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U.S.
Supreme Court
Jacobson
v. Massachusetts, 197 U.S. 11 (1905)
Jacobson v. Massachusetts
No. 70
Argued December 6, 1904
Decided February 20, 1905
197 U.S. 11
ERROR TO
THE SUPREME COURT
OF
THE STATE OF MASSACHUSETTS
Syllabus
The United
States does not derive any of its substantive powers from the Preamble of the
Constitution. It cannot exert any power to secure the declared objects of the
Constitution unless, apart from the Preamble, such power be found in, or can
properly be implied from, some express delegation in the instrument.
While the
spirit of the Constitution is to be respected not less than its letter, the
spirit is to be collected chiefly from its words.
While the
exclusion of evidence in the state court in a case involving the
constitutionality of a state statute may not strictly present a Federal
question, this court may consider the rejection of such evidence upon the
ground of incompetency or immateriality under the statute as showing its scope
and meaning in the opinion of the state court.
The police
power of a State embraces such reasonable regulations relating to matters
completely within its territory, and not affecting the people of other States,
established directly by legislative enactment, as will protect the public
health and safety.
While a local
regulation, even if based on the acknowledged police power of a State, must
always yield in case of conflict with the exercise by the General Government of
any power it possesses under the Constitution, the mode or manner of exercising
its police power is wholly within the discretion of the State so long as the
Constitution of the United States is not contravened, or any right granted
or
secured thereby is not infringed, or not exercised in such an arbitrary and
oppressive
manner as to justify the interference of the courts to prevent wrong and
oppression.
The liberty
secured by the Constitution of the United States does not import an absolute
right in each person to be at all times, and in all circumstances, wholly freed
from restraint, nor is it an element in such liberty that one person, or a
minority of persons residing in any community and enjoying the benefits of
its
local government, should have power to dominate the majority when supported
in
their action by the authority of the State.
It is within
the police power of a State to enact a compulsory vaccination law, and it is
for the legislature, and not for the courts, to determine
Page 197 U. S. 12
in the
first
instance whether vaccination is or is not the best mode for the prevention
of
smallpox and the protection of the public health.
There being
obvious reasons for such exception, the fact that children, under certain
circumstances, are excepted from the operation of the law does not deny the
equal protection of the laws to adults if the statute is applicable equally
to
all adults in like condition.
The highest
court of Massachusetts not having held that the compulsory vaccination law
of
that State establishes the absolute rule that an adult must be vaccinated even
if he is not a fit subject at the time or that vaccination would seriously
injure his health or cause his death, this court holds that, as to an adult
residing in the community, and a fit subject of vaccination, the statute is
not
invalid as in derogation of any of the rights of such person under the
Fourteenth Amendment.
This case
involves the validity, under the Constitution of the United States, of certain
provisions in the statutes of Massachusetts relating to vaccination.
The Revised
Laws of that Commonwealth, c. 75, § 137, provide that
"the
board of health of a city or town if, in its opinion, it is necessary for the
public health or safety shall require and enforce the vaccination and
revaccination of all the inhabitants thereof and shall provide them with the
means of free vaccination. Whoever, being over twenty-one years of age and
not
under guardianship, refuses or neglects to comply with such requirement shall
forfeit five dollars."
An exception
is made in favor of "children who present a certificate, signed by a
registered physician that they are unfit subjects for vaccination." §
139.
Proceeding
under the above statutes, the Board of Health of the city of Cambridge,
Massachusetts, on the twenty-seventh day of February, 1902, adopted the following
regulation:
"Whereas,
smallpox has been prevalent to some extent in the city of Cambridge and still
continues to increase; and whereas it is necessary for the speedy extermination
of the disease that all persons not protected by vaccination should be
vaccinated, and whereas, in the opinion of the board, the public health and
safety require the vaccination or revaccination of all the inhabitants of
Cambridge; be it ordered, that
Page 197 U. S. 13
all the
inhabitants of the city who have not been successfully vaccinated since March
1, 1897, be vaccinated or revaccinated."
