Buck, In re

• Decision Date: 03 June 1953
• Citation: 258 P.2d 124,200 Or. 488
• Parties: In re BUCK. BOARD OF MEDICAL EXAMINERS OF OREGON v. BUCK.
• Court: Oregon Supreme Court

Page 124

258 P.2d 124

200 Or. 488

In re BUCK BOARD OF MEDICAL EXAMINERS OF OREGON v. BUCK.

Supreme Court of Oregon, En Banc.

Argued and Submitted April 15, 1953.

Decided June 3, 1953.

Ralph E. Moody, of Salem, argued the cause for appellant. With him on the brief were Moody & Lamkin, Douglas L. Hay, and Henry M. Hanzen, all of Salem.

Howard I. Bobbitt, of Portland, argued the cause and filed a brief for respondent.

BRAND, Justice.

This is an appeal from a judgment of the circuit court of the State of Oregon for Multnomah County affirming an order of the Board of Medical Examiners of the State of Oregon, which order revoked the license of George H. Buck to practice medicine and surgery in State of Oregon. The original complaint in this case was filed in 1946 followed by an amended complaint in December of that year. The amended complaint contained 14 counts but each one was based upon the same general charge, namely, the causing of an abortion by operation upon or treatment of one Frances Rasmussen. In some counts the death of the child, and in others, the death of the mother, was alleged. The defendant received due notice, filed an answer and testified at the hearing. The Medical Board made findings of fact and conclusions of law sustaining the charges and on the second day of May, 1947, entered an order revoking the defendant's license to practice. Appeal was taken to the circuit court where the issues were determined solely upon the sufficiency of the pleading. It was held that none of the counts stated facts constituting sufficient ground for the revocation of the license. The order of the Board was reversed and it was directed to reinstate the defendant as a duly licensed physician. The Board appealed to this court and after hearing we reversed the judgment of the trial court and remanded the cause with directions to proceed with the trial of the appeal according to the provisions of O.C.L.A. § 54-933. Our opinion appears in 192 Or. 66, 232 P.2d 791. We are satisfied with the conclusions there set forth and shall not reconsider or review them here.

Pursuant to the order of this court, the circuit court entertained the appeal and affirmed the order of the Board revoking the license of the defendant. Now, nine and one-half years after the commission of the abortion, and six years after the institution of these proceedings, the case is again before us upon appeal. At the hearing before the circuit court, the defendant moved for an order quashing the information upon the ground that O.C.L.A. § 54-931 was amended by Oregon Laws 1951, c. 265. The motion was denied and the defendant now assigns that ruling as error. The contention is that since the act of 1951 contained no saving clause as to proceedings instituted prior to the date of the amendment, the enactment of the amendment 'operates as a repeal of provisions of the amended act which are changed by and repugnant to the amendatory act.' The proceeding for revocation of the license was brought under the provisions of O.C.L.A. § 54-931 which, so far as material here, reads as follows:

'The board may refuse to grant a license to any applicant who desires to practice medicine and surgery in this state or may suspend or revoke such licenses for any of the following reasons:

'(a) Unprofessional or dishonorable conduct;

'(b) The procuring or aiding or abetting in procuring an abortion unless such is done for the relief of a woman whose health appears in peril because of her pregnant condition after due consultation with another duly licensed medical physician and surgeon; * * *.'

The amendment adopted in 1951 added after the last word of (b) certain new matter so that the section would require consultation with another duly licensed medical physician and surgeon 'who is not an associate or relative of the physician or surgeon and who agrees that an abortion is necessary. The record of this consultation shall be in writing and shall be maintained in the hospital where the consultation occurred or in the offices of all physicians and surgeons involved for a period of at least three years after the date of such abortion.'

The trial court considered this proposition, and in denying the motion to quash, expressed the opinion that the amendment was not inconsistent with the provisions of O.C.L.A. § 54-931(b). Counsel for the defendant relies upon the rule that where a law and an amendment thereto are so repugnant that both measures cannot be enforced there is an implied repeal of the earlier statute. He then cites authority to the effect that 'the repeal of a law conferring jurisdiction takes away all right to proceed, under the repealing statute, as to all actions, suits, or proceedings pending at the time of the repeal, unless there is a saving clause in the repealing statute, and this is so in an appellate as well as the court of original jurisdiction.' State v. Ju Nun, 53 Or. 1, 97 P. 96, 98 P. 513, 514; Drainage Dist. No. 7 v. Bernards, 89 Or. 531, 174 P. 1167; State v. Moore, 192 Or. 39, 233 P.2d 253; 50 Am.Jur., Statutes, § 530, p. 536, § 552, p. 556. The defendant's difficulty is that the cases cited have no applicability to the issue here presented.

The 1951 act repealed no part of O.C.L.A. § 54-931(b). It re-enacted all of that subsection and merely added other requirements. Insofar as the two acts are the same, the new act is regarded as a mere continuation of the earlier one so that only the new provisions are to be considered as having been enacted at the time of the amendment. 50 Am.Jur., Statutes, § 468, p. 482.

Prior to 1951 a license might be revoked unless the abortion is performed for the relief of a woman whose health appears in peril because of her pregnant condition after due consultation with another physician. After 1951 the license may still be revoked under the same conditions. After 1951 there were additional grounds for revocation not previously applicable. Even though he confers as required under O.C.L.A. § 54-931(b) the license may still be revoked if the conference is not held and recorded as required in the 1951 act. Defendant's argument amounts merely to this: That the license of a physician who violates one provision of the professional code cannot be revoked because he did not violate all of them. There is no repugnancy between the two acts. The conduct of a physician previous to the 1951 amendment is tested by the statute then and now in force. Any conduct after the enactment of 1951 is to be tested by all of the provisions both old and new. No saving clause was required.

Defendant also assigns as error the insufficiency of the complaint. That issue was determined adversely to the defendant's contention on the previous appeal to this court. We decline to discuss it further. The only other assignments of error relate to the alleged insufficiency of the evidence.

The complaint alleges in substance that Dr. Buck, a licensed physician, in October, 1943, performed an...