11 A.2d 856 (Conn. 1940), State v. Nelson

Citation:11 A.2d 856, 126 Conn. 412
Opinion Judge:HINMAN, Judge.
Attorney:William B. Fitzgerald, State's Atty., of Waterbury, for appellant. J. Warren Upson and William J. Secor, Jr., both of Waterbury, for appellees. Frederick H. Wiggin and Huntington T. Day, both of New Haven, and Laurence A. Janney, amici curiae.
Judge Panel:AVERY AND JENNINGS, JJ., dissenting. Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ. In this opinion, MALTBIE, C.J., and BROWN, J., concurred; AVERY and JENNINGS, JJ., dissented.
Case Date:March 06, 1940
Court:Supreme Court of Connecticut

Page 856

11 A.2d 856 (Conn. 1940)

126 Conn. 412










Supreme Court of Errors of Connecticut.

March 6, 1940

Appeal from Superior Court, New Haven County; Kenneth Wynne, Judge.

Roger B. Nelson, William A. Goodrich, and Clara L. McTernan were charged by informations with assisting, abetting, and counseling a married woman to use a certain drug and device to prevent conception in violation of Gen.St.1930, §§ 6246, 6562, and from judgments of not guilty, rendered after sustaining demurrers to the informations, the State appeals.

Error, judgments set aside, and cases remanded, with direction.

AVERY AND JENNINGS, JJ., dissenting.

Page 857

[126 Conn. 414]William B. Fitzgerald, State's Atty., of Waterbury, for appellant.

J. Warren Upson and William J. Secor, Jr., both of Waterbury, for appellees.

Frederick H. Wiggin and Huntington T. Day, both of New Haven, and Laurence A. Janney, amici curiae.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

HINMAN, Judge.

The allegations of the amended informations in the cases of the defendants Nelson and Goodrich are substantially identical. Each information charges in three counts that the defendant, ‘ a duly qualified and licensed physician, in violation of Sections 6246 and 6562 of the General Statutes, * * * assisted, abetted and counseled a married woman * * * to use a certain [specified] spermatocidal drug * * * and a [specified] contraceptive device * * * for the purpose of preventing conception for the reason that in the opinion of [the defendant] as a physician, the preservation of the general health of said married woman, who had sought his advice as a physician, required that she use said drug and device

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for the purpose of preventing conception’ and ‘ that thereafter the said married woman in consequence of said conduct of [the defendant] did in fact use said drug and contraceptive device for [that] purpose.’ Sections 6246 and 6562 of the General Statutes are printed in a footnote. [126 Conn. 415]1 In the McTernan case the allegations of the three counts are similar to the foregoing, except that it is alleged that the defendant is a trained nurse and that she, in assisting, abetting and counseling use of said drug and device ‘ was carrying out the prescription of a duly qualified and licensed physician in whose professional opinion the preservation of the general health of [the] married woman, who had sought his advice as a physician, required that said married woman [so] use said drug and device.’ The grounds of demurrer are a general claim that § 6246 constitutes an interference with the individual liberty of citizens and a deprivation thereof without due process of law violative of the federal and state constitutions, and, specifically, because it applies where a married woman makes use of such drugs, articles or instruments for the purpose of preventing conception (a) upon the recommendation and advice of a physician; upon such advice (b) ‘ under circumstances in which all physicians would agree that a pregnancy would jeopardize her life’ ; (c) ‘ where, for health reasons, the use thereof is necessary for such purpose’ ; (d) ‘ where such contraceptive measures are necessary to protect and procure the best possible state of health and well being’ ; also that the statute is unconstitutional if construed as being without an exception ‘ protecting the right of any physician to prescribe drugs, medicinal articles or instruments for the purpose of preventing conception.’ Additional grounds are that § 6246 [126 Conn. 416] fails to fix a reasonably precise standard of guilt and that it fails to fix a maximum fine. The Superior Court held that the statute could not be construed as affording the above-mentioned exception as to physicians and that it was consequently unconstitutional.

