Lead Opinion
The ease presents simply the question whether the so-ealled eugenics law is constitutional. It was held unconstitutional by the trial court because (1) it is an unreasonable restriction upon the inalienable right of marriage; (2) it impairs the inherent right to enjoy life, liberty, and the pursuit of happiness; (3) it interferes with religious freedom.
Before taking up for discussion the specific objections to the law, some general, fundamental propositions, which are not open to question, may profitably be stated.
The power of the state to control and regulate by reasonable laws the marriage relation, and to prevent the contracting of marriage by persons afflicted with loathsome or hereditary diseases, which are liable either to be transmitted to the spouse or inherited by the offspring, or both, must on principle be regarded as undeniable. To state this proposition is to establish it. Society has a right to protect itself from extinction and its members from a fate worse than death. If authority be needed to support this proposition, reference may be made to Ereund on Police Power, § 124, and cases there cited.
When the legislature passes a constitutional law, that law establishes public policy upon the subjects covered by it, and that policy is not open to question by the courts.
The courts must sustain a law unless its unconstitutionality be beyond reasonable doubt. If the law be ambiguous or open to two constructions, that construction which will save it from condemnation and accomplish the legislative purpose is always to be adopted in preference to a construction which makes it unconstitutional.
Neither the legislative idea nor the legislative purpose in the passage of the present law can be a matter of serious doubt. The idea plainly was that the transmission of the so-called venereal diseases by newly married men to their innocent wives was a tremendous evil, and the purpose just as plainly was to remedy that evil so far as possible by prevent
An argument is made tbat tbe law is void because tbe classification is unreasonable, arbitrary, and discriminatory, in tbat it singles out men about to marry and mates a class of them, there being, as it is argued, no substantial differences wbicb suggest tbe propriety of different legislative treatment between men wbo are about to marry and women wbo are about to marry. Theoretically tbe argument is strong. Women wbo marry and transmit a loathsome disease to their husbands do just as much barm as men wbo transmit such a disease to their wives. If women were in fact doing this thing as frequently or anywhere nearly as frequently as men tbe argument could hardly be met. Tbe medical evidence in tbe case, however, corroborates what we suppose to be common knowledge, namely, tbat tbe great majority of women wbo marry are pure, while a considerable percentage of men have bad illicit sexual relations before marriage, and consequently tbat tbe number of cases where newly married men transmit a venereal disease to their wives is vastly greater than tbe number of cases where women transmit tbe disease to their newly married husbands. Classification is not to be condemned _ because there may be occasional instances in wbicb it does not fit tbe situation; it is proper if tbe great mass of situations to wbicb tbe law applies justify tbe formation of a class and tbe application of some special or different legislative provisions to. tbat class. Classification can rarely be mathematically exact. Tbe question is not whether in some individual instance there is any perceptible ■ distinction, but “whether there are characteristics wbicb in a greater degree persist through tbe one class than in tbe other,” and wbicb justify tbe different treatment. State v. Evans, 130 Wis. 381, 110 N. W. 241. Tbat there are such characteristics in tbe class of unmarried men is as certainly true as it is discreditable to tbe male sex.
In considering this question it will- be profitable in the beginning to determine what diseases the law covers. It will be noticed that the first subsection requires the prospective husband, within fifteen days previous to his application for license to marry, to be examined as to the existence in him of "any venereal disease.” The law then makes it unlawful for the county clerk to issue a marriage license to such person if he fails to present a certificate setting forth that he is free from “acquired venereal diseases,” and then prescribes the form of such certificate, which form contains the statement that the applicant is free from “all venereal diseases.”
This seems quite confusing. According to the medical testimony and the dictionaries, there are three separate diseases (which, however, may coexist) generally known as “venereal diseases,” viz. gonorrhea, chancroid (or local contagious ulcers), and syphilis. While some of the physicians say that syphilis is not a venereal disease in the scientific sense, especially when it is inherited or affects parts of the body other than the sexual organs, it. seems to be quite well agreed that it is a venereal disease in. the generally accepted use of that term, and hence is included within the provisions of the law in question. There is a distinct form of syphilis, however, termed inherited, which’ is or may be present in the children of syphilitic parents, and so it is true that there are in fact two well recognized forms of syphilis, i. e. the acquired and the inherited, the acquired being understood in medicine as that form which “is obtained otherwise than by inheritance or during the process of birth.” This distinction
The fact that the wording of the certificate was not changed at the same time is unfortunate, but not necessarily fatal to the legislative purpose. When, as here, that purpose is made clear by the history of the bill, confusion and even contradiction in language will not hinder the court from giving effect to that purpose. We deem it clear that the act as passed was intended to cover only acquired venereal diseases as understood ip. medical science, and that the form of physician’s certificate in the act is to be construed as covering only such diseases.
