The opinion
RENDLEN, Chief Justice,
dissenting.
For the reasons following I respectfully dissent. This is a court tried case and our standard of review is determined by Rule 73.01 and the interpretation of that rule as announced in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Notwithstanding Murphy the majority opinion ignores in large part the findings of fact and conclusions of the trial court and instead of examining the record to determine if the findings are supported by the record makes a de novo review of the evidence. We are required to do otherwise by the holding in Murphy . In our appellate review “the decree or judgment of the trial court will be sustained ... unless there is no substantial evidence to support it, [or] unless it is against the weight of the evidence ...” and in the latter instance we should exercise caution and do so only “with a firm belief that the decree or judgment is wrong.”
*483 Turning to the findings of the trial court I submit that an examination of the record which included the sworn testimony, exhibits and stipulation of the parties, amply supports those findings and the trial court’s judgment.
Defendant (respondent) is a Doctor of Osteopathy and is registered by the board (appellant) as a physician and surgeon and has been issued a license with the degree abbreviation “D.O.” inscribed thereon. The trial court found that while distinctions are drawn between an allopathic school of medicine (which typically confers an M.D. degree on its graduates) and an osteopathic school of medicine (which confers a D.O. degree on its graduates), and that presently differences between the schools of osteopathy and schools of allopathy are minor. The two types of schools offer the same basic curricula and use the same texts. While osteopathic schools offer and require courses in history, principles and practice of osteopathy and manipulation, many allo-pathic schools now offer courses similar to manipulation under course descriptions of physical therapy and biomechanics. Further, the American Osteopathic Association, as the accrediting authority of the osteopathic schools of medicine in the United States, requires those schools to provide the standard curriculum of subjects taught at allopathic schools of medicine as well as courses of osteopathic concepts, philosophy, manipulative theory and treatment. There are no schools of osteopathy located in any foreign country.
The court found from the stipulation of the parties that:
... the number of persons registered by plaintiff [board] as physicians and surgeons under Chapter 334, RSMo 1978, is 17,969. Of those 13,055 are registered and given the license designation of “M.D.” or “Doctor of Medicine.” Of those 4,914 are registered and given the license designation of “D.O.” or “Doctor of Osteopathy.” Of prime importance to this case is the fact that of the 13,055 mentioned above and who have received the board’s designation of “M.D.” or “Doctor of Medicine,” 1,853 are graduates of foreign medical schools. (Emphasis supplied.)
The question turns on the licensing procedure and the treatment by the board of these 1,853 which I submit impermissibly violates plaintiff’s constitutional right.
Continuing with the findings of the trial court, foreign medical schools are not approved and accredited by the American Medical Association (hereafter AMA) or the American Osteopathic Association (hereafter AOA). There, is no universal standard as to the degrees awarded by foreign medical school. Indeed the record disclosed that:
... among the graduates of foreign medical schools who have received licenses from plaintiff [board] as physicians and surgeons with the designation “M.D.” or “Doctor of Medicine,” 909 hold diplomas that do not designate the degree conferred as “M.D.” nor do they contain titles that either directly or loosely translate as “Doctor of Medicine.” (Emphasis supplied.)
The court further found that:
... pursuant to stipulation of the parties the court finds that some members of the general public in Missouri understand the letters “M.D.” to be an academic degree and to reflect the unique nature of the holder’s education and training.
In addition, plaintiff board grants licenses to physicians and surgeons who graduated from foreign schools of medicine and this is done upon submission by graduates of foreign medical schools of satisfactory credentials which indicate to the plaintiff (board) that the license designation reflects the education and training which the licensee has acquired, whereupon the board grants licenses and designates those foreign applicants as “M.D.” This licensing procedure is accompanied by a certification from the educational commission for foreign graduates as to the passage of the Educational Commission for Foreign Medical Graduates (ECFMG) examination, visa qualifying examination, English language test and similar requirements. In addition, there is a *484 requirement for a one year residency program. After review of the application and the accompanying credentials, the plaintiff (board) determines whether satisfactory preprofessional and professional education has been attained. On this the foreign medical graduate is licensed with the title “M.D.” As found by the trial court, the shortcoming of this process is that:
... there are no universal standards for medical school education [in foreign countries]. Some individual countries do not have standards for medical schools within their borders. As an example, per the World Directory of Medical Schools ... medical schools in Mexico and the Philippines have no standard curricula or standard tests. These vary from school to school. 1978 results of the ECFMG examination show wide disparity in the results attained by graduates of foreign medical schools. In 1978, ... 134 of 152 taking the test from the United Kingdom schools passed as did 52 of 53 from Australian schools. However, only 429 of 2,297 from Indian schools passed, 232 of 1,878 from Philippine schools and 667 of 2,292 from Mexican schools. (Emphasis added.)
