Imágenes de páginas

The case at bar is brought within the doc- tion is commonly believed to be a safe and val. trine of those cases by the allegations of the

uable means of preventing the spread of bill. The defendant corporations are al

smallpox, and that this belief is supported by

high medical authority. leged to be under the control of John J. 6. A state legislature, in enacting a statute purand Dennis A. Harrington, and that com

porting to be for the protection of local complainants are unable to secure any corporate munities against the spread of smallpox, is en. action on the part of the defendant, the titled to choose between the theory of those Sol Sayles Company, to redress the wrongs

of the medical profession who think vaccina

tion worthless for this purpose, and believe its complained of. It is also alleged that the

effect to be injurious and dangerous, and the Harringtons control the action of the stock

opposite theory, which is in accord with comholders, and have declined to redress the mon belief, and is maintained by high mediwrongs complained of or give complainants cal authority; and is not compelled to commit any opportunity to lay before the board of a matter of this character, involving the pubdirectors or the stockholders of the Sol

lic health and safety, to the final decision of

a court or jury. Sayles Company the facts alleged. It is also

7. An adult cannot claim to have been deprived alleged the suit is not collusive. It is mani

of the liberty secured by U. S. Const., 14th fest that if the matter alleged be true, Amend., against state deprivation, by the encomplainants will suffer irremediable loss forcement against him of a compulsory racif not permitted to sue, and as they had a

cination law,--at least, where he does not cause of action they rightly brought it in

show, with reasonable certainty, that he is

not at the time a fit subject of vaccination, or the circuit court of the United States.

that vaccination, by reason of his then condi. Decree reversed.

tion, will seriously impair his health, or possibly cause his death.

(197 U. S. 11)

[No. 70.] HENNING JACOBSON, Piff. in Err.,

Argued December 6, 1904. Decided Feb. V.


N ERROR to the Superior Court of the

1 Constitutional lawcompulsory vaccination

State of Massachusetts for the County of ---personal liberty-equal protection of Middlesex to review a judgment entered on the laws-evidence-judicial notice.

a verdict of guilty in a prosecution under

the compulsory vaccination law of that 1. The spirit of the Federal Constitution or its State, after defendant's exceptions were

preamble cannot be invoked, apart from the overruled by the Massachusetts Supreme Juwords of that instrument, to invalidate a state statute. *

dicial Court. Affirmed. 2. The scope and meaning of a state statute,

See same case below, 183 Mass. 242, 66 as indicated by the exclusion of evidence on

N. E. 719. the ground of its incompetency or immaterial- The facts are stated in the opinion. ity under that statute, are conclusive on the Messrs. George Fred Williams and Federal Supreme Court in determining, on James A. Halloran for plaintiff in error. writ of error to the state court, the question

Messrs. Frederick H. Nash and Herbert of the validity of the statute under the Fed. eral Constitution.

Parker for defendant in error. 8. The personal liberty secured by U. S. Const.,

14th Amend., against state deprivation, is not Mr. Justice Harlan delivered the opininfringed by Mass. Rev. Laws, chap. 75, § 137, ion of the court: authorizing compulsory vaccination by local

This case involves the validity, under the boards of health when deemed necessary for Constitution of the United States, of certain the public health or safety, under which, as construed by the highest state court, vaccina provisions in the statutes of Massachusetts tion may be required of all the inhabitants of relating to vaccination. a city where smallpox is prevalent and in- The Revised Laws of that commonwealth, creasing

chap. 75, § 137, provide that “the board of Lack of any exception in favor of adults health of a city or town, if, in its opinion, certified by a registered physician to be unfit it is necessary for the public health or safesubjects for vaccination does not render invalid Mass. Rev. Laws, chap. 75, $ 137, au- ty, shall require and enforce the vaccinathorizing compulsory vaccination by local tion and revaccination of all the inhabitants boards of health, as denying the equal protec- thereof, and shall provide them with the tion of the laws, although an exception in

means of free vaccination. Whoever, being favor of children in like condition is made by $ 139 of that act, since the statute is equally over twenty-one years of age and not under $ 139 of that act, since the statute is equally guardianship, refuses or neglects to comply

applicable to all adults. 5. Judicial notice will be taken that vaccina

with such requirement shall forfeit $5." *Ed. Note.--For cases in point, see vol. 10, Cent. I dren who present a certificate, signed by a

An exception is made in favor of "chil. Dig. Constitutional Law, § 38.

