Berry v. Davis/Opinion of the Court

by Oliver Wendell Holmes, Jr.

United States Supreme Court

242 U.S. 468

Berry  v.  Davis

 Argued: October 26, 1916. --- Decided: January 15, 1917

This is a bill to enjoin the State Board of Parol and the warden and physician of the state penitentiary at Fort Madison from performing vasectomy upon the plaintiff, the defendant in error, in pursuance of an Iowa statute approved April 19, 1913. 35 G. A. chap. 187, § 1. Supplement to Code 1913, chap. 19-B, § 2600-p. This act, among other things, directed the operation to be performed upon convicts in the penitentiary who had been twice convicted of felony, and on February 14, 1914, the board had ordered it, upon the ground that the plaintiff had been twice so convicted. The bill was filed on March 11, 1914. On April 15, 1914, following an opinion of the Attorney General that both felonies must have been committed after the passage of the act, the order was laid on the table, and the warden and physician made affidavits, filed on April 22, that the operation would not be performed by them. Nevertheless, three judges, disregarding the foregoing opinion and action, proceeded to issue a preliminary injunction as prayed in the bill. 216 Fed. 413.

An appeal was taken to this court in 1914. In 1915 the Act of 1913 was repealed, and the substituted act does not apply to the plaintiff. Supplemental Supplement to the Code of Iowa, 1915, chap. 19-B, § 2600-s1. All possibility or threat of the operation has disappeared now, if not before, by the act of the state. Therefore, upon the precedents we are not called upon to consider the propriety of the action of the district court, but the proper course is to reverse the decree and remand the cause, with directions that the bill be dismissed without costs to either party. United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U.S. 466, 475, 478, 60 L. ed. 387, 391, 392, 36 Sup. Ct. Rep. 212; Jones v. Montague, 194 U.S. 147, 153, 48 L. ed. 913, 915, 24 Sup. Ct. Rep. 611; Dinsmore v. Southern Exp. Co. 183 U.S. 115, 120, 46 L. ed 111, 113, 22 Sup. Ct. Rep. 45; Mills v. Green, 159 U.S. 651, 658, 40 L. ed. 293, 295, 16 Sup. Ct. Rep. 132.

Decree reversed. Bill to be dismissed without costs to either party.

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