*1 999' . FEBRUARY 1900. N. O.] Hat. State v. HAY.
STATE v. W. E. 1900.) (Decided 20, March Vaccmation—Violation Town Ordinance Compulsory 1898, 211f.,Section 28— Burlington Chapter of—Act Code, 8820. Lex—The Section Suprema Salus Populi prin- safety highest the foundation is the 1. law —it is The government. urgent ciple civil cause of all carefully chap. 1893, 214, drawn is a statute 3. The Act of empowering public health, preservation of the and its 23 sec. regulations county to make authorities of and town inhabitants, provisions and to for the vaccination governmental by penalties, exercise of -them a valid enforce safety. welfare, police health and experience long authorities, medical confirmed mankind, efficacy preventive attest the vaccination as disease, small-pox. or alleviative most dreadful leaving optional all, no one’s 5. The law embraces compliance private If or not. whether to render exceptional owing peculiar cases, state where there dangerous, system, vaccination would be of the health defense, on be matter of the burden which would jury. uefendant, and a to be found fact Prosegution 3820, tinder sec. of The Code, CeiMINau of an ordinance town of on violation of tbe tried Burlington, Brown, J., at Novem- Court, from the before appeal Mayor’s ber Court of Alamance 1899, Term, Superior County. The ordinance related to and is as follows: Carolina, North Alamance County.
“That citizens of vaccinated Burlington successfully within the last three shall be years vaccinated between this date (March 1899), March Friday night, 17, instant-,, and all m., o’clockp. persons vaccinated refusing shall IN THE SUPREME COURT. *2 $10 b© fined after every day they refuse, called being n uponby the doctors or appointed, imprisoned days.” thirty
The defendant refused to be vaccinated for the reason that had Re been that advised believed it would be dangerous for him reason of his physical condition.
In order to test of the ordinance and for validity to allow to the State the case was appeal, decided purpose verdict favor pro by special defendant, from forma rendered the Solicitor appealed. for the- Attorney-General, State.
Defendant not represented. J. 214, of the Chapter Laws a 1893, is well-
Clark, considered carefully-drawn statute for the preservation health. Section 23 thereof, which is specifically regard contains among provisions this n clause: “The authorities of or or any city the Board town, County Commissioners county, mate such regu- lations and fox the provisions vaccination of its inhabitants under the direction of the local or Board of Health County or a committee chosen for the purpose, such impose penal- ties as deem necessary protect public health.” Constitution, no is provision which forbids the is enact, and it indeed exercise of that governmental police power legislate for the public welfare which inherent is the General Assembly, when except express restrained constitutional provision. lex, Salus “the welfare is supremo, populi law,” the foundation is principle civil government. It cause urgent why government established, fox, “All evil.” Burke says: government state of evil than the intolerable however, a much lesser is, N. FEBRUARY O.] v. Hat. which would if there no
things exist, were government bridle the absolute man to do “that which right every seems his own eyes,” like Israelites in of Micah. days The above maxim, Bacon, from Lord quoted placed appro- first Broom in his priately Maxims,” treatise on “Legal with this just observation: “There is an assent on implied member of part every own wel- his individual society fare in cases of shall, necessity, to that the com- yield and that his munity; and life under property, liberty shall, certain circumstances, be even placed sacrificed jeopardy for the public good.” This which observation, is almost a *3 literal translation from he Grotius, fortifies by quotations 'from Hale, Lord Montesquieu, judicial many opinions from both sides of the Atlantic. But it needs none, for it n every common if sense that can day draft or con- people its script citizens defend its borders from can it invasion, itself from .protect the pestilence that walketh deadly by such measures as noon-day, by medical science has found most n efficaciousfor that We as historical purpose. know, fact, prior vaccination, discovery, years ago, by Edward often a third Jenner, small-pox or more destroyed the which it population attacked, so futile country the and the most careful precaution, seclusion, that every disease,which fell victims to this greatest sovereigns loathsome all has “the most terrible of ministers styled Macaulay n death.” If this was so communication, days imperfect between, means most the of intercourse distant present rapid com- paralyze the disease spread quickly points at could not business, and all merce, public government once the pub- out alike, by compelling stamp to vaccination. own, to submit lic as much as for their good sbow that while Authority by taken governmental 'Statistics the exposed nnvaccinated 1,000 persons, every. 400 out of IN COURT. THE SUPREME Hay. the take 1,000 attacked less than two are by it, contagion, a reasonable vaccination within disease when protected these well-ascer- are those, notwithstanding period. as there facts, tained who the deny efficacy result of human who will deny any always act- established, well but the Legislature, however experience, upon welfare in their best judgment ing vaccination information before has deemed. them, and their within decision, being protection, until of their must stand functions, repealed scope same power. authorize county vaccination authorities to
municipal require and has been State, recently been every exercised by nearly our States. sustained courts of two of sister Beach, Columbus, 102 Blue v. Ga., 792; (Supreme Morris v. E. 89, 56 N. Indiana, Rep., Court February 1900), In to the argu there are no decisions to contrary. reply ment that such exercise power by Gobb, individual some cases infringe upon rights, cited, case well “No law which infringes Georgia just says: enforced. Under the natural of man can be long rights our 'of the people, system government, remedy *4 where the courts are not authorized to interf class of cases erer is at the ballot box. law which violates and Any reason, will contrary popular justice, of conception remain time, not but courts operation any length to declare have no it void because it does not authority merely measure to their ideas of abstract The motive up justice. which doubtless actuated the in the of the passage act now under consideration that vaccination was for the public In this the good. General is sustained Assembly N. FEBRUARY 0.] men of medical opinion great majority both
science,
country
Europe.”
