STATE v. HAY. (Supreme Court of North Carolina. March 20, 1900.)
35 S.E. 459
HEALTH—COMPULSORY VACCINATION—POWER OF STATE TO ENFORCE—VALIDITY OF ORDINANCE—DEFENSE FOR NONCOMPLIANCE — TRIAL—DEFECTIVE VERDICT.
1. Laws 1893, c. 214, § 23. providing that the authorities of any city or town may make regulations for the vaccination of its inhabitants, and impose penalties for noncompliance therewith, is a proper exercise of the police power of the state to legislate for the public welfare.
2. Laws 1893, c. 214, § 23. authorizing cities and towns to make regulations for the vaccination of the inhabitants "under the direction of the local or county hoard of health, or a committee chosen for the purpose," does not require the board of aldermen of a town to act in conjunction with the board of health in the passage of an ordinance under the statute, but merely that the execution of the ordinance shall be under the direction of the board.
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8. A town ordinance requiring all citizens "not successfully vaccinated within the last three years" to be vaccinated before a date named, under penalty of fine and imprisonment, is not invalid because no exception is made as to persons whose physical condition renders vaccination dangerous.
4. The fact that a person's health is such as to make it unsafe for him to submit to vaccination, or that, in the opinion of his physician, he is already sufficiently vaccinated, is matter of defense, in a prosecution for violation of an ordinance for compulsory vaccination, the burden of proving which is on defendant, and the determination of which is for the jury.
5. A special verdict, in a prosecution for the violation of an ordinance for compulsory vaccination, that defendant had been examined by S., a reputable physician, who told him that he did not need vaccination, and that P., another physician, told him that he had rheumatism, and could not submit to vaccination, is too ambiguous and defective to determine whether the jury found either that defendant did not need vaccination, or that his condition of health made it dangerous for him to submit thereto.
Appeal from superior court, Alamance county; Brown, Judge.
W. E. Hay was Indicted for the violation of an ordinance of the town of Burlington requiring all persons not vaccinated within three years past to be vaccinated before a date named. From a judgment of not guilty, the state appeals. Reversed.
Special verdict found by the Jury, among other things: That the ordinance under which the defendant was Indicted was not enacted at a joint session of the board of aldermen and the local or county board of health, and there Is no evidence that It was enacted under the direction of such boards of health, or either of them, as required by Acts 1893, c. 214, § 23; that defendant had not been vaccinated successfully within three years prior to March 13, 1899; that Drs. Faucett and Patterson were appointed by the aldermen to vaccinate all citizens at the expense of the town; that Dr. Faucett called on the defendant on March 16, 1899, after the passage of the ordinance, and proposed to vaccinate him, and defendant refused upon the ground that he believed and was advised that It was dangerous for him, by reason of his then physical condition; that Faucett told him he was at liberty to get any physician to vaccinate him, but he must be vaccinated; that Dr. Stafford, a reputable physician, had examined him, and told him he did not need vaccination, as be had the scar of a successful vaccination then on his arm, and Stafford gave defendant a certificate; that when Faucett called on defendant to vaccinate him he told Faucett that he (Faucett) was attending smallpox patients, and could not vaccinate h:m under any circumstances; that on March 17, 1809, defendant saw Dr. Patterson, and In good faith told him he had rheumatism, and that he could not submit to vaccination; that on March 20th defendant was arrested, and tried for violation of said ordinance, and then was vaccinated by Dr.
I Stafford, h!s family physician, and it did not "take." If, upon the above facts, the court Is of opinion that the defendant is guilty, then the jury so find, and, if not guilty, then the jury so find. The defendant contended that the board of aldermen bad no power to pass such an ordinance; that the ordinance is too broad, in that it makes no exception as to persons whose physical condition rendered vaccination dangerous; that the power to enact rules and regulations for administering vaccination by compulsion la not given to the board of aldermen alone, but only when acting jointly with the board of health, or committee chosen by board of health, as per section 23, c. 214, Acts 1893. The court, being of opinion with defendant, directed a verdict of not guilty. The state appealed.
Copy of ordinance: "That all citizens of Burlington not successfully vaccinated within the last three years shall be vaccinated between this date [March 13, 1S99] and Friday night, March 17th, and all persons refusing to be vaccinated shall be fined $10 for every day they refuse after being called upon by the doctor appointed, or Imprisoned for 30 days."
The Attorney General, for the State.
