State v. Kellogg

• Decision Date: 17 March 1894
• Parties: STATE ex rel. BALDWIN v. KELLOGG.
• Court: Montana Supreme Court

36 P. 957

14 Mont. 426

STATE ex rel. BALDWIN v. KELLOGG.

Supreme Court of Montana

March 17, 1894

Appeal from district court, Lewis and Clarke county; William H. Hunt and Horace R. Buck, Judges.

Special proceeding by the state of Montana, on the relation of S. C Baldwin, against Edwin S. Kellogg, for the purpose of revoking defendant's license as a physician and surgeon commenced before the state board of medical examiners, and taken on appeal by defendant to the district court. From a judgment revoking such license, defendant appeals. Reversed.

The state board of medical examiners organized and have been acting under the provisions of what is called the "Medical Law," which was approved February 28, 1889 (16 Sess. Laws. p. 175). The appellant is a practicing physician in the state of Montana. The proceedings which resulted in this appeal were originally instituted before the medical board for the purpose of revoking appellant's license as a physician and surgeon. The medical law, above quoted, provides that the board may revoke a physician's certificate for unprofessional, dishonorable, or immoral conduct. The complaint which was filed before the medical board against the appellant, Dr. Kellogg, charged him with such conduct, and gave specifications. The portion of the complaint which is material in this inquiry is as follows "Board of Medical Examiners of the state of Montana Plaintiff, vs. Edwin S. Kellogg, Defendant. State of Montana, County of Lewis and Clarke--ss.: S. C. Baldwin, being first duly sworn, deposes and says that between the 1st day of March, 1893, and the 31st day of March, 1893, at the city of Helena, in the county of Lewis and Clarke, and state of Montana, one Edwin S. Kellogg, late of the county of Lewis and Clarke, in the state of Montana, being then and there a practicing physician and surgeon, and being then and there the holder of a certificate to practice medicine and surgery in the state of Montana, issued by the board of medical examiners of the state of Montana, was guilty of unprofessional, dishonorable, and immoral conduct in this, to wit: (1) That upon the 4th day of March, 1893, said Kellogg placed in the furnace of that certain building in the city of Helena, said county and state, known as the 'Masonic Block,' situated at the corner of Broadway and Jackson streets, in the said city, in which block said Kellogg had an office as physician, a package covering and containing a headless foetus, about seven months old, with intent to destroy the same, and to conceal its birth. (2) That at the coroner's inquest held at the courthouse in the city of Helena by Dr. T. H. Pleasants, the coroner of the said county of Lewis and Clarke, over the said foetus, the said Kellogg testified as a witness, after having been sworn, upon the 8th day of March, 1893, to testify to the truth, the whole truth, and nothing but the truth, substantially as follows: That he had been called in to attend a woman who shortly afterwards suffered a miscarriage. That she was delivered of a child, and that, while being delivered, the head of the infant became detached from the body; that he took the body of the infant to his office, wrapped it in a sheet of paper, and threw said body into the furnace of the Masonic Temple; that he had before thrown amputated members of the bodies of persons in said furnace. The party referred to as being the patient from whom the foetus was taken asked not to have her name made known, if possible to avoid it, and that he had been advised that he need not answer it unless he chose to do so. He declined to answer, not because he is afraid of incriminating himself, but to avoid the publicity of the lady's name in the papers. Foetus had been dead four or five days when taken away. Head was in part detached. The foetus is three months and one week old. Is willing to disclose the name of the lady tomorrow, at 2 p. m., to the coroner, who will use his discretion in the matter. And that thereafter, upon the 9th day of March, 1893, said Kellogg testified, as such witness, still further: 'The person whose name you ask for has left the state of Montana, and is beyond and without the jurisdiction of any court of the state of Montana. Without the presence of that person to explain and certify to her condition at the time the foetus was taken from her, my answer, under the existing circumstance, would incriminate me, and be testimony against myself, and on that ground I refuse to answer."' The appellant duly appeared before the medical board to answer the charge and specification contained in the complaint. Upon his appearance he filed a demurrer, the ground of which was that the complaint did not state facts which amounted to unprofessional, dishonorable, or immoral conduct. This demurrer was argued before the board, and was overruled. The board then proceeded to try the appellant upon the complaint. The result of the trial was that the appellant was found guilty, and it was adjudged that his license be revoked. In pursuance to the provisions of the medical law, the appellant appealed from the board to the district court. In that court he reargued, and insisted upon his demurrer. The demurrer was overruled by the district court. He was thereupon tried upon the complaint, and found guilty, and it was adjudged that his license be revoked. From that judgment, appellant appeals to this court.

