(dissenting).
I must respectfully dissent. The majority opinion, relying upon State ex rel. Amercian Institute of Marketing Systems, Inc. v. Missouri Real Estate Commission, 461 S.W.2d 902 (Mo.App.1970), dogmatically holds that since enactment of the Administrative Hearing Commission Act in 1965 (Sections 161.252 to 161.342, inclusive, RSMo 1969, V.A.M.S.) the State Board of Registration for the Healing Arts has lost all statutory authority to make any initial determination as to the fitness of applicants for licensure to practice medicine and surgery in this state. Parenthetically, it should be noted that extensive references in the majority opinion to Finch’s rehabilitation serve only to emotionally cloud the real issue. Fervid references can equally be made to the Hippocratic Oath taken by Finch when he originally became a member of the medical profession in the State of California and the medical profession’s hallowed and time honored dedication to the prolongation of human life, all inexorably steeped in the practice of medicine. However, they too serve only to emotionally cloud the real issue.
I do not believe that State ex rel. American Institute of Marketing Systems, Inc. v. Missouri Real Estate Commission, 461 S.W.2d 902 (Mo.App.1970), is subject to the sweeping conclusions attributed to it by the majority opinion. However, if it is, then the instant case points up a compelling need to reexamine the all encompassing *620conclusion that the majority opinion ascribes to it.
A careful analysis of American Institute of Marketing Systems, Inc. discloses that for all practical purposes it viewed the issue presented as involving suspension or revocation of existing real estate license, although, cosmetically, the case originally arose from applications for renewal of such licenses. To the extent that American Institute of Marketing Systems, Inc. holds that the fifteen agencies specified in Section 161.272, RSMo 1969, V.A.M.S., of the Administrative Hearing Commission Act, are statutorily precluded from initially hearing or - exercising any discretion regarding the suspension or revocation of an existing license, no fault or disagreement can be lodged. Sections 161.282 to 161.292, RSMo 1969, V.A.M.S., of the Administrative Hearing Commission Act, clearly disclose a legislative intent to vest the administrative hearing commission with exclusive original jurisdiction to hear all cases involving suspension or revocation of existing licenses and to enter findings of fact and conclusions of law relating thereto. However, to the extent, if any, that American Institute of Marketing Systems, Inc. is ascribed as constituting authority that the State Board of Registration for the Healing Arts is precluded from originally determining, in the exercise of its discretion, whether or not an applicant is entitled to initially be licensed to practice medicine and surgery in this state, I must and do respectfully dissent and disagree. First, if such preclusion is professed to exist in American Institute of Marketing Systems, Inc., it must be read from dictum contained therein since, as heretofore pointed out, it dealt, for all practical purposes, with the issue of suspension or revocation of existing real estate licenses. Second, if such preclusion is professed to rise from more than mere dictum, I must and do respectfully disagree with American Institute of Marketing Systems, Inc., to the extent that it stands as precedential authority in this case, as held in the majority opinion, that the State Board of Registration for the Healing Arts is precluded from originally determining, in the exercise of its discretion, whether or not an applicant is entitled to initially he licensed to practice medicine and surgery in this state. I do so after careful deliberation of a trilogy of statutory acts which I sincerely believe disclose a contrary legislative intent. More precisely, reference is made to Section 536.140, RSMo 1969, V.A.M.S. (a section of what is commonly referred to as the Administrative Procedure Act), Sections 161.302 and 161.322, RSMo 1969, V.A.M.S., (constituent sections of what is commonly referred to as the Administrative Hearing Commission Act), and Section 334.100, RSMo 1969, V.A.M.S. (relating to the licensure of persons to practice medicine and surgery in the State of Missouri), which will hereinafter be dealt with, hopefully, in depth, insofar as they cast any light on the intent of the legislature relative to the precise issue in this case.
The State Board of Registration for the Healing Arts initially refused to permit applicant Raymond Bernard Finch to be examined upon his qualifications for licen-sure to practice medicine in this state. As a practical matter such constituted a threshold refusal to grant him a license to practice medicine and surgery in the State of Missouri.
