Sobey v. Molony

The State Board of Medical Examiners appeals from a judgment granting a peremptory writ of man

The petition for a writ of mandate, to which appellant demurred, discloses that on May 24, 1939, a complaint was filed with the appellant Board charging respondent, a duly licensed physician and surgeon, with having committed certain designated acts which, it is alleged, constituted unprofessional conduct. The complaint alleged that on July 25, 1934, April 15,1936, and March 15, 1937, respondent violated section 2377 of the Business and Professions Code. In his petition for a writ of mandate respondent urged that the complaint must be dismissed for the reasons that all of the acts alleged were committed prior to the effective date of the Business and Professions Code in August of 1937; that that code repealed the old Medical Practice Act; that, properly interpreted, the provisions of the new code when read in conjunction with the repeal had the effect of remitting all offenses theretofore committed but not at the time of the repeal the subject of prosecution. These arguments convinced the trial court, and the writ issued. “

It was respondent’s position in the trial court, and it is his contention here, that the legal effect of the adoption of the Business and Professions Code and the simultaneous repeal of the Medical Practice Act was, and is, to prohibit the institution, after August of 1937, of disciplinary proceedings against any offender where the offense charged was committed before that date. It is contended that this result must follow even though the acts set forth in the complaint constituted not only violations of the Business and Professions Code, but also constituted violations of the old Medical Practice Act.

To understand this contention reference must be made to certain provisions of the Medical Practice Act and of the Business and Professions Code. Section 14 of the Medical Practice Act (Deering’s Gen. Laws 1931, Act No. 4807; Stats. 1913, chap. 354, p. 722), as amended, provided, at the time the offenses contained in the complaint were alleged to have been committed, that:

“The words ‘unprofessional conduct’ as used in this act, are hereby declared to mean:

“First—The procuring or aiding or abetting or attempting or agreeing or offering to procure a criminal abortion. ’ ’ The

original section as adopted in 1913 contained substantially the same language.

Section 2377 of the Business and Professions Code as adopted in 1937 (this being the section that respondent is charged with violating) provides:

“The procuring or aiding or abetting or attempting or agreeing or offering to procure a criminal abortion constitutes unprofessional conduct within the meaning of this chapter.”

The Medical Practice Act was repealed by section 30003 of the Business and Professions Code in 1937. Simultaneously, the Business and Professions Code, embodying section 2377 above-quoted, was enacted. It therefore appears that, since 1913 to date, there has never been a moment of time when the procuring of a criminal abortion did not constitute unprofessional misconduct.

Section 2 of the Business and Professions Code provides:

“The provisions of this code in so far as they are substantially the same as existing statutory provisions relating to the same subject matter shall be construed as restatements and continuations thereof, and not as neV enactments.”

Section 4 of that code provides:

“No action or proceeding commenced before this code takes effect, and no right accrued, is affected by the provisions of this code, but all procedure thereafter taken therein shall conform to the provisions of this code so far as possible.” Substantially, the same language is to be found in section 2002 of that code, which is in that part of the code relating to the practice of medicine.

It is a demonstrable fact not challenged by respondent, that, by the codification of the law applicable to the practice of medicine in the Business and Professions Code, the legislature did not intend or attempt to change the substantive provisions of existing statutes, but simply intended to codify and clarify existing provisions. This code does not stand alone. The code commission was created by Statutes of 1929, page 1427, chapter 750. Since that time it has prepared codifications of many branches of the law. The Business and Professions Code, as adopted in 1937, does not apply only to the practice of medicine but also to seventeen other businesses and professions. In codifying the law the code commission and the legislature avoided, wherever possible any substantive change in existing law.

This is the rule of decision in California and in the other states, even in the absence of legislative declaration. The eases have clearly established the rule that such restatement, without substantial change, neutralizes any repeal, express or implied. No saving clause or other expression of legislative intent is necessary to accomplish this result. The intent is derived from the fact and purpose of a restatement without change. (Estate of Martin, 153 Cal. 225 [ 94 Pac. 1053 ]; Perkins Mfg. Co. v. Clinton Const. Co., 211 Cal. 228 [ 295 Pac. 1 , 75 A. L. R. 439 ] ; Chambers v. Davis, 131 Cal. App. 500 [ 22 Pac. (2d) 27 ]; Gastineau v. Meyer, 131 Cal. App. 611 [ 22 Pac. (2d) 31 ].) The eases from other jurisdictions are in complete accord. They are so numerous and so completely in harmony that their enumeration is not necessary. Many of them are collected and referred to in 59 Corpus Juris, page 1058, section 624.

This rule of construction, based as it is on the presumed legislative intent, applies whether the subject of the statute is civil or criminal law. It is well-settled that, independently of a saving clause, a person may lawfully be prosecuted, under a repealed and re-enacted statute, for a crime committed prior to the date of the re-enactment. (Lewis’ Sutherland Statutory Construction, 2d ed., vol. 1, p. 445, sec. 238; Black on Interpretation of Laws, 2d ed., p. 421, secs. 124, 125; State v. Gumber, 37 Wis. 298 ; State v. Ware, 79 Or. 367 [ 154 Pac. 905 , 155 Pac. 364 ]; State v. Wish, 15 Neb. 448 [ 19 N. W. 686 ] ; Bauer v. State, 99 Neb. 747 [ 157 N. W. 968 ]; State v. Brewer, 22 La. Ann. 273 ; Borough of Lang

None of the eases cited by respondent establishes any different rule. Without listing the cases cited by him, it is sufficient to state that some of them are eases of repeal without a re-enactment, some involve a repeal with the passage of a new statute making substantial changes in the old, while others involve statutes that contain clauses expressly remitting past penalties. None of these cases is in point.

