*1 87 рetition, rehearing Argued April 1, reversed October denied December v. OF OREGON BUCK STATE 2d 262 P.
Ralph Moody, argued E. of Salem, cause for Henry Moody appellant. were Lamkin, On brief & Douglas Hay, M. Hanzen and all Salem. L. Raymond Kennedy, Deputy E. Charles James J. Attorneys County, Multnomah of Portland, District argued respondent. E. the cause for With Charles Raymond B. on the District McCourt, brief were John Attorney, Deputy and C. Attor- Robison, W. District ney. C. J.
LATOURETTE, George duly Appeal by licensed Buck, Dr. H. Oregon, surgeon from of the state predicated judgment and sentence on of conviction alleged 23-408, OCLA, known violation as follows: Abortion which is Act, the Criminal any any person woman shall administer “If any drug, pregnant medicine, or sub- child with a any employ in- use or or shall stance whatever, thereby intent with means, strument or other destroy the same shall neces- unless be child, such per- sary preserve such such mother, life death of such child or mother in case the shall, son guilty thereby produced, of man- be deemed ’’ slaughter. charges alia, inter on Decem- indictment, by employing Dr. certain instru- Buck, 11, 1950, ber destroyed woman, unborn child of certain ments, *4 necessary preserve being life of the to woman. it not question, at time in in effect code, The medical providing examiners, of medical for a board after surgeons, pro- physicians licensing and other of necessary provided opinion, by visions not for this §54-931, OCLA, inter as follows: alia, grant “The board refuse a license any applicant desires medicine who surgery may suspend re- this state or or following any
voke such reasons: licenses “(a) Unprofessional or dishonorable conduct; “(b) procuring aiding abetting or procuring an abortion such done for the unless peril appears relief of a woman whose health pregnant because of her condition after due con- duly phy- sultation with licensed medical another surgeon; sician and <<##### “(i) any Conviction of offense for
punishment may peni- be incarceration in a state tentiary prison; copy or in a federal of the record of conviction, certified to clerk entering the court the conviction, shah be conclusive evidence;
i # i # [*] [*] ?# > Among the definitions found in 54-901, OCLA, following: are
mean such conduct as independent presumed foetus at a it has foetus has not two hundred circumstances, one hundred of the an ethical shall disputable presumption (( # “ or dishonorable ‘ ‘Unprofessional ‘ ‘Abortion’ shall mean the arise patient, [*] for the if & period acquired life; fifty (150) days forty [*] taking and the acquired # expulsion provided purpose (240) uterogestation would not be into consideration the public, such days power surgeon, of this statute that the take shall lack after the time and power after рlace expulsion of such indulged gestation, under all the sustaining conduct’ gestation.” so earlier than conclusively earlier than early power place. good shall
92 question appeal in this is what main involved any, Medical Practice Act if the contained
effect, (§54-901 chapter 54-945, OCLA, title 54 as 9, — amended) has on the Criminal Abortion Act. inAnd may be noted that outcome of this this connection only Dr. license to case whose Buck, not affects a has been revoked on matter medicine heretofore wholly Buck, in this In re case, unrelated to facts 258 but also the entire medical 488, 124, 200 Or P2d profession. construing rule that a court, is familiar purpose the intent must ascertain statute, language
legislation from used. The rule well Peterson, & Co. v. stated in & and Armour Co. Swift follows: P2d as 97, 108, 216, 192 Or 233 the construction of a “The cardinal rule for language to from the thereof statute is to ascertain purpose lawmakers as what the intent of the was object designed or be what was to served, 351, v. 124 Ekwall, 359, 339, 346, be Leonard Or. attained. Galloway, 174 463; Fox v. 264 P. 148 Or. accomplish this such P. 2d 922. with aid We interpretations be found the rules always keeping legitimate sources, extrinsic and in legislative enact a that the intent to valid mind law will be assumed. Fullerton and constitutional legislative supra, page v. at 670. When Lamm, given has been it should ascertained, intent though, doing so, the literal mean effect, even ing Allen v. the words used is not followed. County, P. 179 173 2d 548, 554, Multnomah Or. Tex. 126 State, 110, 4, v. S. W. 2d Wood 475; arriving legislative at L. R. In 121 A. 935. 931, proper for the court take into it is intention, policy purposes of the Act, consideration and to consider in that connection whether purposes by Ban- policy and be attained such a will interpretation language used. literal P. Schulderman, 167, 178, field v. 137 Or. Multno 298 P. 89 A.L.R. Allen v. 504; County, supra, express mah 554. It intent at legislature of the this seek, which we to do * * look we must entire statute. V’ recognized language It is well that when unambiguous an act is intent *6 gained language from
must be used. Giving consideration to the Medical Act Practice clearly pointedly alone it is obvious that the same perform authorizes a doctor to an abortion as therein if defined, the same is done for the relief aof woman appears peril preg- whose health in because of her nant condition after due consultation with another duly surgeon. licensed medical
Since the Criminal Abortion Act and the Medical province Practice it is our conflict, Act to determine relationship doing, between the in two, and, so together. we must construe the same It is true that express the Medical Practice Act makes no reference unimportant Act, to the Criminal Abortion but that is necessary implications relating if are there to it. recоgnize repeals,
We amendments or previous by implication modifications of statutes are they upon proper not nor are in favored, frowned legislature clearly case. If the intended the enact change Medical Practice ment of the Act alter or given Abortion Act under Criminal circumstances, given such must be full force and intention effect. generally pari is conceded statutes together. materia are construed to be There is another equal importance, although and that rule is, statutes strictly pari yet, they materia, are if not relate to persons things, same or or matter, the same class persons things, closely or or are allied same to the
subject object, they may together. or be construed §
In 50 Am Jur read: 347, Statutes, 350, we “Although statutory may provisions there be which, sense, in a relate to the same matter and yet pari general not rule is materia, statutory provisions that statutes or which relate person thing, to the same or or to the same class persons things, closely or or to the same or a subject object, may regarded allied be as in * * * ” pari materia. Interpretation p In Black, 2d Laws, ed, following: we find legislation “It also held that similar consideration, nature the statute under although precisely pari materia, is within the reason of the be to for rule, referred ** purpose the same Statutory In Crawford, Construction, we read: phrases pro- “Just as the different words, given visions aof statute should not isolated and meaning, an abstract so the statute itself in its *7 entirety by interpreted solely should not be refer- ence the other terms, to its own rather reference to but particularly state, laws of the to those subject. pertaining Every same statute regarded part body should be the whole system Consequently, construing or of law. in statute, constitution, the common law, other particularly pari those in statutes, materi and expressly those referred to, should be examined, legis- in the effort to ascertain intention of the * * * p § lature. 420, 227. necessary process “When is to resort to the may properly the court construction, of certain the refer to other statutes in its effort to determine meaning language legislature, of the used epecially pre-existing such statutes where are contemporaneous. particularly While this rule is applicable pari the court is materia, to statutes limited to statutes that character. Certain strictly pari statutes are not materia given such consideration, also as statutes cognate subjects, they since rea- on son within the the rule which allows reference to statutes * * *” pari p §229. 428, materia. construing
In statutеs to determine the intent legislature, it makes no difference whether the construing court a civil statute in relation to a object criminal or vice statute, versa; the ultimate the intention is to ascertain of the in en acting legislation. such In 815, 82 CJS Statutes, read: 366,we * “ * * legislation may Other related be con- * * * construing dealing sidered in statutes with * * * respect, ; and in this crimes, similar ex-
pressions dealing in civil and criminal statutes general subject given with uniform same should be construction, resort to the civil statutes penal give as well as to the code will be had to meaning language appearing in the criminal statutes.” App
In Ebbs, State v. 89 Mo 95, 98, court said: “ * * * Though chap- section 3867 is found relating punish- ter 47 statute to crimes and chapter ments, while section embraced in 138 in relation to the assessment and collection they subject, revenue, both touch the same and therefore should be treated and considered in just accordance with the rule referred to.” v. In United States Hutcheson, 312 US 219, 85 Sup Supreme L ed Ct Court, in con- struing (criminal) Clayton the Sherman Act and the (civil) and Norris-La Guardia Acts said: “In order to determine whether an indictment *8 charges against an offense the United States,
designation by
pleader
of the statute under
purported
lay
charge
which he
is immaterial.
may
charge
He
have conceived the
under one statute
which would not sustain the indictment, but
may nevertheless come within the terms of an-
other statute. See Williams v.
States,
United
382,
U. S.
42 L. ed. 509,
A consideration of the
of this court, writ
ten Mr.
County
Justice
in
Multnomah
Bossman,
Langley,
Fair Association v.
Before statute we call provided it 91-911,OCLA, to where attention nonprofit such associations, fair as the Pair, all State Round-up, County and Pendleton Pairs, not re- quired conduct such to have licenses to but that races per they entitled to withhold 10 shall be cent of the receipts wagering. gross mutuel We do not believe argue anyone deign would that such associa- be amenable to Nuisance Act. would tions in en- To determine intent acting Act, Medical Practice we shall trace Subsequent inception. passage to the from its same legislature, by Act, Abortion Criminal page adopted Laws of 1889, an act entitled: “An Begulate Act to Surgery- Practice of Medicine and Oregon.” in the State This statute created a “board Oregon,” for examiners the State of provided applicants, for issuance entitled under the law thereto, licenses medicine surgery within the state. Provision was made for hearing, “unprofes- revocation of licenses, after [sic] sional or dishonorable conduct,” but the act might contained no detailed statement of what deemed such conduct. *10 legislature, by Oregon,
The the Laws of 1895, p complete embodying 61, enacted new and law provided Medical Act. ap- Practice The act for the pointment aof Board of Medical Examiners, for the issuance of licenses to medicine and sur- gery, following power: and invested the board with the “and such board refuse or revoke a license for unprofessional subject, or dishonorable conduct, how- right applicant appeal,” to the such ever, to inas provided. the act Section 4 of the act defined “un- professional” or “dishonorable conduct” as follows: ‘unprofessional’
“The words or ‘dishonorable (3) in as used section conduct,’ are three this hereby procuring declared to mean: First, aiding abetting procuring or or a criminal abor- * * *” tion; only Inasmuch as statute of the state that prohibited and “a defined criminal abortion” was manifestly 23-408, what is now OCLA, was the legislature by such intent reference to abortion, incorporate to refer into the 1895 so far Act, provisions applicable, as of the Criminal Abortion Eisen, v. 61 Or Examiners Medical Act. Board of P 52. 492, and 1935 legislatures 1915, 1913, respects Act Practice Medical in some
amended authorizing provision the board retained but unprofessional or dishonorable for revoke licenses abetting aiding procuring or or “the conduct ’’ procuring abortion. a criminal foregoing enactments from the obvious It is legislature use of the term “crim- intended, to hold Act, Medical Practice inal abortion” in surgeons responsible under the physicians Criminal subject them a revoca- well as to as Act, Abortion statute. of that Under for violation tion of license surgeons, physicians existing as well law, then performing persons, prohibited from all were other any such abortion was whatsoever, unless abortion necessary preserve of the mother. “to the life” Oregon chapter
By Laws very Act in a Medical Practice material amended the defining “unprofessional” respect by the words conduct” as “dishonorable * * *
“ procuring aiding abetting or procuring unless such done abortion *11 appears peril in whose health the relief of woman another licensed medical after due consultation with surgeon.” physician and amending in the act the noticed that be It will employed had been in the “criminal”, word years, period Act for a of over Practice Medical language previously used and from the removed was noted “abor- added; however, amendment above the remedy this defined. To situation and tion” was not kind of abortion medical certain what doctor make perform, legislature, by chapter could the next respect § 3, amended the Medical Practice Act the that “abortion” was defined to mean: “ * * * period expulsion the of the foetus at a uterogestation early acquired so that it has not power sustaining independent pro- life; an conclusively presumed shall
vided it be for the purpose of this that statute the foetus has not acquired power fifty such than earlier one hundred days (150) gestation, disputable pre- after and a sumption power lack such if shall arise expulsion place forty than take earlier two hundred days gestation.” (240) after glean foregoing from the at that the time the We alleged crime was the medical board had committed, authority revoke the license of a if doctor he procured, procuring aided abetted or of an being expelled one where the foetus was abortion, early, acquired defined that had as it not so sustaining independent power of life, unless relief of a woman was it done whose health peril, appeared after collaboration an- with surgeon. other licensed Con- versely, authority no the board would have to revoke performed if he license doctor’s abortion appeared to him it that the mentioned where woman’s imperiled after due was consultation an- health with physician. other necessarily night day, follows, if right no to revoke the
the board had doctor’s license performed abortion under if' he the circumstances performing doing of such an abor- mentioned, legal, and unlawful. In would be other words, tion will, doing he be chastised for one is told if thing way, he does it a certain unless certain *12 equivalent telling him that if he to does it in the way punished. prescribed he will not be parodoxical, It be if indeed, would the state were prosecute permitted a doctor for a to violation of the Act under when, the Medical Criminal Abortion Prac- permitted very thing he was to do the Act, tice he prosecuted for. would further, was And, absurd anomaly and an if the board were authorized to cancel upon license conviction doctor’s under the Criminal permitted Abortion Act when it would not be to so legally where an abortion was do conducted under the Practice Act. Medical legislature place
That it was the intention of the to surgeons physicians in a class them- as far as as defined selves, abortions, the Medical concerned, Practice Act, further illustrated in legislation affecting naturopaths, chapter 451, Laws wherein their 1927, 54-531, OCLA, licenses could performing for criminal be revoked abortions.