With these presumptions in mind it seems very hard to reach the conclusion that they intended that the Wassermann test should be a prerequisite to the granting of every certificate, for this would mean a practical embargo on marriage. Nor do we think that the language of the act necessarily forces us to this conclusion. The act requires physical examination and “the application of the recognized clinical and laboratory tests of scientific search.”
As to the meaning of the terms “clinical and laboratory tests,” we adopt the definitions given by one of the physicians who testified for the petitioner. He says:
“The term 'clinical’ is a term which is dependent upon the meaning of the word 'clinic.’ Clinos or clinurn in Latin means a bed, and the clinical tests of any disease are those that may be observed by the bedside or when the patient is in the office. Scientific and laboratory tests are tests of anything that may come under the purview or the examination of a scientific man which call for proofs by means of instruments, apparatus, or chemical reactions, which are incapable of imagination or sentiment. All the things that can be discovered at the bedside or upon the general examination of a patient when none of the tests that are dependent upon the use of instruments, apparatus or chemical examinations that are incapable of being influenced by imagination or sentiment are one thing and deal entirely with the imagination or opinion of the examiner. Those that are laboratory tests are such as bring out absolute and unquestionable proofs which are incapable of being influenced by sentiment or imagination.”
It seems also that a clinical examination takes into consideration such parts of the history of the case as are credible and not probably lies on the part of the patient, and covers as well the objective symptoms which/ as said by one of the physicians, are protéan thousands in form. The term “physical examination” explains itself. It includes, of course, a
It is not claimed in this ease that the Luetin test is included within the statutory command, although it seems to he a recognized test. Strict logic would seem to require the administration of the Luetin test if it requires the Wassermann test.
On this question as to whether the words “recognized laboratory tests” include all the tests which are in common use, some help may perhaps he obtained from the legislative history of the bill. As introduced the bill provided for the appointment by the board of health of special examiners not exceeding ten in each county (except Milwaukee, where the maximum was fixed at twenty-five). These examiners were to be licensed physicians of good moral character and scientific attainments, at least thirty years of age. Evidently it was contemplated that the examiners, as compared with the great body of the profession, should be experts, and, as the bill at that time provided for an examination covering inherited syphilis as well as acquired, it may be admitted as probable that it was in contemplation of its authors that all the known tests should be applied. The legislature, how
Now the legislature did not say “all of the recognized tests,” but simply “the recognized tests.” Of course these latter words frequently and perhaps logically mean all, but do they as used in this law ? Here is a case where the legislature must be presumed to know that only an occasional medical practitioner can make the Wassermann test, and yet provides for the application of the recognized tests by every practitioner over thirty years of age. When we consider this fact in connection with the other fact that there are recognized laboratory tests, to wit, the stains which can be made by all physicians with a well equipped laboratory, it seems quite impossible to believe that the Wassermann test was considered a sine qua non.
As has been before said, if the act is capable of two constructions, one of which will condemn it and the other save it from condemnation, we must give it the latter construction. Now we have in this case the following circumstances which are entitled to be considered in arriving at the intention of the legislature in using the words “recognized tests:”
First, inherited syphilis is not within the purview of the law; second, all gonorrhea can be absolutely detected by the
In view of all these facts and in view of the fact that the legislature wished to reach practical and possible results, it seems unreasonable to suppose that they intended to prescribe tests which the great majority of the official examiners were not able to make. We prefer to construe the words “recognized tests” as intended to refer to the tests recognized and used by the people who were to make them. This construction sustains the law, makes it r'easonable, accomplishes its evident purpose, and provides for a guard to marriage fully as effective in the vast majority of cases as the application of the Wassermann test.
We have not been able to appreciate the force of the contention that the law interferes in any respect with religious
In case of refusal of the certificate the law does not provide for a jury trial of the question, but only for a trial before the county judge, and it has been suggested rather than argued that this is a denial of due process of law. We find nothing in the objection. If it be, as we hold, within the police power to prohibit a marriage until the fact of the absence of venereal diseases. in the male is ascertained, the power to determine that fact must be vested in some competent body or person, and the exercise of the police power does not wait upon the slow processes of jury trials. It might be; argued with much force that a law which should attempt to make the right to marry absolutely and solely dependent on the determination of a single individual, even though a physician and an expert, would be unreasonable. In view of that possibility doubtless the provisions of sub. 4 were in-' serted in the present law, and we perceive no good reason for holding that they do not afford sufficient protection to the applicant. If the state can refuse to permit the diseased to marry, it must, of course, provide a means of ascertaining the fact, and if it provide a means which can reasonably be expected under all ordinary circumstances to ascertain the fact in accordance with truth, that must be sufficient. In our judgment the law before us provides such a means.
