Brewer v. Valk

• Decision Date: 08 February 1933
• Docket Number: 363.
• Parties: 204 N.C. 186, 87 A.L.R. 237 v. VALK et al. BREWER
• Court: North Carolina Supreme Court

167 S.E. 638

204 N.C. 186, 87 A.L.R. 237

BREWER v. VALK et al.

No. 363.

Supreme Court of North Carolina

February 8, 1933

Appeal from Superior Court, Forsyth County; Stack, Judge.

Suit by Mary Brewer, by her next friend, Mrs. W. E. Oldham, against Dr. A. DeT. Valk and others. From a judgment for plaintiff defendants appeal.

Affirmed.

This is a civil action had before his honor, A. M. Stack, judge presiding at the October term, 1932, of the superior court of Forsyth county, on complaint of the plaintiff for a permanent restraining order enjoining and restraining Dr. A. DeT. Valk from proceeding with an operation to asexualize or sterilize Mary Brewer under authority of chapter 43, article 6 entitled "Sterilization of Persons Mentally Defective." See Michie's N.C. Code of 1931, §§ 2304(h)-2304(l).

The complaint is as follows: "The plaintiff, by her next friend, Mrs. W. E. Oldham, complaining of the defendants says: (1) That on the 29th day of April, 1932, at a hearing before His Honor, W. E. Church, Clerk of the Superior Court of Forsyth County, and a jury, the plaintiff was adjudged incompetent to manage her affairs and the defendant, W. T Wilson was appointed as her legal guardian. (2) That on the 29th day of April, 1932, the defendant, W. T. Wilson requested the Board of Commissioners of Forsyth County to authorize and to have performed an operation upon the plaintiff for the purpose of rendering her sterile; that in compliance with this request, the Board of Commissioners of Forsyth County authorized and ordered the defendant, Dr. A. DeT. Valk, to perform an operation upon the plaintiff for the purpose of rendering her sterile. (3) That the defendant, Dr. A. DeT. Valk, is now preparing to so operate upon the plaintiff to her irreparable hurt and injury. (4) That the plaintiff does not consent to such operation and that if it is performed it will be without her consent and against her will. (5) That the proceedings mentioned above in paragraphs 2, 3 and 4 of this complaint were had under the authority of Chapter 34 of the North Carolina Laws of 1929, which laws the plaintiff is informed and believes and, therefore, alleges, are unconstitutional as being in violation of the provisions of article 1, §§ 17 and 35 of the Constitution of North Carolina, and section 1 of the Fourteenth Amendment to the Constitution of the United States. (6) That if the above mentioned operation is performed upon the plaintiff, she will suffer irreparable physical and mental hurt and loss for redress of which she neither has nor will have adequate remedy at law. Wherefore, the plaintiff prays: 1. That the defendants, their attorneys, agents or successors be enjoined and restrained from performing any operation upon the plaintiff for the purpose of rendering her sterile and that they be enjoined from proceeding in any manner to have such operation performed. 2. That notice issue to the defendants and each of them to appear before His Honor, the Judge of the Superior Court of Forsyth County, at a time to be set to show cause, if any they have, why this injunction should not be made permanent." The judgment of the court below is as follows: "This cause coming on to be heard and being heard before His Honor, A. M. Stack, Judge presiding at the October 3rd Term of the Superior Court of Forsyth County, and it appearing that a temporary injunction was signed on October 6, 1932, upon a bill for injunction having been filed restraining the defendants from sterilizing the person of Mary Brewer, under authority of Section 2304(i) of the Consolidated Statutes and of the sections following; and it appearing that ten days notice was given to the defendants in which to answer or show cause why this restraining order should not be made permanent; and it further appearing that defendants waived the ten days notice and voluntarily appeared in court on Saturday, October 8, 1932, at 9:30 A. M., for the purpose of a hearing on the above restraining order; and it further appearing to the court that said statute is invalid and unconstitutional for that it fails to give plaintiff notice of the said operation, an opportunity to present witnesses and be heard, and it thereby violates the Fourteenth Amendment of the Constitution of the United States and section 1, article 17 of the Constitution of North Carolina: It is, therefore, ordered, considered, adjudged and decreed, that the restraining order heretofore signed on the 6th day of October, 1932, be, and the same is hereby continued and made permanent and the defendants are forever enjoined from sterilizing the said Mary Brewer, or perform upon her person any operation under the authority of Section 2304(i) of the Consolidated Statutes and the sections following, which might impair her procreative organs."

To the signing of the foregoing judgment, the defendants excepted, assigned error, and appealed to the Supreme Court.

Fred S. Hutchins, of Winston-Salem, E. C. Bryson, of Bryson City, and T. Spruill Thornton, for appellants.

Hanselle L. Hester, of Winston-Salem, Gordon E. Dean, of Durham, and William C. Lassiter, of Smithfield, for appellee.

CLARKSON J.

The question involved: Is chapter 43, article 6, entitled "Sterilization of Persons mentally defective" (Michie's N.C. Code of 1931, §§ 2304(i) and 2304(j), Public Laws of 1929, c. 34, §§ 2 and 3), unconstitutional, in that it failed to give this plaintiff notice and a hearing of the proposed operation, an opportunity to present witnesses and be heard, and thereby violates the Fourteenth Amendment, § 1, of the Constitution of the United States, and article 1, § 17, Constitution of North Carolina? We think so.

The sections are as follows: "2304(i). It shall be the duty of the board of commissioners of any county of North Carolina, at the public cost and expense, to have the operation performed upon any mentally defective or feeble-minded resident of the county, not an inmate of any public institution, upon the petition and request of the next kin or legal guardian of such mentally defective person." "2304(j). No operation under this chapter shall be performed by other than a duly qualified and registered North Carolina surgeon, and by him, only upon a written order signed by the responsible executive head of the institution, or board, or next of kin, or legal guardian having custody or charge of the feeble-minded, or mentally defective inmate or patient, with the special provision that the order so issued shall in each specific case have the signed approval of four reviewers, which shall be (1) The Commissioner of Charities and Public Welfare of North Carolina; (2) The Secretary of the State Board of Health of North Carolina; (3 and 4) The Chief Medical Officer of each of any two of the institutions for the feeble-minded or insane of the State of North Carolina."

The Constitution of the United States, Amendment 14, § 1, is as follows: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state 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."

Constitution of North Carolina, art. 1, § 17, is as follows: "No person ought to be taken, imprisoned, or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty or property, but by the law of the land." We shall also quote article 1, § 29: "A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty."

The defendants contend that the statute now under consideration comes within the police power of the state--promotion of general welfare--and is constitutional. The courts have been unable or unwilling definitely to circumscribe police powers.

The principle is well stated in 6 R. C. L. (Police Power) § 182, pp. 183, 184: "The police power is an attribute of sovereignty, possessed by every sovereign state, and is a necessary attribute of every civilized government. It is inherent in the states of the American Union and is not a grant derived from or under any written constitution. It has been said that the very existence of government depends on it, as well as the security of social order, the life and health of the citizen, and the enjoyment of private and social life and the beneficial use of property.

It has been described as the most essential, at times the most insistent, and always one of the least limitable of the powers of government." Part section 190, p. 191 "The police power under the American constitutional system has been left to the states. It has always...