dissenting.
The decision this day made will render difficult, if not impossible, any effective effort on the part of *138law enforcement agencies to punish any violators of the criminal statute relative to abortions.
A criminal statute was enacted. An indictment was drawn in strict conformity therewith. Proof was made of all the allegations of the charge. The jury found the defendant guilty. This court reverses the conviction because it holds that another law, passed for a different and limited purpose, has transformed the clear language of the criminal statute into a labyrinthian maze of confusion and uncertainty which no trial court could clearly define, and no jury could understand. The indictment against the defendant Buck was brought pursuant to the provisions of OCLA, § 23-408 which is a part of the penal code and which defines manslaughter. That act was adopted in 1864 and has ever since remained on the books in its original form. It reads 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 destroy 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.” OCLA, § 23-408.
The position of the defendant is that the enactment of OCLA, §§ 54-901 and 54-931 operated either as a partial repeal of the manslaughter act or as an amendment of it; that the two acts should be construed together and that if so construed the law concerning manslaughter would be so changed that the act charged in the indictment would not be a crime.
The majority opinion avoids any discussion of the law of partial repeals by implication or amendments *139by implication, bnt the majority will perhaps agree that the manslaughter act, OCLA, § 23-408, means exactly what it says and what it meant in 1864, unless it has been changed by subsequent legislation. And they will not suggest that there is any other legislative way of changing a statute save by amendment or partial repeal. The opinion acknowledges that there is presented a choice between repeal (meaning partial repeal) by implication, and amendment by implication. I shall show that there is no valid distinction between them. The opinion recognizes that ordinary persons and chiropractors and naturopaths are still “amenable” to the provisions of the manslaughter act. The majority opinion would leave the manslaughter act just as it was written except that they would place physicians and surgeons “in a class by themselves” but only to the extent that the medical practice act accomplishes that result. There is nothing else to accomplish it. The majority opinion insists that “related” statutes must be construed together as if they were one law. Whether the two acts are so related is the question at issue.
We are told by the majority that their position is “crystal clear”, “conclusive”, “beyond peradventure of doubt”, and that their conclusion follows “as the night the day”. I shall not compete in the employment of absolutes. My only appeal is to legal reasoning as against the persuasive power of emphasis and repetition.
The majority opinion expressly concedes that the medical practice act and the manslaughter act “conflict.” A concurring opinion states that they are “repugnant.” All three majority opinions assert that the two acts must be read and construed together. I submit that two repugnant and conflicting acts cannot *140be “construed together.” The majority fails to distinguish between rules of construction and rules of implied amendment or repeal. There is no problem of statutory construction in this case. The manslaughter act on its face is and always has been clear and unambiguous. The medical practice act is also clear and unambiguous. The ambiguity arises only when the court attempts to read them together. The numerous authorities cited by the majority on the rules of statutory construction are not apposite. It is true that where an enactment is ambiguous other statutes dealing with the same subject are sometimes considered as bearing upon the meaning of the words used.
When two statutes are in pari materia and can be harmonized they may be read together “as if they were one law.” But if both acts are clear and unambiguous and are in conflict, then the only problem is whether the later act has impliedly amended or repealed the former. The majority opinion would apply the rules of statutory construction and would read repugnant statutes “as if they were one law”, although a concurring opinion expressly states that when the legislature makes use of plain unambiguous language there is no occasion for the application of the rules of statutory construction. The doctrine for harmonizing repugnant statutes is unique in the annals of law.
I venture one more comment upon the majority opinion before discussing the merits. I respectfully suggest that the opinion begs the question at issue. We have no occasion to construe the two acts as if they were one, unless we first find that the medical practice act impliedly modified the manslaughter act. The opinion first argues that the medical practice act makes lawful an act prohibited by the manslaughter *141act. It then repeatedly argues that it would be absurd to convict a physician for an act under one statute which is made lawful by another. To this, I agree. The only question is whether the medical practice act does make lawful an act forbidden by the manslaughter act.
No question is raised as to the sufficiency of the indictment under the provisions of OCLA, % 23-408 if that act has not been changed by amendment or partial or total repeal. There is no challenge to the proposition that if the defendant is amenable to the provisions of § 23-408 as written, there was substantial evidence on the record to support the conviction. The provisions of OCLA, §§ 54-901 and 54-931 which the majority opinion would read into the manslaughter act were enacted by chapter 153 of the Laws of 1939. They are to be found in the “Business and Professions Code”, and in the portion thereof which relates only to physicians and surgeons. I quote:
“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:
6 6 * # * # *
“(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;
“* * * * *” OCLA, § 54-931. (Oregon Laws 1939, ch. 153, §6(b)).
‘‘When used in this act, the following terms will have the following meanings, unless otherwise limited:
*142“ ‘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 forty (240) days after gestation.” OCLA, § 54-901. (Italics mine.)