The court pointed out that “there is no universal standard as to the degree awarded by various foreign medical schools.” Great Britain and other United Kingdom countries typically award the degree to their medical graduates of MB, BS, representing the title of Bachelor of Surgery. The title M.D. is not awarded except as an advanced post graduate degree.
The court made the further finding that:
. . . foreign medical school graduates licensed in Missouri are permitted to use, and do use, the letters “M.D.” following their names in letters, business cards, advertisements, prescription blanks, signs and public listings and displays and no disciplinary action has ever been taken against them by plaintiff [board] on the basis of such use.
The plaintiff (board)
. .. has never permitted any Doctor of Osteopathy or “D.O.” to use the letters “M.D.” following his name in letters, business cards, advertisements, prescription blanks, signs and public listings and displays.
In its conclusions the court noted that § 334.047.1 RSMo 1978, in vogue and controlling as to this case requires that the board enter, on all licenses issued “the degree to which the licensee is entitled by reason of his diploma of graduation” (emphasis supplied) and that is true whether the professional school from which he graduates is accredited and approved by the AMA or AOA. The court correctly concluded that § 334.047.2 RSMo 1978, provides that the licensee shall list and display only the letters (M.D. or D.O.) which is the designation of the degree to which he is entitled by reason of his diploma of graduation. There can be no question that the trial court was correct in its view that the plaintiff has the power and duty to issue licenses to qualified applicants authorizing them to practice their profession of either medical doctor or doctors of osteopathy. As stated by the majority the State of Missouri is legitimately interested in assuring that the members of the public have information necessary to make informed judgment on choosing a physician. As announced by the Legislature the education degree received by a physician is a matter which persons choosing a physician may reasonably consider and in so requiring, members of the public are provided with information which will assist in making informed judgments when choosing physicians. It bears reem-phasis that under § 334.047.2 each graduate of AMA and AOA accredited schools must use the degree designation to which he is entitled by reason of his “diploma of graduation.” Defendant had been awarded a D.O., the degree earned from his professional school, and accordingly the trial court concluded defendant must use the designation “D.O.” However, plaintiff board quite without authority applied a different standard to foreign medical graduates and the trial court properly concluded the board had:
*485 ... no legal authority to use the different procedure for designating educational attainments on licenses of foreign trained physicians than for designating educational attainments on licenses of domestic trained physicians.
The court added:
... enforcement of § 334.047.2 RSMo 1978, so as to require defendant [respondent] to designate that degree he earned and not to permit defendant to use the designation M.D. [defendant has sought such right] to simply show that defendant’s training is the equivalent of one holding an M.D. degree while permitting foreign trained physicians who do not hold “M.D.” degree or degrees which readily translate into “M.D.” or “Doctor of Medicine” to use the “M.D.” designation is a violation of defendant’s right to equal protection of laws as guaranteed by the Fourteenth Amendment to the Constitution of the United States and by Article 1 § 2 Constitution of Missouri .... On licenses issued to foreign trained physicians and surgeons, plaintiff may designate the educational degrees actually attained or the English designation to which those educational degrees can readily be translated. Plaintiff may not grant the licensee designation of “M.D.” to physicians whose diplomas or degrees do not so state or cannot be readily translated into “Doctors of Medicine” or M.D. 1
These findings and conclusions of the trial court are supported by the substantial evidence in the record before us and I submit are quite justified under the law.
I concur with the view of the majority that in determining the lawfulness of the discrimination found in this case the proper test is the “rational basis test” see Oliver v. Morton, 361 F.Supp. 1262, 1264 (N.D.Ga. 1973). However, I submit that respondent was the victim of unequal treatment at the hands of the appellant board. He is a physician holding a license to practice medicine in the State of Missouri. He does not have an M.D. but instead a D.O. degree and the board has taken action to prohibit respondent from using the M.D. designation. The impermissible discrimination occurred when the board, considering 945 other physicians who are foreign trained, but who do not hold M.D. degrees, permitted them to use the M.D. designation. This unequal treatment is the core issue in this cause. Oliver v. Morton, Id. passed upon the question of whether discrimination such as that suffered by the respondent passes the rational basis test when measured against the equal protection clause of the United States Constitution. There the court applying the rational basis test to facts substantially similar to those at bar, held the conduct of the Georgia Board resulted constitutionally by impermissible discrimination. There Oliver, like respondent here, was a graduate of an osteopathic school of medicine and held a D.O. degree. Oliver, like respondent, was affiliated with the AMA (M.D.) and not the AOA (D.O.) organizations and boards. Similarly Oliver, like respondent, held himself out to be an M.D. The State of Georgia, as does Missouri, had a statute which on its face prohibited a D.O. from using the M.D. designation. The state board of medical examiners of Georgia, as did appellants in this case, licensed foreign medical graduates [hereinafter FMG] as M.D.’s and allowed them to use the designation M.D. even though many did not have the M.D. degree. The court, finding the defendant a victim of unlawful discrimination stated:
While the court has held that the State can validly require a physician to hold *486 himself out under the degree which he has been awarded, and no other, the State cannot differentiate between two qualified physicians who have not earned an M.D. degree and allow one to parade under an unearned M.D. degree while refusing to allow the other to do so. The State has failed to show the court any reasonable basis for its differing treatment of foreign-trained physicians and D.O.’s. The two are similarly situated; without a rational basis for the distinction, the State’s differing treatment of foreign-trained physicians and D.O.’s is • arbitrary and in violation of the Equal Protection Clause. (Emphasis added.)