interesting although note in this connection that chiropractors, by § 54-331, could have OCLA, their revoked for the conviction of a licenses crime involv- ing turpitude, moral no was made of abortions mention chapter until the 1953enacted 556, where chiropractor it was written that could have his license revoked ¿fe ¿fe 6 i sK' aiding “(g) procuring abetting or purpose
procuring an and for the abortion, this shall be deemed to the re- an abortion Act mean product from of a woman the moval the womb delivery any prior conception child; at time nothing provided, in this Act shall however, any licentiate authorize under title be construed to perform chapter OCLA, abortion; J ¿fe # # ? C( ¿fe ¿fe legislation patent under the above chiro-
It is *13 naturopaths footing stand on the same practors or as ordinary persons, as the so far Criminal Abortion Act and are amenable thereto. is concerned legalize legislature intended to abortions That the the Medical Practice Act is further in defined as Oregon By chapter by exemplified 1951. Laws 265, by affecting practice of abortions the law strengthened. By tightened was and doctors medical performs an abortion he must a doctor when duly physician medical licensed consult with another surgeon an associate or relative of is not “who and agrees surgeon that an and who provides: necessary.” law further The abortion * * * “ shall record of this consultation hospital writing maintained in the shall be be in or in the offices occurred consultation where surgeons period physicians for a involved all years date such abor- after the three of at least tion.” jurisdiction if stands, criminal now the law
As only doctor permitted would the attach, were medical colla- but also his performing abortion, criminally In such a case hos- liable. borator, under accusation the doctor pital made record against the crim- in furtherance of him used could be prosecution. inal legislative to the passing, attention we call
In Oregon 183, ch 1945, Laws ch enactments, osteopathic phy- applying Oregon Laws of pertaining parallel to abortions the laws sicians osteopathic and Thus, Act. Practice Medical in concerned, are far as abortions so doctors, medical category from that of chiro- distinct placed in a naturopaths. practors and have held that a medical doctor
Since we
has
legal right
perform
abortion,
defined
provided
Medical Practice
he acts for
Act,
the relief
appears
peril
of a
whose health
woman
because of
pregnant
her
after consultation
condition,
with another
question
posed
doctor,
whether or not
appears
peril
such relief of woman whose health
pregnant
integral part
her
because of
condition is an
charged against
of the crime
him or a matter of
defense.
It is conceded
state,
law
Oregon
provision
is well
if
established, that
such
is a
part
description
material
of the offense and
necessary ingredient
thereof,
the same must be
negatived in the
if
indictment, but,
not, it is a mere
negatived
matter of excuse or dеfense and need not be
*14
Polly,
in the indictment. State v. Tamler &
19 Or
25
v.
528,
71;
P
State
Schriber,
It is likewise and it is conceded, the law, that in an indictment under the Criminal Abortion Act, the necessity preserve to the life of the mother must be negatived proved. and State v. Glass, 5 73; Or State Ausplund, Clements, v. 15 14 P Or 410; State v. P 86 Or 167 1019; Annotation, ALR 1266. In at bar, the case it is admitted that the defendant duly physician surgeon is a licensed and and that the question performed days abortion in was within 150 gestation. negative after Since the indictment did not performed the abortion that was for the relief of the question, appeared imperiled woman whose health pregnant of her condition, because would this be fatal to the state’s case? axiomatic that if accused can admit the every allegation against him
truth of
in the indictment
any
yet
innocent
is in-
crime,
and
be
the indictment
support
bim
not
as to
and will
conviction.
sufficient
performed
In
if the defendant
case,
the instant
question,
upon
health
the woman in
whose
abortion
imperiled
pregnant
appeared
her
condition,
because of
duly
phy-
another
licensed
after due consultation with
surgeon,
guilty of
crime.
he was
no
sician
necessary
charge
logical that if it is
It seems
ordinary
in an
criminal abortion case
in an indictment
necessary
performed
the abortion
was not
being
integral
preserve
mother,
life
by analogy,
prosecution against
part
in a
crime,
physician
surgeon
duly
an abortion,
licensed
by Medical Practice
it
like-
Act,
as
would
defined
necessary
charge
that the abortion was
wise be
performed
for the relief of woman whose health
peril
pregnant
appeared in
because of her
condition,
integral part
be an
the crime
that too would
since
surgeon.
against such a licensed
Bearing in mind that related statutes
must
they
together as if
were one
we must
law,
construed
Act and the Medical
the Criminal Abortion
construe
they
together as if
were one act where
Practice Act
surgeon
charged
physician with
a licensed
committing
under
an unlawful
as defined
abortion
Erickson,
Act. Erickson v.
Medical Practice
Or
approached
the matter is
Reversed. specially concurring.
ROSSMAN, J., appeal construction 23-408, This calls (Criminal Act) §§54-901 Abortion OCLA, (Medical including amended, Prac- 54-945, OCLA, as question Act). tice The us should two is, before together say or should acts be construed we foreign to the first that it must be the second ignored in the construction of the first. following possible interpretations pre- three (1)
sent themselves: two acts should be read they together should be held to mean that a licensed relieve woman her un- if he born child finds that the woman’s health is imperiled pregnant majority [the her condition legislation]; interpretation (2) adopt together, they should be read but should be two acts repeals, that the Medical Practice deemed to mean Act physicians concerned, Criminal Abor- so far (3) bearing the Medical Practice Act has no Act; tion *16 upon whatever the Criminal Abortion Act and must ignored applying be in the latter.
If by the third alternative were embraced the court, physician guilty the result would be that a would be § although under 23-408, OCLA, he ejected profession could not be from the medical following (1) pregnant set of circumstances: upon complaint concerning woman called him with a (2) good her he health; found, that her faith, health imperiled by pregnant was her condition and that an necessary; (3) abortion was he consulted with other physicians (in way licensed medical no related to or him) they associated with concurred in a find- ing imperiled woman’s health demanded an (4) physicians placed finding abortion; their writing, including a statement an abortion was necessary imperiled to save the woman’s health; and (5) physicians signed writing filed their in the specified by Oregon § office May Laws 1951, Ch 265, 3. writing I add that in such an instance the which physicians signed, upon Oregon in reliance Laws against 1951, Ch would turn 265, 3, them and would leading an be admissible item of evidence to their Obviously, conviction under §23-408, OCLA. under such circumstances, no would take the course by Thereby legis- offered the Medical Practice Act. genesis legislative which had its lation, the 1937 ses- through year sion, which, amendments since that present form, trap taken its has would become a unwary. a snare for the It would be shunned all except unsuspecting, and the result which it was yield intended to would be thwarted. majority opinion, adopts the first of mentioned minority choices,
the three is criticized in the opinion appears of this court. to me that had the embraced court, been it would be third choice merit, of manifest hold that to criticism subject who wishes to with our ethical physician comply after convicted he has faith- felony, laws an enactment of legislature, would followed fully *17 a meaning so absurd legislation palpably to assign all would recoil from it and truculent that declare could not have intended to bring that the legislature result. such a about 1937, of with the session
Beginning legislature in the insert Medical Practice Act began provisions to a to re- regulating physician’s right delineating her child. In that lieve a unborn year, woman of a Oregon 277, Laws Ch through right a clarified to relieve woman was pregnant physician the Medical Practice Act read: by making “ * * * for the of a unless such is done relief health after duo-con- woman whose appears peril another with licensed medical physician sultation and surgeon.” legis- the attention of the
In 1939 the had again I shall Ch lature, Oregon but Laws pass on just amended the so provision quoted 265, 3,§ it read: as to make *
íí * * relief of a is done for the unless such health peril woman whose because appears consultation with after due her condition pregnant and sur- licensed medical duly physician another an relative of the is not associate or who geon that abor- agrees and who surgeon physician record of this consultation necessary. The tion maintained in the and shall be writing shall in the occurred or where consultation hospital surgeons all involved physicians offices after date three least of at period years such abortion.” legislature
It seems clear that believed that beginning its culminating enactments, with 1937 and provision just quoted, in the clarity stated with conditions under which a could relieve a appears woman of her plain linborn child. Likewise, it reasoned that those laws would render guilty more certain the conviction protection physicians. legislature, of ethical obviously, thought physician, good who, in faith, contemplated performance operation, would willingly consult with another and that the two would object placing findings writing not ing their and fil- appropriate Only
the latter in the office. unscrupulous object legis- would to that so course, manifestly legislation, lature reasoned. Hence, the as perfected by minority the 1951 amendment, which the virtually designed deem yield vacuous, was protection desirable result. It was intended to afford practitioners to ethical and render more certain the *18 unscrupulous. prosecu- conviction of Under it the longer stymied tion of abortionists would no be unwillingness cooperate. of the woman to
Oregon part 1945, 128, Laws Ch which forms a of pertaining osteopathic physicians, the enactments to counterpart exception a of the 1939 with employs “osteopathic” the term in lieu of physician. Oregon “medical” Laws 1953, 183, Ch pertaining osteopaths, substantially § likewise 2, duplicate quoted. the 1951 a of statute above The subjected legislature has not other elements legislation profession just to the reviewed. recently legislature as the 1953 session, As was chiropractors (Oregon concerned with 1953, Laws Ch (Oregon naturopaths 555), 556) 1953, and Laws Ch but recognize in either of did not those branches of the pregnant right profession woman of her relieve preservation her of health. child for the many foregoing In enactments which view of clarity osteopaths, powers physicians, recite with going naturopaths, chiropractors and, and set on, forth they dealing must conform the standards to which pregnancy, be unreasonable to believe with it would legislation accom- extensive was intended to this except plish nothing from revocation to save osteopaths physicians who rendered licenses legislative described in those enactments. the service gone Surely, all would not have nothing than more that trouble to do to save license especially not if it revocation, from deemed that the patient was licensee’s service to his felonious. legislative assembly enactments our extensive perfecting really has since 1937 would not save been osteopathic physician’s license from re- or medical meticulously complied respec- he vocation even if with, Oregon Oregon tively, § 183, 2, Laws Oh 1953, after con- 265, Laws Ch because he had been 1951, Board Act, Abortion victed under Criminal compelled would be to revoke Examiners his Medical account of Ms conviction the crime: license on Oregon (i), Laws Ch OCLA, subd §54-931, legislation represented by a half dozen Thus, 2. unscrupulous, combat the or so and intended to acts, productive than less the mountain in would even brought only Aesop’s wliich labored but forth fable dealing cited enactments above a mouse. Unless chiropractors osteopaths, physicians, and naturo- with powers paths set forth their intended to were they they conform, must are com- to which standards *19 away pletely frittered and the its useless adopted them. time when
Oregon Laws Ch pro- 540, which extends (§§ visions of our through nuisance laws 9-407 9-411, OCLA) premises in performed, which abortions are following: includes the “ * * * such unless is done for the relief of appears a peril woman whose health in of because pregnant her condition after due consultation with duly osteopathic physician a and licensed medical or surgeon under the conditions restrictions
prescribed (2) in subsection of section 54-931 or * * * ” section 54-831, O.C.L.A., quoted bewill observed that the words for all are, practical purposes, the same as those in the medical osteopathic physicians suppose acts. Let us that building occupied by group physicians, one patient whom relieves of her unborn child for the purpose preserving imperiled her health. Let us physician assume also that before the took that course good physicians consulted, he faith, other licensed they pursued, good in similar that faith, the course particularly exacted Medical Practice Act, Ore- gon Laws 265; is, Ch let us assume that placed diagnosis physicians writing, signed their hospital it and filed it with the authorities. Under minority if circumstances, those the contentions of the could correct, be convicted under writing Abortion Act and the Criminal would upon material case;, but, evidence his the other premises guilty hand, would be owner nothing. legislation Yet, in the two instances, purposes, would, for all relevant be the same. In physician, legislation instance of the would mean nothing except that his license could not be revoked; signed, pursuant fact, certificate he legislation, the demands would render certain *20 property owner, In the the instance of his conviction. operation legislation mean that of his the would the premises document which the the lawful, was (the owner’s) signed pro- physicians be his would The Thus, the act would be Janus-faced. face tection. confronting the would declare to him that the doctor merely rendered license, saved for him his but his act The face toward the owner would conduct felonious. no announce that he had committed crime whatever. Surely legislature did intend this enact- the not two of mouth to utter out of the corners its such ment pronouncements. bizarre carry projected the
Let the situation mi- us nority’s step further. Let assume that view one us property physician and owner are one the the is, that the the same that is the individual; building his office is of the in which located. owner purported in the event, In that the criminal two cases alleged person. Likewise, be same the crim- would abortion) (the same, and, be inal conduct would statutory provision applicable finally, controlling be couched the same terms. both cases would property as defendant, owner, situation, that Yet, physician, guilty, not he would but, be held would guilty. not this demonstrate when found Does into Medical Practice Act wrote scrutiny, provision under it was not concerned delineating merely with the rules the license but with right physician’s governing to relieve woman child. her unborn minority opinion that, declares since the 1953 says legislation the state’s nuisance
