75 Neb. 172 | Neb. | 1905
In March, 1891, the state board of health of this state issued, pursuant to the statute in force at that time, a certificate licensing or permitting the plaintiff in error to engage in the practice of medicine. On May 27, 1904, there was filed with the secretaries of the board a verified complaint against him, of the first two clauses of which the following are copies: “The affiants, F. Frink and R. R. Kennedy, residents of Madison county, Nebraska, who, being first duly sworn, depose and say that your Honorable Board should refuse to issue a certificate to Dr. Erick C. Munk of Newman’s Grove, Madison county, Nebraska, or
In November following, the board, after having heard testimony and arguments by counsel, entered of record a finding by them that “the said Erick O. Munk is guilty in manner and form as charged in said complaint,” and an order that said certificate issued to said Munk “be, and the same is, hereby canceled and revoked.” The board are empowered by section 14, chapter 55, Compiled Statutes 1903 (Ann. St. 9428), to revoke such certificates for several specified causes, among which are “the procuring or aiding or abetting in procuring a criminal abortion.” The statute (Cr. code, sec. 6) defines the crime of abortion as the unlawful use of drugs or instruments for the destruction of a vitalized embryo or foetus, resulting in the death thereof, or of its mother. And such may be regarded as substantially the common law definition of the offense. Hatfield v. Gano, 15 Ia. 178; Smith v. State, 33 Me. 48; State v. Cooper, 22 N. J. Law, 248. From the foregoing-order of the state board, Munk prosecuted a petition in error to the district court for Lancaster county, but his proceeding was dismissed, on motion, on the sole ground that the order is not, in the opinion of the presiding judge, reviewable by the courts, either by proceedings in error or
In support of the judgment below it is contended that the state board is a body belonging to the executive department of the state government for the exercise of purely police functions, and that its powers are exclusively executive and administrative, and not judicial, in any sense, and that its judgments and orders are therefore not reviewable by the courts upon error, as provided in section 580 of the code which confers upon district courts jurisdiction to review in that manner final orders of tribunals, boards and officers, “exercising judicial functions.” Reliance in support of this argument is mainly upon State v. Hay, 45 Neb. 321, and authorities there cited. But that decision does not appear to us to be in point, or rather, so far as it is in point, it seems to us to countenance the opposite conclusion. The statute under consideration in that case provided that the superintendent of the Lincoln hospital for the insane should hold his office for the term of six years, “unless sooner removed by the governor for malfeasance in office, or other good and sufficient cause. Oomp. St. 1903, ch. 40, sec. 11 (Ann. St. 9600). The governor preferred against the superintendent certain formal specific charges in writing, and, after notice and a hearing, at which testimony was produced, made an order formally sustaining them, and removed the incumbent from office, and appointed a successor. The former refused to yield, and the attorney general instituted in this court an original proceeding in the nature of an information quo warranto for the purpose of obtaining a determination of the validity of the order of removal. It was held that the court would not, in that proceeding, either inquire into the sufficiency of the evidence adduced before the governor or retry the issues themselves, but that the governor Avas without jurisdiction or authority to remove, except for the cause of malfeasance in office, and that the court would examine the charges for the purpose of ascertaining whether they were such as, if true, justified the order under revieAV, It was
We quite agree with counsel for both parties that there is a close analogy between the class of cases to which State v. Hay, supra, belongs, and that in which the present case is included. An incumbent of an appointive statutory office has not, necessarily, a property or contractual right in his term, so as to render his removal therefrom a judicial act. Neither has a licensee, necessarily, a property or contractual right in his privilege, so as to render a revocation of his license a like act; but we think that the legislature1 confers a quasi property or contractual right in either case by providing that removal or revocation, as the case may he, shall be only for specified cause or causes arising out of the conduct of the appointee or licensee, and analogous to a forfeiture, the declaration of which is essentially a judicial act. This view does not, of course, involve a limitation of the power of the legislature to abolish the office or revoke the license by direct enactment. We conclude therefore that the district court erred in his order of dismissal, and that his judgment should have been one either of affirmance or of reversal, accordingly as the law, applied to the record before him, required the one or the other. The evidence taken at the hearing was before the district court, and, in our opinion, a judgment of that
There is a second “count” in the complaint accusing the plaintiff, in the same form as the preceding, of a similar offense upon the person of Maggie Daly, and what has been said above applies to it also.
For the foregoing reasons, it is recommended that the .judgment of the district court be reversed and the cause remanded for further proceedings in accordance with law.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded for further proceedings in accordance with law. •
Reversed.