The definition and the substantive and evidentiary rules stated in OCLA, § 54-901 have no relation to the manslaughter statute. They apply only “When used in this act.” If the legislature intended that the definition of abortion in OCLA, § 54-901 should alter the meaning of the manslaughter act which does not even use the word “abortion”, why did the legislature preface the definition of that word, when used in the medical practice act, by saying “When used in this act”? Was the manslaughter act “this act”? The manslaughter act provides for the punishment of any person who does the specific acts described therein, whether it be called the performing of an abortion or not. The crime described in that act is not the crime of abortion as known to the common law. The act does not contain any definition of “abortion” nor does its meaning depend upon any definition of “abortion.” State v. Ausplund, 86 Or 121, 167 P 1019. In that case the court said:
“ * * * The legislature did not waste time with refinements about quickening, but applied the law to all stages of pregnancy and we would usurp its prerogative if we read into the statute something not found there.” (Italics added.)
The basic issue in this case is whether the quoted *143provisions of the medical practice act which govern the issuance and revocation of licenses have changed the law as clearly set forth in the manslaughter act, and have, either wholly or partially, excluded physicians and surgeons from the purview of that act. Those provisions could have that effect only if, under well-recognized rules, they operated as an implied repeal of the manslaughter act, either in whole or in part, or as an implied amendment thereof. It is not claimed either by the defendant or by the majority opinion that the manslaughter act was repealed in toto. The adherents to the majority opinion appear to be in disagreement as to whether the manslaughter act has been repealed in part, by implication, or amended by implication. It is held on eminent authority that repeal by implication, when only a part of the prior statute is repealed, is identical with amendment by implication. Sutherland, Statutory Construction, 3d ed, Horack, § 1922. Many authorities support the statement of Sutherland by applying the same tests as to implied amendments which prevail as to implied repeals. For example: “Repugnancy.” Rickards v. State, 6 Terry 573, (Del), 77 A 2d 199, 203. “Irreconcilable conflict.” Co-ordinated Transport v. Barrett, 412 Ill 321, 106 NE2d 510. Inconsistency 11 so * * * that they cannot stand together. ’ ’ Inman v. Willinski, 144 Me 116, 65 A2d 1. (Citing Sutherland.) “Unavoidable necessity.” Belknap v. Shock, 125 W Va 385, 24 SE2d 457. See also Genereaux v. Petit, 172 Wash 132, 19 P2d 911; Lineberger v. Bagley, 231 Iowa 937, 2 NW2d 305; Harding v. Mutual Benefit Health & Accident Ass’n, 55 Idaho 131, 39 P2d 306; Taelman v. Board of Finance, 212 Ind 26, 6 NE2d 557; Swettman v. Remington Rand, 65 F Supp 940; United States v. Madigan, 300 US 500, 81 L ed *144767; City of Wilkes-Barre v. Pennsylvania Pub. Util. Co., 164 Pa Super 210, 63 A2d 452; State v. Amman, 78 Ohio App 10, 68 NE2d 816; Fournet v. Tugwell, 199 La 18, 5 So2d 370. Thus it appears that it is a matter of indifference whether we speak of implied amendments or implied repeals when we mean modification or change of a statute. Since this is true, the issue may be simply stated thus: I assert that the manslaughter act has not been altered, either by implied amendment or repeal. In this state there are serious objections to applying the doctrine of implied amendment in addition to those applicable to implied repeal. Article IV, § 22 of the Constitution provides:
“No act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length.”
This section is not cited for the purpose of proving that so-called implied amendments are impossible. It is cited to show the narrow scope within which this court has confined the doctrine of implied amendments in view of the constitutional provision.
In Martin v. Gilliam County, 89 Or 394, 173 P 938, it was argued that the 1915 Road District Act amended the 1913 Budget Act by implication. The court said at 397:
“This act does not come within the spirit of the cases which very guardedly and reluctantly uphold repeals by implication. Here there is no attempt to enact a new and independent statute upon the same subject as the act of 1913, supra, but an attempt to insert into it, and by reference to it, certain provisions enlarging its scope without setting forth the statute as it would appear after being so revised. If it can be done in this instance there is no limit to the extent to which *145statutes can be revised or amended without setting forth the amended statute at full length, and the constitutional provision above quoted would, therefore, be rendered nugatory. * * * ”
The same reasoning is applicable here.
The rules concerning implied repeals are well established. If earlier and later statutes are in irreconcilable conflict, then the earlier must yield to the later by implied repeal. Anthony et al. v. Veatch et al., 189 Or 462, 220 P2d 493, 221 P2d 575, syl. 14. Rorick v. Dalles City, 140 Or 342, 12 P2d 762. If a later act covers the whole subject of the first, and embraces new provisions plainly showing that it was a substitute for the first act, it will operate as a repeal of that act. State ex rel. Washington-Oregon Investment Co. v. Dobson, 169 Or 546, 130 P2d 939.
In Ulrich et al. v. Lincoln Realty Co. et al., 180 Or 380, 168 P2d 582, 175 P2d 149, this court said:
“It is a familiar rule that repeals by implication are not favored. Noble v. Noble, 164 Or. 538, 549, 103 P. (2d) 293, and cases there cited. ‘A repeal by implication’, Mr. Justice Harris said in Swensen v. Southern Pacific Co., 89 Or 275, 279, 174 P. 158, ‘is effected if there be such positive repugnancy between the new and the old enactments that they cannot stand together or be harmonized’, but ‘one statute is not repugnant to another unless they relate to the same subject andaré enacted for the same purpose.’ See, to the same effect, Pacific Elevator Co. v. Portland, 65 Or. 349, 388, 133 P. 72, 46 L.R.A. (N.S.) 363.” (Italics supplied.)
