after making the foregoing statement, delivered the opinion of the court.
We pass without extended discussion the suggestion that the particular section of the statute of Massachusetts now in question (§ 137, c. 75) is in derogation of rights secured by the Preamble of the Constitution of the United States. Although'that Preamble indicates the. general purposes for which the people ordained and established the Constitution,. it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those, so granted. Although, therefore, one of the declared objects of the. Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, • apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom. 1 Story’s Const. § 462.
We also pass without discussion the suggestion that the above section of the statute is opposed to the spirit of the Constitution. ’ Undoubtedly, ás observed by Chief Justice Marshall, speaking for the court in
Sturges
v.
Crowninshield,
What, according to the judgment of the state court, is the
The Supreme Judicial Court .of Massachusetts said in the present case: “Let us consider the offer of evidence which was made by the defendant Jacobson. The ninth of the propositions which he offered to prove, as to what vaccination consists of, is nothing more than a fact of common knowledge, upon which the statute is founded, and proof of it was unnecessary and immaterial. The thirteenth and fourteenth involved matters depending upon his personal opinion, which could not be taken as correct, or given 'effect, merely because he made it a ground of refusal to comply with the requirement. Moreover, his views could not affect the validity of the statute, nor entitle him to be excepted from its provisions.
Commonwealth
v.
Connelly,
163 Massachusetts, 539;
Commonwealth
v.
Has,
122 Massachusetts, 40;
Reynolds
v.
United States,
-. While the mere rejection of defendant’s offers of proof does not strictly present a Federal question, we may properly regard the. exclusion of evidence upon the ground of its irico'mpetency or immateriality under the statute as showing what, in “the opinion of the state court, is the scope and meaning of the statute. Taking the above observations of the state' court as indicating the scope of the statute — and such is our duty,
Leffingwell
v.
Warren,
The authority of the State to enact this statute is to be
We come, then, to inquire whether any right given, or secured by the Constitution,' is invaded :by the statute as in
Applying these principles to the present case; it is to be obserVed that the legislature of Massachusetts required the inhabitants of a city or town to be vaccinated only when, in the opinion of the Board of Health, that was necessary for the public health or the public safety. The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body; and surely it was appropriate for the legislature to refer that question, in the first instance, to a Board of Health, composed of persons residing in the locality affected and appointed, presumably, because of their fitness to determine such questions. To invest such a body with authority over such matters was not an unusual nor an unreasonable or arbitrary requirement. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that whén the regulation in question was adopted, smallpox, according to the recitals in the regulation adopted by the Board of Health, was prevalent to some extent in the city of Cambridge and the disease was increasing. If such was
It is said, however, that the statute, as interpreted by the state court, although making an exception in favor of children certified by a registered physician to be unfit subjects for vaccination, makes no exception in the case of adults in like condition. But this cannot be deemed a denial of the equal protection of the laws to adults; for the statute is applicable equally to all in like condition and there are obviously reasons why regulations may be appropriate for adults which could not be safely applied to persons of tender years.
Looking at the propositions embodied in the defendant’s rejected offers of proof it is clear that they are more formidable by' their number than by their inherent value. Those offers in the main seem to have had.no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as- a means of preventing the spread of smallpox'or who think that vaccination causes other diseases of the body. What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief and is maintained by high medical authority. We must assumé' that when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose be-, tween .them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. . It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain. It could not properly abdicate its function to guard the public health and safety. The state legislature proceeded upon the theory which recognized vaccination as at least an effective if not the best known way in which to meet and suppress the
Whatever may be thought of the expediency of this statute, it cannot be affirmed to.be, beyond question, in palpable conflict with the Constitution. . Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the State to that end has no real or substantial relation' to the protection of the public health and the public safety. Such an assertion would not be consistent with the experience of this and other countries’ whose authorities have dealt with the disease of smallpox.
1
And the principle of vaccination as a means to
“ It must be-conceded that spme laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided’ tendency to prevent the spread of this fearful disease and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. It has been- general in our State and in most civilized nations for generations. It is
. “ A common belief, like, common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts. . . .
“ The fact that the belief is not universal is not controlling, for there- is scarcely -any helief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which;- according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action; for what the. people believe, is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not.. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a republican form of government. While we do not decide and cannot decide that vaccination is a preventive of smallpox, we take judicial notice of the fact .that this is the common belief of the people of the State, aind with this fact as a foundation we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.”- 72 N. E. Rep. 97.
Since then vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because in -its or their opinion that particular method was— perhaps or possibly — noUthe best either for children or adults.
Did the. offers of proof made by the defendant present a case which; entitled him, while remaining in Cambridge, to
The defendant offered to prove that vaccination “quite often” caused serious and'permanent injury to the health of the person vaccinated; that the operation “occasionally” resulted in death; that it was “impossible” to tell “in any particular case” what the results of vaccination would be or whether it yould injure the health- or result in death; that “quite often” one’s blood is in a certain condition of impurity when it is not prudent or, safe to vaccinate him; that there is no practical test by which to determine “with any degree of certainty” whether one’s blood is in such condition of impurity as to render vaccination necessarily unsafe or dangerous; that vaccine matter is “quite often” impure and dangerous to -be used, but whether impure or not cannot be ascertained by any known practical test; that the defendant refused to submit to vaccination for the reason that he had, “when a child,” been caused great and extreme suffering for a long period by a disease produced by vaccination; and that' he had witnessed a similar result of vaccination not only in the case of his son, but in the cases of others.'