The ultimate question is whether there is a legitimate governmental purpose in allowing some non-M.D. physicians to call themselves M.D. while denying other non-M.D. physicians including the respondent the same privilege. The question is one of ultimate fact and not of law. The majority declined to follow the teaching of Oliver supra, stating that that decision was “unpersuasive” with this as the suggested rational: “Oliver is unpersuasive, becáuse its premise that osteopaths and foreign graduates are similarly situated fails to recognize the valid distinction that we have discussed above.” By this the majority is apparently referring to the fact that because there are no schools of osteopathy outside the United States that all foreign trained physicians must necessarily be thrown into the general category of M.D. However, the evidence in this cause was to the contrary and the majority confuses the equal protection argument with the proposition that because there is a difference between D.O.’s and M.D.’s that somehow foreign medical graduates though they have no M.D. degree because of allopathic training must necessarily have an M.D. designation. It is illogical to so conclude, instead, the board is requiring D.O.’s to be designated by' the degree they have received and not permitting them to use the designation M.D. Respondent is not permitted such designation though his practice and training is equivalent to one holding an M.D. degree. On the other hand, violative of the equal protection doctrine, the board permits foreign trained physicians, who do not have M.D. degrees and whose practice and training are not equivalent to one holding an M.D. degree, to use the M.D. designation. Unlike the majority, who somehow overlook the depth and severity of this discriminatory practice, the trial court on the basis of the facts before it regarding the education and practice of M.D.’s, D.O.’s and FMG’s concluded that the respondent’s right to equal protection of the law had been violated and I submit that the findings of fact and conclusions of law are correct and that indeed defendant’s rights under the Fourteenth Amendment of the Constitution of the United States and Article 1, § 2 of the Missouri Constitution have been violated.
I would affirm the judgment of the trial court in which it was ordered that the plaintiff board be enjoined from licensing any physician or surgeon with an “M.D.” or “Doctor of Medicine” if such person does not hold a diploma of graduation, awarding such degree from a duly accredited medical school located within the United States or from a foreign medical school or a diploma awarding a degree from a foreign medical school which reasonably translates to “M.D.” or “Doctor of Medicine” awarded by diploma from such foreign medical school. I further would agree with the trial court that some action should be taken as to licenses issued to persons in the past and who would not under the terms of the decree of the trial court be entitled to such a license but rather than ordering a recall of their licenses (as did the trial court) I would order that each be given notice to show cause why his license should not be withdrawn and a new license issued to such persons with such degree designation as are shown by their diplomas or such designations as may be reasonably translated from their diplomas. This would satisfy the requirements of the State and Federal Constitution. 2
*487 For these reasons I would affirm in part the decision of the trial court and remand for further orders consistent with this opinion.
. Witness, John Matthews, M.D., a specialist in internal medicine, had been practicing in Jefferson City since 1951. He described his familiarity with the practice of the defendant, a D.O. with whom he was professionally associated. Defendant served on the staff of two hospitals and in the opinion of Dr. Matthews, the procedures and practices of the defendant and M.D.’s “were very much the same.” Further, Dr. Matthews examined the principles of osteopathic medicine recited in the stipulation of the parties and in his opinion these principles were compatible with the principles of allopathic medicine and not in conflict with the principles practiced by an M.D. There were no separate charting procedures or separate surgical procedures and there were no different standards of practice.
. Subsequent to the decision in this case the Legislature amended § 334.047 by adding sub-paragraph 3. See § 334.047(3) RSMo Supp. *487 1982. This subparagraph 3 was not in effect and of course not in use at trial or when the decision was rendered below. Though the point was not considered by the trial court, the subsequent (June 1981) action of the Legislature does not control the constitutional question of the alleged discriminatory practice of the board. We agree with the language of footnote No. 7 of the majority opinion that “if that practice is invalid because it works an impermissible discrimination, legislative sanction of that practice cannot validate it.”