In State ex rel. v. Chandler et al., 180 Or 28, 175 P2d 448, we said:
“* * * Any reasonable construction which will give effect to all these statutes should be adopted. *146Pacific Elevator Co. v. Portland, 65 Or. 349, 387, 133 P. 72, 46 L.R.A. (N.S.) 363.”
In Pacific Elevator Co. v. Portland, 65 Or 349, 133 P 72, this court said:
“One statute is not repugnant to another unless they relate to the same subject and are enacted for the same purpose. When there is a difference in the whole purview of two statutes apparently relating to the same subject, the former is not repealed by the latter. * * *”
Prom Corpus Juris Secundum the controlling rules are clearly set forth and are supported by some hundreds of decisions. The text is as follows:
“The repeal of statutes by implication is not favored. The courts are slow to hold that one statute has repealed another by implication, and they will not make such an adjudication if they can avoid doing so consistently or on any reasonable hypothesis, or if they can arrive at another result by any construction which is fair and reasonable. Also, the courts will not enlarge the meaning of one act in order to hold that it repeals another by implication; nor will they adopt an interpretation leading to an adjudication of repeal by implication unless it is inevitable and a very clear and definite reason therefor can be assigned.
“Furthermore, the courts will not adjudge a statute to have been repealed by implication unless a legislative intent to repeal or supersede the statute plainly and clearly appears. The implication must be clear, necessary, irresistible, and free from reasonable doubt.
“The foregoing rules are particularly applicable where the statute claimed to be repealed is of long standing, has for a long time been rigidly adhered to and construed as being in existence, as well as where it has been judicially construed and acted on, or where subsequent legislation shows *147that the legislature deemed it still in existence, or where the statute allegedly repealed and the repealing statute were both enacted at the same legislative session, as discussed infra § 297. Also, the rules are especially applicable where a repeal would lead to absurd consequences, or where the alleged repeal would disturb an established system of written law, covering a vital field in the system of government, or where the statute allegedly repealed is an important one relating to a governmental matter, and a repeal would be destructive and ruinous of the public welfare, impair a settled prerogative of the government, or leave no law whatever on a subject concerning which it is necessary that there be a positive law of some sort.” 82 CJS, Statutes, §288.
“The absence of a repealing clause in the subsequent statute is a circumstance for consideration in determining whether it operates as a repeal of the prior statute, but it is not determinative, and the fact that compilers have seen fit to include both statutes in separate sections of the same compilation of statutes affords an argument against repeal by implication. A statute defining a substantive offense is not repealed by a code relating only to criminal procedure.” 82 CJS, Statutes, §303.
‘ ‘ * * * The repeal of a law is a matter of legislative intent, and ought never to be inferred when the effect of such repeal by implication would be to leave no law whatever on a subject about which it is quite certain the Legislature meant (since necessity requires) that there should be a positive law of some sort.” Bartmess v. Hendricks, 150 La 627, 91 So 68.
In Swensen v. Southern Pacific Co., 89 Or 275, 174 P 158, this court said:
“* * * A repeal by implication may be effected when a later conflicts with a prior statute or when one is intended as a substitute for another act. It is so easy for the legislature, when adopting one *148statute, to say that another statute on the same subject is repealed, and an intention to repeal, when it exists, is so likely to be expressly stated, that the courts will not presume that the later repeals the prior statute unless the two are so obviously in conflict that both cannot be executed. A repeal by implication is effected if there be such positive repugnancy between the new and the old enactments that they cannot stand together or be harmonized; but the courts will, however, if possible, construe the two statutes together and adopt any reasonable construction which will sustain both of them: Palmer v. State, 2 Or. 66, 69; Winters v. George, 21 Or. 251, 257 (27 Pac. 1041); Pacific Elevator Co. v. Portland, 65 Or. 349, 387 (133 Pac. 72, 46 L.R.A. (N.S.) 363); Messick v. Duby, 86 Or. 366, 369 (168 Pac. 628). If the new statute revises the subject matter of the old and is plainly intended as a substitute it will operate as a repeal of the old statute: Strickland v. Geide, 31 Or. 373, 376 (49 Pac. 982). One statute is not repugnant to another unless they relate to the same subject and are enacted for the same purpose: # * *.”
In United States v. Tiplitz, 105 F Supp 512 (NJ 1952), the court said:
‘ ‘ * * * It must be assumed that Congress in enacting a statute acts with full knowledge of existing statutes relating to the same subject matter, and where express terms of repeal are not used, the presumption is against an intention to repeal an earlier statute.”
In City of Geneseo v. Illinois Northern Utilities Co., 378 Ill 506, 39 NE2d 26, 37, the court said:
“ * * * The repeal by implication of one act by a later act is not effected by mere conflicts or inconsistencies between them, but only where the carrying out of the later act prevents the enforcement of any part of the former. To the extent they are in conflict the first act is repealed, but *149the parts of the first act not affected remain in full force and effect.”