Subsequently,
the Board adopted an additional regulation empowering a named physician to
enforce the vaccination of persons as directed by the Board at its special
meeting of February 27.
The above
regulations being in force, the plaintiff in error, Jacobson, was proceeded
against by a criminal complaint in one of the inferior courts of Massachusetts.
The complaint charged that, on the seventeenth day of July, 1902, the Board
of
Health of Cambridge, being of the opinion that it was necessary for the public
health and safety, required the vaccination and revaccination of all the
inhabitants thereof who had not been successfully vaccinated since the first
day of March, 1897, and provided them with the means of free vaccination, and
that the defendant, being over twenty-one years of age and not under
guardianship, refused and neglected to comply with such requirement.
The
defendant, having been arraigned, pleaded not guilty. The government put in
evidence the above regulations adopted by the Board of Health, and made proof
tending to show that its chairman informed the defendant that, by refusing
to
be vaccinated, he would incur the penalty provided by the statute, and would be
prosecuted therefor; that he offered to vaccinate the defendant without expense
to him, and that the offer was declined, and defendant refused to be
vaccinated.
The
prosecution having introduced no other evidence, the defendant made numerous offers
of proof. But the trial court ruled that each and all of the facts offered
to
be proved by the defendant were immaterial, and excluded all proof of them.
The
defendant, standing upon his offers of proof and introducing no evidence, asked
numerous instructions to the jury, among which were the following:
That section
137 of chapter 75 of the Revised Laws of Massachusetts was in derogation of
the
rights secured to the defendant by the Preamble to the Constitution of the
United
Page 197 U. S. 14
States,
and
tended to subvert and defeat the purposes of the Constitution as declared in
its Preamble;
That the
section referred to was in derogation of the rights secured to the defendant by
the Fourteenth Amendment of the Constitution of the United States, and
especially of the clauses of that amendment providing that no State shall make
or enforce any law abridging the privileges or immunities of citizens of the
United States, nor deprive any person of life, liberty or property without
due
process of law, nor deny to any person within its jurisdiction the equal
protection of the laws; and
That said
section was opposed to the spirit of the Constitution.
Each of
the
defendant's prayers for instructions was rejected, and he duly excepted. The
defendant requested the court, but the court refused, to instruct the jury
to
return a verdict of not guilty. And the court instructed the jury, in
substance, that, if they believed the evidence introduced by the Commonwealth
and were satisfied beyond a reasonable doubt that the defendant was guilty
of
the offense charged in the complaint, they would be warranted in finding a
verdict of guilty. A verdict of guilty was thereupon returned.
The case was
then continued for the opinion of the Supreme Judicial Court of Massachusetts.
That court overruled all the defendant's exceptions, sustained the action of
the trial court, and thereafter, pursuant to the verdict of the jury, he was
sentenced by the court to pay a fine of five dollars. And the court ordered
that he stand committed until the fine was paid.
Page 197 U. S. 22
MR. JUSTICE
HARLAN, 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, as observed by Chief
Justice Marshall, speaking for the court in @ 17 U. S. 202,
"the
spirit of an instrument, especially of a constitution, is to be respected not
less than its letter, yet the spirit is to be collected chiefly from its
words."
We have
no
need in this case to go beyond the plain, obvious meaning of the words in those
provisions of the Constitution which, it is contended, must control our
decision.
What,
according to the judgment of the state court, is the
Page 197 U. S. 23
scope and
effect of the statute? What results were intended to be accomplished by it?
These questions must be answered.
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,
98 U. S. 145; Regina v. Downes, 13 Cox C.C. 111.
The
other eleven propositions all relate to alleged injurious or dangerous effects
of vaccination. The defendant 'offered to prove and show by competent evidence'
these so-called facts. Each of them, in its nature, is such that it cannot
be
stated as a truth, otherwise than as a matter of opinion. The only 'competent
evidence' that could be presented to the court to prove these propositions
was
the testimony of experts, giving their opinions. It would not have been
competent to introduce the medical history of individual cases. Assuming th
at
medical experts could have been found who would have testified in support of
these propositions, and that it had become the duty of the judge, in accordance
with the law as stated in Commonwealth v.