amendment (Criminal manslaughter act mention that its modify, Act) shall be “deemed to alter Abortion precluded court therefore this is amend” that holding from the 1951 amendment to the Medical Practice Act to the amendment osteo- pathic modify act likewise did not or amend the man- slaughter plainly illogical. act. The contention In- dubitably provision manslaughter about act was written act into the nuisance to make it clear that applicable the standard to all who effect abortions, except employed medical men, is that in the [“to preserve life of such *21 ‘ ‘modify, ”]. mother If the not had wished to manslaughter alter amend” or the act as to medical surely purpose would not men, it have its announced (or any legislation type nuisance other the act dealing perjury, usury, highways, acts with such as dealing etc.) legislation but in its men, with medical adopted and, seen, as we have in 1953 extensive legislation dealing right with them and with the osteopaths, chiropractors naturopaths and to relieve say her woman of unborn child. did not in that legislation that its enactments should not be deemed the to affect act. minority say: OCLA, “Section con- 23-408, by
cerning manslaughter incorporated abortion is with- Oregon change out material in the Revised Statutes appears therein and as section 163.060. The Revised adopted Oregon were as 1953, Statutes law. Laws they chapter were, 3.” but so, also, Indeed was all legislation adopted had been other which this state January prior Oregon See 12, 1953, 1953. Laws accordingly, legislation And, Ch 3. extensive assembly prior defining had written to 1953 physician’s right to effect an abortion was likewise by Oregon adopted Revised Statutes “as law”. In Medical Practice words, other Act the osteo- pathic adopted by Oregon act were much “as law” as manslaughter act. Moreover, as3, Laws Ch concerning chiropractors, legislation naturo- adopted paths, osteopaths after, not nuisаnce was gained Nothing Oregon 1953, Ch 3. Laws before, minority indulging by about in the observations drop the matter But let us not our Eevised Statutes. point. As from the contention made we see at minority, Medical Practice Act parts of Act are now our Abortion Eevised Criminal simultaneously adopted Statutes and both were Oregon They adopted, if 3. were Laws Ch minority right, great parts are as of one omnibus act. they Accordingly, parts of one act as much as two paragraphs our of Limitations the several Statute appropriation parts of an act. Since such are their apply implied to them the nature, we do rules of minority opinion gives repeal, to which the much parts the rule the several attention, but single must be read construed as a whole. creating
Obviously, legislature, in Eevised consequences such Statutes, never intended that minority call aid should come from its to their *22 give compilation us a of our to better laws. efforts indulged in the above observations to show the I have brought minority which in the reasons lack of merit point their view. to minority Medical Practice Act find that the having reached that and, character
is administrative can no effect that it have whatever hold conclusion, disagree upon I shall not Abortion Act. the Criminal minority’s although of the act, characterization with the licensing a better to term it it would be I believe through §§ especially to 54-921 attention I call act. 54-924, as amended. OCLA,
Licensing we acts, whether deem them adminis- generally trative character or otherwise, confer power. They priv- authorize the licensee to exercise ileges engage in or which activities he otherwise could infrequently they protect not do. Not him from li- penalties or abilities criminal to which he would be possess subject explore if he did not his license. Let us practice A that a little further. license to medicine, practice engage engineering, like a license to or law easily schooling, Tears is not won. followed examination difficult conducted a state board of undergone examiners must before license privileges powers issued. Valuable await those long schooling run hard who can course. The examination are the the hard means which the state selecting employs for those to whom it will entrust the powers. finaly momentous When the has license been the licensee himself received, finds authorized do to layman things subject- which the cannot do without ing damage possibly himself actions or to even to prosecution. examples. I criminal shall mention some layman possess for a use is unlawful оr narcotic drugs, prescribe, but a can administer and morphine, dispense cocaine other A narcotics. young passes man who the state bar examination, thereby from wins a license this court law, may thereupon orally writing, make statements, or subjecting damage to a without himself to li- court prosecution ability criminal defamation. One gains apothe- meets the tests and for himself an who may possess cary’s and sell substances in license layman gains right deal. cannot who One robes cleric becomes invested wear the with the perform marriage power to ceremonies and ex- with military emptions, those from taxation and such as *23 bring thought, upon Anyone, will moment’s service. showing many that instances additional mind to grant power licensing purpose to confer acts is stop that exemptions. we find we do when Hence, licensing in administrative or review is an act under contrary, go and view it one we to the on nature; likely very whereby legislature intended con- to ordinary lay- powers upon which the the licensee fer especially possess. true This man does not required legislation the licensee to other event training undergo long and meet severe tests before one seek a license if, No would his license. he won things which the license do the one, he could without him to do. authorizes authority very to relieve a woman fact that the
The circumstances delineated child, under the of her unborn is set forth in a licens- enactments, in the 1937and surely place significant. ing That where act is expect, power statement of the to find a one would granted the licensee. necessary carry further
I not deem do analysis (Criminal the two acts Abortion Act and Act). legislature I believe that the Practice Medical meaning sufficiently clear the made has legis- opinion attributes to that of the Chief Justice meaning has made its lation. When accepted by it must be courts without' manifest, becoming say equivocation. It is never court to legislature concerning its enactments, one of “We you you expressed but, have not mean, since see what yourself chosen, would which we have in the terms you pay said.” attention to what will no we Possibly more order. one observation guilty minority say is “a the defendant Generally, problems with courts confronted man”. *24 statutory identity of construction deem the irrelevant appellant agreed upon of and until is reserve, the has meaning scrutiny, of the act under a conclusion guilt identity culpability as his The to or innocence. appellant of the should not influence the court in con- struing challenged a stаtute. if, But in order to sus- judgment guilty, a tain which holds this defendant minority’s adopt challenged we construction of the legislation, Oregon pay big price, of will State legislation product event, in that for, years repeated of sixteen effort, and which is in- protect practitioner tended to ethical but render certain the conviction more abortionist, will be abject impotence. to a reduced state opinion I in concur written the Chief Justice. specially concurring. TOOZE, J., majority I concur with the result reached in the opinion. in this The indictment case does not state against duly to state a crime facts sufficient physician surgeon. licensed importance of this Because decision to the profession public whole, as a as well as to the general, particularly, law and, enforcement offi- express my propose length. I views at some cials, one issue in There is but basic this case. That question prac- whether issue involves the the medical duly physicians authorizes licensed tice act and sur- perform lawfully geons abortion as defined in purpose law, for and under the conditions prescribed. therein majority holding does. holds that With that
The complete argument with the accord, I am in as well as support majority both in thereof advanced opinion specially concurring opinion and the of Mr. minority precisely Justice Bossman. takes opposite opinion view. their It is the medical practice performance act does not make lawful (as practice act) an abortion defined the medical by duly physician surgeon upon licensed a woman peril appears pregnant whose health because her (after duly condition due consultation with another surgeon), licensed and that if such an performed, operating physician abortion although surgeon, his license to medicine and surgery may may, revoked on account thereof, *25 prosecuted nevertheless, for under the so-called criminal abortion statute. argument minority
The entire of the is devoted attempt Every to its to bolster that conclusion. student recognize of the law the will truism that if such con- necessarily clusion false, is then it follows that support wholly entire in discussion thereof is irrelevant, reply. and needs no immaterial, disagree principles
I do not with the stated in most quoted of the cited and cases from in numerous minority opinion, statutory nor with the rules of con- struction to which attention is called. In fact, all agree upon principles members of the court most of the majority minority opin- stated in both the law and disagreement proper application ions; our lies in principles problem my to the those before us. It is principles opinion that the stated do not warrant or justify minority the ultimate of the conclusion as stated. herein-before my clearly judgment,
In is in demonstrated opinion, opinion majority in as well as of Mr. Justice conclusion reached Bossman, minority unsound, adopted, and, if would lead to is Upon in absurd results. tbe basic issue this case and adopt entirety purposes opinion, I in for the of this its opinion Mr. Justice Bossman. statutes, In the construction of when construction necessary proper, primary governing or and is binding and the one that is rule to be followed law upon legis- ascertain and declare the the court to statutory All other rules of lative intent. construction guides simply secondary importance and are primary application However, rule. aid in the guides have been used decisions these as some- many gymnastics which, of mental lot basis simply confusion, instances, have added confusion ambiguities in truth am- created where no have biguities existed. provide as 2-217, 2-223, OCLA, 2-216,
Sections follows: * * *
“§ construction of a stat- 2-216. In the judge simply instrument, ute or office is, in terms or declare what to ascertain and therein, not to insert what has substance, contained inserted; has been omitted, to omit what or been and where provisions partic- there are several possible, adopted is, if to be ulars, such construction (Italics supplied.) give all.” effect to will govern: “§2-217. General Intention *26 provisions particular intents. In the construc- and legislature, of the a the intention tion statute in- instrument of an in the construction and possible; pursued, parties, is to be tention of if provisions general particular when paramount the former. the latter is inconsistent, general particular one control a intent shall So a (Italics supplied.) with it.” that is inconsistent interpretations “§ of stat- of two 2-223. Which suseep- equally prevail. is statute Where ute to interpretations, tibie of one in two favor of natural right, against the other the former it, is to prevail.” foregoing binding upon rules are as law They comprise legislative court. declaration of how its acts shall construed. permitted
A apply never court is to resort to and statutory rules of construction, order to reach a conclusion which it deem desirable, where the language plain unambiguous. the statute is It legislature adopting that when axiomatic is plain, unambiguous, act makes use of and understand presumed language, pre is able have intended cisely imply. There is what its words no occasion to beyond plain go meaning those wоrds and their application statutory rules of ascertain, con legislative purpose. Galloway, Fox struction, v. 922, 925; P2d 82 CJS 339, 347, 148 Or 571, Statutes, (1), (2). § 322b sure, I am conceded, 23-408,
It will be OCLA, commonly as the criminal abortion known statute, is unambiguous, plain, and couched understandable my language. opinion, is That also true, of the practice act. In both acts the medical intention of clearly appears language from em- ployed. majority’s
In the several discussions of the basic legislative problem us, reference is made to the before history proper, act. That is necessary. proper simply because it but proof upon our additional conclusion furnishes respecting purpose the intent and the basic issue language legislature, from as determined used An examination of correct. the act will in the *27 120
conclusively language throughout show used plain presents ambiguities. no is and understandable. It stands an initial enactment If as it now were law history, any prior legislative clear its intent without readily purpose is from would be and ascertainable and language employed, rules hence, recourse to and, unnecessary. statutory construction is CJS of (2). Statutes, 322b crystal language it is clear that
From the used purpose (permit), is to license of act the sole regulate practice and of medicine control, and Every provision surgery of is this state. the law definite, end. It is a law directed to that which complete specific, terms. and its Because of the necessary training equip highly specialized that is to body, diagnose treat the ills of the human and one rigid qualifications provides set of and a the law aspires for who examination one obtain technical surgery practice and in this medicine a license to provides a set issued, a license state. Once (abortion included) specific and a code definitions of regulation discipline for the control and of of together a meticulous as to with statement licensee, disciplinary proceedings. The law conduct of agency Medical Examiners, Board of creates a provisions act, to administer the state, power prescribes in detail the duties of Board. complies provisions with the
A licensee who right protected his in his to follow chosen the law is profession. if commits one more However, he minutely spelled his out in offenses as certain right his revoked, license surgery forever terminated. state this medicine and (§ OCLA) separate The statute lists 54-931, any distinct the commission of offenses, *28 may a license be revoked. The second offense enum- erated is: “(b) рrocuring aiding abetting or in
procuring an abortion such for unless is done the appears peril relief of a health in woman whose * * pregnant because of her condition Italics supplied.) provisions
It manifest that in is the the act rela- gist tive to abortions do not constitute the the law; they principal are but mere incidents to the law’s purpose regulation phy- control and of licensed —the surgeons. and sicians
The abortion mentioned is above the abortion de- fined the medical code. If such is abortion performed, may the license be unless it revoked, is appears done a woman whose health for relief of peril, equivalent saying affirmatively is etc., which to physician that it done be and license of the surgeon may and not be if it is done for revoked, appears peril, relief of woman health whose etc. ordinarily imply Affirmative words in a statute negative negative is what not affirmed, words imply negated. therein the affirmative of what is not § 675, Statutes, CJS 336. primarily However, we are concerned in this case practice upon with what effect act has proceedings manslaughter under the For statute. that history purpose, practice of the medical act is important. my opinion changes the act prior existing important respects. laws two conclusively by so
As is demonstrated Mr. Justice important the first and most effect of the Rossman, authority gives duly medical code to licensed surgeons perform lawfully physicians and to certain prior adoption in its which, abortions thereof present manslaughter pro- under constituted form, visions of 23-408,OCLA. particulars
The second is in what consideration manslaughter legis- has this act been affected regulation duly and control of lation licensed physicians surgeons. duly licensed manifest that a
It is
surgeon
would
amenable
according
performed
abortion
him
for an
statute
of the medical
such an abor
terms
being
because the same
or course
one,
tion
a lawful
both lawful
unlawful at
of conduct cannot be
place
same
and under the
circumstances.
