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to submit to reasonable regulations estab-porting to have been enacted to protect the lished by the constituted authorities, under public health, the public morals, or the pubthe sanction of the state, for the purpose of lic safety, has no real or substantial relation protecting the public collectively against to those objects, or is, beyond all question, such danger.

a plain, palpable invasion of rights secured It is said, however, that the statute, as by the fundamental law, it is the duty of interpreted by the state court, although the courts to so adjudge, and thereby give making an exception in favor of children effect to the Constitution. Mugler v. Kancertified by a registered physician to be un- sas, 123 U. S. 623, 661, 31 L. ed. 205, 210, fit subjects for vaccination, makes no ex. 8 Sup. Ct. Rep. 273; Minnesota v. Barber, ception in case of adults in like condition. 136 U. S. 313, 320, 34 L. ed. 455, 458, 3 But this cannot be deemed a denial of the Inters. Com. Rep. 185, 10 Sup. Ct. Rep. equal protection of the laws to adults; for 862; Atkin v. Kansas, 191 U. S. 207, 223, the statute is applicable equally to all in 48 L. ed. 148, 158, 24 Sup. Ct. Rep. 124. like condition, and there are obviously rea- Whatever may be thought of the exsons why regulations may be appropriate pediency of this statute, it cannot be affor adults which could not be safely applied firmed to be, beyond question, in palpable to persons of tender years.

conflict with the Constitution. Nor, in view

. Looking at the propositions embodied in of the methods employed to stamp out the the defendant's rejected offers of proof, it is disease of smallpox, can anyone confidently clear that they are more formidable by their assert that the means prescribed by the number than by their inherent value. Those state to that end has no real or substantial offers in the main seem to have had no pur- relation to the protection of the public pose except to state the general theory of health and the public safety. Such an asthose of the medical profession who attach sertion would not be consistent with the little or no value to vaccination as a means experience of this and other countries whose of preventing the spread of smallpox, or authorities have dealt with the disease of who think that vaccination causes other dis- smallpox.† And the principle of vaccination eases of the body. What everybody knows the court must know, and therefore the began in England in 1808 with the National Vac

†“State-supported facilities for vaccination state court judicially knew, as this court cine Establishment. In 1840 vaccination fees knows, that an opposite theory accords with were made payable out of the rates. The first the common belief, and is maintained by compulsory act was passed in 1853, the guardhigh medical authority. We must assume

ians of the poor being intrusted with the car

rying out of the law ; in 1854 the public vacthat, when the statute in question was

cinations under one year of age were 408,824 passed, the legislature of Massachusetts was

as against an average of 180,960 for several not unaware of these opposing theories, and years before. In 1867 a new act was passed, was compelled, of necessity, to choose be- rather to remove some technical difficulties than tween them. It was not compelled to com

to enlarge the scope of the former act; and in mit a matter involving the public health | 1871 the act was passed which compelled the

boards of guardians to appoint vaccination offiand safety to the final decision of a court or

cers. The guardians also appoint a public vac jury. It is no part of the function of a cinator, who must be duly qualified to practise court or a jury to determine which one of medicine, and whose duty it is to vaccinate two modes was likely to be the most effective (for a fee of one shilling and sixpence) any for the protection of the public against dis- child resident within his district brought to That was for the legislative depart- week after, to give a certificate, and to certify

him for that purpose, to examine the same a ment to determine in the light of all the in- to the vaccination officer the fact of vaccination formation it had or could obtain. It could or of insusceptibility. . . Vaccination was not properly abdicate its function to guard made compulsory in Bavaria in 1807, and subsethe public health and safety. The state legis- quently in the following countries : Denmark

(1810), Sweden (1814), Württemberg, Hesse, lature proceeded upon the theory which rec

and other German states (1818), Prussia ognized vaccination as at least an effective, (1835), Roumania (1874), Hungary (1876), if not the best-known, way in which to meet and Servia (1881). It is compulsory by canand suppress the evils of a smallpox epi- tonal law in 10 out of the 22 Swiss cantons; an demic that imperiled an entire population. attempt to pass a Federal compulsory law was Upon what sound principles as to the rela- ing countries there is no compulsory law, but

defeated by a plebiscite in 1881. In the followtions existing between the different depart- governmental facilities and compulsion on vaments of government can the court review rious classes more or less directly under governthis action of the legislature? If there is mental control, such as soldiers, state employees, any such power in the judiciary to review apprentices, school pupils, etc. : France, Italy, legislative action in respect of a matter af- Spain, Portugal, Belgium, Norway, Austria,