Anthes, 5 Gray 185, to instruct the jury as to whether or not the
statute is constitutional, he would have been obliged to consider the evidence
in connection with facts of common knowledge, which the court will always
regard in passing upon the constitutionality of a statute. He would have
considered this testimony of experts in connection with the facts, that for
nearly a century, most of the members of the medical profession
Page 197 U. S. 24
have regarded
vaccination, repeated after intervals, as a preventive of smallpox; that, while
they have recognized the possibility of injury to an individual from
carelessness in the performance of it, or even, in a conceivable case, with
out
carelessness, they generally have considered the risk of such an injury too
small to be seriously weighed as against the benefits coming from the discreet
and proper use of the preventive, and that not only the medical profession
and
the people generally have for a long time entertained these opinions, but
legislatures and courts have acted upon them with general unanimity. If the
defendant had been permitted to introduce such expert testimony as he had in
support of these several propositions, it could not have changed the result
. It
would not have justified the court in holding that the legislature had
transcended its power in enacting this statute on their judgment of what the
welfare of the people demands."
Commonwealth
v. Jacobson,
183
Massachusetts 242.
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 incompetency 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, 67 U. S. 603
, Morley v. Lake Shore Railway Co.,
146 U. S. 162,
146 U. S. 167
, Tullis v. L. E. & W. R.R. Co.,
175 U. S. 348, W. W. Cargill Co. v. Minnesota,@
180
U. S. 452,
180 U. S. 466
-- we assume for the purposes of the present inquiry that its provisions
require, at least as a general rule, that adults not under guardianship and
remaining within the limits of the city of Cambridge must submit to the
regulation adopted by the Board of Health. Is the statute, so construed,
therefore, inconsistent with the liberty which the Constitution of the United States
secures to every person against deprivation by the State?
The authority
of the State to enact this statute is to be
Page 197 U. S. 25
referred to
what is commonly called the police power -- a power which the State did not
surrender when becoming a member of the Union under the Constitution. Although
this court has refrained from any attempt to define the limits of that power,
yet it has distinctly recognized the authority of a State to enact quarantine
laws and "health laws of every description;" indeed, all laws that
relate to matters completely within its territory and which do not, by their
necessary operation, affect the people of other States. According to settled
principles, the police power of a State must be held to embrace, at least,
such
reasonable regulations established directly by legislative enactment as will
protect the public health and the public safety. 22 U. S. 203; Railroad Company v. Husen, 95 U. S. 465
,
95 U. S. 470
; Beer Company v. Massachusetts, 97 U. S. 25; New Orleans Gas Co. v. Louisiana Light
Co., 115 U. S. 650
,
115 U. S. 661; Lawton v. Steele,
152 U. S. 133
i>. It is equally true that the State may invest
local
bodies called into existence for purposes of local administration with
authority in some appropriate way to safeguard the public health and the public
safety. The mode or manner in which those results are to be accomplished is
within the discretion of the State, subject, of course, so far as Federal power
is concerned, only to the condition that no rule prescribed by a State, nor
any
regulation adopted by a local governmental agency acting under the sanction
of
state legislation, shall contravene the Constitution of the United States or
infringe any right granted or secured by that instrument. A local enactment
or
regulation, even if based on the acknowledged police powers of a State, must
always yield in case of conflict with the exercise by the General Government of
any power it possesses under the Constitution, or with any right which that
instrument gives or secures.
22 U. S. 210;
63 U. S. 243
; Missouri, Kansas & Texas Ry. Co. v.