Thereafter, as noted in the majority opinion, Finch filed a complaint with the administrative hearing commission which, after a hearing, ordered the Board to give him the examination prescribed in Section 334.040, supra. The administrative hearing commission’s order ensued from the following findings of fact and conclusions of law:
“The overwhelming evidence before this Commission supports a finding that Petitioner is rehabilitated, presently has good moral character, and if licensed, would be an asset to the medical profession. Petitioner has satisfied the requirement of good moral character in Section 334.031, RSMo 1969 and is qualified to take Respondent’s written exami*621nation for licensure. Respondent’s determination not to examine Petitioner is therefore under, the law unreasonable, arbitrary, and constitutes an abuse of discretion.”
The Board sought judicial review of the administrative hearing commission in the Circuit Court of Cole County under Section 161.332, RSMo 1969, V.A.M.S., and therein requested the court to stay the order of the administrative hearing commission which was refused. Perforce, the Board was left with no alternative but to give Finch the examination prescribed in Section 334.040, supra. Finch achieved a passing grade on the prescribed examination, but the Board steadfastly refused to issue him a license to practice medicine and surgery in the State of Missouri', and timely appealed to this court. As further noted in the majority opinion, the issue on appeal is whether the order of the administrative hearing commission should be affirmed or reversed, and such constitutes a viable issue on appeal and has not been rendered moot by the unusual circumstances that occurred below with respect to Finch’s having taken the examination prescribed in Section 334.040, supra, and achieving a passing grade thereon.
The Board’s dual refusal, in the first instance to permit Finch to take the examination prescribed by Section 334.040, RSMo 1969, V.A.M.S., and, in the second instance, to grant him a license after achieving a passing grade in the referred to examination, was predicated upon the fact that Finch had been convicted of a felony, the brutal murder of his wife, in the State of California. Finch’s conviction of the referenced felony stands undisputed.
Section 334.100, supra, so far as relative to the issue before this court, unequivocally and with lucidity provides:
"1. The board [referring to the State Board of Registration for the Healing Arts] may refuse to license individuals of bad moral character, or persons guilty of unprofessional or dishonorable conduct; . . . Without limiting the foregoing general language, the following specifications shall be deemed unprofessional and dishonorable conduct within the meaning of this section: . (4) Conviction of a felony, (Emphasis added.)
In view of the above, I see no escape from the conclusion that the legislature intended to and did draw a sharp distinction between persons of “bad moral character” and persons “guilty of unprofessional or dishonorable conduct”. The rationale for this sharp distinction appears to lie in the premise that “bad moral character” is determined relative to the time at hand, as opposed to the premise that guilt of “unprofessional or dishonorable conduct” is determined both prior to and relative to the time at hand. Consequently, a person may currently be possessed of good moral character, rather than “bad moral character”, yet still be currently guilty of “unprofessional or dishonorable conduct” in view of past transgressions.
Furthermore, in view of Section 334.100, supra, I see no escape from the additional conclusion that the legislature intended to and did vest the State Board of Registration for the Healing Arts with broad discretion to refuse to license persons to practice medicine in this state statutorily deemed guilty of "unprofessional and dishonorable conduct”, e. g. conviction of a felony, regardless of when the felonious transgression occurred in point of time. The Supreme Court of Missouri in State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943, 950 (1933), observed that in examining the “object of our Medical Practice Act [an earlier counterpart of present Chapter 334, RSMo 1969, V.A.M.S., Physicians and Surgeons] as a whole, we find it to be an exercise of the inherent police power of the state in the protection of its people attempting to secure to the people the services of competent practitioners learned and skilled in the science of medicine, of good moral character and honorable and reputable in profes*622sional conduct.” The practice of medicine is properly fraught with public interest and concern that far exceeds that involved in all other licensure areas, save only the legal profession. Standards and qualifications that might adequately protect the public in other licensure areas could fall far short of doing so in licensure of persons to practice medicine.
Bearing Section 334.100, supra, in mind, attention now focuses on Section 161.302 and 161.322, supra, of the Administrative Hearing Commission Act. That portion of Section 161.302, supra, deemed pertinent to the issue herein, with unmistakable clarity, provides as follows:
“Upon refusal by any agency . to permit an applicant to be examined upon his qualification for licensure . . . such applicant may file, . a complaint with the administrative hearing commission. ... If at the hearing the applicant shall show that under the law he is entitled to examination for licensure . . . the administrative hearing commission shall issue an appropriate order to accomplish such examination.” (Emphasis added.)