registered physician, that they are unfit of the rights secured to the defendant by the subjects for vaccination.” § 139.

preamble to the Constitution of the United Proceeding under the above statutes, the States, and tended to subvert and defeat board of health of the city of Cambridge, the purposes of the Constitution as declared Massachusetts, on the 27th day of February, in its preamble; 1902, adopted the following regulation: That the section referred to was in dero“Whereas, smallpox has been prevalent to gation of the rights secured to the defendant some extent in the city of Cambridge, and by the 14th Amendment of the Constitution still continues to increase; and whereas, it of the United States, and especially of the is necessary for the speedy extermination of clauses of that amendment providing that the disease that all persons not protected by no state shall make or enforce any law vaccination should be should be vaccinated;

vaccinated; and abridging the privileges or immunities of whereas, in the opinion of the board, the citizens of the United States, nor deprive public health and safety require the vaccina- any person of life, liberty, or property withtion or revaccination of all the inhabitants out due process of law, nor deny to any perof Cambridge; be it ordered, that all the in- son within its jurisdiction the equal protechabitants of the city who have not been tion of the laws; and successfully vaccinated since March 1st, That said section was opposed to the 1897, be vaccinated or revaccinated." spirit of the Constitution.

Subsequently, the board adopted an addi- Each of defendant's prayers for instructional regulation empowering a named phy- tions was rejected, and he duly excepted. sician to enforce the vaccination of persons The defendant requested the court, but the as directed by the board at its special meet- court refused, to instruct the jury to return ing of February 27th.

a verdict of not guilty. And the court inThe above regulations being in force, the structed the jury, in substance, that, if they plaintiff in error, Jacobson, was proceeded believed the evidence introduced by the against by a criminal complaint in one of commonwealth, and were satisfied beyond a the inferior courts of Massachusetts. The reasonable doubt that the defendant was complaint charged that on the 17th day of guilty of the offense charged in the comJuly, 1902, the board of health of Cam- plaint, they would be warranted in finding bridge, being of the opinion that it was a verdict of guilty. A verdict of guilty was necessary for the public health and safety, thereupon returned. required the vaccination and revaccination The case was then continued for the opinof all the inhabitants thereof who had notion of the supreme judicial court of Massabeen successfully raccinated since the 1st chusetts. That court overruled all the deday of March, 1897, and provided them with fendant's exceptions, sustained the action of the means of free vaccination; and that the the trial court, and thereafter, pursuant to defendant, being over twenty-one years of the verdict of the jury, he was sentenced by age and not under guardianship, refused and the court to pay a fine of $5. And the court neglected to comply with such requirement. I ordered that he stand committed until the

The defendant, having been arraigned, fine was paid. pleaded not guilty. The government put in We pass without extended discussion the evidence the above regulations adopted by suggestion that the particular section of the the board of health, and made proof tending statute of Massachusetts now in question to show that its chairman informed the de- ($ 137, chap. 75) is in derogation of rights fendant that, by refusing to be vaccinated, secured by the preamble of the Constitution he would incur the penalty provided by the of the United States. Although that prestatute, and would be prosecuted therefor; amble indicates the general purposes for that he offered to vaccinate the defendant which the people ordained and established without expense to him; and that the offer the Constitution, it has never been regarded was declined, and defendant refused to be as the source of any substantive power convaccinated.

ferred on the government of the United The prosecution having introduced no States, or on any of its departments. Such

. other evidence, the defendant made numer- powers embrace only those expressly grantous offers of proof. But the trial court ed in the body of the Constitution, and such ruled that each and all of the facts offered as may be implied from those so granted. to be proved by the defendant were imma- Although, therefore, one of the declared obterial, and excluded all proof of them. jects of the Constitution was to secure the

The defendant, standing upon his offers of blessings of liberty to all under the sovproof, and introducing no evidence, asked ereign jurisdiction and authority of the numerous instructions to the jury, among United States, no power can be exerted to which were the following:

that end by the United States, unless, apart That § 137 of chapter 75 of the Revised from the preamble, it be found in some ex. Laws of Massachusetts was in derogation 'press delegation of power, or in some power

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to be properly implied therefrom. 1 Story, | facts of common knowledge, which the court Const. § 462.