Haber,@
169 U. S. 613,
169 U. S. 626.
We come,
then, to inquire whether any right given or secured by the Constitution is
invaded by the statute as interpreted
Page 197 U. S. 26
by the
state
court. The defendant insists that his liberty is invaded when the State
subjects him to fine or imprisonment for neglecting or refusing to submit to
vaccination; that a compulsory vaccination law is unreasonable, arbitrary and
oppressive, and, therefore, hostile to the inherent right of every freeman
to
care for his own body and health in such way as to him seems best, and that
the
execution of such a law against one who objects to vaccination, no matter for
what reason, is nothing short of an assault upon his person. But the liberty
secured by the Constitution of the United States to every person within its
jurisdiction does not import an absolute right in each person to be, at all
times and in all circumstances, wholly freed from restraint. There are manifold
restraints to which every person is necessarily subject for the common good. On
any other basis, organized society could not exist with safety to its members.
Society based on the rule that each one is a law unto himself would soon be
confronted with disorder and anarchy. Real liberty for all could not exist
under the operation of a principle which recognizes the right of each
individual person to use his own, whether in respect of his person or his
property, regardless of the injury that may be done to others. This court has
more than once recognized it as a fundamental principle that
"persons
and property are subjected to all kinds of restraints and burdens, in order
to
secure the general comfort, health, and prosperity of the State, of the perfect
right of the legislature to do which no question ever was, or upon acknowledged
general principles ever can be, made so far as natural persons are concerned."
Railroad
Co. v. Husen,
95 U.
S. 465, 95 U. S. 471
;
Missouri, Kansas & Texas Ry. Co.
v.
Haber, 169 U. S. 613,
169 U. S. 628,
169 U. S. 629;
Thorpe v. Rutland & Burlington R. R.,
27 Vermont 140, 148. In Crowley v. Christensen,
137 U. S. 86,
137 U. S. 89,
we said:
"The
possession and enjoyment of all rights are subject to such reasonable
conditions as may be deemed by the governing authority of the country essential
to the safety, health, peace, good order and morals of the community. Even
liberty
Page 197 U. S. 27
itself,
the
greatest of all rights, is not unrestricted license to act according to one's
own will. It is only freedom from restraint under conditions essential to the equal
enjoyment of the same right by others. It is then liberty regulated by
law."
In the
constitution of Massachusetts adopted in 1780, it was laid down as a
fundamental principle of the social compact that the whole people covenants
with each citizen, and each citizen with the whole people, that all shall be
governed by certain laws for "the common good," and that government
is instituted
"for the
common good, for the protection, safety, prosperity and happiness of the
people, and not for the profit, honor or private interests of anyone man,
family or class of men."
The good and
welfare of the Commonwealth, of which the legislature is primarily the judge,
is the basis on which the police power rests in Massachusetts. Commonwealth v. Alger, 7 Cush. 53, 84.