In Belknap v. Shock, 125 W Va 385, 24 SE2d 457, the statute in question contained an express provision that all acts or parts of acts “inconsistent with this act are hereby repealed.” “Inconsistency” was the test in that case, not irreconcilable conflict, yet the court said:
“* * * This sentence is a part of the very substance of the act, and must be given effect precisely as any other part. But observe the exact words used. Ño act or part of an act is repealed except such as are ‘inconsistent’ with the new enactment. The word ‘inconsistent’ when so used is not to be loosely construed. It does not mean merely, inharmonious, inappropriate, illogical, unsymmetrical, but connotes impossibility of concurrent operative effect. To be automatically repealed by a subsequent statute, the two acts must be so conflicting that their common survival is a legal impossibility, or that only one can be in force at a given time. The two laws must be so antagonistic that they cannot co-exist. Two antithetical statutes cannot cover the same subject matter at the same time. One must yield to the other from sheer necessity, and by universal practice, the later in' time is held to prevail. Thus the inconsistency which will result in the abrogation of one statute by another must be such as will make it impossible as a matter of law that they can both be effective. * # *”
In City of Portland v. Duntley, 185 Or 365, 387, 203 P2d 640, this court said:
“The position of the defendant involves a disregard of the fundamental rule that repeals by implication are not favored. Ulrich v. Lincoln Realty Co., 180 Or 380, 403, 168 P (2d) 582, 175 P (2d) 149, and eases there cited. ‘There must be a posi*150tive repugnance between the provisions of the new law and those of the old, and even then the old law is repealed by implication only to the extent of the repugnance.’ * *
In Webber v. Bailey, 151 Or 488, 493, 51 P2d 832, it was contended that one statute concerning the issuance of bonds was repealed by another. The court laid down the following general principles:
“* * * A statute may be repealed by implication, but such a repeal is not a favorite of the law. There is a presumption that all laws are passed with knowledge of the laws as they exist and that if the legislature desires to repeal a statute then it should so declare. * * * ”
All of the consideration militating against implied repeal are equally potent as against implied amendment of a criminal statute by a provision of a statute relating to noncriminal proceedings enacted for a different purpose.
“It has been very generally stated that amendments of statutes by implication are not favored and will not be upheld in doubtful cases. Ordinarily, the enactment of a law will not be held to have changed a statute that the legislature did not have under consideration at the time of enacting such law, and implied amendments cannot arise merely out of supposed legislative intent in no way expressed, however necessary or proper it may seem to be. An intent to amend a statute will not be imputed to the legislature unless such intention is manifestly clear from the context of the legislation; and an amendment by implication, or a modification of, or exception to, existing law by a later act, can occur only where the terms of a later statute are so repugnant to an earlier statute that they cannot stand together. * * *” 82 CJS, 419, Statutes, §252. (Citing many cases.)
*151The majority places great reliance upon Multnomah County Fair Ass’n v. Langley, 140 Or 172, 18 P2d 354, and City of Portland v. Duntley, supra, 185 Or 365, 203 P2d 640. It is said they create a situation “on all fours” with that in the case at bar. In the first of these cases the court held that the operation of betting on races under the system proposed, was not the carrying on of a lottery but was a violation of the nuisance statute. In City of Portland v. Duntley, the question was whether a city ordinance denouncing boohmaking, pool selling and the like was in conflict with state law. It was held that the city ordinance was valid. The court said:
“The position of the defendant involves a disregard of the fundamental rule that repeals by implication are not favored. Ulrich v. Lincoln Realty Co., 180 Or. 380, 403, 168 P. (2d) 582, 175 P. (2d) 149, and cases there cited. ‘There must be a positive repugnance between the provisions of the new law and those of the old, and even then the old law is repealed by implication only to the extent of the repugnance.’ * * * ”
As stated in the majority opinion in the ease at bar, this court in the Duntley case considered the State Racing Act and said that the only effect of that act was to except regulated pari mutuel wagering at a race track from the operation of the Oregon nuisance statute. But the very title of the State Racing Act read in part, “providing for mutuel wagering”. The statute licensed the very act which would have been violative of the nuisance statute. It limited the “take” of the licensee to 12V2 per centum of the gross receipts of any wagering system and provided that the licensing provisions should not prevail as to races where wagering is not permitted. It referred to certain race meets *152where mutuel wagering shall be permitted. In other words, it expressly authorized and licensed pari mutuel wagering. These cases bear no resemblance to the case at bar. The medical practice act does not license the very act prohibited by the manslaughter statute. The only license mentioned is one which permits doctors to practice their profession. The medical practice act on its face merely authorizes the revocation of a license for some but not all of the acts prohibited by the manslaughter act. The authorization in this case of a supplemental remedy by revocation of a license is not the same as the authorization in the Racing Act case to commit the very act prohibited in the earlier statute.
The error which has permeated the entire argument in support of the defendant is found in the repeated assumption that certain abortions are made lawful by the medical practice act, which are declared to be criminal by the manslaughter act. If that be assumed, then it would take little persuasion to show that specified conduct could not be both lawful and criminal at the same time. The difficulty is that those who support this argument are assuming the ultimate question at issue. The frequent repetition of the conclusion of the majority does not, to my mind, strengthen the premises upon which the conclusion rests.
