MORRIS et al. v. CITY OF COLUMBUS
(Supreme Court of Georgia. Feb 20, 1898)
30 S.E. 850
Police Power— Health Regulations
The general assembly max. is i*' of the police power, confer npoa tfef i corporations of this state authorrT • and enforce ordinances reqoiriSk i who may be within the limit* of w tions to submit to vaccination wV. epidemic of smallpox is existiag. «t reasonably apprehended. (Syllabus by the Court)
Error from superior court, HtErc-p*' W. B. Butt. Judge.
G. W. Morris and others were ear the recorder's court of the dry of of a violation of a municipal ordi"applied to the superior court for *r review such conviction. On a h-srii tion was denied, and defendas;* tr Affirmed.
C J. Thornton and Cameron t Err plaintiffs in error. Francis D. PeaKf ■ P. Gilbert, Sol. Gen., for defendants-
COBB. J. In 1890 the general assembly conferred upon the mayor and aldera-city of Columbus authority to "dedar olution that vaccination shall he upon all persons living in the < cogee, or any part thereof.' provide "the time within which a! » living in said county, or any part the-be vaccinated": the act farther pw~ "any person failing to be vaccinated*' time required in said resolution. <=conviction." be punished as there* r Acts 1890-91, vol. 2. p. 50S. Oe -V1897, the city council passed i re**-" compulsory vaccination of each and ** son resident of that city, over age
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, and of all persons nonresident who were >yed in the city, excepting such as would ice physicians' certificates that they had successfully vaccinated since January 1,
or that such person was an immune, is in such state of health that vaccination 1 be dangerous: provided, that any perhould have the right to be vaccinated 3 physician of his choice. Two days later lty council passed a further resolution all persons residing within a radius of miles from the city should be vaccinated i 10 days from its passage, except such :is as might produce a certificate of a lble physician that vaccination was not sary, or would be dangerous, in a given
Each of these resolutions provided a penor its violation. On September 13, 1.897, •ther resolution was passed, providing house to house vaccination, with penalty iling or refusing to be vaccinated. Mor,'ewsom and Yarbrough were arraigned i the recorder's court for a violation of
resolutions. Upon conviction they apto the superior court for a writ of cerI, and the refusal of that court to sushe certiorari is the error assigned here.
the record, it appears that plaintiff in Morris resided outside of the city limits, iscogee county, but was an employs of tory within the city limits, and was at ctory at the time he refused to be vacd or to produce a certificate of a physlihowing that he was within any of the tions enumerated in the resolution. Newnd Yarbrough were residents of the city. ; excepted to the decision of the recorder > ground that that court had no jurisdlcf him, and because the resolution, the on of which was charged, was illegal iconstitutlonal. Newsom and Yarbrough ed on the grounds that the recorder's refused to grant them time to procure »1 and prepare their defense, that the ce was not sufficient to authorize the ent, that no necessity appeared for the cruent of the resolution, and that the Is unconstitutional and void. It appears the record that there was no smallpox city when the plaintiffs In error refused racclnated or to furnish a certificate, but was smallpox in the city when the two tions were passed by the council, that sease is one which grows more prevalent ter, and that there was smallpox at the f the trials in the city of Birmingham, VH of the plaintiffs In error attack the utionallty of the act of the general asT conferring authority upon the city
I of Columbus to require vaccination In cases. Before discussing this question,
II dispose of the other questions raised petitions for certiorari.