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, when 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
p>
Page 197 U. S. 28
the situation
-- and nothing is asserted or appears in the record to the contrary -- if we
are to attach any value whatever to the knowledge which, it is safe to affirm,
is common to all civilized peoples touching smallpox and the methods most
usually employed to eradicate that disease, it cannot be adjudged that the
present regulation of the Board of Health was not necessary in order to protect
the public health and secure the public safety. Smallpox being prevalent and
increasing at Cambridge, the court would usurp the functions of another branch
of government if it adjudged, as matter of law, that the mode adopted under
the
sanction of the State, to protect the people at large was arbitrary and not
justified by the necessities of the case. We say necessities of the case
because it might be that an acknowledged power of a local community to protect
itself against an epidemic threatening the safety of all, might be exercised in
particular circumstances and in reference to particular persons in such an
arbitrary, unreasonable manner, or might go so far beyond what was reasonably
required for the safety of the public, as to authorize or compel the courts
to
interfere for the protection of such persons. Wisconsin &c. R.R. Co. v. Jacobson, 179
U. S. 27, 179 U. S. 301;
1 Dillon Mun. Corp., 4th ed.,§§ 319 to 325, and authorities in notes; Freund's
Police Power, § 63 et seq. In
Railroad Company v. Husen,
95 U.S. 465,
95 U. S. 471
-473, this court recognized the right of a State to pass sanitary laws, laws for
the
protection of life, liberty, heath or property within its limits, laws to
prevent persons and animals suffering under contagious or infectious diseases,
or convicts, from coming within its borders. But as the laws there involved
went beyond the necessity of the case and under the guise of exerting a police
power invaded the domain of Federal authority, and violated rights secured
by
the Constitution, this court deemed it to be its duty to hold such laws
invalid. If the mode adopted by the Commonwealth of Massachusetts for the
protection of its local communities against smallpox proved to be distressing,
inconvenient or objectionable to some -- if nothing more could be reasonably
Page 197 U. S. 29
affirmed of
the statute in question -- the answer is that it was the duty of the
constituted authorities primarily to keep in view the welfare, comfort and
safety of the many, and not permit the interests of the many to be subordinated
to the wishes or convenience of the few. There is, of course, a sphere with
in
which the individual may assert the supremacy of his own will and rightfully
dispute the authority of any human government, especially of any free
government existing under a written constitution, to interfere with the
exercise of that will. But it is equally true that, in every well ordered
society charged with the duty of conserving the safety of its members the
rights of the individual in respect of his liberty may at times, under the
pressure of great dangers, be subjected to such restraint, to be enforced by
reasonable regulations, as the safety of the general public may demand. An
American citizen, arriving at an American port on a vessel in which, during
the
voyage, there had been cases of yellow fever or Asiatic cholera, although
apparently free from disease himself, may yet, in some circumstances, be held
in quarantine against his will on board of such vessel or in a quarantine
station until it be ascertained by inspection, conducted with due diligence,
that the danger of the spread of the disease among the community at large has
disappeared. The liberty secured by the Fourteenth Amendment, this court has
said, consists, in part, in the right of a person "to live and work where
he will," Allgeyer v. Louisiana,
165
U. S. 578, and yet he may be compelled, by force if need be, against
his will and without regard to his personal wishes or his pecuniary interests,
or even his religious or political convictions, to take his place in the ranks
of the army of his country and risk the chance of being shot down in its
defense. It is not, therefore, true that the power of the public to guard
itself against imminent danger depends in every case involving the control
of
one's body upon his willingness to submit to reasonable regulations established
by the constituted authorities, under the
Page 197 U. S. 30
sanction of
the State, for the purpose of protecting the public collectively against such
danger.
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 assume 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 between 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
Page 197 U. S. 31
evils of a
smallpox epidemic that imperiled an entire population. Upon what sound
principles as to the relations existing between the different departments of
government can the court review this action of the legislature? If there is
any
such power in the judiciary to review legislative action in respect of a matter
affecting the general welfare, it can only be when that which the legislature
has done comes within the rule that,
"i
f a
statute purporting to have been enacted to protect the public health, the
public morals, or the public safety has no real or substantial relation to
those objects, or is, beyond all question, a plain, palpable invasion of rights
secured by the fundamental law, it is the duty of the courts to so adjudge,
and
thereby give effect to the Constitution."
Mugler v.
Kansas,
123
U. S. 623, 123 U. S. 661;
Minnesota v. Barber,
136
U. S. 313, 136 U. S. 320;
Atkin v. Kansas,
191
U. S. 207, 191 U. S. 223.
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. * And the
principle of vaccination as a means to
Page 197 U. S. 32
prevent
the
spread of smallpox has been enforced in many States by statutes making the
vaccination of children a condition of their right to enter or remain in public
schools. Blue v. Beach, 155
Indiana 121; Morris v. City of Columbus,
102
Page 197 U. S. 33
Georgia 792; State v. Hay, 126 N.Car. 999;
Abeel v. Clark, 84 California 226;