The first four words contained in Section 161.302, supra, “Upon refusal by any agency”, clearly demonstrate that the legislature, enactment of the Administrative Hearing Commission Act notwithstanding, recognized that the State Board of Registration for the Healing Arts, and it alone, was still clothed with the discretionary power granted by Section 334.100, supra, to initially determine whether an applicant was fit or unfit to practice medicine in this state. It is pertinent to note that the State Board of Registration for the Healing Arts consists of seven persons, all of whom are members of the medical profession. Section 334.120, RSMo 1969, V.A. M.S. It defies credulity to believe that the legislature intended for a “one commissioner” administrative hearing commission to initially pass upon the fitness or unfitness of persons to practice medicine in this state rather than the combined professional expertise of seven members of the medical profession. Yet, such is the practical result reached by the majority opinion in this case.
What is the significance or meaning of “If at the hearing the applicant shall show that under the law he is entitled to examination for licensure . . . the administrative hearing commission shall issue an appropriate order to accomplish such examination . . . ” ? (Emphasis added.) Before specifically addressing this query, it should be pointed out that Section 161.322, supra, of the Administrative Hearing Commission Act provides that “The provisions of chapter 536 RSMo . . . except those provisions . . . which are in conflict with 161.252 to 161.342 shall apply to and govern the proceedings of the administrative hearing commission and the rights and duties of the parties involved.” (Emphasis added.) Chapter 536 RSMo, commonly referred to as the Administrative Procedure Act, provides for judicial review of final decisions rendered by administrative agencies. Section 161.322, supra, considered in conjunction with Chapter 536 RSMo, is rendered meaningless if Chapter 536 RSMo does not control the scope of review possessed by the administrative hearing commission concerning complaints filed before it by a person whom an agency has “refused” to “permit . . . to be examined upon his qualifications for licensure . . .”. In cases involving refusal of an agency to permit a person to be examined upon his qualifications for licensure, unlike revocation or suspension of an existing license, which the administrative hearing commission initially hears by virtue of Sections 161.282 and 161.292, supra, the administrative hearing commission is limited to review of the agency’s refusal and such review is relegated to whether “under the law” (Section 161.322, supra) the complainant was “entitled to examination for licensure”. Paragraph 3 of Section 536.140, RSMo 1969, *623V.A.M.S., is of salient importance. It precludes the reviewing' body from weighing the evidence if the action of the agency under review involved the exercise of discretion in light of the facts.
Cases are legion in this state, in view of Section 536.140, supra, holding that a body reviewing an administrative decision may not determine the weight of the evidence, nor substitute its discretion for that of the administrative agency, and further holding that the function of the reviewing body is to determine primarily whether the decision of the administrative agency was supported by competent and substantial evidence upon the whole record, whether it was arbitrary, capricious, or unreasonable, and whether the administrative agency abused its discretion. Koplar v. State Tax Commission, 321 S.W.2d 686 (Mo.1959); Cupples Hesse Corporation v. State Tax Commission, 329 S.W.2d 696 (Mo.1959); Drey v. State Tax Commission, 345 S.W.2d 228 (Mo.1961); Gaddy v. State Board of Registration for Healing Arts, 397 S.W.2d 347 (Mo.App.1965) ; Peck’s Products Company v. Bannister, 362 S.W.2d 596 (Mo.1962); Stein v. State Tax Commission, 379 S.W.2d 495 (Mo. 1964); and-Merritt v. State Hospital No. 1, Fulton, 403 S.W.2d 940 (Mo.App.l966). I fail to see any basis for holding that Section 536.-140, supra, is in any way in conflict with Sections 161.252 to 161.342, supra, so far as the latter apply to refusal of an agency to permit a person to be examined upon his qualifications for licensure as distinguished from revocation or suspension of an existing license. Otherwise, Section 161.322, supra, is barren of all meaning. Nor do I see any basis for any reviewing body to hold that the action of the State Board of Registration for the Healing Arts in this case was arbitrary, capricious or unreasonable, or constituted an abuse of discretion. This is so for the basic and fundamental reason that Section 334.100, supra, statutorily mandates that “conviction of a felony” “shall be deemed unprofessional and dishonorable conduct.” This is so for the further basic and fundamental reason that Section 334.100, supra, does not say that “conviction of a felony”, absent a showing of rehabilitation, “shall be deemed unprofessional and dishonorable conduct.”