and time
same
al.,
v.
et
Although in the result reached in I concur opinion agree majority this that the indictment in and facts sufficient state crime fails state case surgeon, duly against and never- licensed holding disposed go further than its I am theless, provisions of the medical code the effect as to upon manslaughter has abortions relative to practice my the medical act It is belief statute. complete jurisdiction instances to over the which takes applies, it applicable, therefore, wherever and it is re- penalty of its conditions is for a breach the sole except act otherwise license, where of vocation penalty provided. different itself a
123
passed amending
Until the Act of 1987
was
practice
physicians
surgeons,
medical
as
act,
well
persons,
all
as
other
amenable to the criminal
were
performed during
for an
abortion
abortion
statute
any stage
pregnancy.
To that
time the medical
practice act itself referred
Be
to criminal abortions.
proper,
pro
references,
cause
such
and when
visions of the
statute were considered
practice
in connection with those
the medical
respects
Ausplund,
abortions.
v.
121,
State
86 Or
at of that it sustaining independent acquired power of an life”, practice the medical defined in act, as reason regulated governed exclusively and his conduct is by provisions §§ 54-901 to OCLA, 54-945, as act). (the practice medical amended goes practice act further medical no than to by certain abortion under circumstances authorize qualified persons the state deemed to be those to recognizes perform distinction this be- law at common and a an abortion homicide; tween contemplates abortion statute the criminal while any destruction foetus at homicide time gestation, extending during period of the common- “quick with child” to the rule of “moment of law conception”. manslaughter statute, all abortions ex-
Under necessary preserve cept life of the those mother prohibited and unlawful. its made On face the are persons, provisions applies and but for the act all practice duly act would include also the medical surgeons. physicians Prior to the amend- licensed they duly included. Insofar were of ment surgeons physicians and are concerned, the licensed practice act makes lawful now what otherwise medical a violation statute. would acts the two are inconsistent It is obvious surgeons physicians and are concerned. The insofar as practice permit act that provisions medical performed lawfully to be abortions re- certain provisions of the criminal pugnant abortion act. observed, is in before As fully complete covers the field code. itself physicians regulations of control, license,
125 surgeons. provides punishments its own viola- of tion its terms. repeals by implication
It is well established that are not but when there are on the favored, two acts subject, they repugnant any same are in if of their provisions, any repealing later act, “the without clause, operates repugnancy repeal to the extent of the as a incompatible provisions of the first”. Inconsistent repealed, leaving each with other are thus the former respects. law in full force and all effect other Miller v. 1, School Dist. No. Multnomah 106 Co., Or 108, 211 P v. 116, 174; Co., Swensen Southern Pac. P 275, 89 Or 158; 79, Criminal Law, CJS §27.
In Preston, v. 631, 637, State 103 Or 206 P we said: “ * * * principle Under of law that where there is a conflict between two statutes, both equal
which would otherwise have force effect, and provisions particular, special and the of one are specific and their and directions, those of general special pro- other their terms, prevail general provisions visions must over the provisions practice The of the medical act are special, specific particular, They their terms. subject they cover entire matter with which deal. legislature Obviously, power pre- had the phy- conditions under a scribe the licensed lawfully perform surgeon could an abortion, sician penalty provide imposed and to that should be upon such licensee for violation those conditions. penalty imposed The under the medical act is my opinion, In that of revocаtion license.
penalty is exclusive. required attach criminal was
responsibility the terms of the medical for a violation of yet pro- did one; a valid make the law code to highly punishment penal in character-— that is vide a great severity penalty license, revocation far-reaching consequence professional man. *32 § Physicians Surgeons, 44, and Am 172,
In 41 Jur stated: it is practice is a medicine valuable to “The license authorizing right, property tion followed. Such revoca- and a statute strictly practice medicine must be a license to of highly penal and must are statutes physician’s favor.” in the construed pro gave construction to the such strict
We respecting practice act a criminal medical visions of the Eisen, v. Medical Examiners in Board abortion of judgment supra, reversed revocation where we per ground had been that a criminal abortion on the complaint for failed revocation because formed, necessary to state essential averments state all the to provisions of under a crime § v. Bank Also see Schramm statute, 23-408, OCLA. P2d 553, 1093, 20 P2d 23 546, 143 Or California, of Sargent, 485, v. 73 Trust Co. Or Title & 327; Pacific 490, Examiners, v. Board Medical 144 P Fuller 452; 734, App2d 171, 175; State Board 59 P2d 14 Cal 49, 405, 21 Mandell, 198 Miss So2d Exam. v. Dental Pa 47 A2d al., 458, et 354 v. Schireson 409; Shafer Am 599, Jur Forfeitures 667, 1133; ALR 665, Penalties, § 2. and
Beyond peradventure doubt, it was the clear all duly legislature permit to licensed intention of the distinguished surgeons, from other physicians and lawfully perform persons, certain abortions all had others, as to theretofore them, as well as to by As criminal abortion statute. condemned tbe been by physicians performed licensed such abortions application surgeons, statute has no and the criminal way application, as no affects its whatever. This in my opinion persons. other It is written, adoption amendments to the of the 1937 and 1939 surgeons physicians and aas purview from the of the criminal removed class were extent. to that statute many practice medicine, unlike
The fact that
requires special knowledge,
occupations,
lawful
other
training,
important
care,
because of the
skill,
health and life which
committed to
interests of
justifies
physician’s
setting
care,
apart
all
themselves,
in a class
in the interests
them
safety.
public
health
Such laws are con-
Physicians
Surgeons,
41 Am Jut
stitutional.
§
473.
Law,
Constitutional
8; 16 CJS
right
surgeon
However, the
of a
*33
practice
per-
further than the medical
extends no
right
limited
mits. His
to the abortion defined in
physician
surgeon performs
law.
If a
and
an
stage
after the foetus has reached a
abortion
where
power
sustaining
independent
of
an
it has
the
attained
guilty
code,
in the medical
he will be
life,
defined
manslaughter,
necessary
unless such abortion is
of
to
preserve
mother,
the life
the
because the medical
protection
practice
him
act offers
no
whatever in such
In other words,
circumstances.
as to such an abortion,
footing
per-
on
same
as all
he would stand
other
subject
responsibility.
sons
be
to
same criminal
and
Referring
minority says:
situation,
to this
practice
conclusively
the medical
act it
“Under
acquired
presumed
power
that the foetus has not
sustaining
independent
life earlier than 150
days
gestation.
majority
after
opinion,
Under the
rely upon
a licensed
could
that conclusive
presumption
days
and be sure that for 150
apply,
act would
hence,
manslaughter
physician,
apply.
act would not
But must a
peril,
at his
determine the exact date on
gestation
winch
occurred, that
is, on which the
impregnating intercourse was had, in order to know
protected by
he
whether
will be
prac-
the medical
may
tice
liable to conviction
man-
slaughter?”
question
An answer to that
any way
will
not
light upon
legislative
shed
intention. However,
question,
say
answer to
I
phy
will
that if the
surgeon places
upon
sician and
pre
his reliance
sumption,
conception.
he is
bound
know the date of
presumption
Both
disputable
the conclusive
pre
sumption contained in the definition of abortion relate
species
They
are a
of evidence.
in
constitute
direct evidence.
2-401, OCLA. Before either
operate, particular
facts
upon
must be established
which to base the same. §2-403, OCLA; Hansen v.
Oregon-Wash. R.
Co.,
& N.
97 Or 190, 224, 188 P 693,.
129 sustaining independent indict- life. The power of prove allege, it. must State and the state ment must so supra. If the evidence Clements, 237, 247, 15 Or v. days conception within occurred discloses that presumption prior conclusive abortion, physician his and demands operates favor of the conception acquittal; discloses that evidence if the days days but less than than 150 more occurred disputable presumption prior then abortion, to the question operative fact arises and a becomes jury at the timе whether determination acquired performed had the foetus abortion was independent power determination life. This sustain necessarily upon all the evidence be based would presumption. including disputable case, surgeon facing as dilemma The really minority’s question suggested not a in the is it faces him whether he risks revoca- one, serious but manslaughter. conviction of of license or tion presumptions purpose of the The contained in the legislature simply is abortion clear. The definition of surgeons subjected physicians did not want existed at common law the hazards that where the question an unlawful homicide, of whether as dis- tinguished depended abortion, from was committed “quickened” upon had whether foetus in the “quick The term with child”, mother’s womb. generally the common law, known to defined as from determined the first moment movement of pregnant woman. 1 the foetus is felt Am Jur Abortion, 312, Abortion, §18; CJ Note 39. It only testify the mother could is obvious as to largely upon hence rested conviction date, testimony pur- of the woman. the uncorroborated pose of our definition abortion to eliminate en-
tirely theory “quickening” the common-law and place upon the matter a much more substantial basis; power independent that of a is, foetus to sustain an presumptions with certain making life, to aid in it effective.