will always regard in passing upon the conWe also pass without discussion the sug- stitutionality of a statute. He would have gestion that the above section of the statute considered this testimony of experts in conis opposed to the spirit of the Constitution. nection with the facts that for nearly a Undoubtedly, as observed by Chief Justice century most of the members of the medical Marshall, speaking for the court in Sturges profession have regarded vaccination, rev. Crowninshield, 4 Wheat. 122, 202, 4 L. peated after intervals, as a preventive of ed. 529, 550, “the spirit of an instrument, smallpox; that, while they have recognized especially of a constitution, is to be re- the possibility of injury to an individual spected not less than its letter; yet the from carelessness in the performance of it, spirit is to be collected chiefly from its or even in a conceivable case without carewords.” We have no need in this case to go lessness, they generally have considered the beyond the plain, obvious meaning of the risk of such an injury too small to be words in those provisions of the Constitu- seriously weighed as against the benefits tion which, it is contended, must control coming from the discreet and proper use of our decision.

the preventive; and that not only the mediWhat, according to the judgment of the cal profession and the people generally have state court, are the scope and effect of the for a long time entertained these opinions, statute? What results were intended to be but legislatures and courts have acted upon accomplished by it? These questions must them with general unanimity. If the debe answered.

fendant had been permitted to introduce The supreme judicial court of Massachu- such expert testimony as he had in support setts said in the present case: “Let us con- of these several propositions, it could not sider the offer of evidence which was made have changed the result. It would not have by the defendant Jacobson. The ninth of justified the court in holding that the legisthe propositions which he offered to prove, lature had transcended its power in enacting as to what vaccination consists of, is nothing this statute on their judgment of what the more than a fact of common knowledge, welfare of the people demands." Com. v. upon which the statute is founded, and Jacobson, 183 Mass. 242, 66 N. E. 719. proof of it was unnecessary and immaterial. While the mere rejection of defendant's The thirteenth and fourteenth involved mat- offers of proof does not strictly present a ters depending upon his personal opinion, Federal question, we may properly regard which could not be taken as correct, or the exclusion of evidence upon the ground given effect, merely because he made it a of its incompetency or immateriality under ground of refusal to comply with the re- the statute as showing what, in the opinion quirement. Moreover, his views could not of the state court, are the scope and meaning affect the validity of the statute, nor en of the statute. Taking the above observatitle him to be excepted from its provisions. tions of the state court as indicating the Com. v. Connolly, 163 Mass. 539, 40 N. E. scope of the statute,--and such is our duty. 862; Com. v. Has, 122 Mass. 40; Reynolds Leffingwell v. Warren, 2 Black, 599, 603, 17 v. United States, 98 U. S. 145, 25 L. ed. L. ed. 261, 262; Morley v. Lake Shore & M. 244; Reg. v. Downes, 13 Cox, C. C. 111. The s. R. Co. 146 U. S. 162, 167, 36 L. ed. 925, other eleven propositions all relate to al 928, 13 Sup. Ct. Rep. 54; Tullis v. Lake Erie leged injurious or dangerous effects of vac- & W. R. Co. 175 U. S. 348, 44 L. ed. 192, 20 cination. The defendant ‘offered to prove Sup. Ct. Rep. 136; W. W. Cargill Co. v. and show by competent evidence these so- Minnesota, 180 U. S. 452, 466, 45 L. ed. 619, called facts. Each of them, in its nature, is 625, 21 Sup. Ct. Rep. 423,—we assume, for such that it cannot be stated as a truth, the purposes of the present inquiry, that its otherwise than as a matter of opinion. The provisions require, at least as a general rule, only 'competent evidence that could be pre- that adults not under the guardianship and sented to the court to prove these proposi- remaining within the limits of the city of tions was the testimony of experts, giving Cambridge must submit to the regulation their opinions. It would not have been com- adopted by the board of health. Is the statpetent to introduce the medical history of ute, so construed, therefore, inconsistent individual cases. Assuming that medical ex- with the liberty which the Constitution of perts could have been found who would have the United States secures to every person testified in support of these propositions, against deprivation by the state? and that it had become the duty of the The authority of the state to enact this judge, in accordance with the law as stated statute is to be referred to what is comin Com. v. Anthes, 5 Gray, 185, to instruct monly called the police power,--a power the jury as to whether or not the statute is which the state did not surrender when beconstitutional, he would have been obliged coming a member of the Union under the to consider the evidence in connection with 'Constitution. Although this court has re

