to take the examination, which now, upon his passing it, has ripened into a refusal to issue him a license, the statutory procedure has come into play. The dissenting opinion is not inaccurate in stating that an initial discretionary power is still vested in appellant Board to determine whether an applicant is fit or unfit to practice medicine in this state.
But the dissenting opinion is incorrect in construing § 334.100 that the Legislature intended, in an exercise of the police power of the state, to draw the narrow distinction between individuals of bad 'moral character and those guilty of unprofessional and dishonorable conduct (i. e. the statutory specification that conviction of a felony shall be “deemed” to be unprofessional and dishonorable conduct). It may be that conviction of a felony will precede in point of time [and remain a fact (as in this case)] the determination of fitness of an applicant for a license. The words “shall be deemed to be unprofessional and dishonorable conduct” have no more than an evi-dentiary application. If the evidence should show bad moral character, as that term is generally understood, it would support a conclusion to that effect. If the evidence showed a conviction of a felony, then the conclusion or judgment is proscribed by statute. The word “deem” means “2. to come to view, judge or classify after some reflection” * “1. to form or have an opinion.” Webster’s Third New International Dictionary, p. 589; see also: City of Rolla v. Studley, 120 S.W.2d 185, 187 (Mo.App.1938). Thus, the word “deemed” in § 334.100 does not prescribe any greater degree of discretion vested in appellant Board than the words “bad moral character”, but only eliminates a consideration of the judgment upon which must rest the exercise of discretion. The dissenting opinion seems to conclude that the mere fact of felony conviction will preclude, in *618an absolute exercise of appellant Board’s discretion, respondent from re-entering his profession. That conclusion ignores the plain terms of § 161.252 et seq., and the statute providing for review of the Administrative Hearing Commission’s specified findings of fact and conclusions of law on the issue. The real issue is clearly whether upon all the facts, appellant Board has abused its discretion or has acted in an arbitrary, capricious or unreasonable manner in refusing respondent, first, an opportunity to be examined upon his professional qualifications, and second, having passed his examination, a license. The disposition of the real issue is keyed to § 536.140, subd. 2, “The inquiry [of the court] may extend to a determination of whether the action of the agency; * * * (6) Is arbitrary, capricious or unreasonable; [or] (7) Involves an abuse of discretion.” The procedure in effect after the enactment of § 161.332 is that the review by the circuit court shall be upon the record made by the Administrative Hearing Commission, i. e. upon its findings of fact, made after hearing the evidence, and its conclusions of law. This procedure is the salutory change made by the Legislature to avoid the circuit court’s impossible task of reviewing a barren record made in an administrative agency as was formerly the case.
It is true that § 536.140, subd. 5, provides that “the court shall not substitute its discretion for discretion legally vested in the agency.” But that limitation does not mean that the court may not review the facts and determine thereon whether the agency has acted in an arbitrary, capricious or unreasonable manner, or whether it has abused its discretion under the preceding provisions of § 536.140. “An abuse of discretion is an erroneous finding and judgment which is clearly against and contrary to the facts or the logical deductions from the facts and circumstances before the court; which is untenable and clearly against reason which works an injustice, and not justified by the evidence.” Biggs v. Biggs, 397 S.W.2d 337, 343 (Mo.App. 1965); see also: 1 Words and Phrases, 335 et seq. Upon this judicial standard this case should be ruled for these reasons: This case is not one that the measure of the denial of respondent’s right to re-enter his profession is that of a single subjective fact, conclusive in itself, that he has been convicted of felonies which, standing alone, bar him from his profession. Rather, there are objective standards in this case by which appellant Board’s refusal to issue him a license may be measured to ascertain if that action constituted an abuse of discretion. That objective standard is encompassed in these uncontroverted facts: While respondent was imprisoned pursuant to his 1961 convictions, he was a model prisoner who rendered aid to fellow inmates and to the California Department of Corrections. When he came to El Dorado Springs, his conduct continued to be above reproach, according to the citizens, including all ministers, of that city. Significant it is that five California doctors would have testified that respondent was “ready for full integration into society and the practice of medicine”, and “his moral character since his conviction is the very best and in their opinion he could be of great service to any community, his patients and to society as a whole, if he were licensed to practice.” The five Missouri doctors in and around El Dorado Springs would have testified as to respondent’s very best moral character. The two psychiatrists and the psychologist-attorney of Menninger Clinic concluded that respondent is not a danger to anyone now; there was no indication that he is unstable, dangerous, or in any way harmful; his intellect is keen and it would be in his best interest and the best interest of those he would serve if he could again practice medicine and surgery. These medical opinions, moreover, point up that there is at least some division of opinion between the members of appellant Board and those members of the profession who have personal knowledge of respondent as to whether he should be allowed to re-enter his practice of medicine and surgery. The Menninger Clinic report fur*619ther points up that there is no necessity to apply the standards of § 334.100 for the protection of the public in an exercise of the police power of the state. It is further a well-known fact that there is a great shortage of physicians to serve rural areas such as El Dorado Springs, and the evidence shows that there is indeed a shortage of medical practitioners in that area. All of this evidence was ignored by .appellant Board, and it gives support by substantial evidence to the findings and conclusions of law of the Administrative Hearing Commission that the refusal of the appellant to permit respondent to be examined as to his qualifications, which are now established, and to issue him a license, was and is an abuse of discretion. Respondent has shown that “under the law” (Section 161.-322), he is entitled to these considerations.
Other matters should be mentioned. The dissenting opinion • says that § 536.140, subd. 3, the reviewing body is precluded from weighing the evidence if the action of the agency under review involved the exercise of discretion in the light of the facts. There is no necessity to weigh the evidence in this case. The facts are not disputed as to respondent’s convictions and his subsequent full rehabilitation. The only issue is whether under these two sets of facts appellant Board abused its discretion in denying respondent’s application.
The “one commissioner” whose duty it is to hold a hearing upon the complaint of any person who is refused an examination or a license by an agency, and to make findings of fact and conclusions of law, is required by § 161.252 to “be an attorney at law admitted to practice before the supreme court of Missouri.” In enacting the Administrative Hearing Act the Legislature certainly did intend that the actions of appellant Board be reviewed under its procedure. The holding of the majority opinion does no violence to the important functions of the Board initially to pass upon the fitness or unfitness of persons to practice medicine in this state.
It is not required that § 334.100 say that “conviction of a felony”, absent a showing of rehabilitation “shall be deemed unprofessional and dishonorable conduct” where the facts are to be reviewed to ascertain if there has been an abuse of discretion. Biggs v. Biggs, supra.
With the foregoing remarks, I concur fully in the majority opinion.
SWOFFORD, J., concurs.