It is said that the fee provided by the law is entirely insufficient, even if the Wassermann test be not required. Upon this question there is a difference of opinion among the physicians. We incline to the opinion that the fee is a very meager one. We should not, however, feel justified in holding the law unconstitutional on this ground. The penalties provided by sub. 6 of the law are said to be extreme. This may he so. We do not feel required to pass on that .question in this case. In any event, we cannot suppose that
By the Court. — Judgment reversed, and action remanded with directions to quash the alternative writ.
Dissenting Opinion
(dissenting). I cannot agree to the decision of this case because:
1. To marry is a natural right. • It is thus guaranteed by the purpose and spirit of the constitution: “All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” Sec. 1, art. I, Oonst. of Wis.
2. Legislative authority, called the police power, to regulate natural rights is necessarily limited to safeguarding those rights. That which 'conserves is, therefore, constitutional, while that which is so unduly oppressive as to materially impair is unconstitutional. So it is held that those regulations* which are promotive of rights are reasonable and constitutional while those which are not appropriate in kind to conserve, or are so severe as to be unduly oppressive, are unreasonable and unconstitutional.
3. The marriage right is a proper subject for legislative regulation; but not for legislative destruction or material impairment. .Whether the means of regulation are legitimate and whether the degree of restraint is unduly oppressive, are judicial questions.
4 The law in question requires, as a condition of competency to marry, that the male shall be free from any type of specified human infirmities, the proof to be made by scientific tests, which the evidence shows but few are sufficiently expert and have the instrumentalities to apply, and which cannot be applied for the fee named in the law, or without such expense as to operate as a serious restraint upon mar
5. It is legitimate to condemn a separable part of an enactment and sustain the rest, where there is reasonable certainty that the legislature would have enacted the latter had it appreciated the invalidity of the former, and where such latter, by itself, forms a complete workable enactment; and, where there is ambiguity in an act and, yet, it will admit of a reasonable construction which will sustain it, and there are no persuasive circumstances to indicate legislative intention not to include the legitimate idea, that is to be regarded as the proper one; but the court cannot properly ascribe a meaning to an enactment which cannot reasonably be read out of it, nor one which plainly violates the legislative purpose. To do the latter would be to make law instead of declaring the law as made by the lawgivers.
6. According to all evidence in this ease/ the enactment in question means one thing and cannot reasonably be said to mean anything else, and all concede that, given such meaning, it is^unquestionably, a destructive interference with the marriage right. There is no legitimate way, in my judgment, of judicially recasting the legislative work in that respect. Rules for construction are not adequate for the situation. If there were less of, in effect, judicially making written law over by weeding' out inconsistencies and twisting words out of their natural or obviously designed orbit so as to make, them operate sensibly and conservatively instead of destructively, there would be less efforts to make people conform to artificial standards set up by well meaning theorists,
7. The penal features of a police regulation, designed to prevent and punish its violation, are such an essential portion thereof as to be inseparable therefrom. Without them the law would he a collection of words without vitality, which a legislature would not, consciously, indulge in. Therefore, where such element is so harsh as to violate the prohibition of cruel or unusual punishments, or so tends to terrorize as to prevent freedom of appeal to the courts for redress or prevention of supposed wrongs, the whole enactment partakes of the unconstitutional character of such element and is void. Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441; Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885.
8. The penal clause here seems to be in the class with those found to be fatally unusual and unduly oppressive in the cases above cited. It is conceded, as I understand it, that it is impracticable to satisfy the certificate prescribed by the law, — in any event the evidence seems all one way on the subject, and that something less severe as to the examination must be found to be satisfactory, yet, if a county clerk issues a license, except upon the particularly worded certificate, he will be guilty of a felony and liable to confinement in the state prison for the term of five years. So if an intended bridegroom finds- himself unable to carry out his promise, or an intended bride finds herself stranded, so to speak, on the shoals of this drastic regulation, — 'though there be no real danger in the contemplated union being consummated, — or if the parents of either or any one having knowledge of the facts, though acting from the purest motives and in explanation of the unfortunate dilemma, discloses the reason why the-mutual promises cannot be carried out, such person will be liable to punishment by confinement in the state prison for five years. The mere statement of the matter seems enough to condemn the act utterly
10. Eecapitulating: The act unduly casts suspicion of immorality and criminality of most serious nature upon every male candidate, present, prospective, or possible, for the marriage state. It imposes such an oppressive burden upon all such candidates as to proving competency to enjoy the natural right of marriage, or so takes such right away without justification in many cases and restrains its exercise .generally, as to efficiently discourage an institution which is absolutely essential to public welfare and so recognized and protected by the fundamental law. By so oppressively interfering with the constitutional right of marriage as to partially or wholly destroy that right, the tendency will inevitably be to promote immorality and social and racial retrogression. The penal feature is so severe as to destroy freedom of appeal to the law of the land for redress. To so read the law as to take from it any of these infirmities is to go outside the judicial field and make a law.