Turkey. . Vaccination has been compulfecting the general welfare, it can only be

sory in South Australia since 1872, in Victoria when that which the legislature has done since 1874, and in Western Australia since 1878. comes within the rule that, if a statute pur- 'In Tasmania a compulsory act was passed in

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as a means to prevent the spread of small. | R. A. 251, 32 Atl. 348; Hazen v. Strong, 2 pox has been enforced in many states by Vt. 427; Duffield v. Williamsport School statutes making the vaccination of children District, 162 Pa. 476, 25 L. R. A. 152, 29 a condition of their right to enter or remain Atl. 742. in public schools. Blue v. Beach, 155 Ind. The latest case upon the subject of which 121, 50 L. R. A. 64, 80 Am. St. Rep. 195, 56 we are aware is Viemester v. White, decided N. E. 89; Morris v. Columbus, 102 Ga. 792, very recently by the court of appeals of 42 L. R. A. 175, 66 Am. St. Rep. 243, 30 New York. That case involved the validity S. E. 850; State v. Hay, 126 N. C. 999, 49 of a statute excluding from the public L. R. A. 588, 78 Am. St. Rep. 691, 35 S. E. schools all children who had not been vac459; Abeel v. Clark, 84 Cal. 226, 24 Pac.cinated. One contention was that the stat383; Bissell v. Davison, 65 Conn. 183, 29 L. ute and the regulation adopted in exercise 1882. In New South Wales there is no com- In all England and Wales, for some years prepuision, but free facilities for vaccination. Com- vious to 1853, the proportional mortality by puision was adopted at Calcutta in 1880, and smallpox was 21.9 to 1,000 deaths from all since then at 80 other towns of Bengal, at Mad- causes; in London it was but 16 to 1,000; in ras in 1884, and at Bombay and elsewhere in Ireland, where vaccination was much less generthe presidency a few years earlier. Revaccina- | al, it was 49 to 1,000, while in Connaught it was tion was made compulsory in Denmark in 1871, 60 to 1,000. On the other hand, in a number and in Roumania in 1874; in Holland it was of European countries where vaccination was enacted for all school pupils in 1872. The va- more or less compulsory, the proportionate numrious laws and administrative orders which had ber of deaths from smallpox about the same time been for many years in force as to vaccination varied from 2 per 1,000 of all causes in Boand revaccination in the several German states hemia, Lombardy, Venice, and Sweden, to 8.33 were consolidated in an imperial statute of per 1,000 in Saxony. Although in many in1874." 24 Encyclopædia Brstannica (1894), stances persons who had been vaccinated were Vaccination.

attacked with smallpox in a more or less modi. "In 1857 the British Parliament received an-fied form, it was noticed that the persons so atswers from 552 physicians to questions which tacked had been commonly vaccinated. many were askeå them in reference to the utility of years previously. 16 American Cyclopedia, Vacvaccination, and only two of these spoke against cination (1883). it. Nothing proves this utility more clearly "Dr Buchanan, the medical officer of the Lon. than the statistics obtained. Especially instruc-don Government Board, reported [1881] as the tive are those which Flinzer compiled respect result of statistics that the smallpox death rate ing the epidemic in Chemnitz which prevailed among adult persons vaccinated was 90 to a in 1870–71. At this time in the town there million; whereas among those unvaccinated it were 64,255 inhabitants, of whom 53,891, or was 3,350 to a million; whereas among vac83.87 per cent, were vaccinated, 5,712, or 8.89 cinated children under five years of age, 4243 per cent were unvaccinated, and 4,652, or 7.24 per million; whereas among unvaccinated child per cent, had had the smallpox before. Of dren of the same age it was 5,950 per million." those vaccinated 953, or 1.77 per cent, became Hardway, Essentials of Vaccination (1882). affected with smallpox, and of the uninocculat. The same author reports that, among other con. ed 2,643, or 46.3 per cent, had the disease. In clusions reached by the Académie de Medicine the vaccinated the mortality from the disease of France, was one that, "without vaccination, was 0.73 per cent, and in the unprotected it hygienic measures (isolation, disinfection, etc.) was 9.16 per cent. In general, the danger of are of themselves insufficient for preservatiou infection is six times as great, and the mor- from smallpox." Ibid. tality 68 times as great, in the unvaccinated, as The Belgian Academy of Medicine appointed in the vaccinated. Statistics derived from the a committee to make an exhaustive examinacivil population are in general not so instruc- tion of the whole subject, and among the contive as those derived from armies, where vac- clusions reported by them were : 1. “Without cination is usually more carefully performed, vaccination, hygienic measures and means, and where statistics can be more accurately cold whether public or private, are powerless in prelected. During the Franco-German war (1870- serving mankind from smallpox. . . 3. 71) there was in France a widespread epidemic Vaccination is always an inoffensive operation of smallpox, but the German army lost during when practised with proper care on healthy subthe campaign only 450 cases, or 58 men to the jects. . . . 4. It is highly desirable, in the 100,000 ; in the French army, however, where interests of the health and lives of our countryvaccination was not carefully carried out, the men, that vaccination should be rendered comnumber of deaths from smallpox was 23,400." pulsory."