iriff in error Morris contends that the had no jurisdiction of him, because he nonresident of the city, although he itit 300 feet from the city limits, and scogee county. The general assembly,
by an act approved November 15, 1S95, amendatory of the act of 1JS90 creating a new charter for the city of Columbus (Acts 1893, p. 1ST), gave Jurisdiction to the mayor and aldermen of Columbus over all persons living within a radius of one mile and a half from the city limits, so far as requiring vaccination was concerned; and, if the legislature had power to pass this act (and it is not contended that It did not), then It follows that the recorder's court had jurisdiction to try and punish any person within the prescribed limits for a violation of the city's ordinance. It Is not necessary, however, to decide in this case whether or not the general assembly could give the municipal authorities jurisdiction over persons who live outside the city limits, and do not come into the city, or whether or not the authorities have transcended their power In passing an ordinance designed to affect persons living further from the city than 1% miles, as the question raised by plaintiff in error Morris is whether or not the city authorities have jurisdiction over a person who. while he has his legal residence outside of the city limits, Is actually In the city during the day, while engaged in his employment. As we have seen, this power was expressly conferred upon the municipal authorities by the legislature, and It Is certain that the legislature could give the city jurisdiction over such a person. If'this were not true, vaccination, if efficacious, would afford scant protection to the inhabitants, when persons living outside of the city, and who had been exposed to the contagion, might come into the city and scatter it broadcast among them before they had been Innoculated, and thus rendered Immune. But, even without express legislative permission, it is the current of authority that municipal ordinances have the same effect upon persons who come within the limits of a city, as they have upon regular inhabitants. 1 Dill. Mun. Corp. S 355; Bott v. Pratt. 33 Minn. 323, 23 N. W. 237; Village of Buffalo v. Webster, 10 Wend. 100; Wilmington v. Roby. 30 N. C. 250; City Council v. Pepper, 1 Rich. Law, 304; Kennedy v. Sowden, 1 McMull. 323; City of Knoxvihe v. King. 7 Lea, 441; Polmar v. Curtis, 86 Ala. 354, 5 South. 678.
The next question raised by the petitions for certiorari Is that there was no necessity for the enforcement of the ordinance. The right to enforce vaccination (assuming for the present that its enforcement Is constitutional) is derived from necessity; and, although the authority conferred upon the municipal corporation of Columbus is very broad, still we cannot assume that the legislature intended that they should exercise this authority save in cases of necessity. Did the necessity for the enforcement of the ordinance against the plaintiffs in error exist? We think there can be no question, under the facts appearing in the record, but that the municipal authorities had reasonable grounds for apprehending that an epidemic of smallpox
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was imminent. While the disease did not exist in the community at the time of the trial, it was prevalent In Birmingham, an adjacent city; it was present in Columbus when the resolution was adopted; and winter was approaching, at which season the disease is more highly contagious than at any other time. Taking these facts into consideration, we think the authorities were warranted in enforcing the ordinance, unless It Invaded some constitutional right of the plaintiffs in error. And this brings us to a discussion of the main question iu the case. Before doing so, however, It may be well to remark that a number of objections that are usually urged against compulsory vaccination cannot be considered under an exception to the constitutionality of the law. Other than as above indicated, no attack has been made on the ordinance itself. The municipal authorities have carried into execution the power conferred upon them by the general assembly. They have, it would seem, in no way transcended that power. The ordinance is aimed only at those who have not been vaccinated within a certain time, who are not immune, or who have not furnished a certificate from some physician that the injection of the virus into their system would be injurious. It is even more liberal than that; it allows to every person the privilege of being innoeulated by the physician of his choice. There can be no question but that this is a reasonable exercise of the power conferred upon the city authorities by the legislature. With the wisdom or policy of vaccination, the courts have nothing to do. We do not propose to enter into a discussion as to whether or not it is a preventive of smallpox. That question is not a proper subject-matter for review by the courts. The legislature has seen fit to adopt the opinion of those scientists who Insist that It is efficacious, and this is conclusive upon us. Our only province is to see that none of the rights guarantied to the plaintiffs in error by the fundamental law are infringed. "What is for the public good, and what are public purposes, and what does properly constitute a public burden, are questions which the legislature must decide upon its own judgment, and In respect to which it is vested with a large discretion, which cannot be controlled by the courts, except, perhaps, where its action is clearly evasive, and where, under pretense of lawful authority, it has assumed to exercise one that is unlawful." Cooley, Const, him. p. 155. See, also, Powell v. Pennsylvania. 127 TJ. S. GTS. 8 Sup. Ct. 992, 1257. No law which infringes any of the natural rights of man can long be enforced. Under our system of government, the remedy of the people, in tnat class of cases where the courts are not authorized to interfere, is In the ballot box. Any law which violates reason, and is contrary to the popular conception of right and justice, will not remain In operation for any length of time; but
courts have no authority to declare It voir' merely because it does not /measure up to their ideas of abstract justice. The motive which doubtless actuated the legislature in the passage of the act now under considers tion was that vaccination was for the public good. In this the general assembly is Sup tained by the opinion of a great majority ol the men of medical science both in, this country and in Europe.