For the reasons stated, I think it is the duty of the court to condemn the act in question as subvertive of constitutional liberty and right. That the motives of those whose activities resulted in imposing such enactment upon the people of this state were of the purest, I do not question; but if all the well-meant suggestions of volunteer social reformers were vitalized by written law, we might have a system worse than
The court’s opinion constrains me to add this:
The history of a legislative enactment may be looked to in aid of judicially clearing up its obscurities, but not to justify putting words into or taking words out of it not therein or thereout by reasonable implicationand, in the end, no meaning can properly be ascribed thereto, not fairly found expressed by the words thereof, taken in their reasonable scope, — which violates the rules of language or of law, — reven though there be evidence aliunde the writing that such was the legislative purpose. To overstep this is to make rather than to declare and apply law, forgetting “that the judicial office is jus dicere, et non jus dared1
An act of the legislature regulating civil conduct establishes public policy within the scope of legislative power; but when the enactment contravenes the higher public policy, enshrined in the fundamental law, the latter prevails and the former is not law at all.
The statement “that the police power does not wait upon the slow processes of jury trial” is rather too broad and in my opinion is subject to many important exceptions accord
I think I as fully appreciate as any one the importance of social purity and protection of the newly elected mothers of the races to come from contamination and suffering; but there is reason in all things and there is a realm beyond and between the two stands the constitution. Removal of all responsibility for self-care would eventually result in a weak and degenerate race. Undue regulations of ordinary affairs and rights tend to produce the very condition they are aimed to prevent, or something worse, and are self-destructive where not unconstitutional.
I have aimed to state my views of the legislation in question in its constitutional aspect with a minimum of discussion of the enactment in detail, preferring to formulate, concisely, elementary principles, associated with a few observations appropriate to the situation and trust the reader to apply them to the act and the court’s opinion as they will be found in the report of this case. If those principles, briefly illustrated, without the aid of judicial decisions, do not efficiently indict and condemn the enactment they will show much clearer the grounds for my opinion than lengthy discussion would and will be more likely to be helpful in respect to future legislative efforts.
Concurrence Opinion
(concurring). The statute in question, ch. Y38,. Laws of 1913, requires that, upon application for a marriage license, the male party to such marriage must, within fifteen days prior to the application, he examined by a physician of designated qualifications with reference to the existence or nonexistence of any venereal disease in such male person. The licensing officer is prohibited from issuing a license unless a certificate of such a physician is presented setting forth that this male person is free from acquired venereal disease' so far as can be determined by the recognized clinical and laboratory tests of scientific search. Physicians were called as witnesses in the court below and some of them testified, in substance, that the recognized laboratory tests of scientific search include what is known as.the Wassermann test for syphilis. This test requires a special laboratory equipment, and out of 3,000 physicians in this state not more than twenty-five, and out of 300 physicians in Milwaukee county not more than six, are equipped or prepared to apply the Wassermann test. That the fee of $3 fixed by statute is unreasonably small for making the Wassermann test, for which the reasonable charge would be about $25. The Wassermann test is described in volume 20, present edition of The Americana, subject “Syphilis,” and the description need not be repeated. It is said to have been in use about 'seven years, and in the encyclopedia mentioned is somewhat discredited already, and the testimony in this case corroborates such discredit. Eor it was quite unanimously agreed upon that repeated experiments covering quite a long period of time were necessary, that a negative result did not prove the-subject free from syphilis, while a positive result meant that the subject had measles or scarlet fever or tuberculosis or
I do not concede that, weighted down with the Wasser
Taking in this wide sweep would include those laboratory tests which obtain recognition for a few months or a few years and then are abandoned and forever afterwards strangers to science. “Eecognized” here and in this connection means “well known,” “accepted,” and “established.” The law requires us to find the statute constitutional if by any reasonable interpretation it can be made to conform to the constitution, and not to search after something which would tend to make the statute invalid. Is the statute, thus interpreted, constitutional? The learned' circuit judge thought that it conflicted with sec. 1, art. I, and sec. 18, art. I, of the state constitution. The first is a declaration that all men are born equal, free, and independent, and have certain inherent rights; among them life, liberty, and the pursuit of happiness. The second relates to freedom of worship and liberty of conscience. It is not contended that the state constitution elsewhere, by express interdict or by necessary implication, prohibits the legislation in question. The statute in question, although often alluded to as “The Eugenic Mar
