Commonwealth v. Pear

• Decision Date: 02 April 1903
• Citation: 183 Mass. 242,66 N.E. 719
• Parties: COMMONWEALTH v. PEAR. SAME v. JACOBSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 242

66 N.E. 719

COMMONWEALTH

v.PEAR.

SAME

v.JACOBSON.

Supreme Judicial Court of Massachusetts, Middlesex.

April 2, 1903.

Exceptions from Superior Court, Middlesex County; Wm. Cushing Wait, Judge.

One Pear and one Jacobson were convicted of refusing to permit themselves to be vaccinated, and they bring exceptions. Overruled.

Hugh Bancroft, Asst. Dist. Atty., for the Commonwealth.

Henry Ballard and J. Winthrop Pickering, for defendants.

KNOWLTON, C. J.

These are complaints against the respective defendants for refusing to comply with a requirement of the board of health of Cambridge made on February 27, 1902, under Rev. Laws, c. 175, § 137, ordering that all the inhabitants of the city who had not been successfully vaccinated since March 1, 1897, be vaccinated or revaccinated. The order recires that smallpox has been prevalent to some extent in the city of Cambridge, and still continues to increase; that it is necessary, for the speedy extermination of the disease, that all persons not protected by vaccination should be vaccinated; and that, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge. At the trial of each case there was uncontradicted evidence of the adoption of the order making the requirement by the board of health, and that the chairman of the board of health called upon the defendant, and informed him that, if he refused to be vaccinated, he would incur the penalty of $5 provided by the statute, and would be prosecuted therefor, and then and there offered to vaccinate the defendant without any expense to him, and that he then and there absolutely refused to be vaccinated. The requirement of the board of health follows exactly the provisions of the statute. In each case the defense principally relied on is founded upon the refusal of the court to comply with numerous requests for rulings, which, in a variety of forms, called for an instruction that the statute was in violation of the Constitution of Massachusetts and of the Constitution of the United States.

In the second of the cases there is also an exception to the exclusion of evidence offered by the defendant to prove numerous propositions in regard to vaccination, chiefly relating to the alleged injurious and dangerous effects of it. We will consider the cases first in reference to the constitutionality of the statute, without regard to the evidence which was excluded. This statute is as follows: ‘The board of health of a city or town, if in its discretion it is necessary for the public health or safety, shall require and enforce the vaccination and revaccination of all of 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.’ Its language, considered in connection with facts of common knowledge, makes its object plain. It was enacted with a view to the enforcement of necessary measures for the prevention of smallpox. That such an object is worthy of the intelligent thought and earnest endeavor of legislators is too plain for discussion. Under the police power there is general legislative authority to make laws for the common good. Article 4, § 1, c. 1, of the second part of the Constitution of Massachusetts, states more fully than most constitutions the nature of this power, when it gives authority to ‘the general court from time to time to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this commonwealth,’ etc. That this power extends to the protection and preservation of the public health is not questioned. Salem v. Eastern Railroad Company, 98 Mass. 431, 96 Am. Dec. 650;Slaughter House Cases, 16 Wall. 36-62, 21 L. Ed. 394;Boston Beer Company v. Massachusetts, 97 U. S. 25-33, 24 L. Ed. 989;Fertilizing Company v. Hyde Park, 97 U. S. 659-669, 24 L. Ed. 1036. The rights of individuals must yield, if necessary, when the welfare of the whole community is at stake. This is true of the right to personal liberty as well as the right to property. People v. Warden of City Prison, 144 N. Y. 529-535, 39 N. E. 686,27 L. R. A. 718. Sometimes it is necessary that persons be held in quarantine. Rev. Laws, c. 75, § 131; Haverty v. Bass, 66 Me. 71;Minneapolis Railway Company v. Milner (C. C.) 57 Fed. 276. Conscription may be authorized if the life of the nation is in peril. See Lanahan v. Birge, 30 Conn. 468. The use or sale of certain kinds of property may be regulated or prohibited. Fisher v. McGirr, 1 Gray, 1, 61 Am. Dec. 381;Com. v. Waite, 11 Allen, 264, 87 Am. Dec. 711;Watertown v. Mayo, 109 Mass. 315, 12 Am. Rep. 694;Fertilizing Company v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036;Mugler v. Kansas, 123 U. S. 652, 8 Sup. Ct. 273, 31 L. Ed. 205. In these and other ways the liberty of the individual may be interfered with whenever the general welfare requires a course of proceedings to which certain persons object because of their peculiar opinions or special individual interests.

It is a fact of common knowledge that smallpox is a terrible disease, whose ravages have sometimes swept away thousands of human beings in a few weeks. It is equally well known that a large majority of the medical profession and of people generally consider vaccination, repeated at intervals of a few years, a preventive of the disease. So far as we are aware, all courts that have considered the subject have recognized the right of the Legislature to enact laws founded upon the theory that vaccination is important as a preventive of smallpox, and to impose restrictions, during an epidemic, upon persons who have not been vaccinated. There are some cases in which it has been held that the statute did not go far enough to authorize the restrictions which the authorities sought to impose. In re Smith, 146 N. Y. 68, 40 N. E. 497, 28 L. R. A. 820, 48 Am. St. Rep. 769; Adams v. Burdge, 95 Wis. 390,70 N. E. 347;Potts v. Breen, 167 Ill. 67, 47 N. E. 81,39 L. R. A. 152, 59 Am. St. Rep. 262;Mathews v. Board of Education, 127 Mich. 530, 86 N. W. 1036,54 L. R. A. 736. But these assume that the Legislature may interfere with the exercise of the ordinary rights of individuals if they are not vaccinated when smallpox is prevalent. Legislation requiring vaccination, or authorizing some local board to require it, as a prerequisite to attendance at school, has been sustained whenever called in question. Duffield v. School District, 162 Pa. 476, 29 Atl. 742,25 L. R. A. 152;Bissell v. Davison, 65 Conn. 183, 32 Atl. 348,29 L. R. A. 251;Abeel v. Clark, 84 Cal. 226, 24 Pac. 383;Blue v. Beach, 155 Ind. 121, 56 N. E. 89,50 L. R. A. 64, 80 Am. St. Rep. 195;In re Walters, 84 Hun, 457, 32 N. Y. Supp. 322; Re Rebenack, 62 Mo. App. 8. Legislation requiring vaccination is mentioned as a proper exercise of the police power in Lawton v. Steele, 152 U. S. 133-136, 14 Sup. Ct. 499, 38 L. Ed. 385. Statutes substantially the same as the one now before us have been sustained, after careful consideration, by the highest courts of Georgia and North Carolina. Morris v. Columbus, 102 Ga. 792, 30 S. E. 850,42 L. R. A. 175, 66 Am. St. Rep. 243;State v. Hay, 126 N. C. 999, 35 S. E. 459,49 L. R. A. 588, 79 Am. St. Rep. 691;Levin v. City of Burlington (N. C.) 39 S. E. 822,55 L. R. A. 396.

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...