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frained from any attempt to define the lim- secured by the Constitution of the United its of that power, yet it has distinctly recog. States to every person within its jurisdicnized the authority of a state to enact quar- tion does not import an absolute right in antine laws and “health laws of every de- each person to be, at all times and in all scription;" indeed, all laws that relate to circumstances, wholly freed from restraint. matters completely within its territory and There are manifold restraints to which every which do not by their necessary operation person is necessarily subject for the common affect the people of other states. According good. On any other basis organized society to settled principles, the police power of a could not exist with safety to its members. state must be held to embrace, at least, such Society based on the rule that each one reasonable regulations established directly is a law unto himself would soon be conby legislative enactment as will protect the fronted with disorder and anarchy. Real public health and the public safety. Gibbons liberty for all could not exist under the v. Ogden, 9 Wheat. 1, 203, 6 L. ed. 23, 71; operation of a principle which recognizes the Hannibal & St. J. R. Co. v. Husen, 95 U. S. right of each individual person to use his 465, 470, 24 L. ed. 527, 530; Boston Beer own, whether in respect of his person or his Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. property, regardless of the injury that may 989; New Orleans Gaslight Co. v. Louisiana be done to others. This court has more than Light & H. P. & Mfg. Co. 115 U. S. 650, 661, once recognized it as a fundamental princi29 L. ed. 516, 520, 6 Sup. Ct. Rep. 252; Law- ple that "persons and property are subjected son v. Stecle, 152 U. S. 133, 38 L. ed. 385, to all kinds of restraints and burdens in 14 Sup. Ct. Rep. 499. It is equally true order to secure the general comfort, health, that the state may invest local bodies called and prosperity of the state; of the perfect into existence for purposes of local adminis- right of the legislature to do which no questration with authority in some appropriate tion ever was, or upon acknowledged general way to safeguard the public health and the principles ever can be, made, so far as natupublic safety. The mode or manner in which ral persons are concerned.Hannibal & St. those results are to be accomplished is with J. R. Co. v. Husen, 95 U. S. 465, 471, 24 L. in the discretion of the state, subject, of ed. 527, 530; Missouri, K. & T. R. Co. v. course, so far as Federal power is concerned, Haber, 169 U. S. 613, 628, 629, 42 L. ed. only to the condition that no rule prescribed 878–883, 18 Sup. Ct. Rep. 488; Thorpe v. by a state, nor any regulation adopted by a Rutland & B. R. Co. 27 Vt. 148, 62 Am. local governmental agency acting under the Dec. 625. in Crowley v. Christensen, 137 sanction of state legislation, shall contra- U. S. 86, 89, 34 L. ed. 620, 621, 11 Sup. Ct. vene the Constitution of the United States, Rep. 13, we said: "The possession and ennor infringe any right granted or secured joyment of all rights are subject to such by that instrument. A local enactment or reasonable conditions as may be deemed by regulation, even if based on the acknowl-the governing authority of the country esedged police powers of a state, must always sential to the safety, health, peace, good yield in case of conflict with the exercise by order, and morals of the community. Even the general government of any power it pos- liberty itself, the greatest of all rights, is sesses under the Constitution, or with any not unrestricted license to act according to right which that instrument gives or secures. one's own will. It is only freedom from Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L. ed. restraint under conditions essential to the 23, 73; Sinnot v. Davenport, 22 How. 227, equal enjoyment of the same right by others. 243, 16 L. ed. 243, 247; Missouri, K. & T. R. It is, then, liberty regulated by law." In Co. v. Haber, 169 U. S. 613, 626, 42 L. ed. the Constitution of Massachusetts adopted 878, 882, 18 Sup. Ct. Rep. 488.

in 1780 it was laid down as a fundamental We come, then, to inquire whether any principle of the social compact that the right given or secured by the Constitution whole people covenants with each citizen, is invaded by the statute as interpreted by and each citizen with the whole people, that the state court. The defendant insists that all shall be governed by certain laws for his liberty is invaded when the state sub-"the common good,” and that government is jects him to fine or imprisonment for neg. instituted “for the common good, for the lecting or refusing to submit to vaccina- protection, safety, prosperity, and happiness tion; that a compulsory vaccination law is of the people, and not for the profit, honor, unreasonable, arbitrary, and oppressive, or private interests of any one man, family, and, therefore, hostile to the inherent right or class of men.” The good and welfare of of every freeman to care for his own body the commonwealth, of which the legislature and health in such way as to him seems is primarily the judge, is the basis on which best; and that the execution of such a law the police power rests in Massachusetts. against one who objects to vaccination, no Coin. V. Alger, 7 Cush. 84. matter for what reason, is nothing short of Applying these principles to the present an assault upon his person. But the liberty 'case, it is to be observed that the legislature