A complaint before the state board of medical examiners for the purpose of revoking defendant's license as a physician for unprofessional, dishonorable, and immoral conduct charged that, on a certain date, defendant threw into a furnace a human foetus seven months old, with intent to destroy it and conceal its birth; that, at the coroner's inquest over such foetus, he testified that he had attended a woman who had a miscarriage, and that the foetus was the result thereof; that he refused to give the name of the mother, for the reason that she had requested him not to do so, and he had been advised that he was not obliged to give it; that he stated he would give it to the coroner the next day, who could use his discretion in regard to it; that on the next day he testified that the mother had left the state, and, without her presence to explain her condition at the time, his answer would incriminate him, and be testimony against him; and that for that reason he refused to give the name. Held, that the facts stated did not constitute unprofessional, dishonorable, or immoral conduct, and the complaint was insufficient.

T. J. Walsh, for appellant.

C. B. Nolan and Blake & Penwell, for respondent.

DE WITT, J. (after stating the facts).

This case comes to us entitled "The Board of Medical Examiners of the State of Montana vs. Edwin S. Kellogg." It should probably bear the title as written at the head of this report. The trial and argument of this case have taken a wide scope, but upon the threshold of the inquiry we meet perhaps, the most important question involved. The complaint before the medical board was the original pleading in the proceeding, corresponding to the complaint or declaration in a civil case, or indictment or information in a criminal case. The medical board is a special tribunal, created by the medical law, and having jurisdiction over a limited subject-matter 16 Sess. Laws, p. 175. The tribunal is composed of physicians, and not of any persons who are required to be learned in the law. We are of opinion that before such a tribunal, pleadings should not be too strictly construed, nor should a too close observance of the science of pleading be required. But it cannot for one moment be doubted that the complaint must set forth facts which constitute an offense. A defendant in such a proceeding is to answer a charge of unprofessional, dishonorable, and immoral conduct. If the judgment is against him, he is deprived of the right to practice his profession, to which perhaps he has devoted a life of learning and labor. In a situation of this gravity, a defendant has the right, within the spirit of the constitution, "to demand the nature and cause of the accusation" (Const. art. 3, § 16); that is to say, a defendant must be notified of what he is charged, and he must be charged with something. The complaint must set out facts which constitute unprofessional, dishonorable, or immoral conduct. This defendant has constantly insisted that the complaint in this proceeding does not set out such facts, and he so urges in this court. To that inquiry we will first address ourselves. We will examine, seriatim, what is said in the complaint. Taking up the first paragraph, and holding up to inspection the facts stated, we observe, first, that the defendant, a physician, threw into a furnace, with intent to destroy it, a human foetus, seven months old. Was this unprofessional conduct? This court is in possession of a few elementary physical facts. Among them is the fact that the members of the human race, living under the conditions of higher civilization, do not always, or indeed often, bear children without aid and attentions from persons skilled in matters obstetrical. We also know that premature deliveries and accidents, commonly called "miscarriages," occur. At such times physicians are called to render services. In the course of such services the physician must become possessed of foetuses. It is professional that he should. It is not immoral or dishonorable that he should. No argument to this effect can say more than the simple statement. It is a postulate to which every intelligence assents. Nor can it be contended that the simple fact of destroying such a thing is unprofessional, immoral, or dishonorable. In fact, it must be destroyed. Sanitary rules demand its destruction; and incineration is certainly as proper...