Bissell v. Davidson, 65 Connecticut
18; Hazen v. Strong, 2 Vermont 427; Duffield v. Williamsport School District,
162 Pa.St. 476.
Page 197 U. S. 34
The latest
case upon the subject of which we are aware is Viemeister v. White, President &c., decided very
recently by the Court of Appeals of New York, and the opinion in which has
not
yet appeared in the regular reports. That case involved the validity of a
statute excluding from the public schools all children who had not been
vaccinated. One contention was that the statute and the regulation adopted
in
exercise of its provisions was inconsistent with the rights, privileges and
liberties of the citizen. The contention was overruled, the court saying, among
other things:
"Smallpox
is known of all to be a dangerous and contagious disease. If vaccination
strongly tends to prevent the transmission or spread of this disease, it
logically follows that children may be refused admission to the public schools
until they have been vaccinated. The appellant claims that vaccination does
not
tend to prevent smallpox, but tends to bring about other diseases, and that
it
does much harm, with no good."
"It must
be conceded that some 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
Page 197 U. S. 35
generally
accepted in theory and generally applied in practice, both by the voluntary
action of the people and in obedience to the command of law. Nearly every State
of the Union has statutes to encourage, or directly or indirectly to require,
vaccination, and this is true of most nations of Europe."
"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 belief 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, and, 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 -- not the 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
Page 197 U. S. 36
claim
exemption from the operation of the statute and of the regulation adopted by
the Board of Health? We have already said that his rejected offers, in the
main, only set forth the theory of those who had no faith in vaccination as a
means of preventing the spread of smallpox, or who thought that vaccination,
without benefiting the public, put in peril the health of the person
vaccinated. But there were some offers which it is contended embodied distinct
facts that might properly have been considered. Let us see how this is.
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 would 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
Page 197 U. S. 37
at the
time
he was informed of the requirement of the regulation adopted by the Board of
Health. It is entirely consistent with his offer of proof that, after reaching
full age, he had become, so far as medical skill could discover, and, when
informed of the regulation of the Board of Health, was, a fit subject of
vaccination, and that the vaccine matter to be used in his case was such as
any
medical practitioner of good standing would regard as proper to be used. The
matured opinions of medical men everywhere, and the experience of mankind,
as
all must know, negative the suggestion that it is not possible in any case
to
determine whether vaccination is safe. Was defendant exempted from the
operation of the statute simply because of his dread of the same evil results
experienced by him when a child and had observed in the cases of his son and
other children? Could he reasonably claim such an exemption because, "
quite
often" or "occasionally," injury had resulted from vaccination,
or because it was impossible, in the opinion of some, by any practical test, to
determine with absolute certainty whether a particular person could be safely
vaccinated?
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,
Page 197 U. S. 38
then a
like
privilege would belong to each individual of the community, and the spectacle
would be presented of the welfare and safety of an entire population being
subordinated to the notions of a single individual who chooses to remain a
part
of that population. We are unwilling to hold it to be an element in the liberty
secured by the Constitution of the United States that one person, or a minority
of persons, residing in any community and enjoying the benefits of its local
government, should have the power thus to dominate the majority when supported
in their action by the authority of the State. While this court should guard
with firmness every right appertaining to life, liberty or property as secured
to the individual by the Supreme Law of the Land, it is of the last importance
that it should not invade the domain of local authority except when it is
plainly necessary to do so in order to enforce that law. The safety and the
health of the people of Massachusetts are, in the first instance, for that
Commonwealth to guard and protect. They are matters that do not ordinarily
concern the National Government. So far as they can be reached by any
government, they depend, primarily, upon such action as the State in its wisdom
may take, and we do not perceive that this legislation has invaded any right
secured by the Federal Constitution.
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
Page 197 U. S. 39
or body,
would be cruel and inhuman in the last degree. We are not to be understood
as
holding that the statute was intended to be applied to such a case, or, if
it
as so intended, that the judiciary would not be competent to interfere and
protect the health and life of the individual concerned. "All laws,"
this court has said,
"s
hould
receive a sensible construction. General terms should be so limited in their
application as not to lead to injustice, oppression or absurd consequence.