I do not believe that the conclusions I have reached do violence to Section 11 of S.C. S.S.B. 284 (Laws 1965, page 280). The referred to section merely provides “Any provisions of existing statutes pertaining to the administrative agencies listed in section 3 [now Section 161.272, RSMo 1969, V.A.M.S.] which are in conflict with this act are repealed” (Emphasis added.) As heretofore pointed out, provisions of Chapter 334 (Physicians and Surgeons) authorizing the State Board of Registration for the Healing Arts to hold hearings concerning revocation or suspension of existing licenses are clearly in conflict with Sections 161.282 and 161.292, supra, of the Administrative Hearing Commission Act. However, original jurisdiction invested in the State Board of Registration for the Healing Arts by Section 334.100, supra, to refuse to licensure persons guilty of dishonorable or unprofessional conduct, is not, in my opinion, in conflict with the Administrative Hearing Commission Act and I find nothing in the latter act evidencing a legislative intent to completely emasculate the State Board of Registration for the Healing Arts regarding this vital function (the net result of the majority opinion). The opening language of Section 161.302 (specifically dealing with jurisdiction of the administrative hearing commission in cases involving original licensure), supra, “Upon refusal by any agency” (emphasis added), necessarily presuppose that some initial determination be made by the licensing agency before any jurisdiction attaches to the administrative hearing commission. If the legislature had intended otherwise, it would have been a matter of drafting simplicity to have provided that the State Board of Registration for the Healing Arts was required to submit all requests for initial licensure to the administrative hearing commission and for it to *624initially hear and determine such requests as was done in those instances involving' suspension or revocation of existing licenses. The referenced language contained in Section 161.302, supra, however, is antithetical to the language contained in Sections 161.282 and 161.292 (restricted to the suspension or revocation of existing licenses), supra, wherein the administrative hearing commission is clearly and unequivocally given original jurisdiction to hear and determine such cases.
The majority opinion notes that the State Board of Registration for the Healing Arts granted Finch a hearing before issuing its order denying him the right to take the examination for licensure prescribed in Section 334.040, supra. At this hearing, Finch introduced evidence of his rehabilitation commensurate with that outlined in the majority opinion. Finch’s previous conviction was never disputed and he was fully aware that it was the “roadblock” to his licensure by the board. In my opinion, the Board afforded procedural due process to Finch, particularly so when measured by the standard expressed by Mr. Justice Goldberg (joined by Mr. Justice Brennan and Mr. Justice Stewart) in his concurring opinion in Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (holding that the facts did not measure up to the standard expressed for determining procedural due process) wherein at pp. 107, 108, at p. 1182 of 83 S.Ct., he stated:
“The circumstances will determine the necessary limits and incidents implicit in the concept of a ‘fair’ hearing. Thus for example, when the derogatory matter appears from information supplied or confirmed by the applicant himself, or is of an undisputed documentary character disclosed to the applicant, and it is plain and uncontradicted that the committee’s recommendation against admission is predicated thereon and reasonably supported thereby, then neither the committee’s informal procedures, its ultimate recommendations, nor a court ruling sustaining the committee’s conclusion may be properly challenged on due process grounds, provided the applicant has been informed of the factual basis of the conclusion and has been afforded an adequate opportunity to reply or explain.”
I believe that the State of Missouri can and has mandated qualifications for those desiring to practice the sacred and honorable profession of medicine that transcend even the “loftiest goal(s) of penology”. Raymond Bernard Finch’s rehabilitation, although standing to enable him to become a useful and productive member of society, does not, per se, eradicate his undisputed “unprofessional and dishonorable conduct”, thereby qualifying him to practice the sacred and honorable profession of medicine in this state. The gravity of his crime, when equated with the profession he seeks to practice, compels such a conclusion.
If State ex rel. American Institute of Marketing Systems, Inc. v. Missouri Real Estate Commission, supra, stands for the broad precedent ascribed to it by the majority opinion, then I would respectfully overrule it to that extent for reasons heretofore set forth — and I would reverse the judgment herein and remand the case to the circuit court with instructions to reverse the order of the administrative hearing commission. Any other holding in this case, in my opinion, completely eunuchizes the State Board of Registration for the Healing Arts.