The established tests by which we must determine whether any acts made criminal by the manslaughter act have been made lawful by the medical practice act may be summarized briefly: Did the later act cover the entire field occupied by the former? Is there irreconcilable conflict or positive repugnancy between them, or can both be enforced or harmonized? Do they relate to the same subject, and are they “enacted *153for the same purpose”? Even if they relate to the same subject, is there a difference “in the whole purview” of the two statutes? Did a legislative intent to repeal or supersede plainly and clearly appear? Would the enforcement of the one prevent the enforcement of the other?
The manslaughter act is a part of the penal code. The commission of the prohibited acts is a crime. The medical practice act is a civil provision for the regulation of the medical profession by a medical board. While it authorizes the revocation of a license for committing an abortion under certain circumstances, it nowhere makes the performing of any abortion criminal, nor does it declare that all abortions are lawful except those for the performance of which a license may be revoked. The manslaughter act imposes punishment. The medical practice act, while in some respects penal in nature, and therefore requiring strict construction, was not passed for the purpose of punishment, and revocation of a license is not punishment in the eyes of the law. 59 CJ 1110, Statutes, § 658.
In Meffert v. State Board of Medical Registration and Examination, 66 Kan 710, 72 P 247, 251, the court said:
“* * * The revocation of a license to practice medicine for any of the reasons mentioned in the statute was not intended to be, nor does it operate as, a punishment, but as a protection to the citizens of the state. * * * It has never been thought that the withholding or revocation of such license was in any sense a punishment. If the revocation was intended as a punishment, there might be force in this argument, but since the only purpose of the law was to require a certain standard *154of morals of the physician, the argument is without force.”
The holding was approved in a later case in which the court said:
“In the Meffert Case it was expressly held a proceeding to revoke a physician’s license is not criminal in its nature, and the purpose is not punishment of the delinquent. * * *” Brinkley v. Hassig, 130 Kan 874, 289 P 64, 66.
This court has thrice announced the same rule concerning the disbarment of attorneys. The purpose of such proceedings is “ ‘not * * * to punish the accused attorney, as in matters of criminal cognizance, but * * * as “necessary for the protection of the court, the proper administration of the justice, and the dignity and purity of the profession, and for the public good and the protection of clients’ ”: Ex parte Finn, 32 Or 519, 52 P 756, 67 Am St. Rep 550.” In re Moynihan, 166 Or 200, 111 P2d 96.
Speaking of the granting and revocation of licenses to practice law, this court said:
“ * * * In neither case is the court’s office that of punishment. In both it is vindication of ethical standards and protection of the legal profession and the public.” In re Smith, 171 Or 151, 160, 134 P2d 956.
To the same effect see Butcher v. Maybury, 8 F2d 155.
In a suit for injunction to restrain proceedings for the revocation of the license of a physician, the Supreme Court of Indiana said:
“ * * * it is sufficient * * * to say that the facts stated in the charges, the trial of which appellee seeks to enjoin in this case, do not constitute a public offense, nor is it claimed that they *155constitute such offense; * * Spurgeon v. Rhodes, 167 Ind 1, 78 NE 228.
See also Tapley v. Abbott, 111 Cal App 397, 295 P 911; Bold v. Board of Medical Examiners, 135 Cal App 29, 26 P2d 707; Traxler v. Board of Medical Examiners, 135 Cal App 37, 26 P2d 710; State v. Lewis, 164 Wis 363, 159 NW 746.
Again, the trial and punishment for crime is an exercise of “the judicial power of the state”, whereas the proceedings of an administrative board in revoking a license do not involve an exercise of the judicial power.
In the Spurgeon case, supra, 167 Ind 1, 78 NE 228, the court said:
* * Statutes containing ap provision like the one in question here, authorizing the board to revoke a license when the holder has been guilty of a felony or of gross immorality, have been held not to violate any provision of the federal or state Constitutions, and it has been held that the granting or refusing to grant a license to practice medicine, or the revocation thereof by the board, is not the exercise of judicial power. ’ ’ Citing many cases.
The court quoted with approval from State v. Webster, 150 Ind 607, 621 50 NE 750, 755, as follows:
“* * * ‘While in some respects quasi judicial, the action of the board is not judicial, any more than is the action of a county surveyor in fixing a boundary line, or of a county superintendent in giving or refusing a teacher’s certificate, or the action of numberless other officers or boards in making investigations and decisions in matters committed to them. Neither is the circumstance that an appeal is allowed from a decision of the board an indication that its action is judicial. “The right of appeal from the action of boards in their admin*156istrative character,” it was said by this court in Board v. Heaston, 144 Ind. 583, 41 N.E. 457, 43 N.E. 651, 55 Am. St. Rep. 192, “is frequently conferred by statute. The appeal in such eases is not permitted because the action of the board is considered judicial, but it is granted as a method of getting the matter involved before a court that it may be determined judicially.” ’ ”
In Suckow v. Board of Medical Examiners, 182 Cal 247, 187 P 965, the Supreme Court of California said:
“* * * Nevertheless it is now well established in this state that tribunals such as the board of medical examiners or other boards empowered to revoke licenses which they have previously granted, for cause defined by the law, are not courts in the strict sense; they are not exercising ‘the judicial power of the State’ as that phrase is used in the Constitution conferring judicial power upon courts, # * # ??