pulsory.” Edwards, Vaccination (1882.) 8 Johnson's Universal Cyclopædia (1897), Vac- The English Royal Commission, appointed cination.

with Lord Herschell, the Lord Chancellor of "The degree of protection afforded by vac- England, at its head, to inquire, among other cination thus became a question of great inter-things, as to the effect of vaccination in reest. Its extreme value was easily demonstrated ducing the prevalence of, and mortality from, by statistical researches. In England, in the smallpox, reported, after several years of inlast half of the eighteenth century, out of every vestigation: “We think that it diminishes the 1,000 deaths, 96 occurred from smallpox; in liability to be attacked by the disease; that it the first half of the present century, out of modifies the character of the disease and renders every 1,000 deaths, but 35 were caused by twat it less fatal,-of a milder and less severe type ; disease. The amount of mortality in a country that the protection it affords against attacks of by smallpox seems to bear a fixed relation to the disease is greatest during the years immedi. the extent to which vaccination is carried out. ately succeeding the operation of vaccination." of its provisions was inconsistent with the in a reasonable and proper exercise of the rights, privileges, and liberties of the citizen. police power.” 179 N. Y. 235, 72 N. E. 97. The contention was overruled, the court say. Since, then, vaccination, as a means of ing, among other things: "Smallpox is protecting a community against smallpox, known of all to be a dangerous and con- finds strong support in the experience of this tagious disease. If vaccination strongly and other countries, no court, much less a tends to prevent the transmission or spread jury, is justified in disregarding the action of this disease, it logically follows that of the legislature simply because in its or children may be refused admission to the their opinion that particular method waspublic schools until they have been vac- perhaps, or possibly—not the best either for cinated. The appellant claims that vaccina- children or adults. tion does not tend to prevent smallpox, but Did the offers of proof made by the detends to bring about other diseases, and that fendant present a case which entitled him, it does much harm, with no good. It must while remaining in Cambridge, to claim exbe conceded that some laymen, both learned emption from the operation of the statute and unlearned, and some physicians of great and of the regulation adopted by the board skill and repute, do not believe that vacci- of health? We have already said that his nation is a preventive of smallpox. The rejected offers, in the main, only set forth common belief, however, is that it has a the theory of those who had no faith in vacdecided tendency to prevent the spread of cination as a means of preventing the spread this fearful disease, and to render it less of smallpox, or who thought that vaccinadangerous to those who contract it. While tion, without benefiting the public, put in not accepted by all, it is accepted by the peril the health of the person vaccinated. mass of the people, as well as by most mem- But there were some offers which it is conbers of the medical profession. It has been tended embodied distinct facts that might general in our state, and in most civilized properly have been considered. Let us see nations for generations. It is generally ac- how this is. cepted in theory, and generally applied in The defendant offered to prove that vaccipractice, both by the voluntary action of the nation "quite often” caused serious and perpeople, and in obedience to the command of manent injury to the health of the person law. Nearly every state in the Union has vaccinated; that the operation "occasionstatutes to encourage, or directly or indi. ally" resulted in death; that it was "imrectly to require, vaccination; and this is possible” to tell “in any particular case” true of most nations of Europe.

A what the results of vaccination would be, common belief, like common knowledge, does or whether it would injure the health or renot require evidence to establish its exist- sult in death; that "quite often” one's blood ence, but may be acted upon without proof is in a certain condition of impurity when by the legislature and the courts.