There is no ambiguity in the statutes here involved. Section 6246 makes it an offense for any person to ‘ use any drug, medicinal article or instrument’ for the prescribed purpose, and under § 6562 ‘ any person who shall assist, abet, [or] counsel * * * another to commit any offense may be prosecuted and punished as if he were the principal offender.’ The defendants claim, notwithstanding, that these sections may and should be so construed as ‘ not to prohibit a duly licensed physician from prescribing the use of contraceptive devices to a married woman * * * when the general health and well being of the patient necessitates it.’ A cardinal rule is that statutory construction by the judiciary is controlled by the intention of the Legislature. ‘ All statutes, whether remedial or penal, should be construed according to the apparent intention of the legislature, to be gathered from the language used, connected with the subject of legislation * * *.’ Rawson v. State, 19 Conn. 292, 299; State v. Faro, 118 Conn. 267, 272, 171 A. 660; Kelly v. Dewey, 111 Conn. 281, 284, 149 A. 840. The concern of the courts is with the intent expressed by what the Legislature has said. ‘ We must construe the act as we find it, without reference to whether we think it would have been or could be improved by the inclusion of other provisions.’ Murphy v. Way, 107 Conn. 633, 639, 141 A. 858, 860. Courts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reasons exist for adding them. This is especially so when it appears that the omission was intentional. 59 C.J. 974; [126 Conn. 417] Strong v. Strong, 106 Conn. 76, 79, 137 A. 17. At most, an implied limitation upon the operation of a statute may only be made in recognition of long existing and generally accepted rights ( Kelley v. Killourey, 81 Conn. 320, 322, 70 A. 1031,129 Am.St.Rep. 220,15 Ann.Cas. 163) or to avoid consequences so absurd or unreasonable that the Legislature must be presumed not to have intended them. Dorman v. Carlson, 106 Conn. 200, 203, 137 A. 749; Jacobson v. Massachusetts, 197 U.S. 11, 39, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765. Neither religious beliefs nor sociological or physiological views can be given weight in the determination. Lanteen Laboratories, Inc. v. Clark, 294 Ill.App. 81, 88, 13 N.E.2d 678, 680.

Any intention on the part of the

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Legislature to allow such an exception as would advantage the present defendants is negatived not only by the absolute language used originally and preserved ever since but also, signally, by its repeated and recent refusals to inject an exception. At each session from 1923 to and including 1931 a bill was introduced excepting from the operation of the statute (General Statutes, 1918, § 6399, General Statutes, 1930, § 6246) use upon prescription of a physician and sale to physicians or upon their prescription, but in each instance the bill was rejected. In 1933 a bill was introduced making a similar exception but limited to cases in which, in the opinion of the physician, ‘ pregnancy would be detrimental to the health of the patient or to the child of such patient.’ This was amended in the House of Representatives so as to further limit the exceptions to married women and passed as amended, but was rejected by the Senate. Upon report of a committee of conference the House reconsidered, further amended and passed the bill, but no further action was taken in the Senate. In 1935 a bill similar to the original 1933 bill was introduced but not reported ont by the judiciary [126 Conn. 418] committee to which it was finally referred. Patently we may not now attribute to the Legislature an accidental or unintentional omission to include the exception contended for by the defendants and necessary to place them outside the operation of the statutes. Rejection by the Legislature of a specific provision is most persuasive that the act should not be construed to include it. Pennsylvania R. Co. v. International Coal Mining Co., 230 U.S. 184, 198, 33 S.Ct. 893, 57 L.Ed. 1446, Ann.Cas.1915A, 315.

The particular facts alleged in the information confine the issue to situations where, in the opinion of the physician, ‘ the general health’ of a married woman requires the use of contraceptives. Therefore, there is no occasion to determine whether an implied exception might be recognized when ‘ pregnancy would jeopardize life’ [ground (b) supra] similar to that usually expressly made in statutes concerning abortion. See § 6056 of the General Statutes; Commonwealth v. Sholes, 13 Allen 554,95 Mass. 554, 558; 1 C.J.S., Abortion, § 13, p. 322. It is significant, too, that by Chapter 205 of the Public Acts of 1895, § 6 (now § 6438 of the General Statutes), the Legislature expressly excepted medical textbooks and other purely medical literature from the application of statutes concerning circulation of obscene literature (now §§ 6244, 6435 of the General Statutes), cases in which miscarriage or abortion is necessary to preserve the life of the woman or of her unborn child are specifically excepted in §§ 6056, 6057 of the General Statutes, and in 1939 (Supplement, § 1433e) § 6058 of the General Statutes was amended so as to except sales to physicians and hospitals of medicines or instruments for producing abortion. The inference follows that if the General Assembly intended the exception from § 6246 now contended for it would have so expressed it.

[126 Conn. 419] A claim similar to that of the defendants was advanced in Commonwealth v. Gardner, Mass. 1938, 15 N.E.2d 222, 223. The Massachusetts statute, G.L.(Ter.Ed.) Chapter 272, § 21, provides that ‘ whoever sells, lends, gives away, exhibits, or offers to sell, lend or give away * * * any drug, medicine, instrument or article whatever for the prevention of conception’ shall be punished. The defendants contended that the statute...

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