It is difficult to see how it can be argued that a statute providing quasi judicial administrative action covers the field of a criminal statute, or is a substitute therefor, when the revocation of a license by a board does not involve an exercise of judicial power, and when the trial of a criminal charge does constitute the exercise of such power. If the administrative provision does not occupy the field of the criminal statute, then there is no repugnancy between them and both must stand. It is true that the courts hold that statutes authorizing revocation of licenses are to be strictly construed, but that merely means that a license is not to be revoked unless the act done clearly comes within the terms of the statute authorizing revocation. That rule of strict construction cannot be tortured into a holding that the act authorizing revoca*157tion is to be broadly construed in order to make it incompatible with a criminal statute. See also United States ex rel. Marcus v. Hess, 317 US 537, 87 L ed 443. A criminal intent is a material element of the crime of manslaughter and we may fairly assume that no physician would ever be convicted unless such intent was proven. No element of criminal intent is involved in administrative proceedings for the revocation of a license.
It has been argued, in substance, that under the provisions of the medical practice act, a doctor’s license may be revoked if he performs an abortion under conditions therein specified. Prom this statement the conclusion is drawn that it must be lawful to perform it, if the act performed would not authorize revocation of the license. This might be true if there were no manslaughter act, but it cannot be true under that act unless there has been an implied amendment or repeal, which is the question for decision here.
Again, it has been earnestly urged that the medical practice act has made the revocation of a license the exclusive penalty. There is not a word in the physicians professional code which declares that the commission of an abortion under the conditions prescribed in that code is lawful or that the manslaughter act is modified, amended or repealed thereby. And there is not a word in the professional code which states that the revocation of a license is the “exclusive penalty.” It is true that the doctrine expressio unius est exclusio alterious applies to the medical practice act. The professional code specifies the grounds on which a license may be revoked and the grounds specified are, no doubt, exclusive. But the fact that the grounds for revocation stated in the professional code are exclusive cannot be tortured by a Latin maxim into *158a holding that a statute which does not deal at all with the subject of criminality of abortions by physicians, is exclusive, or covers the field or exempts physicians from the purview of a criminal statute. Yet, such contention has been made in the argument for reversal of the conviction. Again, the manslaughter act applies to “any person”. The medical practice act applies only to physicians and surgeons, and only to some of them.
The medical practice act contains three sections only which define crimes. Under section 54-941, OCLA, it is a misdemeanor to practice medicine without a license. Under section 54-942 it is made a misdemeanor to procure a license by fraud or to practice under a false name. Under section 54-943 it is made a misdemeanor to fail to procure a certificate of annual registration. Section 54-945 prescribes the penalty to be imposed if any person shall be found guilty of a misdemeanor under the act. The professional code contains no provision whatever making unprofessional or dishonorable conduct a misdemeanor, nor is the procuring or aiding or abetting in procuring an abortion, as defined in the code, or otherwise, or under any conditions, made a criminal offense, much less-is it defined as a felony.
The medical practice act deals with two different fields of professional activity by doctors. Certain conduct is made criminal by that act. Other conduct is merely ground for revocation of license. Abortion is in the latter class. Is it not reasonable to suppose that when the legislature was classifying acts as criminal and noncriminal in the medical practice act, they would have included abortions in the class of criminal acts if they intended that the provision on that subject would alter the manslaughter act?
*159In 1895 the medical practice act authorized revocation of a license for procuring “a criminal abortion”. That phrase, of course, referred to the manslaughter act, since there was no other statute on the subject. The 1937 law eliminated the words “criminal abortion” and the 1939 law inserted the provisions now found in OCLA, § 54-931. It has been argued that these changes indicated an intent to alter the manslaughter act, but the obvious purpose of the change was to apply a different rule to proceedings for revocation of a license, from that which controlled in determining guilt under the manslaughter act. The sole exception relates to cases in which a physician has been convicted under the manslaughter act. As to such cases, the 1939 act provides for revocation of license merely upon proof of conviction of any offense for which the punishment may be • incarceration in a state prison. OCLA, § 54-931 (i). The manslaughter act is punishable by imprisonment in the penitentiary.
There is another circumstance which shows that the medical practice act was not passed for the same purpose as the manslaughter act. The manslaughter act provides punishment for acts resulting in the death of the child or the mother, but under the medical practice act, the killing of the mother would be immaterial on the issue of revocation of license. Notwithstanding these facts, the majority persists in holding that the medical practice act covers the same field and was enacted for the same purpose as the manslaughter act, and that the two acts are repugnant.
There are other differences in the two acts, which indicate differences in their legislative purpose. Under the manslaughter statute, it is a defense if the act done was necessary to save the life of the mother. That necessity may result from any serious condition of *160the mother endangering her life, whether it he caused by her pregnant condition or otherwise. Under the professional code, however, the procuring of an abortion is ground for revocation of license, but not if the mother’s health appears in peril because of her pregnant condition. Thus, in some respects, the provisions of the professional code authorizing revocation of a license are more stringent than the provisions of the Penal Code, authorizing conviction for manslaughter, while in other respects, they are more lenient.
