Munk v. Frink

• Decision Date: 06 December 1905
• Docket Number: 14,332
• Citation: 106 N.W. 425,75 Neb. 172
• Parties: ERICK C. MUNK v. J. L. FRINK ET AL
• Court: Nebraska Supreme Court

106 N.W. 425

75 Neb. 172

ERICK C. MUNK v. J. L. FRINK ET AL

No. 14,332

Supreme Court of Nebraska

December 6, 1905

ERROR to the district court for Lancaster county: EDWARD P. HOLMES JUDGE. Reversed.

REVERSED.

M. F Harrington, H. Halderson and A. M. Post, for plaintiff in error.

Norris Brown, Attorney General, William T. Thompson, L. R. Latham H. F. Rose and H. C. Vail, contra.

AMES, C. LETTON and OLDHAM, CC., concur.

OPINION

AMES, C.

In March, 1891, the state board of health of this state issued, pursuant to the statute in force at that time, a certificate licensing or permitting the plaintiff in error to engage in the practice of medicine. On May 27, 1904, there was filed with the secretaries of the board a verified complaint against him, of the first two clauses of which the following are copies: "The affiants, F. Frink and R. R. Kennedy, residents of Madison county, Nebraska, who, being first duly sworn, depose and say that your Honorable Board should refuse to issue a certificate to Dr. Erick C. Munk of Newman's Grove, Madison county, Nebraska, or if certificate has already been issued to Erick C. Munk, that it should be revoked for the following reasons: First. In the procurement, aiding and abetting a criminal abortion as follows: Dr. Erick C. Munk on the 11th day of February, 1904, in the county of Boone, wilfully, unlawfully and maliciously did use a certain instrument, the name of which is to affiant unknown, by thrusting and inserting said instrument into the womb of one Laura Orender, then and there being a pregnant woman, with the intent then and there and thereby to procure the miscarriage of the said Laura Orender, the same not being necessary to preserve the life of the said Laura Orender, not being advised by two physicians to be necessary for that purpose other than Dr. D. G. Walker, who assisted in producing said miscarriage, and was a co-conspirator in said crime."

In November following, the board, after having heard testimony and arguments by counsel, entered of record a finding by them that "the said Erick C. Munk is guilty in manner and from as charged in said complaint," and an order that said certificate issued to said Munk "be, and the same is, hereby canceled and revoked." The board are empowered by section 14, chapter 55, Compiled Statutes 1903 (Ann. St. 9428), to revoke such certificates for several specified causes, among which are "the procuring or aiding or abetting in procuring a criminal abortion." The statute (Cr. code, sec. 6) defines the crime of abortion as the unlawful use of drugs or instruments for the destruction of a vitalized embryo or foetus, resulting in the death thereof, or of its mother. And such may be regarded as substantially the common law definition of the offense. Hatfield v. Gano, 15 Iowa 177; Smith v. State, 33 Me. 48; State v. Cooper, 22 N.J.L. 52. From the foregoing order of the state board, Munk prosecuted a petition in error to the district court for Lancaster county, but his proceeding was dismissed, on motion, on the sole ground that the order is not, in the opinion of the presiding judge, reviewable by the courts, either by proceedings in error or otherwise. To reverse the order of dismissal, this proceeding is now prosecuted in this court.

In support of the judgment below it is contended that the state board is a body belonging to the executive department of the state government for the exercise of purely police functions and that its powers are exclusively executive and administrative, and not judicial, in any sense, and that its judgments and orders are therefore not reviewable by the courts upon error, as provided in section 580 of the code which confers upon district courts jurisdiction to review in that manner final orders of tribunals, boards and officers, "exercising judicial functions." Reliance in support of this argument is mainly upon State v. Hay, 45 Neb. 321, 63 N.W. 821, and authorities there cited. But that decision does not appear to us to be in point, or rather, so far as it is in point, it seems to us to countenance the opposite conclusion. The statute under consideration in that case provided that the superintendent of the Lincoln hospital for the insane should hold his office for the term of six years, "unless sooner removed by the governor for malfeasance in office, or other good and sufficient cause. Comp. St. 1903, ch. 40, sec. 11 (Ann. St. 9600). The governor preferred against the superintendent certain formal specific charges in writing, and, after notice and a hearing, at which testimony was produced, made an order formally sustaining them, and removed the incumbent from office, and appointed a successor. The former refused to yield, and the attorney general instituted in this court an original proceeding in the nature of an information quo warranto for the purpose of obtaining a determination of the validity of the order of removal. It was held that the court would not, in that proceeding, either inquire into the sufficiency of the evidence adduced before the governor or retry the issues themselves, but that the governor was without jurisdiction or authority to remove, except for the cause of malfeasance in office, and that the court would examine the charges for the purpose of ascertaining whether they were such as, if true, justified...