The general assembly conferred this authority upon the city of Columbus in tlw exercise of its police power, by which, sayr Tiedman, "State, persons, and property art subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state." The supreme court of Illinois has said of this power that It Is "co-extensive with self-protection, and is not inaptly termed 'the law of overruling necessity.' It Is that inherent power in the state which enables it to pro hibit all things hurtful to the comfort and welfare of society." LeUeview v. Rose Hill Cemetery, 70 111. 192. The court of appeals of New York says: "The police power extends to the protection of persons and property -within the state. Iu order to secure that protection, they may be subjected to restraints and burdens by legislative acts. If the act is a valid and reasonable exercise of the police power of the state, then it must be submitted to, as a measure designed for the protection of the public, and to secure it against some danger, real or anticipated, from a state of things which modifications in our social or commercial life have brought about. The natural right to life liberty, and the pursuit of happiness is not an absolute right. It must yield whenever the concession is demanded by the welfare health, or prosperity of the state. The individual must sacrifice his particular interest or desires, If the sacrifice is a necessary one, in order that organized society as a whole shall be benefited." People v. Warden of City Prison (N. Y. App.) 30 N. E. 6*V We cannot see what there is in the present case to differentiate it in principle from a number of other cases in which private rights have been subordinated to the health and comfort of the public. Danger to public health has always been regarded as a sufficient ground for the exercise of police power In restraint of a person's liberty. The right of a state to enforce quarantine laws in the interest of public health, or to abate nuisances which are of a character likely to injure the health of a community, has rarely ever been questioned; and the power of the general government to prevent the landing in tins country of immigrant foreigners Infected with contagious diseases has Ions been established. See Harrison v. City of Baltimore, 1 Gill, 204; Parker & W. Public Health. § 20, p. 35; Prent. Police Powers pp. 105. 100. It is not our purpose, nor would it be profitable here, to enter into any
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(led discussion as to what things are led in the general police power of the In general, it may be said, in the age of the supreme court of the United s, that "it is universally conceded to le everything essential to the public v, health, and morals, and to justify est ruction or abatement, by summary edingB, of whatever may be regarded
public nuisance." Law-ton v. Steele, r. S. 133, 14 Sup. Ct. 490. Tiedmnn, in his work on Limitations of Police Power
32), recognizes the right of a state to laws requiring vaccination. He says
"It seems that medical and surgical ncnt can be prescribed, against the conr>f the individual, as a preventive of jious and infectious diseases. Thus, plaud, and probably in some of the 1 States, vaccinatiou has been made ilsory." And we may add just here it the present time a great majority of uited States have such laws. In Par
W. Public Health. § 123, the doctrine ted broadly as follows: "It is someprovided by law that persons who have been exposed to contagion, or come from places believed to be in, and particularly children attending ibllc schools, shall submit to vaceinatinder direction of the health author
This requirement Is a constitutional se of the police power of the state,
can be sustained as a precautionary ro in the interest of the public health." ases cited support the text, in prin
In the case of Hazen v. Strong, 2 17, the court held that the municipal ities of a certain town in Vermont had •ity, under a general legislative power ke the most prudent measures" to prehe spread of smallpox, to levy and
a tax for the purpose of defraying the ;es of having the inhabitants inoculatth the kinepox. It was conceded in ise by both sides that the town would nithority to levy and collect the tax estlon under certain circumstances; s, where the danger of an epidemic allpox was imminent. The analogy Mi this case and cases like the present a rent. In Prent. Police Powers, pp. 'A, there is a discussion of a number s providing for compulsory vacclnand also a few cas*s In which the manf the exercise of the power was it In question. After discussing these gth, the author concludes in these "The presumption that, under the id ordinances cited, vaccination was ul act, would appear conclusive from ?nses, and the only questions which
remain are those of negligence and
wrongs."