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of Massachusetts required the inhabitants | life, liberty, health, or property within its of a city or town to be vaccinated only when, limits, laws to prevent persons and animals in the opinion of the board of health, that suffering under contagious or infectious diswas necessary for the public health or the eases, or convicts, from coming within its public safety. The authority to determine borders. But, as the laws there involved for all what ought to be done in such an went beyond the necessity of the case, and, emergency must have been lodged some under the guise of exerting a police power, where or in some body; and surely it was invaded the domain of Federal authority, appropriate for the legislature to refer that and violated rights secured by the Constituquestion, in the first instance, to a board of tion, this court deemed it to be its duty to health composed of persons residing in the hold such laws invalid. If the mode adopted locality affected, and appointed, presumably, by the commonwealth of Massachusetts for because of their fitness to determine such the protection of its local communities questions. To invest such a body with au- against smallpox proved to be distressing, , thority over such matters was not an un inconvenient, or objectionable to some,-if usual, nor an unreasonable or arbitrary, re- nothing more could be reasonably affirmed of quirement. Upon the principle of self-de the statute in question,—the answer is that fense, of paramount necessity, a community it was the duty of the constituted authorihas the right to protect itself against an ties primarily to keep in view the welfare, epidemic of disease which threatens the comfort, and safety of the many, and not safety of its members. It is to be observed permit the interests of the many to be subthat when the regulation in question was ordinated to the wishes or convenience of adopted smallpox, according to the recitals the few. There is, of course, a sphere within in the regulation adopted by the board of which the individual may assert the supremhealth, was prevalent to some extent in the acy of his own will, and rightfully dispute city of Cambridge, and the disease was in the authority of any human government, creasing. If such was the situation,--and especially of any free government existing nothing is asserted or appears in the record under a written constitution, to interfere to the contrary,—if we are to attach any with the exercise of that will. But it is value whatever to the knowledge which, it is equally true that in every well-ordered sosafe to affirm, is common to all civilized ciety charged with the duty of conserving peoples touching smallpox and the methods the safety of its members the rights of the most usually employed to eradicate that dis- individual in respect of his liberty may at ease, it cannot be adjudged that the present times, under the pressure of great dangers, regulation of the board of health was not be subjected to such restraint, to be ennecessary in order to protect the public forced by reasonable regulations, as the health and secure the public safety. Small-safety of the general public may demand. pox being prevalent and increasing at Cam- An American citizen arriving at an Amer. bridge, the court would usurp the functions ican port on a vessel in which, during the of another branch of government if it ad- voyage, there had been cases of yellow fever judged, as matter of law, that the mode or Asiatic cholera, he, although apparently adopted under the sanction of the state, to free from disease himself, may yet, in some protect the people at large was arbitrary, circumstances, be held in quarantine against

, and not justified by the necessities of the his will on board of such vessel or in a case. We say necessities of the case, because quarantine station, until it be ascertained it might be that an acknowledged power of by inspection, conducted with due diligence, a local community to protect itself against that the danger of the spread of the disease an epidemic threatening the safety of all among the community at large has disapmight be exercised in particular circum- peared. The liberty secured by the 14th stances and in reference to particular per- Amendment, this court has said, consists, in sons in such an arbitrary, unreasonable part, in the right of a person “to live and manner, or might go so far beyond what was work where he will” (Allgeyer v. Louisiana, reasonably required for the safety of the 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. public, as to authorize or compel the courts 427); and yet he may be compelled, by force to interfere for the protection of such per- if need be, against his will and without resons.

Wisconsin, M. & P. R. Co. v. Jacob- gard to his personal wishes or his pecuniary son, 179 U. S. 287, 301, 45 L. ed. 194, 201, | interests, or even his religious or political 21 Sup. Ct. Rep. 115; 1 Dill. Mun. Corp. convictions, to take his place in the ranks 4th ed. $$ 319–325, and authorities in notes; of the army of his country, and risk the Freurid, Police Power, $$ 63 et seq. In chance of being shot down in its defense. It Hannibal & St. J. R. Co. v. Husen, 95 U. S. is not, therefore, true that the power of the 465, 471-473, 24 L. ed. 527, 530, 531, this public to guard itself against imminent court recognized the right of a state to pass danger depends in every case involving the sanitary laws, laws for the protection of 'control of one's body upon his willingness

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