But even we were
with
the small number of
opinion
medical
who
men
contend that vaccination
dangerous
not a
a
health, and
Court
not
disease, the
preventive
paternal
wisdom,
infallible
whose
despotism, gifted
functionis to correct the errors and
mistakes
the Legisla
Groom,,
ture.
v.
Brodnax
Nor does sec. act, that the require Board Aldermen shall such pass ordinance with the conjunction, Health, Board of defendant (as contends). merely pro- vides that i. the execution of ordinance, e., vaccination, shall be under direction of the local Board Health ox a committee appointed the Aldermen.
While the authorize municipal bodies to and the defendant provide vaccination, did not with the ordinance enacted the town of comply of such afforded Burlington, pursuance though authority, do it is true that there be some condi opportunity so, tions health when it would be unsafe submit person’s would be a sufficient therefore, which, ordinance excuse for it doesnot vitiate the non-compliance,but therein. specified such for and exception provided bona n that it will It is not a defense that a believes person fide ishe him vaccinated or believes dangerous nor vaccination; former already suffioiemtlyprotected by *5 IN THE COURT. SUPREME would’ the bis on either point opinion personal physician be conclusive it would have (though naturally weight for there be evidence or circumstances tend jury), may Indeed, as to a former vaccination contrary. being ing sufficient of the official opinion super protection, physician should That the vaccination be correct. vising presumptively which would relieve from a with the ordinance compliance defense, a matter of the burden of which the defend is upon and is a fact found ver ant, jury. special in dict is and defective is set ambiguous particular, aside. Let there be a
New trial. While I concur J., concurring.
Douglas, I fear Court, that there are some expressions that be opinion misconstrued. may I understand the mean Court to that while it is is, What province for the provide health all reasonable means, to confer incidentally that whenever power upon municipal corporations, yet exercise of that of natural it derogation right, be exercised in a reasonable manner’. vac- must Compulsory cination unreasonable requirement, experience has shown times of epidemic necessary protection of the so of the community equally individual. It is less harsh than quarantine isolation, ordinarily in the great cases no effect injurious beyond majority illness. slight But there be cases where temporary may to certain conditions of health, owing exceptional or even fatal. We can not dangerous suppose intended to enforce the rule under such cir- cumstances, there must be some tribunal yet competent to determine when nature such conditions exist. its By very *6 FEBRUARY TERM, N. O.] Hay.
State in where all other courts, rest must ultimately tbis power Where and administered. citizen are determined rights can of Aldermen the Board given, authority legislative of the gen- limits the existence within reasonable determine may eral conditions justifying to carry necessary regulations make enforce reasonable it can enforce it only in case of resistence effect; into but of the courts. to criminal jurisdiction appeal by his It be that to heard. the defendant cast upon ordinance might with a refusal to comply facts he whatever might rely him the burden of proving is not him but this question from its operation; to exempt election of anyone us. I do not think that the before now as vaccinating or his health employment superintendent to testimony. add the weight would his anything surgeon vaccination of the demand the to him might give but it refusal, case to individual, prosecute infallibility. with it any presumption professional not carry like other the jury any his chances before He must take are these generally I concede that positions witness. readily know that are they rarely but we men., filled competent because do not they pay practice, large by physicians held This is especially their acceptance. to justify enough No well-established physician small-pox prevalent. where which would inevi- run risk of to contagion could afford his So is this feeling practice. strong cause the loss tably send other cities, it is sometimes undertake the to obtain men States, willing even other to' but them, this disparagement I doi say duty. the resident who are entitled physicians, justice
simply due standing. credit their character professional to all the law accord clearly I think construction I it were could intent, otherwise, but legislative IN THE SUPREME COURT.
State v. not come to conclusion. The Constitution of this declares “That we hold expressly it to be self-evident that all men are created equal; that are endowed their Creator with certain unalienable rights; these among life, liberty, enjoyment fruits of their own labor and the pursuit Art. sec. 1. happiness.” I, It does not profess tírese but rights, them as recognizes pre- confer and inherent existing the individual Divine.” “Right *7 Therefore unlawful interference with them inis viola- tion of the letter of Constitution. express
When man entered the social he compact gave up portion of his natural liberty protection of exchange society, but so far demanded only welfare. Even then there must be limit. Suppose should an act that all pass afflicted with certain persons diseases should be killed order to would prevent contagion, court its enforcement? permit Therefore, can we sup- that the either pose could enforce vacci- nation under the conditions of health of peculiar ? his life patient might reasonably expected endanger This discussion, however, not essential to the determina- tion the case at as I bar, feel safe basing my opinion a reasonable interpretation will with- legislative out the to' constitutional limitations. necessity resorting I L concur concurring opinion.
Euecíees,