CLARK, J. Chapter 214 of the Laws of 1893 Is a well-considered and carefully drawn 'statute for the preservation of the public health. Section 23 thereof, which Is specifically in regard to vaccination, contains, among other provisions, this clause: "The authorities of any city or town, or the board of county commissioners of any county may make such regulations and provisions for the vaccination of its inhabitants under the direction of the local or county board of health or a committee chosen for the purpose, and impose such penalties as they deem necessary to protect the public health." There is no provision of the constitution which forbids the legislature so to enact, and it Is, indeed, an exercise of that governmental police power to legislate for the public welfare, which Is inherent in the general assembly, except when restrained by some express constitutional provision. "Salus populi suprema lex,"—"the public welfare is the highest law." —is the foundation principle of all civil government. It is the urgent cause why any government Is established; for, as Burke says, "any government Is a necessary evil." It Is, however, a much lesser evil than the Intolerable state of things which would exist if there were no government to bridle the absolute right of every man to do "that which seems right in his own eyes," like the Israelites in the days of Micah. The above maxim, I quoted from Lord Bacon, is placed appropriately first by Broom in his treatise on "Legal Maxims," with this Just observation: "There is an implied assent on the part of every member of society that his own Individual welfare shall, in cases of necessity yield to that of the community; and that his
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property, liberty, and life shall, under certain circumstances, be placed In jeopardy, or even sacrificed, for the public good." This observation, which Is almost a literal translation from Grotius, he fortifies by quotations from Montesquieu, Lord Hale, and many judicial opinions from both sides of the Atlantic. But it needs none, for it is everyday common sense that, If a people can draft or conscript Its citizens to defend its borders from invasion, it can protect Itself from the deadly pestilence that walketh by noonday by such measures as medical science has found most efficacious for that purpose. We know as an historical fact that prior to the discovery, 101 years ago, of vaccination, by Edward Jenner, smallpox often destroyed a third or more of the population of a country which It attacked, and so futile was every precaution, and the most careful seclusion, that the greatest sovereigns fell victims to this loathsome disease, which Macaulay has styled "the most terrible of all ministers of death." If this was so in days of imperfect communication, the present rapid means of intercourse between most distant points would so spread the disease as to quickly paralyze commerce and all public business if the government could not at once stamp out the disease by compelling all alike, for the public good as much as for their own, to submit to vaccination. Statistics taken by governmental authority show that while 400 out of every 1,000 unvaccinated persons exposed to the contagion are attacked by it, less than 2 In 1,000 take the disease when protected by vaccination within a reasonable period. There are those, notwithstanding these wellascertained facts, who deny the efficacy of vaccination, as there are always some who will deny any other result of human experience, however well established; but the legislature, acting in their best judgment for the public welfare upon the information before them, have deemed vaccination necessary for public protection, and their decision, being within the scope of their functions, must stand until repealed by the same power. The power of the legislature to authorize county and municipal authorities to require compulsory vaccination has been exercised by nearly every state, and has been recently sustained by the highest courts of two of our sister states,—Morris v. City of Columbus, 102 Ga. 792, 30 S. E. 850, 42 L. R. A. 175; Blue v. Beach (Sup. Ct. Ind.; Feb. 1, 1900) 56 N. E. 89,—and there are no decisions to the contrary. In reply to the argument that such exercise of power by the legislature may In some cases infringe upon individual rights, Cobb, J., In the Georgia case just cited, well says: "No law which infringes upon the natural rights of man can be long enforced. Under our system of government, the remedy of the people in that class of cases where the courts are not authorized to interfere Is at 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 void 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 consideration was that vaccination was for the public good. In this the general assembly is sustained by the opinion of a great majority of the men of medical science, both in this country and In Europe." But, even If we were of opinion with the small number of medical men who contend that vaccination is dangerous to health, and not a preventive of the disease, the court is not a paternal despotism, gifted with infallible wisdom, whose function Is to correct the errors and mistakes of the legislature. Brodnax v. Groom, 64 N. C, at page 250. Our people are self-governing, and themselves correct the mistakes of their representatives. The function of the courts Is to construe and apply the laws, and they can hold a statute nugatory only when plainly and clearly violative of some provision of the organic law which has restrained the legislative power. Sutton v. Phillips, 116 N. C. 502, 21 S. E. 968; White v. Murray (at this term) 35 S. E. 256. Nor does section 23 of the act require that the board of aldermen shall pass such ordinance In conjunction with the board of health (as defendant contends). It merely provides that the execution of the ordinance—i. e. the vaccination shall be under the direction of the local board of health, or a committee appointed by the aldermen. While the legislature has power to authorize municipal bodies to provide compulsory vaccination, and the defendant did not comply with the ordinance enacted by the town of Burlington, In pursuance of such authority, though afforded opportunity to do so, it Is true that there may be some conditions of a person's health when It would be unsafe to submit to vaccination, and which, therefore, would be a sufficient excuse for noncompliance; but It does not vitiate the ordinance that such exception Is not provided for and specified therein. It is not a defense that a person bona fide believes that it will be dangerous for him to be vaccinated, or believes that he Is already sufficiently protected by former vaccination; nor would the opinion of his personal physician on either point be conclusive (though It would naturally have weight with the Jury), for there may be evidence or circumstances tending to the contrary. Indeed, as to a former vaccination being sufficient protection, the opinion of the official physician supervising the vaccination should be presumptively correct That which would relieve from a compliance with the ordinance is a matter of defense, the burden of which Is upon the defendant, and is a fact to be found by the Jury. The special verdict Is ambiguous and defective in this particular, and is set aside. Let there be a new trial.