At common law “abortion” was a word used to
embryo
mean that the life of the foetus or
shall be
destroyed
premature
in the woman’s womb, or
capable
birth thereof be caused before it is
of sus
taining
§1.
life. 1
312,
CJS
Abortion,
“Abortion”,
was never
such,
defined
aas
crime in this state.
expressly
We have
so held.
v.
State
Farnam, 82 Or
211,
161 P
278,
417, Ann Cas 1918A 318; State v.
Dunn, 53 Or
99 P
304, 313,
278,
What is said phy- with reference to licensed surgeons applies osteopathic sicians and phy- also to surgeons. By sicians and eh 128, Or Laws 1945,— an act almost identical in words with the 1939 amend- practice osteopathic phy- the medical ment to act-— surgeons placed sicians footing were on the same physicians surgeons respecting as licensed abor- although legislature tions. In further amended practice by adding the medical act new conditions respecting performed by physicians abortions surgeons (ch 1951), 265, Or Laws it did not make changes governing osteopaths. in similar the law How- ever, 1953, the amended the 1945 act relating osteopaths by making it conform to the changes practice made in the medical act in 1951: ch Laws 1953. Or
Frequent reference has been made to acts of the assembly legislative adopted and 1953. It might be well state that the facts in the instant case prior to the effective arose date of the 1951 Act, and governed However, stood. law as then changes made the medical more or minor less legislation even not, of 1951 would any bearing upon particular effective, if have proper for us to us. it is However, issue now before subject legislation upon subsequent refer to this showing establishing purpose for the policy maintaining public in the re- of this state spects legislature has con- under discussion the been sistent. *36 legislature, purpose the insofar
I think the clear of performed by duly physicians licensed abortions (and osteopathic surgeons physicians and sur- and geons) definitely by concerned, shown three adopted its acts in 1953. by legislature
First, 1953, ch the 556, Or Laws chiropractors. amended the to As one of the law as grounds provided: license, revocation “(g) procuring aiding abetting pro- or The
curing purpose abortion, an and for the Act of this an abortion shall be from the womb of woman the to mean removal deemed product concep- any delivery prior pro- to of the child; tion at time nothing vided, in this be construed to Act shall any chapter 54, 3, licentiate title authorise under (Italics sup- perform O.G.L.A., to an abortion.” plied.) very significant
There are two this features of (1) provision: decidedly definition of abortion is appearing from that code, different by an as made is such abortion unlawful and manslaughter performed preserve unless statute, to express (2) provision mother; and life of permitting Act not to be construed as was perform any chiropractor to kind. abortion legislature Second, eh 555, Or Laws 1953, the relating regulation amended the law to the naturopathy and used the identical lan- guage employed chiropractic in the amendment to the supra. act, chiropractors intention of as to naturopaths expressed
and could have been more positively. They perform are not to abortions under any permitted by circumstances, unless, as the criminal necessary pre- abortion such statute, abortions are to serve life of the mother, as to such abortions permits anyone statute surgeon, chiropractor, he naturopath, ditchdigger. midwife, nurse, or regarding Third, ch 183, Or Laws 1953, law osteopathic physicians surgeons changed was relating physicians conform with the 1951 Act surgeons, respects previously in the noted. relating Acts of
Under the 1945 and 1953 to osteo- paths, (much in the definition of abortion different appearing chiropractic from that in the and naturo- pathic acts), appears we find no such statement as the last three lines of the definition of “abortion” quoted from ch above Or Laws nor do we *37 anything resembling any find such a statement part practice govern- of the medical act or the statutes ing osteopaths. legis- abortions,
Relative to it is manifest that the intentionally made a clear lature distinction between healing schools the different of the art. It is unneces- sary to elucidate the obvious. The conclusions to be foregoing inescapable. from the are derived theory adopted minority, the Under im no portance changes attached whatever is to the drastic practice in the medical made the Law of 1937 gives subsequent acts. no effect whatever to and of the term ‘£criminal abortion” from elimination adoption specific of the definition of act, to wording (b), abortion, nor to the definite subd. highly significant Despite these 54-931, OCLA. minority changes in the would almost com law, entirely, pletely ignore them, but because as to say purpose them that the sole and does, effect, purview professional code so far as abortions provide procedure whereby phy are concerned is to surgeons may disciplined civilly by sicians and profession. members of their own theory logic,
This not stand will the test of nor supported by any principle is it of law. place,
In the first medical act is not simply permit physicians surgeons a measure to police profession; their own no more so than the game permit sportsmen fish and code is a measure to police sport, .banking their own or the code is a permit police measure to bankers to themselves. The agency Board of Medical Examiners is an state, just the same as the Fish and Commission, Game Highway the State Industrial Commission, Accident and other boards and Commission, commissions are agencies speaks state. It is the state itself that through powers medical its board. The and duties of minutely spelled the board out the law. The specific complete regulations act is its ’ Yery penalties. is left to the little discretion of board. It is obvious that it is the state itself profession, polices physicians not the surgeons. undoubtedly If so, this were not the law unconstitutional and would be void. changes it is evident that the
Moreover, made in way necessary law were in no to enable the medical *38 police physicians surgeons. Ample board to the provisions prior therefor were contained in the acts. Certainly the elimination of the term “criminal abor- tion” from act and other sub- changes way made in in stantial the law no tended to strengthen control board over licensed tighten physicians provided nor to the restrictions contrary, act. On the restrictions were minority assigns definitely modified. The no sound modification. for this reason minority would that the I think even the concede legalize legislature power per- to abortions has the surgeons by physicians protect to the health formed danger! although their lives be not of its citizens, proposition argument to establish the needs no might every legislature, case desired, if it that the judgment solely the medical leave it to performed, and that should be an abortion whether necessary require consultation with to its was not only performed pre- it be doctor, nor that another legislature, nature, in matters of this health. The serve powers. possesses There is difference broad people, question opinion upon of abortions. Some any grounds, religious upon believe or other necessary though preserve wrong, even abortion is opinion life of mother. Others many necessary and that abortions control birth Many justified have attain that end. eases are subject. However, views on the and different other exclusively regardless beliefs, it is of one’s own public policy legislature province to declare the duty only court, whose is to not for the state, legislative give interpret will and effect to the intent.
(cid:127) that a of this state determined *39 duly surgeon might perform licensed an abortion as when the health of the mother defined, pregnant peril her condition, was because of physician. after consultation with another the Under practice preserving medical the health of the mother under the criminal criterion; is the while abor- performed except tion no abortion can be statute, to preserve requires argu- of the mother. It no life ment to establish the fact that there is a vast differ- “preserving “preserving ence between health” and life”. give possible
We need ourselves no concern about a by physicians surgeons power abuse of the vested by provisions practice in them the of the medical act. they belong It must be remembered that to an honor- profession by able and ethical and are bound Hippocratic important part an oath, of which is: “I give deadly drug any, though will no it be asked especially I nor will counsel me, such, and I will procure not aid a woman abortion.” Although expressly not stated therein, careful perusal opinion by minority of the written will reveal that those members of this court consider the They criminal abortion act as almost sacrosanct. seem precedence to feel that it takes over all other law in way much same that a fundamental law dominates оrdinary legislature law. All statutes enacted important, important but no one are of them is more pronouncements others. All legis- than the are of our pronouncements and none of lature, its is written in among italics. have no Courts favorites the numerous legislative body. enactments of the However, a rule hoary age which is with cautions us that if two inter- pretations governing legislation equally will
available, one of wbicb view individual’s con- lawful and the other as criminal, duct as former made, is the choice that should be for unless a court morally legislature certain feels that intended should deemed a felon, that the accused it should adjudge In him one. effect, has supra. § 2-223, OCLA, so declared. prosecuted against
The state this case defendant upon theory adopted minority physicians act did not authorize perform lawfully surgeons abortion defined purpose for the and in the manner therein law, provided. urged appeal. the same contention on this by challenging trial the defendant, On the the suffi- *40 by objections ciency indictment, of the to the testi- by exceptions mony, the and to court’s instructions questions presented jury, raised the same he has to the very trial court. The court at the outset of in this adopted theory trial the state’s relative to the objections, all of defendant’s and sub- law, overruled jury accordingly. the case to The trial mitted court erred. before us reveals defendant
The record that did upon testify trial own behalf of this case. in his not explanation regard- from him have no Therefore, we by ing matters testified to state’s witnesses. satisfactory explanation, a absence of the facts In the by case have the state’s would warranted established license to of defendant’s med- a revocation prosecution it did not warrant his for the but icine, manslaughter, alleged because abortion crime days concep- performed the 150 after well within was governed my opinion, exclusively was in tion, and, provisions by code. presented as the state’s
The facts this case aggravated a situation, witnesses disclose most but correctly interpreting us that should not deter from applying attempt and the law. We should never particular of a make law to fit the facts no case, revolting matter how the circumstances of that case just course, be. courts have at times done Of usually shocking but with results. that, Bad cases maldng of have resulted bad as laws, Edmund Burke said: “Bad laws worst sort tyranny.” specially concurring.
PERRY, J., majority I in the announced in concur result opinion I am convinced that the Medical Practice duly physician surgeon Act authorizes a licensed lawfully perform an abortion as defined in that statute. And such lawful act would not constitute part physician on the of such a violation 23-408, OCLA. Therefore, the indict- ment in case this does state facts sufficient against duly physician state crime licensed surgeon. per- I am if
Also, convinced that an abortion is duly surgeon, formed licensed comply regulations but he fails to -with the surround- ing doing act, if it be abortion as defined punishment then is revocation of his *41 manslaughter and not license under the criminal special concurring I concur in Therefore, statute. opinion of Mr. Justice Tooze. dissenting.
BRAND, J., day The decision this made will render difficult, any impossible, part if effective effort on agencies law punish any enforcement to violators of the criminal statute relative to abortions.