I find no “positive repugnancy” between the two types of statute, one of which imposes upon prosecutors and courts the duty of enforcing a strict rule by criminal prosecution, while the other imposes a less onerous duty upon a medical board, in dealing with members of its own profession. Whatever may be said as to the wisdom of this distinction between the duty of courts and of administrators, there is surely no constitutional or other mandate which requires the legislature to make the civil jurisdiction of an administrative board coextensive with the criminal jurisdiction of a court. I shall later show that the legislature contemplated that the criminal provisions should remain effective and be invoked in such cases.
Hitherto we have sought the intent of the legislature by the traditional method of examining the two statutes to determine whether they were passed for the same purpose and whether they related to the same subject and were or were not repugnant. We now turn to evidence extrinsic of the two statutes for indications of the legislative intent: (1) The changes of 1937 and 1939 in the medical practice act were made 16 or more years ago, yet the biennial legislatures from 1937 to date have left the manslaughter act in *161the criminal code just as it was in 1864. If they desired to amend or repeal it they would have said so. (2) A statute was passed in 1927 authorizing the revocation of a license to practice naturopathy for the procuring of a “criminal abortion.” This law was in effect until 1953. Obviously, in 1950, the date of the offense herein charged, the legislature had indicated the opinion that there was a criminal abortion statute. The 1953 amendment concerning naturopathy contains a new and wholly different definition of abortion. The majority asserts that the definition of abortion in the medical practice act which is prefaced by the words “when used in this act”, modifies the manslaughter act. Would they now say the same concerning the definition in the naturopaths act which contains a different definition of abortion “for the purposes of this act”? (3) The laws of 1953 concerning chiropractors also defines abortion differently from the definition contained in the medical practice act. Did that act also amend the manslaughter act? Applying the reasoning of the majority opinion, such a weird result would appear to follow. (4) In 1953 the legislature enacted Chapter 540 providing in part that whoever shall maintain a place
“where any person shall administer to any woman, whether pregnant with child or not, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy a child of such woman, unless the same shall be necessary to preserve the life of such woman or unless such is done for the relief of a woman whose health appears in peril because of her pregnant condition after due consultation with a duly licensed medical or osteopathic physician and surgeon under the conditions and restrictions prescribed in subsection (2) of *162section 54-931 or section 54-831, O.C.L.A., is guilty of maintaining a nuisance. * * * ” Oregon Laws 1953, .ch 540.
The section concludes as follows:
‘i s * * This aQj- sbap not be deemed to modify, alter or amend by implication any of the provisions of section 23-408, O.C.L.A., nor to affect prosecutions thereunder.”
This section conclusively establishes the intent of the legislature that prosecution under OCLA, § 23-408, the manslaughter act, are still maintainable, notwithstanding the provisions of OCLA, § 54-931. The obvious purpose of the last sentence of the 1953 act was to make it clear that the prosecutions which were then notoriously pending under the manslaughter act were not affected by other legislation.
Section 23-408, OCLA, concerning manslaughter by abortion, is incorporated without material change in the Oregon Revised Statutes and appears therein as section 163.060. The Revised Statutes were adopted as law. Oregon Laws 1953, chapter 3. From these facts an inference must be drawn that the legislature recognized the section in question as law and intended that OCLA, § 23-408, as written, should remain unchanged. See Goff v. Hunt, 6 NJ 600, 80 A2d 104; Benschoter v. Hakes, 232 Iowa 1354, 8 NW2d 481; Burdette v. Municipal Employees, etc., Newark, 129 NJL 70, 28 A2d 93; State v. Du Pont, 3 Terry (42 Del) 540, 40 A2d 453; Doggett v. Hooper, 306 Mass 129, 27 NE2d 737; Greene v. Hudson County Board of H. & V. Statistics, 19 NJ Super 453, 88 A2d 662. The necessary conclusion is that the professional code must not be construed so as to “permit” an act to be done which would be a violation of the manslaughter *163statute. It only provides that there shall be no revocation of a license by the board if the abortion is performed under the conditions set forth in the professional code.
The consequences which necessarily follow from the adoption of a particular construction of statute frequently throw light on the propriety of the proposed construction. Assuming the majority opinion to be law, let us see what is the state of the law on the subject of abortions under that opinion. The, argument of the majority is that the definition of an abortion which is found in the medical practice act must be read into the manslaughter act. Hence the manslaughter act would be altered only insofar as the medical practice act has altered it. Under the majority theory, any person who is not a physician or surgeon is subject to the prohibition of the manslaughter act, but according to that opinion, it would appear that there are also physicians and surgeons who would be subject to the prohibition of the manslaughter act as written, because the medical practice act excludes them from its purview. In the medical practice act it is provided: “This act shall not be construed to affect or prevent the following:” Then follow 15 separate categories of practice which are not affected by the medical practice act. Among the types of practice which are not affected by the act are:
“* '* # (2) the practice of medicine and surgery by a duly appointed member of the resident staff, or by an interne while actually serving as such, in any legally incorporated hospital in this state recognized as standard by the order of the state board of medical examiners; or (3) the practice of medicine and surgery by any one duly licensed so to practice in a neighboring state, who resides near the *164boundary of this state, and whose practice extends into this state, but who does not maintain an office or appoint a place to meet patients or receive calls within this state or (4) the meeting in this state of any legally licensed practitioner of medicine and surgery of any other state or country with a duly licensed practitioner of medicine and surgery in this state, for consultation; or (5) the furnishing of medical or surgical assistance in cases of emergency requiring immediate attention; or (6) the domestic administration of family remedies; or (7) the practice authorized by section 54-824, by osteopathic physicians and surgeons; or (8) the practice of dentistry, pharmacy, optometry, chiropractic, naturopathy, chiropody or cosmetic therapy, by any person legally authorized by this state * * *; or (15) the practice of physiotherapy, electrotherapy or hydrotherapy carried on, by or under the direction of duly licensed practitioners of medicine and surgery or osteopathy and surgery or chiropractic, or any other method of practice which may hereafter become legalized in this state.” OCLA, § 54-902.