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DOUGLAS, J. While I concur In the Judgment of the court, I fear that there are some expressions in the opinion that may be misconstrued. What I understand the court to mean is that, while it is in the province of the legislature to provide for the public health by all reasonable means, and incidentally to confer that power upon municipal corporations, yet, whenever the exercise of that power is in derogation of natural right, it must be exercised in a reasonable manner. Compulsory vaccination is not an unreasonable requirement as experience has shown that It is, in times of epidemic, necessary for the protection of the community, and equally so of the individual. It is ordinarily less harsh than quarantine or isolation, and in the great majority of cases has no injurious effect beyond some slight temporary illness. But there may be cases where vaccination, owing to certain exceptional conditions of health, may be dangerous, or even fatal. We cannot suppose that the legislature intended to enforce the rule under such circumstances, and yet there must be some tribunal competent to determine when such conditions exist. By its very nature this power must ultimately rest in the courts, where all other rights of the citizen are determined and administered. Where legislative authority is given, the board of aldermen can determine within reasonable limits the existence of the general conditions Justifying compulsory vaccination, and may make and enforce all reasonable regulations necessary to carry it Into effect; but In case of resistance it can enforce it only by an appeal to the criminal Jurisdiction of the courts. There the defendant has a right to be heard. It may be that bis refusal to comply with a general ordinance might cast upon him the burden of proving whatever facts he might rely upon to exempt him from Its operation, but this question Is not now before us. I do not think that the election of any one as superintendent of health, or his employment as vaccinating surgeon, would add anything to the weight of his testimony. It might give him the power to demand the vaccination of the individual, and to prosecute in case of refusal, but it would not carry with it any presumption of professional infallibility. He must take his chances before the Jury, like any other witness. I readily concede that these positions are generally filled by competent men. but we know that they are rarely held by physicians of large practice, because they do not pay enough to Justify their acceptance. This Is especially so where smallpox Is prevalent. No well-established physician ?ould afford to run the risk of contagion which would inevitably cause the loss of his practice. So strong Is this feeling that it Is sometimes necessary to send to other cities, and even other states, to obtain men willing to undertake the duty. I do not say this in any disparagement to them, but simply in Justice to the resident physicians, who are entitled to all the credit due their character and profes
sional standing. I think this construction, of the law is clearly in accord with the legislative intent, but, if It were otherwise, I could not come to any other conclusion. The constitution of this state expressly declares "that we hold it to be self evident that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, the enJoymeDt of the fruits of their own labor and the pursuit of happiness." Article 1, § 1. It does not profess to confer these rights, but recognizes them as pre-existing and inherent in the individual by "right divine." Therefore any unlawful interference with them is in violation of the express letter of the constitution. When man entered the social compact, he gave up a portion of his natural liberty in exchange for the protection of society, but only so far as was demanded by the general welfare. Even then there must be some limit Suppose the legislature should pass an act that all persons afflicted with certain diseases should be killed, In order to prevent contagion, would any court permit Its enforcement? Therefore, can we suppose that the legislature either would or could enforce vaccination if, under the peculiar conditions of health of the patient it might reasonably be expected to endanger his life? This discussion, however, Is not essential to the determination of the case at bar, as I feel safe In basing my opinion upon a reasonable inter pretation of the legislative will without the necessity of resorting to constitutional limitations.
FURCHES, J., concurs.