A criminal statute was enacted. An indictment conformity was drawn strict therewith. Proof was allegations charge. jury made of all the of the The guilty. found the defendant This court reverses the passed conviction because it holds that another law, purpose, for a different and limited has transformed language the clear of the criminal statute into labyrinthian uncertainty maze of confusion and clearly jury trial no court could define, no could against understand. The indictment the defendant brought pursuant provisions Buck was of OCLA, part § penal 23-408 which is a of the code and which manslaughter. adopted defines act That was in 1864 orig- and has ever since remained on the books in its inal form. It reads as follows: any person any “If shall administer to woman
pregnant any drug, with a child medicine, or sub- employ any whatever, or shall use stance or in- thereby strument or other means, with intent destroy such child, unless the same shall be neces- sary preserve the life of such such mother, person shall, in case the death of such child or thereby produced, guilty mother be be deemed manslaughter.” OCLA, 23-408. position of the The defendant is that the enact- operated §§ 54-901 and OCLA, ment 54-931 either partial repeal manslaughter aas act or as an the two it; amendment acts should be con- together if strued and that so construed the law con- cerning changed would be so charged in the indictment would not be a crime. majority opinion any avoids discussion of the repeals implication partial law of amendments *42 agree perhaps majority will by implication, bnt means manslaughter 23-408, OCLA, that says unless exactly it meant and what what it subsequent legislation. by And changed been it has legis- any suggest other they that there not will by way changing amendment save a statute lative acknowledges opinion that repeal. pаrtial The or repeal (meaning presented between a choice there is by by implication, amendment repeal) and partial no valid dis- implication. there is I show that shall recognizes opinion that them. The between tinction naturopaths chiropractors ordinary persons and provisions man- to the “amenable” are still majority opinion slaughter leave would The act. except just that manslaughter it was written act as surgeons physicians “in a they place class would only the medical the extent that but themselves” nothing accomplishes practice result. There is that majority opinion accomplish insists The it. else to together construed statutes must be “related” that they acts are Whether the two were one law. if as question issue. at is the so related majority position that their told We are “beyond peradventure “crystal “conclusive”, clear”, “as the conclusion follows their doubt”, compete employ- day”. night I shall only appeal legal My is to reason- ment of absolutes. emphasis power persuasive against ing repetition. expressly opinion majority concedes that the
The act “con- act and concurring they opinion states that A flict.” majority opinions “repugnant.” assert that All three together. and construed I must be read acts two conflicting repugnant and acts cannot two submit majority together.” be “construed fails to dis- tinguish between rules of construction and rules of implied repeal. problem There is no amendment statutory construction in this case. The man- slaughter always act on its face is and has been clear *43 unambiguous. practice The act is also unambiguous. ambiguity only clear and The arises attempts together. when the court to read them The majority numerous authorities cited the on the statutory apposite. rules of construction are not ambiguous is true that where an enactment is other dealing subject with the same are statutes sometimes bearing upon meaning considered as the of the words used. pari two
When statutes are and can materia be they may together they read if harmonized “as were unambiguous one But if are clear law.” both acts only problem then the is conflict, whether impliedly repealed later act has the amended or majority opinion apply former. The would the rules statutory repugnant of construction and would read they although if “as one statutes were a con- law”, expressly curring opinion legis- states that when the unambiguous plain language lature makes use of there application is for the rules no occasion of stat- utory harmonizing construction. The doctrine for unique repugnant statutes is the annals of law. upon majority I venture one more comment discussing opinion respectfully before merits. I begs question suggest opinion at issue. they We have no to construe acts as occasion two if practice we first find that one, were unless the medical manslaughter impliedly act modified act. The argues opinion practice first the medical act prohibited by manslaughter an act makes lawful argues repeatedly would be absurd that it then act. It under for an act one statute to convict agree. To I this, another. is made lawful only question whether the medical by manslaughter does lawful an act forbidden make act. sufficiency question raised as to the
No provisions 23-408 OCLA, under the indictment % changed by or not been amendment if that act has repeal. challenge partial total There is no to the proposition that if the defendant is amenable to the provisions written, 23-408 there was substantial support record the conviction. The evidence on the provisions §§ 54-901 and 54-931 which OCLA, majority opinion read into the would by chapter enacted 153 of the Laws 1939. act were They are to be found the “Business Profes- portion and in thereof Code”, sions which relates *44 only surgeons. quote: physicians I and may grant
“The board refuse to a license to any applicant practice medicine and who desires to surgery suspend or revoke such this state or any following reasons: licenses for of the
6 6 * “(b) # The [*] # procuring [*] aiding or abetting procuring relief of for the an abortion unless such is done appears peril health
a woman whose pregnant condition after due con- of her because duly phy- another licensed medical sultation with surgeon; sician * * *” * “* (Oregon § OCLA, 54-931. Laws §6(b)). ch. following act, the terms in this used ‘‘When meanings, following unless otherwise have will limited: “ expulsion ‘Abortion’ shall of the mean period uterogestation early foetus aat so acquired power sustaining it has not an in- dependent presumed provided life; conclusively shall purpose for the of this statute that the acquired power foetus has not such earlier than fifty days (150) gestation, one hundred after disputable presumption power of lack of such shall expulsion place arise if the take earlier than two forty days (240) gestation.”
hundred after OCLA, (Italics mine.) § 54-901. evidentiary The definition the substantive and § stated in 54-901 OCLA, rules have no relation to manslaughter They only apply statute. “When legislature this act.” If used in intended abortion in the definition of OCLA, 54-901 should meaning manslaughter alter the act which does why legis even use the word “abortion”, did the preface lature the definition of that word, when used saying in the “When used manslaughter in this act”? Was the act “this act”? provides punishment The any person specific who does the acts described performing whether it be called the therein, of an not. The abortion or crime described in that act is not the crime abortion to the common known law. any The act does not contain definition of “abortion” meaning depend upon any nor does its definition of Ausplund, v. “abortion.” State Or P 121, 167 1019. that case court said: In *
“ * * did not waste time with quickening, applied about but refinements to the law stages pregnancy usurp all we would its *45 prerogative something we read into the statute if (Italics added.) there.” not found quoted case issue this is whether The basic
143 govern provisions which the medical changed licenses have revocation of issuance manslaughter clearly act, forth in the set the law as wholly partially, phy excluded or either have, purview surgeons from of that act. sicians and only provisions that effect under if, Those could have they operated implied well-recognized rules, manslaughter repeal either in or in whole implied part, It amendment thereof. is not or as an by by majority the defendant claimed either repealed opinion act was that majority opinion ap to the toto. The adherents disagreement pear as to whether the man to be in by slaughter repealed part, impli act has been by implication. held on or amended cation, authority repeal implication, eminent when only prior repealed, part statute is iden by implication. Sutherland, tical with amendment Many Statutory ed, 3d 1922. Construction, Horack, support the statement of Sutherland authorities implied applying amendments the same tests as to example: “Repug prevail implied repeals. For as to Terry nancy.” (Del), State, 573, 77 v. 6 Rickards conflict.” A 203. “Irreconcilable Co-ordinated 199, 2d Transport 412 Ill NE2d 510. Incon Barrett, 321, 106 v. * * ’’ 11 * they together. sistency cannot stand so (Citing 1. 144 65 A2d Willinski, 116, Me Inman v. necessity.” Belknap Sutherland.) v. “Unavoidable also 457. See Genereaux 24 SE2d 385, 125W Va Shock, Lineberger v. 911; 19 P2d 132, 172 Petit, Wash v. Harding v. Mutual Bagley, 305; 2 NW2d 937, Iowa 231 131, Idaho Ass’n, 55 Accident Health & Benefit 212 Ind Finance, v. Board Taelman P2d 306; Supp Remington F Rand, 65 v. 557; 6 NE2d Swettman Madigan, L ed v. US United States 940; *46 144 City Pennsylvania
767; Wilkes-Barre v. Pub. Util. of Super Co., 164 Pa 210, 63 A2d 452; v. Amman, State App Tugwell, 78 68 10, Ohio NE2d v. 816; Fournet appears La 18, 199 5 So2d 370. Thus it that it is a speak implied matter of whether we indifference implied repeals amendments or when we mean modi- change fication or of a statute. Since this is true, simply the issue stated thus: I assert by altered, has been either implied repeal. amendment or In this state there are оbjections applying implied serious the doctrine of applicable implied amendment in addition to those repeal. provides: IV, Article of the Constitution by
“No act shall ever be revised or amended mere reference to its title, but act revised or published amended shall section be set forth and length.” at full purpose proving section cited for is not This implied impossible. that so-called amendments are scope narrow is cited to show the within which this implied court has confined doctrine amend- provision. in view of ments constitutional County, Martin In v. 89 Or 173 P 938, Gilliam argued it was that the 1915Road District Act amended Budget by implication. Act The court said at 397: spirit “This act does not come within very guardedly reluctantly cases which by
uphold repeals
implication. Here there is no
attempt
independent
statute
to enact
new
subject
to insert
supra,
upon
the act
same
attempt
into
reference
it,
but
to
enlarging
scope
provisions
its
it, certain
with-
setting
appear
out
forth the statute as would
being
can
so revised.
If it
be done in this
after
is no limit to the extent to
instance there
setting
amended without
be revised
statutes can
length,
full
at
amended statute
forth the
constitutional
quoted
provision
would,
above
there-
* * * ”
nugatory.
rendered
fore, be
reasoning
applicable here.
The same
implied repeals
concerning
are well
The rules
later
are in irre
If earlier and
statutes
established.
yield
must
then the earlier
to the
conflict,
concilable
Anthony
repeal.
implied
v.
al.,
et al. Veatch et
later
*47
syl.
221
14.
493,
575,
220 P2d
P2d
Rorick
462,
189 Or
City,
give should be all these statutes effect to 146
Pacific Elevator
v.Co.
Portland,
349, 387,
Or.
(N.S.)
P.
L.R.A.
72, 46
363.”
In
Elevator
Portland,
Co. v.
Or
Pacific
in relating apparently the whole of two statutes subject, to the same the former is not re- * * *” pealed by the latter. Corpus controlling Prom Juris Secundum the rules clearly supported by are set forth and are some hundreds of decisions. The text is as follows: repeal by implication
“The of statutes not favored. courts slow to hold that one repealed by implication, statute has another they adjudication they will not make such an if doing consistently any can avoid so on reasonable hypothesis, they or if can arrive at another result by any construction which is fair and reasonable. enlarge meaning will Also, courts repeals one act in order to hold that it another implication; leading tion they adopt interpretation nor will adjudication repeal by implica- to an *48 very is unless it and a inevitable clear and assigned. definite reason therefor can be adjudge the courts “Furthermore, will not a repealed by implication have statute to been un- repeal legislative supersede less a intent or appears. plainly clearly implica- statute tion must be The necessary, clear, irresistible, and free doubt. from reasonable foregoing particularly appli-
“The rules are repealed cable where the statute claimed to be long standing, long rigidly of adhered to has for a time been being construed as existence, judicially as where it has well been construed and subsequent legislation on, acted or where shows
147 existence, or deemed it still that the allegedly repealed and the re- statute where the pealing legislative the would at the same enacted statute were both Also, discussed infra 297. session, as repeal especially applicable a where rules consequences, or where the lead to absurd system alleged repeal an established disturb would system covering a vital field in the law, of written of allegedly government, the statute re- or where relating govern- important pealed a one is an repeal be destructive matter, and a would mental impair public a welfare, settled and ruinous of government, prerogative whatever law leave no subject concerning a which it is neces- on positive sary a some sort.” there be law of §288. Statutes, CJS, 82 repealing a clause in the sub- “The absence of sequent a for consideration statute is circumstance determining operates repeal as a whether prior it is not statute, determinative, but thе the compilers have seen fit to include both fact that separate compila- of the same statutes sections argument against repeal statutes affords tion of by defining implication. A a statute substantive repealed only relating code offense is procedure.” §303. 82 CJS, Statutes, criminal * ‘‘ * * repeal of a law is a matter of ought legislative never to intent, be inferred repeal by implication of such effect when the would subject no law whatever on a leave be to about quite Legislature certain the which it meant necessity requires) (since there should a positive sort.” law some Bartmess v. Hendricks, 91 So 68. 627, La Co., v. Southern In Or Swensen Pacific said: court this P * “* * repeal implication A be effected prior statute or later conflicts with when when a for another act. intended as substitute one is easy legislature, adopting when for the one is so *49 148 say statute, subject that another statute on the same repealed, is so repeal, is and an intention to when likely expressly exists, stated, to be presume repeals the courts will not that the later prior obviously statute unless the two are so repeal
in conflict that both cannot be executed. A by implication positive is effected if there be such repugnancy between the the old new and enactments they together cannot stand or be harmonized; possible, but the courts if construe will, however, together adopt any the two statutes reasonable construction which will sustain both of them: Pal George, mer v. 2 State, 66, 69; Or. v. 21 Winters (27 1041); Pac. 251, Or. 257 Pacific Elevator Co. (133 v. 65 Portland, 349, Or. 387 Pac. 46 L.R.A. 72, Duby, (N.S.) 363); (168 Messick v. 86 Or. 369 366, 628). subject If Pac. the new statute revises the plainly matter of the old and as a intended sub repeal operate as a stitute it will the old statute: (49 982). v. 31 376 Geide, Strickland Or. Pac. repugnant they is not to another One statute unless subject and are relate to the same enacted for the # * purpose: *.” same Tiplitz, (NJ Supp F v. 105 In United States 512 1952), the court said: ‘‘* * * Congress It must be assumed that knowledge enacting with full of exist- a statute acts subject
ing relating the same matter, statutes express repeal terms of are not used, and where against repeal presumption an intention to an earlier statute.” City Northern
In v. Illinois Utilities Co., Geneseo NE2d the court said: 26, 37, Ill * * “ * repeal by implication one is not mere conflicts or later act effected only but where the them, between inconsistencies carrying prevents later act the enforce- out any part extent of the former. To the ment of repealed, they the first act is but are in conflict *50 parts first of the act not affected remain full force and effect.” Belknap Shock,
In
v.