It
will always, therefore, be presumed that the legislature intended exception
s to
its language which would avoid results of that character. The reason of the
law
in such cases should prevail over its letter."
@ 74
U. S. 58. Until otherwise informed by the highest court of
Massachusetts, we are not inclined to hold that the statute establishes the
absolute rule that an adult must be vaccinated if it be apparent or can be
shown with reasonable certainty that he is not at the time a fit subject of
vaccination or that vaccination, by reason of his then condition, would
seriously impair his health or probably cause his death. No such case is here
presented. It is the case of an adult who, for aught that appears, was himself
in perfect health and a fit subject of vaccination, and yet, while remaining in
the community, refused to obey the statute and the regulation adopted in
execution of its provisions for the protection of the public health and the
public safety, confessedly endangered by the presence of a dangerous disease
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.
MR. JUSTICE
BREWER and MR. JUSTICE PECKHAM dissent.
*
"State
supported 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 several 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 and 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. . . . Vaccination was made compulsory in
Bavaria in 1807, and subsequently in the following countries: Denmark (1810),
Sweden (1814), Wurtemburg, Hesse, and other German states (1818), Prussia
(1835), Roumania (1874), Hungary (1876), and Servia (1881). It is compulsory by
cantonal law in ten out of the twenty-two Swiss cantons; an attempt to pass
a
federal compulsory law was defeated by a plebiscite in 1881. In the following
countries, there is no compulsory law, but Government facilities and compulsion
on various classes more or less directly under Government control, such as
soldiers, state employes, apprentices, school pupils, etc.: France, Italy,
Spain, Portugal, Belgium, Norway, Austria, Turkey. . . . Vaccination has been
compulsory in South Australia since 1872, in Victoria since 1874, and in
Western Australia since 1878. In Tasmania, a compulsory Act was passed in 1882.
In New South Wales, there is no compulsion, but free facilities for
vaccination. Compulsion was adopted at Calcutta in 1880, and since then at
eighty other towns of Bengal, at Madras in 1884, and at Bombay and elsewhere in
the presidency a few years earlier. Revaccination was made compulsory in
Denmark in 1871, and in Roumania in 1874; in Holland it was enacted for all
school pupils in 1872. The various laws and administrative orders which had
been for many years in force as to vaccination and revaccination in the several
German states were consolidated in an imperial statute of 1874."
24
Encyclopaedia Britannica (1894), Vaccination.
"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 percent.,
were vaccinated, 5,712, or 8.89 percent. were unvaccinated, and 4,652, or 7.24
percent., had had the smallpox before. Of those vaccinated, 953, or 1.77
percent., became affected with smallpox, and of the uninocculated, 2,643, or
46.3 percent., had the disease. In the vaccinated, the mortality from the
disease was O.73 percent., and in the unprotected it was 9.16 percent. 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 during the campaign only 450 cases, or 58 men to the 100,000; in
the
French army, however, where vaccination was not carefully carried out, the
number of deaths from smallpox was 23,400."
8 Johnson's
Universal Cyclopaedia (1897), Vaccination.
"The
degree of protection afforded by vaccination thus became a question of great
interest. Its extreme value was easily demonstrated by statistical research
es.
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 smallpox 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, 42 per
million; whereas among unvaccinated children of the same age it was 5,950 per
million.' Hardway's Essentials of Vaccination (1881). The same author reports
that among other conclusions reached by the Academie de Medicine of France,
was
one that, 'without vaccination, hygienic measures (isolation, disinfection,
etc.) are of themselves insufficient for preservation from smallpox.'"
Ib.
"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 practiced with proper care on healthy
subjects. . . .
4. It is highly desirable, in the interests of the health and
lives of our countrymen, that vaccination should be rendered compulsory."
Edwards' Vaccination (1882).
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."