In the present case sole reliance need not be placed on the general rule above-referred to. The legislative intent is not left to construction at all. Section 2 of the Business and Professions Code, above-quoted, expressly codifies the rule. This is not an isolated expression of legislative intent. Provisions substantially similar to section 2 of the Business and Professions Code appear in section 5 of the Civil, Code of Civil Procedure, Penal and Political Codes, and in section 2 of the Probate, Elections, Harbors and Navigation, Health and Safety, Insurance, Labor, Military and Veterans, Public Resources, Revenue and Taxation, Streets and Highways, Vehicle, and Welfare and Institutions Codes, in section 3 of the Agricultural Code and in section 4 of the Fish and Game Code. The reasons why such provisions were placed in the original codes and carried into the new codes are not hard to ascertain. Prior to 1872 it had been held that when the legislature amended or revised a statute, and, in response to a constitutional requirement reprinted the text in full, it effected a complete new enactment and was not a continuation of the old. (Billings v. Harvey, 6 Cal. 381 ; Billings v. Hall, 7 Cal. 1 ; Morton v. Folger, 15 Cal. 275 ; Clarke v. Huber, 25 Cal. 593 ; Bensley v. Ellis, 39 Cal. 309 .) The legislature, in adopting the codes, did not leave its intent to conjecture— it expressly codified its intent in the provisions above-referred to and in section 325 of the Political Code, which are substantially similar to section 2 of the Business and Professions Code.

It thus appears that, if the legislature had not enacted any saving clause at all, or had merely enacted section 2 of the Business and Professions Code, there could be no doubt of the right of the appellant Board to proceed against respondent after August of 1937 for offenses committed prior thereto.

The effect of respondent’s argument is this: He concedes that, if the Business and Professions Code contained no saving clause or clauses at all, he could be prosecuted for offenses committed prior to the adoption of that code; he further must concede that if section 2 were the only saving clause that the Board could lawfully prosecute him; but, according to his view, by enumerating pending actions and rights accrued in sections 4 and 2002 it must be presumed that the legislature intended to remit all offenses committed prior to August, 1937, where prosecutions had not been instituted prior to that date. In other words, the sole purpose of sections 4 and 2002, according to respondent, was to remit offenses not being prosecuted at the time of the adoption of the new law. This would be to attribute to the legislature the intent of doing by indirection what it easily could have done directly. It is a most peculiar way to remit offenses by a provision specifically saving certain other offenses. Moreover, in attempting to ascertain the legislative intent, it must be kept in mind that statutes regulating the practice of professions and providing for the discipline of offending members, while penal in nature, are also intended to protect the public from unscrupu

On behalf of appellant it is urged that the provision appearing in sections 4 and 2002, saving rights accrued, saves prosecutions for offenses committed prior to August, 1937, although complaints were not filed until after that date. It is urged that, as applied to the right of appellant Board to initiate proceedings for revocation of a license, the term “right accrued” must be construed to mean “to arrive, to commence, to come into existence, to become a present enforceable demand”. Respondent contends the terms only apply to vested rights. There is much to be said for appellant’s construction. Obviously, the legislature has no power to destroy vested rights. When it expressly provided for preserving rights accrued, the intendment must be that it sought to preserve something it had the legal capacity to abrogate.

There are other and compelling reasons, however, why sections 4 and 2002 should be construed to continue the old statute in effect. Provisions such as these sections are not peculiar to the Business and Professions Code. Substantially similar clauses are to be found in section 8 of the Political Code and Code of Civil Procedure, and in section 6 of the Civil Code. It must be kept in mind, as already pointed out, that these Codes also have provisions substantially similar to section 2 of the Business and Professions Code. The two sections must be given effect, if possible. Obviously, section 2 was intended, among other things, as a saving clause where no substantial change was made in the law. Section 4 can be reconciled with section 2, and effect given to both sections, by holding that it was intended to cover situations, either where the codification made a substantial change in the law, or where the legislature at that or subsequent sessions amended the law in a substantial manner. This seems to reasonably ex

Respondent relies on several eases, the most important of which is State v. Showers, 34 Kan. 269 [ 8 Pac. 474 ], In that case, as in this, there was a repeal and re-enactment of a liquor law, and the defendant was indicted for a violation committed prior thereto. In the new statute there was a saving clause providing that: “All prosecutions pending at the time of the taking effect of this act shall be continued the same as if this act had not been passed. ’ ’ In addition, in the general laws of Kansas, was a general saving clause providing : "The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment. ’ ’

The court held that the defendant could not be prosecuted after the re-enactment for the offense committed prior to the adoption of the new statute. The court apparently held that the special saving clause in the liquor law prevailed over

A saving clause in the special statute involved (34 Stats. 595), was as follows: “That all laws and parts of laws in conflict with the provisions of this act are hereby repealed, but the amendments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law.” The court rejected the contention that this saving clause by necessary implication extinguished the right to sue where a cause was not pending at the time of repeal and re-enactment, and held that the saving clause of general statute and special law should both be given effect, and that application of the general statute preserved the right to sue for violations committed before repeal and reenactment although action had not theretofore been commenced. See, also, First Nat. Bank v. Weidenbeck, 97 Fed. 896 .

It is our duty in this proceeding to attempt to ascertain and to give effect to the intent of the legislature. In attempting to arrive at that intent we are required to give effect, if possible, to all of the provisions of the law. To adopt re

The judgment appealed from is reversed.

Knight, J., and Ward, J., concurred.

A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 10, 1940. Houser, J., and Carter, J., voted for a hearing.