385,
W Va
“* * very part This sentence is a of the given substance of the must be effect any precisely words used. Ño part. as other But observe the exact part repealed act except such as are ‘inconsistent’ en with the new actment. The word ‘inconsistent’ so used is when loosely not be construed. It does not mean merely, inappropriate, illogical, un inharmonious, symmetrical, impossibility but connotes of concur operative automatically repealed rent effect. To be by subsequent a acts statute, two must be so conflicting legal that their common survival is a impossibility, only or that one can be in force at given antagonistic a time. The must so two laws be they cannot co-exist. Two antithetical statutes subject cover the same cannot matter the same at yield time. must One the other from sheer necessity, by practice, universal the later in' prevail. inconsistency time is held to Thus abrogation which will result in the of one statute by impossible another must be such as will make it they as a matter of law that can both be effec # *” * tive. Duntley, City v. In Portland 185 Or 365, 387, 640, P2d this court said: position “The of the defendant involves a dis- regard repeals by fundamental rule im- Realty plication not Ulrich v. favored. Lincoln (2d) (2d) 380, 168 P Co., 149, 180 Or P posi- eases cited. there ‘There must be n 15.0 repugnance provisions
tive
between the
of the new
law and those of the
and even
old,
then the old
repealed
implication only
law is
extent
* *
repugnance.’
Bailey, 151
488, 493,
In
v.
Or
ments of statutes Ordinarily, upheld cases. in doubtful and will not be to have held a law will the enactment of changed legislature did not have a that the statute enacting such the time of under consideration at merely implied cannot arise law, and amendments way supposed legislative ex- no intent out of necessary proper pressed, seem or however not be a statute will intent amend be. An to imputed such intention unless legis- manifestly clear from context by implication, aor an amendment lation; by exception existing to, law of, modification only of a later occur where terms can later repugnant earlier statute that to an are so statute they * * *” together. CJS, 419, 82 cannot stand cases.) many (Citing §252. Statutes, majority places great upon reliance Multnomah County Langley, Fair v. Ass’n Or 18 P2d City Duntley, supra, 354, and Portland v. 185 Or they P2d 365, 203 640. It is said create a situation “on all fours” with that the case at In bar. operation first these cases the court held that the betting system proposed, on races under the was carrying lottery not the on of a but awas violation City Duntley, of the nuisance statute. In v. Portland question city denouncing was whether ordinance boohmaking, pool selling and the like inwas conflict city with state law. held was that the ordinance was valid. said: The court position “The of the defendant involves a dis- regard repeals fundamental rule that implication are not favored. v. Ulrich Lincoln Realty P. (2d) P. Co., 380, 403, 180 Or. 582, 175 (2d) and cases there cited. ‘There must positive repugnance provisions
be a between the of the new law and those of the even old, and then repealed only implication the old law is to the * * *” repugnance.’ extent of the majority opinion As stated in the ease bar, at Duntley court in case this considered the State only Racing Act and said effect of that act except regulated pari wagering was mutuel at *52 operation Oregon race track from the nuisance very Racing statute. But title of the State the Act part, “providing wagering”. read in for mutuel The very the act statute licensed which would have been of the nuisance statute. It limited violative the “take” per gross receipts of centum the the licensee to of 12V2 any wagering system provided licensing that the provisions prevail wager- not races should as to where permitted. ing is certain race not referred to meets In shall be other wagering where mutuel permitted. and licensed mutuel pari authorized words, expressly the bear no resemblance These cases wagering. act does not license case The medical practice at bar. statute. by manslaughter very act prohibited doc- The license is one which only permits mentioned The practice their medical profession. tors to practicе authorizes revocation merely act on face its some all of the acts prohibited but not license this act. The authorization manslaughter by revocation of remedy by case supplemental same the authorization in the license is very act prohibited Act case to commit Racing in the earlier statute. has the entire argu-
The error which permeated is found in the ment of the defendant in support that certain abortions are made repeated assumption are declared by practice lawful act. If manslaughter that be by be criminal take little to show persuasion then it would assumed, conduct could not be both lawful that specified difficulty at same time. The criminal this support argument assuming those who at issue. frequent repetition ultimate question not, mind, majority my does the conclusion which the conclusion upon the premises strengthen rests. by tests which we must determine
The established acts made criminal any whether been made lawful the medical act have briefly: Did the later act be summarized cover the former? ir- the entire field Is there occupied by or positive conflict between repugnancy reconcilable can both be enforced or harmonized? Do them, subject, the same and are they they relate to “enacted *53 purpose”? they for the same Even if relate to the subject, pur- a same is there difference “in the whole legislative view” of two statutes? aDid intent repeal supersede plainly clearly appear? prevent Would the enforcement of the one the enforce- of the ment other? manslaughter part penal a of the code. prohibited
The commission of the a acts is crime. practice provision The medical act is a civil for the regulation profession by of the medical a medical board. a While it authorizes the revocation of license committing for an abortion under certain circum- performing any it nowhere makes the stances, abor- tion nor does declare criminal, that all abortions except performance are lawful those for a license be revoked. The act im- poses punishment. The medical in act, while respects penal requiring nature, some and therefore passed purpose strict was not for construction, punishment, and revocation of a license is not punishment eyes of the law. 59 CJ 1110, Stat- utes, 658. Registration
In Board v. State Medical Meffert Examination, Kan 72 P the court 247, 251, said: “* * * prac- The revocation a license any
tice the statute medicine reasons mentioned be, nоt intended to nor was does it punishment, operate protection as, but * * * has of the state. never been citizens withholding thought license was revocation was or revocation of such any punishment. sense a If the punishment, there intended as might argument, only in this but since the be force require purpose of law a certain standard was to argument physician, of morals of the without force.” *54 approved holding was a later case in
The the said: court expressly held “In Meffert Case was the physician’s
proceeding not to revoke a license is purpose punish the not nature, criminal in its and is ** *” Brinkley delinquent. v. Has ment of the sig, Kan 289 P 66. 874, 64, 130 announced rule court has thrice the same This attorneys. concerning purpose of the disbarment “ * ** punish proceedings ‘not of to such cognizance, attorney, of as matters criminal accused * * * “necessary protection for of the but justice, proper of and administration court, purity profession, dignity of the for good protection parte public of ”: Ex and the clients’ Rep In 52 P 67 Am St. 550.” 519, 756, 32 Or Finn, Moynihan, 111 166 P2d 96. 200, re Or
Speaking granting and revocation licenses said: law, this court *
“ * *
office
neither case is
court’s
In
punishment.
In both it is vindication
that of
legal pro-
protection
of the
ethical standards
public.”
Smith,
151,
In
Or
re
fession
To the same injunction proceedings restrain In a for suit physician, the license of the revocation of for Supreme of Indiana said: Court * * * * “ * * say that sufficient it is charges, the trial of which the facts stated appellee stitute enjoin in this do con- case, seeks to they public nor it claimed that offense, ** Spurgeon offense; constitute such v. Rhodes, 167 Ind 78 NE 228. Tapley App
See also
v. Abbott, 111 Cal
P
App
Bold v.
911;
Examiners,
Board Medical
135 Cal
P2d
29, 26
Traxler v.
707;
Board Medical Examiners,
App 37,
135 Cal
Again, punishment the trial and is an crime judicial power of “the exercise whereas state”, proceedings of an administrative board revok- ing judicial a license do not involve an exercise of the power. Spurgeon supra,
In the case, 167 Ind 1, 78 NE 228, the court said: * * ap containing provision Statutes like *55 question authorizing the one in here, the board to guilty revoke a license when holder has been felony gross immorality, or of a have been held any provision to not violate of the federal state or grant
Constitutions, and it has been held that the ing refusing grant or license to by medicine, or the revocation thereof board, ’’ judicial power. Citing many is not the exercise of cases. quoted approval
The court with from State v. Web ster, 150 Ind 621 NE 607, 750, 755, 50 as follows: “* * * respects quasi judicial, in some ‘While judicial, any the action of the board is not more county surveyor fixing than is a giving action in bоundary county superintendent line, or of a in refusing or teacher’s or the certificate, numberless or action of other officers boards in
making investigations in com- decisions matters is mitted to them. Neither circumstance that appeal an an of is from allowed a decision of the board judicial. right that its action “The indication appeal from the action of boards their admin-
156 by it was said court this character,”
istrative 144 Ind. 41 N.E. 43 457, v. Heaston, 583, Board Rep. frequently con “is 192, N.E. ferred Am. St. 651, appeal such eases is not statute. permitted of the board is con because the action judicial, granted as but it is a method of sidered getting the matter involved before a court ’ ” judicially.” determined Examiners, v. Board Medical In Suckow Supreme P Court Cal California said: * *
“* now well established Nevertheless it is such as state that tribunals the board in this empowered or other boards medical examiners they previously granted, licenses which have revoke by the are not courts in the law, cause defined they exercising judicial ‘the sense; strict phrase power as that of the State’ used judicial conferring power upon courts, Constitution # ?? # * argued how see it can be that a is difficult judicial quasi providing administrative action statute statute, a criminal is a the field of substitute covers of a the revocation license a board when therefor, judicial power, an exercise of involve does not charge a criminal constitute trial of does when the power. If the of such administrative the exercise occupy provision field of does not the criminal repugnancy is no between them then there statute, It is true must stand. courts hold and both *56 authorizing revocation of licenses are statutes that merely strictly construed, but that means that to be clearly revoked unless the act not to be done a license authorizing statute the terms re- comes within That rule of strict construction cannot be vocation. holding authorizing act revoca- into tortured broadly it tion is be construed order to make incompatible with a criminal statute. See also United L v. ed Hess, ex rel. Marcus US States A is a 443. criminal intent material element of the may manslaughter fairly crime of and we assume that no would ever be convicted unless such intent proven. was No element of criminal intent is involved proceedings in administrative for the revocation of a license. argued, in substance,
It has been that under the provisions practice of the medical li- a doctor’s may performs if cense be revoked he an abortion under specified. therein Prom conditions this statement the perform conclusion is it drawn that must be lawful to рerformed it, if the act would not authorize revoca- might tion of license. This true if there were manslaughter no act, but it cannot be true under that implied act unless there been has amendment an question repeal, which is the for decision here.
