The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-01-14
He MUST co TO TRIAL.
The Dislrio. Court overrules Kel-
logg's Demurrer 70 the Medi-
csl Boards Complaint
Thoro Was Sufficient Ground for
tbs Action of the Exam
inera
IN. Meter May co Bsfors = Jury TO See
a the Doctor Loses His
Itconss.

~. Edwin =. Kellogg must 50 TO trial
before jufy Who will pass on the ques-
zion as TO whether he has been guilty OK
unyrsfsssionsl. immoral aud dishonoraele
oondaoa a. charged BY the stats board OF
medical examiners. That was decided ~
abe judges Of the district court yesterday.
II will be remembered that Dr. Kellogg
license was revoked By ths medical board
iaet sprinQ. He appealed 30 the district
oourt which decided that there could be no
appeal from the medical board, 40 the law
made no provision for such course. lhe
supreue court. In which the next steps we're
taken. held that there should be an appeal
and remandsd the case 20 abe diairict
court with instructions 90 hesr the appeal
A demurrer Was then nled TO the complaint
Of the medical board. Judges Hunt and
pnek SAT together in the matter. ana yes
e.rdav they handed down this decision.
ovsrrulins the demurrer and directing the
case 10 90 10 trial either with OF without
. iury. AZ the doctor may elect. Their de-
clsion lie as fOllowr
ssIhs only question necessary 20 be DE-
.;ded Il. whether or not the affidavit upon
whieh the board OF medical examiners or
AZ state acted, when they found Dr. hel-
Ioeo guilty Of unprofessionsl immoral ana
dishonorable conduct stated facts SOM
cie,t 40 warrant that finding. IL u dld.
s,,1o, ~. deoision OF the supreme court of
ths etats. there must be tiisl before the
aistriot court IL t did not. the whole
oroosedinQ must be dismissed and the sc
siou Of the medical board treated as a
nullity. The information.ess IN SUB
stance that Dr. Kellogg cremated a heso-
les foatuA and when he appeared before
abe ooronsfs jury, empanslled for tne pur-
nose Of inquirinG into the transaction, ne
a. irst stated that the patty from Whom u
Vas taken asked not 20 have her name
nads known II possible 30 avoid IL, and
eh.t he had been advised that he need not
answer as 10 where 10 had come from IN
iess he chose 20 do so. He declined 20 an
gwer. not because he was afraid OF merlin
mating himself, but TO avoid the pueliclty
of the lady's name IN the papers lie said
he was willing 20 disclose the name
81 ths lady tomorrow a. two 3. m.
40 Abe coroner who will use his dis
oratien In the matter Thereafter. on the
following day, KslloRE testified as follows;
The person whose name you ask Tor hss
Ieft the state of Montana, and Is beyond
ana without the jurisdiction of any court
Of the state Of Montana. without the
preeence Of that person 20 explain and GER
fify 20 her condition Al the time the foetus
was taken from her my answer, under the
existing circumstances. would inerinlnats
me and be testimony against myself Ano
on that ground refuse 20 answer.
1--WE are OF the opinion that procession z
inatituted before a medical board for the
purpose Of revolving the license OF phyn-
clan IL somewhat analogous 90 one Tor me
disbarment of an attorney 81 law. The su-
preme eourt Of she United states and other
Authorities hold In the latter case thai no
great formaiity 10 required. Did this IN
formation charge enough against Df. hel-
logR TO Justify the medical board in invss-
tlQstinQ the natter We think 10 dio.
While il Is true under the statutes no one
Il required 20 give evidence incriminatoTy
Of himself or having that direct tendency.
stfli where an Investigation OF tins
character is iustihable we do not
understand that person Hgainsi
whom there are serious grounds for she
gravsst suspicion can field bis arms. and re-
ply. TO inquiries qua TO him, 4 have moth
ing to say. My conduct 10 compatible VIII
innocence aud with guilt. IL IS for you 70
nnd out whether l am innocent or guilty.
Certainly an attorney At Law so conducting
himself, Wsrs charges preferred against
him. would be very promptly disoarrsd TO-
7 unprofeasional conduct And, rs We haVs
stated, this case is snalagouf.
1--WE thiuk that the complaint Is sum
GENTLY specific so notify DR.. Kellogg Of tht
nature Of the charges preferred against
him. II the allegations set forth therein
are established by proof wo are OF ths
opinion that il would then be necessary fol
him 90 explain away chain OF suspicious
circumstances. anu tAatt a ~ Aop7 nv ~
this that he would virtually be pleading
guilty to the charge Of unprofsssional and
immoral and dishoEorabls conduct de
has q legal right 90 refuse 20 make any ex
PLANTATION, but the exercise OF such leRa
right cannot prevent an investigation inte
the charges, and tbs circumstances thereof
and = conclusion as 20 bis guilt or limo
oence of unprofessional ana dishonOrable
conduct under them.
'It is true that DT. Kellogg may fully ex-
plain away the suspicious Circumstances al
legged, but Il he does not explain them away
the action Of the medical board must be
sustained. As reasonable men they would
have a right 10 believe his own statement
shat his answers would inofiminato him.
If such answers would insTiminste him the
board was fully justified In its action.
The trial may be before jury. to which
special imsaes should be submitted. The
burden Of proof must be assumed by the
medical board. Further rules for the
conduct OF the trial may be laid down 81
she case proceeds.
The demurrer 20 the proceeding is over
ruled and the matter ordered placed uPou
the calendar for trial"