In addition to the foregoing classifications of practice exempted from the act, certain military physicians and surgeons are also exempted.
Thus it appears, for example, that certain members of the resident staff of a hospital, practicing in this state, are not within the purview of the medical practice act, and, according to the theory advanced in the majority opinion, they would therefore be subject to the prohibition of the manslaughter act.
Now, the majority decision goes only to this extent; that a physician cannot lawfully be indicted or tried under the provisions of the manslaughter statute for performing an abortion as now defined in the medical practice act, if it is performed for the relief of a woman whose health is in peril because of her *165pregnant condition, and after consultation. Under the medical practice act, “abortion” is so narrowly-defined as to cover only cases in which a physician causes the “expulsion of the foetus at a period of uterogestation so early that it has not acquired the power of sustaining an independent life; * * *.” OCLA, § 54-901. The only act for which a license may be revoked is the procuring of an abortion as defined in that act. Hence, under the majority rule, if the abortion is caused after the foetus has acquired the power of sustaining an independent life, it is not an abortion at all, within the meaning “of this act”, to wit, the medical practice act, and the physician would be subject to the prohibitions of the manslaughter act.
Under the medical practice act it is conclusively presumed that the foetus has not acquired power of sustaining an independent life earlier than 150 days after gestation. Under the majority opinion, a licensed physician could rely upon that conclusive presumption and be sure that for 150 days the medical practice act would apply, and hence, the manslaughter act would not apply. But must a physician, at his peril, determine the exact date on which gestation occurred, that is, on which the impregnating intercourse was had, in order to know whether he will be protected by the medical practice act, or may be liable to conviction for manslaughter?
Again, under the medical practice act, whether the foetus has acquired power to maintain an independent life after 150 days and before 240 days must be determined as a matter of fact on evidence in each case, aided only by a disputable presumption. If an abortion was performed after 150 days, then, under the theory of the majority, whether the act was regulated by *166the medical practice act, or by the manslaughter act, might depend upon evidence of the circumstances which became available only after the abortion had been performed. Guilt or innocence might depend upon the decision of a jury, based upon evidence occurring after the act charged had been performed.
A construction of statutory provisions which would subject some Oregon licensed physicians to prosecution for manslaughter, while subjecting others only to revocation of license for a similar act, runs dangerously close to a violation of the equal protection clause of the Federal Constitution. Furthermore, if a construction is adopted which would require a person to search through the intricacies of the provisions, exceptions and provisos of a civil statute for the regulation of medical practitioners in order to determine whether a crime has been committed under the simple provisions of the manslaughter act, then, there is grave doubt as to whether any person could, under any circumstances, be convicted under the manslaughter statute.
If the members of this court, after argument, and reargument, and full consideration, are unable to agree as to what constitutes manslaughter by abortion, and as to who is prohibited from violating the manslaughter act, it seems clear that the statute, as construed in the majority opinion, would be one which “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” A valid criminal law must declare with reasonable certainty what acts it intends to prohibit. State v. Simons and Blanchard, 193 Or 274, 238 P2d 246. On the basis of constitutional law, the United *167States Supreme Court has made the Oregon rule more specific and binding.
a* # * a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Constr. Co., 269 US 385, 391, 70 L ed 322, 328.
We have been led into a discussion of this abstruse maze of allegedly conflicting statutory provisions, simply because of a basic error in reasoning. That error is found in the fact that a civil regulatory statute, vesting limited jurisdiction in a medical board, and enacted for the self-government under law of the medical profession, has been tortured into a complex amendment or repeal of the plain terms of a felony statute, the existence of which, was known to the legislature, and which was reenacted in 1953 by Oregon Revised Statutes. It may be that in its wisdom the legislature should harmonize the two statutes, one civil and one criminal, but this appeal is to a court, and we may not say that the legislature cannot do what it clearly has done when it established different tests to be applied by a board of physicians in determining whether to oust a doctor from his profession, from those which are to be applied in determining criminality.
In the course of argument solicitude has been expressed ■ for the members of a great and honorable profession. It is feared that ethical physicians will be misled by reason of the difference between the civil and criminal procedures. If this court will declare, as I think it should, that the manslaughter act means just what it says, and that its violation is criminally *168punishable, no doctor will ever be misled and no honorable doctor will violate its plain terms. It is only the decision of this court which attempts' to fuse the provisions of two different statutes into one, which will create confusion worse confounded. In my opinion, a guilty man has been freed, and contrary to every sound rule of construction, a law has been emasculated, if not totally destroyed, by the decision in this ease.
Mr. Justice Lusk and Mr. Justice Warner join in this dissent.