Again, earnestly urged has been that the medical practice act has made the revocation of a license the penalty. phy- exclusive There is not a word professional sicians code which declares the com- prescribed mission of abortion under the conditions in that code is lawful or that the repealed thereby. amended or
modified, And there is professional not a in the word code which states that penalty.” a license revocation of is the “exclusive expressio is true that doctrine unius est exclusio applies alterious act. professional specifies grounds code on grounds specified license be revoked and the grounds are, exclusive. doubt, no But the fact that the professional for revocation stated code are exclusive cannot be tortured a Latin maxim into *57 holding a statute which not deal at all a does with by subject criminality physicians, of abortions exempts physicians field or exclusive, is or covers the purview a criminal statute. such Yet, from the argument has been made in the for contention reversal manslaughter Again, applies of the conviction. act “any person”. practice applies The medical to act surgeons, only only physicians some of them. practice medical act contains three sections
only define crimes. section 54-941, Under practice a misdemeanor to medicine with- it is OCLA, a license. section 54-942 it is made mis- out Under procure practice a license fraud or to demeanor to it under a false name. Under section 54-943 is made procure a fail to certificate of annual a misdemeanor to registration. prescribes penalty Section 54-945 any guilty imposed person if shall found be professional under misdemeanor the act. The code provision making unprofessional whatever contains no nor misdemeanor, or dishonorable conduct is the aiding abetting procuring procuring or or abor- code, defined or under tion, otherwise, any made a criminal conditions, much offense, less- felony. as a is it defined practice deals
The medical with two different activity professional by doctors. fields of Certain made criminal that act. is Other conduct conduct merely ground revocation Abortion license. suppose latter class. Is not reasonable to classifying was acts that when as crim- they practice act, in the medical inal and noncriminal have included abortions the class of would criminal provision they subject intended that on acts if act? would alter re- In act authorized 1895 the procuring “a criminal abor- a license for vocation of phrase, man- to the tion”. That referred course, slaughter statute on the since there was no other subject. law eliminated the words “criminal The 1937 *58 provisions the abortion” and the 1939 law inserted argued § has now found in 54-931. It been OCLA, changes these indicated an intent to alter the manslaughter purpose change act, but the obvious proceedings apply was a different rule to for re- vocation of a from that which controlled in license, determining guilt manslaughter under the act. The exception cases in which sole relates to manslaughter has been convicted under act. toAs provides such the 1939 act for cases, revocation of merely upon proof any license of conviction of offense (cid:127) punishment may for which the be incarceration in a (i). manslaughter prison. OCLA, state 54-931 The by imprisonment penitentiary. punishable in the act is There is another circumstance which shows that passed medical act was not for the same manslaughter purpose manslaughter act. punishment provides resulting for acts in the death prac- mother, or the but under the of the child medical killing mother act, the would be tice immaterial Notwithstanding of revocation of license. on the issue majority persists holding facts, these that practice act covers the same field and was purpose manslaughter for the same as the enacted repugnant. two acts are and that the There are other differences the two acts, legislative purpose. in their indicate differences Under statute, it is defense if the act necessary to life of save the done was mother. That any necessity may result from serious condition of endangering the mother her life, whether it he caused pregnant her condition or otherwise. Under the professional procuring code, however, the of an abor- ground tion for revocation of license, but not if appears peril the mother’s health because her pregnant respects, pro- condition. Thus, some professional authorizing visions of the code revocation stringent provisions aof license are more than the authorizing Penal Code, conviction man- slaughter, respects, they while in other are more lenient. “positive repugnancy”
I find no between two types imposes upon prosecutors statute, one of which duty enforcing and courts the a strict rule prosecution, imposes criminal while the other a less duty upon dealing onerous a medical board, in with profession. members of its own Whatever said as to the wisdom of this distinction between the duty surely of courts and of there is administrators, requires constitutional or other no mandate which *59 legislature jurisdiction to make the civil of an adminis- jurisdic- trative board coextensive with the criminal legislature a court. I shall tion of later show that the contemplated provisions that the criminal should re- main effective and be invoked in such cases. sought legis-
Hitherto we have the intent of the examining lature the traditional method of the two they passed to determine whether statutes were for purpose they same the whether related to the subject repugnant. same were or were not We to evidence extrinsic now turn of the two statutes for legislative (1) changes the indications of intent: practice and 1939in the medical of 1937 act were made yet years ago, legislatures more the 16 or biennial manslaughter from 1937 to date have left the act in
161 in If de- they as it was 1864. criminal code just the have said so. would they amend or repeal sired to the authorizing in 1927 passed A statute was (2) for naturopathy of a license to practice revocation law abortion.” This a “criminal procuring date in Obviously, in until 1953. was effect had legislature herein charged, offense a criminal abor- there was opinion indicated naturo- concerning amendment tion statute. The 1953 different definition wholly a new and contains pathy asserts that the definition The majority of abortion. which is pre- of abortion “when used this modifies act”, the words faced say act. now the same manslaughter they Would in the act which naturopaths the definition concerning definition of abortion “for a different contains con- act”? The laws of this (3) purposes defines differently also abortion chiropractors cerning contained in the medical practice from the definition act? Did act also amend the act. such majority opinion, the reasoning Applying In to follow. appear (4) a weird result would providing enacted Chapter part shall maintain a that whoever place shall administer any person any “where with child not, whether woman, medicine, pregnant any or shall whatever, or substance use drug, means, instrument or other with any or employ a child of such destroy thereby woman, intent necessary shall be preserve unless life same unless such such woman or is done woman health appears relief of a whose peril of her condition after due con- because pregnant licensed medical or *60 duly sultation with osteo- the conditions surgeon pathic physician under in subsection and restrictions prescribed (2) 162 guilty
section 54-931 or section 54-831,O.C.L.A., is * * *” maintaining Oregon nuisance. Laws 540. 1953, .ch
The section concludes as follows: ‘i s * * aQj-sbap modify, This be deemed by implication any provisions
alter amend prosecu- of section 23-408, nor to O.C.L.A., affect tions thereunder.” conclusively section
This
establishes the intent of the
legislature
prosecution
§
under OCLA,
23-408,
manslaughter
are still
maintainable, notwith-
standing
provisions
§
of OCLA, 54-931. The ob-
purpose of
vious
the last sentence of the 1953 act
prosecutions
was to make it clear that the
which were
notoriously pending
manslaughter
then
under the
legislation.
affected
other
were not
concerning manslaughter by
23-408,OCLA,
Section
incorporated
change
without
abortion,
material
Oregon
appears
Revised Statutes and
therein as
adopted
163.060. The Revised
section
Statutes were
Oregon
chapter
1953,
Laws
law.
3. From
as
these
must be
an inference
drawn that
facts
question
recognized
the section
as law and intended
23-408, written, should
OCLA,
that
changed.
remain un
Hunt,
v.
6
See
NJ 600, 80 A2d 104;
Goff
Hakes,
v.
Iowa 1354,
Benschoter
8 NW2d 481;
Municipal Employees,
v.
etc.,
Burdette
Newark, 129
Terry (42
93;
A2d
State v. Du
70,
Pont,
NJL
Doggett
Del)
Hooper,
453;
40 A2d
v.
540,
306 Mass
County
v. Hudson
737;
27 NE2d
Greene
Board
Super
Statistics, 19 NJ
H. & V.
the frequently light propriety pro- on the of the throw majority posed Assuming opinion construction. us the state to be let see what is of law on law, subject opinion. argu- The, under that of abortions majority is the definition ment of the of abor- practice tion which is found in the medical act must manslaughter be read into the act. Hence the man- slaughter only act would be altered insofar as the practice majority medical act it. has altered Under the theory, any person surgeon who is not a or subject prohibition manslaughter to the of the according opinion, appear but to that it would physicians surgeons there also who would subject prohibition to the act practice because medical written, as aсt excludes purview. practice them from its In the medical provided: it is “This act shall not be construed to prevent following:” affect or Then follow 15 categories separate practice of which are not affected by practice Among types medical act. practice by which are affected the act are: “* '* # (2) practice of medicine and sur by duly gery appointed member of the resident by actually serving or an interne while staff, as such, any legally incorporated hospital in this state by recognized standard the order of the state (3) practice examiners; board of medical or surgery by any duly medicine one licensed so to neighboring practice ain who state, resides near the
boundary of this state, whose extends into this but state, who does not maintain an office appoint place patients or to meet or receive calls (4) meeting within this state or in this state any legally practitioner of surgery licensed of medicine and any country other duly state or with a practitioner surgery licensed of medicine and in this (5) furnishing state, or consultation; surgical emergency assistance in cases of requiring administration (6) immediate attention; or the domestic family (7) prac remedies; or authorized section osteopathic tice 54-824, *62 physicians dentistry, pharmacy, surgeons; (8) practice and or of chiropractic, na optometry, turopathy, chiropody therapy, by any or cosmetic * * legally person authorized this state or*; (15) practice physiotherapy, of electrotherapy hydrotherapy or carried on, or under the direc duly practitioners licensed tion of of medicine and surgery or osteopathy surgery chiropractic, or any practice may other method of here legalized after become this state.” OCLA, § 54-902. foregoing practice addition to the
In classifications of exempted military physicians act, from the certain surgeons exempted. are also appears, example, for
Thus that mem- certain hospital, resident staff of the of a practicing bers purview are not within the state, this of the medical according practice theory and, act, to the advanced they majority opinion, subject in the would therefore be prohibition manslaughter of the act. majority goes only Now, decision to this ex- physician lawfully cannot tent; be indicted or provisions manslaughter under the of tried statute performing an abortion as now for defined in the performed practice if it is act, medical for the relief peril whose hеalth a woman is of because of her pregnant and after consultation. Under condition, narrowly- practice “abortion” is so act, the medical only physician cases which a defined to cover “expulsion period foetus at a of causes the early acquired uterogestation so that it has not * * power sustaining independent *.” an life; only for act which a license 54-901. OCLA, procuring be revoked abortion as an majority act. under the Hence, defined in that rule, acquired if is caused after foetus has the abortion independent power sustaining an it is not life, meaning an all, abortion at within the “of this act”, practice physician medical and the wit, the subject prohibitions would be to the man- slaughter act. practice conclusively act it
Under the medical presumed acquired power the foetus has not independent sustaining days earlier life than gestation. majority opinion, after Under the a licensed rely upon presumption could that conclusive days be sure that apply, act would hence, apply. physician, peril,
would But must a at his gestation determine the exact date on which *63 occurred, impregnating on the is, intercourse was protected had, order to know whether he will practice by the medical or act, be liable to con- manslaughter? viction for
Again, practice the under medical act, whether the acquired power independent foetus has maintain days days life after 150 and before 240 must be deter- mined a matter of as fact on evidence in each case, only by disputable presumption. aided a If an abortion performed days, theory then, was after 150 under the majority, regulated by of whether act the the was manslaughter act, or the act,
might depend upon evidence of the circumstances which only available after the abortion became had been performed. might depend upon Guilt or innocence jury, upon occurring evidence decision of based after charged performed. been had statutory provisions A construction which would Oregon physicians subject prosecu- licensed some manslaughter, subjecting only tion for while others danger- license for a similar runs revocation of to ously equal protection clause to a violation of the close Furthermore, Federal if a con- Constitution. adopted require person which would struction through provisions, intricacies of the to search provisos exceptions civil statute for the practitioners regulation medical in order to deter- a crime has been сommitted whether under mine manslaughter simple provisions act, then, there any person grave could, doubt as to whether under any manslaughter convicted under the circumstances, be statute. argument, after court, members of this
If the agree reargument, consideration, and full are unable to manslaughter abortion, what constitutes as to violating prohibited from as who is statute, clear that construed in act, it seems opinion, majority would be which “either one doing requires an act in terms so forbids intelligence vague that men of common must neces- meaning sarily appli- guess and differ as at its to its law A valid criminal must declare with cation.” certainty prohibit. what acts it intends to reasonable Blanchard, 193 Or 238 P2d v. Simons State law, basis of constitutional United 246. On
167 Oregon Supreme made the rule Court has more States binding. specific a* # * a statute either forbids or re which vague doing quires of an act terms so necessarily intelligence guess must
men of common application, meaning and differ to its at its process due the first essential of of law.” violates Connally Co., 385, 391, v. Constr. US General L ed 328. led into a discussion of have been this ab- We allegedly conflicting statutory pro- struse maze of simply reasoning. because of a basic error in visions, regulatory in the fact that a civil That error is found vesting jurisdiction in a limited medical board, statute, self-government under enacted for the law of the complex profession, tortured has been into repeal plain felony terms of a amendment or which, the existence of was known to statute, by legislature, reenacted in and which was 1953 Ore- may gon that in be its wisdom Revised Statutes. legislature should harmonize the two statutes, appeal this criminal, and one but is to a one civil say that the and we cannot court, clearly has done when it established it different do what physicians applied a board be deter- tests to profession, mining from to oust doctor his whether applied determining be from those criminality. argument solicitude has been ex- course of In the n great
pressed of a members honorable for the physicians ethical profession. feared that will It is the difference between civil reason of misled procedures. If this court will declare, as criminal should, that means it I think says, criminally just and that its violation is what *65 punishable, no doctor will ever be misled and no plain honorable doctor will violate its It is terms. only attempts' the decision of this court which to fuse provisions of two statutes into one, different my opinion, will create confusion worse confounded. In guilty contrary every man has freed, been rule construction, sound law has been emasculated, totally destroyed, by if not the decision in this ease. join Mr. and Mr. Justice Lusk Justice Warner dissent. this