it is not prudent or safe to vaccinate him; The fact that the belief is not universal is that there is no practical test by which to not controlling, for there is scarcely any be determine “with any degree of certainty" lief that is accepted by everyone. The possi- whether one's blood is in such condition of bility that the belief may be wrong, and impurity as to render vaccination necessathat science may yet show it to be wrong, rily unsafe or dangerous; that vaccine matis not conclusive; for the legislature has the ter is "quite often” impure and dangerous right to pass laws which, according to the to be used, but whether impure or not cancommon belief of the people, are adapted to not be ascertained by any known practical prevent the spread of contagious diseases. test; that the defendant refused to submit In a free country, where the government is to vaccination for the reason that he had, by the people, through their chosen represen- "when a child,” been caused great and extatives, practical legislation admits of no treme suffering for a long period by a disother standard of action, for what the peo- ease produced by vaccination; and that he ple believe is for the common welfare had witnessed a similar result of vaccinamust be accepted as tending to promote the tion, not only in the case of his son, but in common welfare, whether it does in fact or the cases of others. not. Any other basis would conflict with These offers, in effect, invited the court the spirit of the Constitution, and would and jury to go over the whole ground gone sanction measures opposed to a Republican over by the legislature when it enacted the form of government. While we do not de- statute in question. The legislature ascide, and cannot decide, that vaccination is sumed that some children, by reason of their

, a preventive of smallpox, we take judicial condition at the time, might not be fit subnotice of the fact that this is the common jects of vaccination; and it is suggestedbelief of the people of the state, and, with and we will not say without reason—that this fact as a foundation, we hold that the this fact as a foundation, we hold that the such is the case with some adults. But the statute in question is a health law, enacted' defendant did not offer to prove that, by

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reason of his then condition, he was in fact joying the benefits of its local government, not a fit subject of vaccination at the time should have the power thus to dominate the he was informed of the requirement of the majority when supported in their action by regulation adopted by the board of health. the authority of the state. While this court It is entirely consistent with his offer of should guard with firmness every right approof that, after reaching full age, he had pertaining to life, liberty, or property as sebecome, so far as medical skill could dis- cured to the individual by the supreme law cover, and when informed of the regulation of the land, it is of the last importance that of the board of health was, a fit subject of it should not invade the domain of local auvaccination, and that the vaccine matter to thority except when it is plainly necessary be used in his case was such as any medical to do so in order to enforce that law. The practitioner of good standing would regard safety and the health of the people of Massaas proper to be used. The matured opinions chusetts are, in the first instance, for that of medical men everywhere, and the experi- commonwealth to guard and protect. They ence of mankind, as all must know, negative are matters that do not ordinarily concern the suggestion that it is not possible in any | the national government. So far as they can case to determine whether vaccination is be reached by any government, they depend, safe. Was defendant exempted from the primarily, upon such action as the state, in operation of the statute simply because of its wisdom, may take; and we do not perhis dread of the same evil results experi- ceive that this legislation has invaded any enced by him when a child, and which he had right secured by the Federal Constitution. observed in the cases of his son and other Before closing this opinion we deem it apchildren? Could he reasonably claim such propriate, in order to prevent misapprehenan exemption because "quite often," or sion as to our views, to observe—perhaps to "occasionally," injury had resulted from repeat a thought already sufficiently ex. vaccination, or because it was impossible, in pressed, namely—that the police power of a the opinion of some, by any practical test, state, whether exercised directly by the legto determine with absolute certainty wheth. islature, or by a local body acting under er a particular person could be safely vac- its authority, may be exerted in such circinated?

cumstances, or by regulations so arbitrary It seems to the court that an affirmative and oppressive in particular cases, as to jusanswer to these questions would practically tify the interference of the courts to prevent strip the legislative department of its func-wrong and oppression. Extreme cases can tion to care for the public health and the be readily suggested. Ordinarily such cases public safety when endangered by epidemics are not safe guides in the administration of of disease. Such an answer would mean the law. It is easy, for instance, to suppose that compulsory vaccination could not, in the case of an adult who is embraced by the any conceivable case, be legally enforced in mere words of the act, but yet to subject a community, even at the command of the whom to vaccination in a particular condilegislature, however widespread the epi- tion of his health or body would be cruel and demic of smallpox, and however deep and inhuman in the last degree. We are not to universal was the belief of the community be understood as holding that the statute and of its medical advisers that a system of was intended to be applied to such a case, general vaccination was vital to the safety or, if it was so intended, that the judiciary of all.

would not be competent to interfere and proWe are not prepared to hold that a minor- tect the health and life of the individual ity, residing or remaining in any city or concerned. “All laws,” this court has said, town where smallpox is prevalent, and en- "should receive sensible construction. joying the general protection afforded by an General terms should be so limited in their organized local government, may thus defy application as not to lead to injustice, opthe will of its constituted authorities, acting pression, or an absurd consequence. It will

. in good faith for all, under the legislative always, therefore, be presumed that the legsanction of the state. If such be the privi- islature intended exceptions to its language lege of a minority, then a like privilege which would avoid results of this character.

a would belong to each individual of the com- The reason of the law in such cases should munity, and the spectacle would be pre- prevail over its letter.” United States v.