I have much doubt whether the state or condition called “happiness” in the constitution, or the state, condition, or occupation there described as “the pursuit of happiness,” is capable of judicial ascertainment or identification. This process would seem to be necessary before a court could determine whether a given statute impinges against or encroaches upon such state or condition. It is, however, quite unnecessary to determine this question here, for, assuming for argument’s sake that the vague generalization quoted does guarantee to the citizen certain rights which the legislature may not by statute take away, still the exercise of all constitutional rights is subject to reasonable regulation in the public interest under the so-called police power of the state. Before the statute in question could be declared invalid on this hypothesis it must appear that the statute was not at all conducive to the preservation of public health, welfare, or morals, or that it carried regulation to an unreasonable or unnecessary extent and so as to interfere seriously with constitutional rights. It is said by those who have studied the
In vol. 5, part 2, pp. 324 to 368, “Transactions of the Fifteenth International Congress of Hygiene and Demography,” are several papers on this subject, in one of which (p. 338) Dr. Lung endeavors to show that venereal diseases are as prevalent in civil life as in the United States navy. If this is correct, they are very prevalent. Chapin on Municipal Sanitation in the United States contains the statement that these diseases are very prevalent, but the only definite figures given relate to 2,886 examinations in ten months of 230 prostitutes, 'which discovered only forty-two cases. In the army and navy, and in cases of applicants for enlistment as soldiers or sailors, superior opportunities for
This condition of our army and navy is thought by some to be largely due to the greater influence in this country of well-meaning and emotional, but illy-informed, persons, who reject the teachings of experience elsewhere and refuse to recognize the prostitute by compelling her to submit to inspection and regulation. It does not seem probable that this high percentage of venereal disease in the army and navy measures the prevalence of such diseases in civil life, but it shows that there is enough in the last mentioned walks of life to justify legislative action in prevention of its spread. It is also thought by the highest medical authorities that the main source of venereal infection is the prostitute, and that here regulation and prevention may be made most effective.
We are not authorized to set up our judgment on such matters against that of the legislature or do more than measure the statute against the constitution, and if we find therein no prohibition expressed or necessarily implied against such legislation the statute must be enforced.
For my part I have no sympathy with this statute. I think it tends to discourage marriage rather than to prevent the spread of venereal diseases. All experience goes to show that laws making marriage expensive or difficult or subject to objectionable requirements tend to increase illegitimate sexual intercourse. The latter tends to promiscuousness, hence to the spread of venereal diseases. The notion that wives are infected only by husbands who at the time of marriage have venereal diseases seems very simple. If a man
I cannot imagine how this law can be said to interfere with freedom of worship or liberty of conscience. The notion that marriage was a sacrament, not a civil contract creating a status, once vigorously asserted, has long since passed away. A point is made that requiring the prospective husband to submit to the examination without making the prospective wife do so conflicts with the Fourteenth amendment to the United States constitution, which forbids the states to deny the equal protection of the laws. But the men desiring to marry form a very definite class quite germane to the object-sought to be accomplished by the statute. And we read' in the learned medical treatises that while the primary source of venereal infection is usually the prostitute, still such dis
It is probable that in an action by a doctor under thirty years of age but otherwise qualified, or by an applicant for a license who held a certificate from such physician as is last described, that portion of the statute in question which requires the applicant for a marriage license to present to the licensing officer the certificate of a physician “at least thirty years of age” would be held invalid under the rule of Smith v. Texas, 233 U. S. 630, 34 Sup. Ct. 681. But the relator is in no position to raise this question, and the last mentioned part of the act is clearly severable from the remainder and cannot be said to be either an inducement to the enactment in question or an essential part thereof without which the legislature would in all probability not have enacted the remainder of the statute. I find no ground for holding that part of the statute here involved unconstitutional.
Concurrence Opinion
(concurring). I concur in the result, but do not agree with all that is said in the opinion.