r as we are aware, no court has ever tiled upon to pass on this exact quesmt there are a few decisions in which jject of vaccination is discussed, and
these show the trend of the judicial niiml ou the subject. In re Smith (N. Y. App.) 4t) X. E. 407, was a case in which Smith and another were detained in quarantine under a resolution of the municipiU authorities of the city of Brooklyn declaring that, "whenever any person in said city shall refuse to be vaccinated, such person shall immediately be quarantined, and detained in quarantine until he consents to such vaccination." The court of appeals of New York reversed the supreme court, general term, for refusing to order the release of the persons detained. But the decision was put upon the ground that the power conferred upon the local legislature of Brooklyn was not sufficiently broad to cover the case of the appellants. In discussing the case, Gray, J., says: "I think no one will dispute the right of the legislature to enact such measures as will protect all persons from tlw impending calamity of a pestilence, and to vest In local authorities such comprehensive powers aswill enable them to act competently and effectively. * * * The question here is not whether the legislature had the power toenact the provisions of section 24 of the health law, but whether the respondent has shown that a state of facts existed warrantlug the exercise of the extraordinary authority conferred upon him." In Potts v. Breen (111. Sup.) 47 N. E. 81, It was held that a school board could not make vaccination a condition precedent to admission to the public schools, when smallpox does not exist iu the community, and when there was no reason for apprehending an epidemic of that disease, in the absence of express authority from the legislature. An examination of the opinion of the court shows that, while thequestion was not presented, they were clearly of the opinion that compulsory vaccination would be allowable in certain eases, when express legislative authority was given. The court uses this language: "It is a matter of common knowledge that the number of those who seriously object to vaccination is by no means small, and they cannot, except when necessary for the public health,, and in conformity to law [italics ours], bedeprived of their right to protect themselves and those under their control from an invasion of their liberties by a practically compulsory inoculation of their bodies with a virus of any description, however meritorious it may be." There are several cases holding that an act of the legislature authorizing school boards to require vaccination, as a condition precedent to admission to the public schools, is not an invasion of any constitutional right of the pupil. Duflield v. School Dist., 162 Pa. 470, 20 Atl. 742; Bissell v. Davison (Conn.) :!2 \tl. 348; Abeel v. Clark (Cal.) 24 Pac. 383; In re Kcbennck, 02 Mo. App. 8; In re Walters (Sup.) 32 N. Y. Supp. ,'!22. Pupils of schools constitute a general class of persons. If the legislature can authorize the imposition of this condition
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upon one class, why not upon another? If it can say that the penalty for refusing to be vaccinated must be a denial of the pupil's right or privilege to attend school, why can It not say to another general class, "The penalty for your refusal to submit to vaccination shall be a fine or imprisonment"? If the act can be upheld in the one case as constitutional, why not in the other? True, in the school cases the pupils may remain out of school; but, unless vaccination is Itself lawful, what right has a school board to deny admission to the schools until this unlawful regulation is complied with? The school boards have no right to pass such a regulation, unless the power Is specifically conferred upon them by the legislature; and ought a condition precedent to compliance with an unconstitutional law be upheld? Can the cases be justified on any other theory than that the law Itself is not unconstitutional? True, the child may avoid the consequences of the resolution by not entering school; and so the citizen may avoid the consequences of a municipal regulation by putting himself beyond the jurisdiction of the municipality. Indeed, this is a very effectual way of avoiding the consequences incident to a failure to comply with any law. Suppose the courts were to declare the act now under consideration repugnant to the constitution; would it be contended for a moment that the legislature could confer the same authority on a school board? Is there any good reason In law for the discrimination? There can be no legal reason for refusing to allow a child to invoke a law to secure him in his right or privilege (whichever It may be termed) to attend a public school, which a citizen might rely on to secure him a residence in a given place. It seems to us, therefore, to be a necessary conclusion from the cases cited supra, holding a regulation requiring vaccination of pupils as a condition precedent to admission in the public schools reasonable and constitutional, that the act now under consideration Is a valid exercise of the police power. Under this view, the decision in the present case is supported by direct authority. But, however this may be, we hold that the legislature has power to pass an act compelling vaccination, and that it may delegate this authority to a municipal corporation. But, while this is true, municipal corporations must have express authority from the legislature, as no such power will ever arise by Implication. State v. Burdge (Wis.) 70 N. W. 347; Potts v. Breen, supra. In no proper sense can the act of the general assembly attacked in this case be said to deprive the plaintiffs in error of any right without due process of law, or to deny to them the equal protection of the law. It follows, therefore, that the superior court did not err in refusing to sustain the petition for certiorari. Judgment affirmed.