v sented of the welfare and safety of an entire Kirby, 7 Wall. 482, 19 L. ed. 278; Lau Ow

. population being subordinated to the notions Bew v. United States, 144 U. S. 47, 58, 36 of a single individual who chooses to remain L. ed. 340, 344, 12 Sup. Ct. Rep. 517. Until a part of that population. We are unwilling otherwise informed by the highest court of to hold it to be an element in the liberty Massachusetts, we are not inclined to hold secured by the Constitution of the United that the statute establishes the absolute rule States that one person, or a minority of per that an adult must be vaccinated if it be sons, residing in any community and en-'apparent or can be shown with reasonable


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certainty that he is not at the time a fit sub 10^States

Circuit Court of Appeals for the


NA CERTIFICATE from the United ject of vaccination, or that vaccination, by reason of his then condition, would seriously Ninth Circuit, presenting questions respectimpair his health, or probably cause his ing the right of the United States to recover death. No such case is here presented. It is the value of timber cut from unsurveyed the cause of an adult who, for aught that land which appeared, by a private survey, appears, was himself in perfect health and to be an odd-numbered section within the a fit subject of vaccination, and yet, while limits of the Northern Pacific Railroad remaining in the community, refused to obey Company's land grant. Answered by holdthe statute and the regulation adopted in ing that, until identification by government execution of its provisions for the protection survey, the United States has a sufficient of the public health and the public safety, property right to support the action, and confessedly endangered by the presence of a that a private survey was inadmissible in dangerous disease.

evidence to identify the land as an oddWe now decide only that the statute numbered section. covers the present case, and that nothing clearly appears that would justify this court Statement by Mr. Justice McKenna: in holding it to be unconstitutional and in- Action by the United States against the operative in its application to the plaintiff Montana Lumber Company and the other in error.

defendants for the recovery of $15,000, for The judgment of the court below must be the value of 2,000,000 feet of lumber which affirmed.

had been cut by the lumber company on unIt is so ordered.

surveyed lands within the district of Mon

tana, and converted by the defendants to Mr. Justice Brewer and Mr. Justice their own use. It is alleged that the land Peckham dissent.

from which the lumber was cut when surveyed will be in township 26 N., of range

34 W., of the Montana meridian. The rail- . (196 U. S. 573)

way company answered separately, denying UNITED STATES OF AMERICA.

the allegations of the complaint. The other

defendants also denied the allegations of the MONTANA LUMBER & MANUFACTUR- mitted the cutting of the lumber, but al

complaint. Further answering, they ad. ING COMPANY, The Northern Pacific leged it was cut from land which, when sur. Railway Company, et al.

veyed, would be section 5 of said township,

and that said section was within the limits Public lands-railroad land grants-re of the grant made by Congress to the Northmoral of timber from unsurveyed land- ern Pacific Railroad Company, and that the

, evidence-private survey inadmissible to lumber company was, at the time of the identify odd-numbered sections.

cutting, the owner of the lands by conveyo

ances from the railway company. 1. Until identification by government survey The case was tried to a jury. A nonsuit of the even and odd-numbered sections of the

was granted as to the railway company. land within the limits of the grant of the odd-numbered sections on each side of the Under instructions of the court a verdict line of the Northern Pacific Railroad, made

was returned for the other defendants. by the act of July 2, 1864 (13 Stat. at L. 367, On the trial of the case the lumber comchap. 217), the United States has such a pany was permitted to introduce in evidence, property in the timber growing thereon as

over the objection of the plaintiff, a private enables it to recover the value of the timber cut and removed by the railroad company or survey of a portion of the township, made its grantees.

by one John J. Ashley, a civil engineer and 2. A private survey is inadmissible in evidence surveyor, in the year 1886, for the Northern

in an action by the United States to recover Pacific Railroad Company, for the purpose the value of timber cut from unsurveyed of ascertaining the location of the railroad lands, to show that, when surveyed, the land sections contained in said township, in conwill be an odd-numbered section, and there-nection with other evidence that the timber fore included in the grant to the Northern Pacific Railroad Company, by the act of July sued for was taken from what Ashley had 2, 1864 (13 Stat. at L. 367, chap. 217), of designated as section 5. the odd-numbered sections on each side of the In rebuttal of this evidence the plaintiff line of the railroad.

offered to prove by George F. Rigby, a sur

veyor and engineer, that he had made a sur[No. 125.]

vey of the same lands, and that the Ashley

survey was incorrect, and that section 5, as Argued January 12, 13, 1905. Decided Feb-located by Ashley, had been placed three ruary 20, 1905.

fourths of a mile too far east. The court

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