State v. Buck

• Decision Date: 21 October 1953
• Citation: 262 P.2d 495,200 Or. 87
• Parties: STATE v. BUCK.
• Court: Oregon Supreme Court

Page 495

262 P.2d 495

200 Or. 87

STATE v. BUCK.

Supreme Court of Oregon, En Banc.

Argued April 1, 1953.

Reargued Sept. 10, 1953.

Decided Oct. 21, 1953.

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

Charles E. Raymond and James J. Kennedy, Deputy Dist. Attys. of Multnomah County, of Portland, argued the cause for respondent. With Charles E. Raymond on the brief were John B. McCourt, Dist. Atty., and C. W. Robison, Deputy Dist. Atty.

LATOURETTE, Chief Justice.

Appeal by Dr. George H. Buck, a duly licensed physician and surgeon of the state of Oregon, from a judgment of conviction and sentence predicated on the alleged violation of § 23-408, O.C.L.A., known as the Criminal Abortion Act, which is as follows:

'If any person shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destory such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter.'

The indictment, inter alia, charges that on December 11, 1950, Dr. Buck, by employing certain instruments, destroyed the unborn child of a certain woman, it not being necessary to preserve the life of the woman.

The medical code, in effect at the time in question, after providing for a board of medical examiners, the licensing of physicians and surgeons, and other provisions not necessary for this opinion, provided by § 54-931, O.C.L.A., inter alia, 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;

'* * *

'(i) Conviction of any offense for which the punishment may be incarceration in a state penitentiary or in a federal prison; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence; * * *.'

Among the definitions found in § 54-901, O.C.L.A., are the following:

"* * * Unprofessional or dishonorable conduct' shall mean such conduct as would not be indulged in by an ethical physician and surgeon, under all the circumstances, taking into consideration the good of the patient, and the public, the time and place.

"Abortion' shall mean the expulsion of the foetus at a period of uterogestation so early that it has not acquired the power of sustaining an independent life; provided it shall be conclusively presumed for the purpose of this statute that the foetus has not acquired such power earlier than one hundred fifty (150) days after gestation, and a disputable presumption of lack of such power shall arise if the expulsion take place earlier than two hundred forth (240) days after gestation.'

The main question involved in this appeal is what effect, if any, the Medical Practice Act contained in chapter 9, title 54, § 54-901 to 54-945, O.C.L.A., as amended, has on the Criminal Abortion Act. And in this connection it may be noted that the outcome of this case not only affects Dr. Buck, whose license to practice medicine has heretofore been revoked on a matter wholly unrelated to the facts in this case, In re Buck, Or., 258 P.2d 124, but also the entire medical profession.

It is a familiar rule that a court, in construing a statute, must ascertain the intent and purpose of the legislation from the language used. The rule is well stated in Swift & Co. (and Armour & Co.) v. Peterson, 192 Or. 97, 108, 233 P.2d 216, 223, as follows:

'The cardinal rule for the construction of a statute is to ascertain from the language thereof the intent of the lawmakers as to what purpose was to be served, or what object was designed to be attained. Leonard v. Ekwall, 124 Or. 351, 359, 264 P. 463; Fox v. Galloway, 174 Or. 339, 346, 148 P.2d 922. We accomplish this with such aid as may be found in the rules of interpretations and legitimate extrinsic sources, always keeping in mind that the legislative intent to enact a valid and constitutional law will be assumed. Fullerton v. Lamm, supra, 177 Or. , at page 670, 163 P.2d at page 947 [165 P.2d 63]. When the legislative intent has been ascertained, it should be given effect, even though, in doing so, the literal meaning of the words used is not followed. Allen v. Multnomah County, 179 Or. 548, 554, 173 P.2d 475; Wood v. State, ex rel. Lee, 133 Tex. 110, 126 S.W.2d 4, 121 A.L.R. 931, 935. In arriving at the legislative intention, it is proper for the court to take into consideration the policy and purposes of the Act, and to consider in that connection whether or not such a policy and purposes will be attained by a literal interpretation of the language used. Banfield v. Schulderman, 137 Or. 167, 178, 296 P. 1066, 298 P. 905, 89 A.L.R. 504; Allen v. Multnomah County, supra, 179 Or. at [page] 554, 173 P.2d 475. It is the express intent of the legislature which we seek, and to do this we must look to the entire statute. * * *'

It is well recognized that when the language of an act is unambiguous the intent of the legislature must be gained from the language used.

Giving consideration to the Medical Practice Act alone it is obvious that the same clearly and pointedly authorizes a doctor to perform an abortion as therein defined, if the same 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.

Since the Criminal Abortion Act and the Medical Practice Act conflict, it is our province to determine the relationship between the two, and, in so doing, we must construe the same together. It is true that the Medical Practice Act makes no express reference to the Criminal Abortion Act, but that is unimportant if there are necessary implications relating to it.

We recognize that repeals, amendments or modifications of previous statutes by implication are not favored, nor are they frowned upon in a proper case. If the legislature clearly intended by the enactment of the Medical Practice Act to alter or change the Criminal Abortion Act under given circumstances, such intention must be given full force and effect.

It is generally conceded that statutes in pari materia are to be construed together. There is another rule of equal importance, and that is, although statutes are not strictly in pari materia, yet, if they relate to the same matter, persons or things, or the same class of persons or things, or are closely allied to the same subject or object, they may be construed together.

In 50 Am.Jur. 347, Statutes, § 350, we read:

'Although there may be statutory provisions which, in a sense, relate to the same matter and yet are not in pari materia, the general rule is that statutes or statutory provisions which relate to the same person or thing, or to the same class of persons or things, or to the same or a closely allied subject or object, may be regarded as in pari materia. * * *'

In Black, Interpretation of Laws, 2d Ed., p. 340, § 104, we find the following:

'It is also held that legislation which is of a similar nature to the statute under consideration, although not precisely in pari materia, is within the reason of the rule, and may be referred to for the same purpose * * *.'

In Crawford, Statutory Construction, we read:

'Just as the different words, phrases and provisions of a statute should not be isolated and given an abstract meaning, so the statute itself in its entirety should not be interpreted solely by reference to its own terms, but rather by reference to the other laws of the state, and particularly to those pertaining to the same subject. Every statute should be regarded as a part of the whole body or system of law. Consequently, in construing a statute, the constitution, the common law, and other statutes, particularly those in pari materi and those expressly referred to, should be examined, in the effort to ascertain the intention of the legislature. * * *' p. 420, § 227.

'When it is necessary to resort to the process of construction, the court may properly refer to certain other statutes in its effort to determine the meaning of the language used by the legislature, especially where such statutes are pre-existing or contemporaneous. While this rule is particularly applicable to statutes in pari materia, the court is not limited to statutes of that character. Certain statutes which are not strictly in pari materia may also be given consideration, such as statutes on cognate subjects, since they are within the reason of the rule which allows reference to statutes in pari materia. * * *' p. 428, § 229.

In construing statutes to determine the intent of the legislature, it makes no difference whether the court is construing a civil statute in relation to a criminal statute, or vice versa; the ultimate object is to ascertain the intention of the legislature in enacting such legislation. In 82 C.J.S., Statutes, § 366, page 815, we read:

'* * * Other related legislation may be considered in construing statutes dealing with * * * crimes * * *; and in this respect, similar expressions in civil and criminal statutes dealing with the same general subject should be given a uniform construction, and resort to the civil statutes as well as to the penal code will be had to give meaning to language appearing in the criminal statutes.'

In State v. Ebbs, 89 Mo.App. 95, 98, the court said:

'* * * Though section 3867 is found in chapter 47 of the statute...