State v. . Hay , 49 L.R.A. 588 ( 1900 )

NORTH CAROLINA, ALAMANCE COUNTY.

"That all citizens of Burlington not successfully vaccinated within the last three years shall be vaccinated between this date (13 March, 1899), and Friday night, 17 March, instant, 9 o'clock p. m., and all persons refusing to be vaccinated shall be fined $10 for every day they refuse, after being called upon by the doctors appointed, or imprisoned (1000) thirty days."

The defendant refused to be vaccinated for the reason that he had been advised and believed that it would be dangerous for him by reason of his physical condition.

In order to test the validity of the ordinance and for that purpose to allow the State to appeal, the case was decided pro forma by special verdict in favor of defendant, and from the judgment rendered the Solicitor appealed. Chapter 214, Laws 1893, is a well-considered and carefully drawn statute for the preservation of the public health. Section 23 thereof, which is specifically in regard to vaccination, contains among other provisions this clause: "The authorities of any city or town, or the board of county commissioners of any county, may make such regulations and provisions for the vaccination of its inhabitants under the direction of the local or county board of health or a committee chosen for the purpose, and impose such penalties as they deem necessary to protect the public health." There is no provision of the Constitution which forbids the Legislature so to enact, and it is indeed an exercise of that governmental police power to legislate for the public welfare which is inherent in the General Assembly, except when restrained by some express constitutional provision. Salus populi suprema lex, "the public welfare is the highest law," is the foundation principle of all civil government. It is the urgent cause why any government is established, for, as Burke says: "All government is a necessary evil." It is, however, a much lesser evil than the (1001) intolerable state of things which would exist if there were no government to bridle the absolute right of every man to do "that which seems right in his own eyes," like the Israelites in the days of Micah. The above maxim, quoted from Lord Bacon, is placed appropriately first by Broom in his treatise on Legal Maxims, with this just observation: "There is an implied assent on the part of every member of society that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty, and life shall under certain circumstances, be placed in jeopardy or even sacrificed for the public good." This observation, which is almost a literal translation from Grotius, he fortifies by quotations from Montesquieu, Lord Hale, and many judicial opinions from both sides of the Atlantic. But it needs none, for it is every day common sense that if a people can draft or conscript its citizens to defend its borders from invasion, it can protect itself from the deadly pestilence that walketh by noonday, by such measures as medical science has found most efficacious for that purpose. We know as an historical fact that prior to the discovery, 101 years ago, of vaccination by Edward Jenner, smallpox often destroyed a third or more of the population of a country which it attacked, and so futile was every precaution and the most careful seclusion that the greatest sovereigns fell victims to this loathsome disease which Macaulay has styled "the most terrible of all ministers of death." If this was so in days of imperfect communication, the present rapid means of intercourse between most distant points would so spread the disease as to quickly paralyze commerce, and all public business, if government could not at once stamp it out by compelling all alike, for the public good as much as for their own, to submit to vaccination. Statistics taken by governmental authority show that while 400 out of every 1,000 unvaccinated persons, exposed to the contagion, are attacked by it, less (1002) than two in 1,000 take the disease when protected by vaccination within a reasonable period. There are those, notwithstanding these well-ascertained facts, who deny the efficacy of vaccination, as there are always some who will deny any other result of human experience, however well established, but the Legislature, acting in their best judgment for the public welfare upon the information before them, has deemed vaccination necessary for public protection, and their decision, being within the scope of their functions, must stand until repealed by the same power.

The power of the Legislature to authorize county and municipal authorities to require compulsory vaccination has been exercised by nearly every State, and has been recently sustained by the highest courts of two of our sister States. Morris v. Columbus, 102 Ga. 792; Blue v. Beach, 155 Ind. (February, 1900), 121, and there are no decisions to the contrary. In reply to the argument that such exercise of power by the Legislature may in some cases infringe upon individual rights, Cobb, J., in the Georgia case just cited, well says: "No law which infringes upon the natural rights of man can be long enforced. Under our system of government, the remedy of the people, in that class of cases where the courts are not authorized to interfere, is at the ballot box. Any law which violates reason, and is contrary to the popular conception of right and justice, will not remain in operation for any length of time, but courts have no authority to declare it void merely because it does not measure up to their ideas of abstract justice. The motive which doubtless actuated the Legislature in the passage of the act now under consideration was that vaccination was for the public good. In this the General Assembly is sustained by the opinion of a great majority of the men of medical science, both in this country and in Europe." (1003) But even if we were of opinion with the small number of medical men who contend that vaccination is dangerous to health, and not a preventive of the disease, the Court is not a paternal despotism, gifted with infallible wisdom, whose function is to correct the errors and mistakes of the Legislature. Brodnax v. Groom, 64 N.C. at p. 250. Our people are self-governing, and themselves correct the mistakes of their representatives. The function of the courts is to construe and apply the laws, and they can hold a statute nugatory only when plainly and clearly violative of some provision of the organic law which has restrained the legislative power. Sutton v. Phillips, 116 N.C. 502;White v. Murray, ante, 153.

Nor does section 23 of the act require that the board of aldermen shall pass such ordinance in conjunction with the board of health (as defendant contends). It merely provides that the execution of the ordinance, i. e., the vaccination, shall be under the direction of the local board of health or a committee appointed by the aldermen.

While the Legislature has power to authorize municipal bodies to provide compulsory vaccination, and the defendant did not comply with the ordinance enacted by the town of Burlington, in pursuance of such authority, though afforded opportunity to do so, it is true that there may be some conditions of a person's health when it would be unsafe to submit to vaccination, and which, therefore, would be a sufficient excuse for noncompliance, but it does not vitiate the ordinance that such exception is not provided for and specified therein. It is not a defense that a person bona fide believes that it will be dangerous for him to be vaccinated or believes that he is already sufficiently protected by former (1004) vaccination; nor would the opinion of his personal physician on either point be conclusive (though it would naturally have weight with the jury), for there may be evidence or circumstances tending to the contrary. Indeed, as to a former vaccination being sufficient protection, the opinion of the official physician supervising the vaccination should be presumptively correct. That which would relieve from a compliance with the ordinance is a matter of defense, the burden of which is upon the defendant, and is a fact to be found by the jury. The special verdict is ambiguous and defective in this particular, and is set aside. Let there be a

New trial. Cited: Hutchins v. Durham, 137 N.C. 971; Durham v. Cotton Mills,141 N.C. 645; Morgan v. Stewart, 144 N.C. 428.

(1007)