These offers, in effect, invited -the court and jury to go over-the whole ground gone over by the legislature when it enacted the statute in question. The legislature assumed that some children, , by reason of their condition at the- time, might not be fit subjects of vaccination; and it is suggested — and we will not say without reason — that such is the case with some adults. But the defendant did not offer to prove that, by reason of his then condition, he was in fact not a fit subject of-vaccination
It seems to the court that an affirmative answer to these questions would practically -strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease. Such an answer would mean that compulsory vaccination could not, ■in- any conceivable case, be legally enforced in a community, even at the command of the legislature, however widespread the epidemic of smallpox, and however deep and universal was the belief of the community and of. its medical advisers, that a system of general vaccination was vital to the safety of all.
We are not prepared to hold that a minority, residing or •remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by'an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of. the State. If such be the privilege of a minority
Before closing this opinion we deem it appropriate, in order to prevent misapprehension, as to our views, to observe— perhaps to repeat a thought already sufficiently expressed, namely — that the police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression. Extreme cases can be readily suggested. Ordinarily such cases are -not safe guides in the administration of the law. It is easy; for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health
. We now decide only that the statute covers the present case, • and that nothing clearly appears that would justify this court in holding it to be unconstitutional and inoperative in its application to the. plaintiff in error.
The judgment of the court below must be affirmed.
It is 'so ordered.
Notes
“Statersupported facilities for vaccination began in England in 1808 with the National Vaccine Establishment. In 1840 vaccination fees were, made payable out of the rates. The first compulsory act was passed in 1853, the guardians of the poor being entrusted with the carrying out of the law; in 1854 the public vaccinations under one year of age were 408,825 as against an average of 180,960 for sevéral years before. In 1867 a new Act was passed, rather to remove some technical difficulties than to enlarge the scope of the former Act; and in 1871 the Act was passed which compelled the boards of guardians to appoint vaccination officers. The guardians also appoint a public vaccinator, ,who must be duly qualified to practice medicine, aftq whose duty it is to vaccinate (for a fee of one shilling and sixpence) any child resident within his district brought to him for that purpose, to examine the same a week after, to give a certificate,’ and to certify to the vaccination officer the fact of vaccination or of insusceptibility. ....
“In 1857 the British Parliament received answers from 552 physicians to questions which were asked them in reference to the utility of vaccination, and only two of these spoke against it. Nothing proves this utility more clearly than the statistics obtained. Especially instructive are those which Flinzer compiled respecting the epidemic in Chemitz which prevailed in 1870-71. At this time in the town there were 64,255 inhabitants, of whom 53,891, or 83.87 per cent., were vaccinated, 5,712, or 8.89 per cent. were unvaccinated, and 4,652, or 7.24 per cent., had had the smallpox before. Of those vaccinated 953, or 1.77 per cent., became affected with smallpox, and of the uninoeculated 2,643, or 46.3 per cent.', had the disease. In the vaccinated the mortality from the disease was 0.73 per cent., and in the unprotected it was 9.16 per cent. In general, the danger of infection is six times as great, and the mortality 68 times as great, in the unvaccinated as in the vaccinated. Statistics derived from the civil population are in general not so instructive as those derived from armies, where vaccination is usually more carefully performed and where statistics can be more accurately collected. During the Franco-German war (1870-71) there was in France a widespread epidemic of smallpox, but the German army lost
“The degree of protection afforded by vaccination thus became a question of great interest. Its extreme value was easily demonstrated by statistical researches. In England, in the last half of the eighteenth century, out of every 1,000 deaths, 96 occurred from smallpox; in the first half of the present century, out of every 1,000 deaths, but 35 were caused by that disease. The amount of mortality in a country by smallpox seems to bear a fixed relation to the extent to which vaccination is carried out. In all England and Wales, ■ for some years previous to 1853, the proportional mortality by smallpox was 21.9 to 1,000 deaths from causes; in London it was but 16 to 1,000; in Ireland, where vaccination was much less general, it was 49 to 1,000, while in Connaught it was 60 to 1,000. On the other hand, in' a number of European countries where vaccination was more or less compulsory, the proportionate number of deaths from smallpox about the same time varied from 2 per 1,000 of causes in Bohemia,' Lombardy, Venice, and Sweden, to 8.33 per 1,000 in Saxony.. Although in many instances persons who had been vaccinated were attacked with smallpox in a more or less modified form, it was noticed that the persons so attacked had been commonly vaccinated many years previously;” 16 American Cyclopedia, Vaccination, (1883).
- “ ‘Dr. Buchanan, the medical officer of the London Government Board, reported [1881] as the result of statistics that the smaljpox death rate among adult persons vaccinated was 90 to' a million; whereas among those unvaccinated it was 3,350 to a million; whereas among vaccinated children under 5 years of age, 42J per million; whereas among unvaccinated children of the samé age it was 5,950 per million.’ Hardway’s Essentials of Vaccination (1882). The same author reports that among other conclusions reached by the Académie de Médicine of France, was one that ‘without vaccination, hygienic measures (isolation, disinfection, étc.) are of themselves insufficient for preservation from smallpox.’ ” 76.
“ The Belgian Academy of Medicine appointed a committee to make an exhaustive examination of the whole subject, and among the conclusions reported by them were: 1. ‘Without vaccination, hygienic measures and means, whether public or private, are powerless in preserving mankind from smallpox. . ; . . 3. Vaccination is always an inoffensive operation when
The English Royal Commission, appointed with Lord Herschell, the Lord Chancellor of England, at its head, to inquire, among other things, as to the effect of vaccination in reducing the prevalence of, and mortality from, smallpox, reported, after several years of investigation: “We think that it diminishes the liability to be attacked by the disease; that it modifies the character of the disease and renders it less fatal, of a milder and less severe type; that the protection it affords against attacks of the disease is greatest during the years immediately succeeding the operation of vaccination.” i