Davis v. Berry, 9-A.

CourtU.S. District Court — Southern District of Iowa
Citation216 F. 413
Docket Number9-A.
PartiesDAVIS v. BERRY et al.
Decision Date24 June 1914

216 F. 413

DAVIS
v.
BERRY et al.

No. 9-A.

United States District Court, S.D. Iowa, Eastern Division.

June 24, 1914


[216 F. 414]

George B. Stewart, of Fort Madison, Iowa, for complainant.

George Cosson, Atty. Gen., of Des Moines, Iowa, for defendants.

Before SMITH, Circuit Judge, and POLLOCK and SMITH McPHERSON, District judges.

SMITH McPHERSON, District Judge.

The complainant is a prisoner in the Iowa penitentiary. Defendants Berry, Howe, and Mott constitute the Iowa board of parole, Sanders is the warden, and Philpott is the physician of the penitentiary. The case is one of diversity of citizenship, with federal questions presented by a bill in equity with an application for a temporary injunction to restrain defendants as state officers from enforcing chapter 187 of the Acts of the Thirty-Fifth General Assembly 1913, authorizing a surgical operation called vasectomy on idiots, feeble-minded, drunkards, drug fiends, epileptics, syphilitics, moral and sexual perverts, and mandatory as to criminals who have been twice convicted of a felony.

Complainant has been twice convicted of a felony, one of which was prior to the enactment of the statute in question (and in another state), and the other since (in this state), and for the latter he is now imprisoned. The defendant board of parole in February, 1914, made an order that the operation should be performed upon certain designated prisoners, including the complainant. This action was brought by the complainant for the purpose of enjoining each and every of the defendants from subjecting him to the operation. Since the action was instituted the board of parole, under a written opinion of the Attorney General of the state, has rescinded its order, and they and the prison physician say they will observe such opinion. The opinion of the Attorney General is based upon the proposition that the statute is ex post facto if either of the convictions was for an offense committed prior to the enactment of the statute. Complainant's counsel in argument conceded the statute is not an ex post facto one.

The Attorney General was in error when he advised the board of parole that the statute in question is void by reason of it being ex post facto, except only as to prisoners who have been twice convicted for felonies committed since the enactment of the statute. The statute under any construction is not an ex post facto one. State of Iowa ex rel. Gregory v. Jones (D.C.) 128 F. 626; Kelly v. People, 115 Ill. 583, 4 N.E. 644, 56 Am.Rep. 184; Commonwealth v. Graves, 155 [216 F. 415] Mass. 163, 29 N.E. 579, 16 L.R.A. 256; Sturtevant v. Commonwealth, 158 Mass. 598, 33 N.E. 648; In re Miller, 110 Mich. 676, 68 N.W. 990, 34 L.R.A. 398, 64 Am.St.Rep. 376; Blackburn v. State, 50 Ohio St. 428, 36 N.E. 18; Moore v. State of Missouri, 159 U.S. 673, 16 Sup.Ct. 179, 40 L.Ed. 301; Cooley's Constitutional Limitations (7th Ed.) 382; State v. Dowden, 137 Iowa, 573, 115 N.W. 211; Graham v. West Virginia, 224 U.S. 616, 32 Sup.Ct. 583, 56 L.Ed. 917. He is not being subjected to the operation for that which was by him done prior to the enactment of the statute, but because he voluntarily brings himself within a class covered by the statute, and he does this subsequent to the enactment of the statute.

The Attorney General also advised the board of parole that the statute should be so construed as to be applicable only to prisoners who have been twice convicted of felonies committed since the enactment of the statute. Section 26, article 3, of the Iowa Constitution provides that a statute shall take effect July 4th following its enactment, or, if enacted at a special session, then at the expiration of 90 days after adjournment, or, in case of a declared emergency, by the publication thereof. But the Attorney General, to maintain the proposition that the law is ex post facto as applied to one who was convicted the one time prior to the statute, is doing violence to the state Constitution by contending that the statute would be effective only as to any prisoner many years after its enactment.

The defendant board of parole by rescinding the order subjecting complainant to the surgical operation, and the defendant warden and physician through the Attorney General, now insist that an injunction should not issue because it will serve no purpose. There are two answers to this: Death, resignation, and expiration of terms of office will bring other men into the positions now held by the defendants, who may not entertain the same views as these defendants. The opinion of the Attorney General is advisory only, and is not at all binding on either these defendants or their successors in office.

Again, the statute in question provides that certain persons may be subjected to the surgical operation; but the latter part of section 1 provides that such operations shall be performed upon prisoners who have been twice convicted of a felony, such as the complainant. It is the duty of an officer to follow the mandates of the statute. Of course every officer must act at his peril under a statute that another party claims to be unconstitutional and void; but where a person will suffer an irreparable injury if the statute is carried out, the presumption is that such statute will be observed, and that an injunction should issue to enjoin the enforcement of a void statute. Williams v. Boynton, 147 N.Y. 426, 42 N.E. 184; Osborn v. Bank, 9 Wheat. 739, 840, 6 L.Ed. 204; 2 High on Injunctions (4th Ed.) Sec. 310.

Complainant in his verified bill alleges that the statute is in violation of the United States Constitution in that it is in effect a bill of attainder, in that there is to be no indictment or trial; that the statute abridges his privileges, and that he is denied the equal protection of the laws; that he is denied due process of law; that the statute is in conflict with the Iowa Constitution in that the statute denies the inalienable right to enjoy life, liberty, and to pursue and obtain safety [216 F. 416] and happiness, and that there is no jury trial awarded him; and that the statute provides cruel and unusual punishment.

The case presents important questions. Statutes like this are of recent years, the first one upon the subject enacted less than 15 years ago. The question has been before appellate courts but twice. In one case, that of State of Washington v. Feilen, 70 Wash. 65, 126 P. 75, 41 L.R.A.(N.S.) 418, the statute was upheld. The court held that the punishment was not cruel or unusual in the constitutional sense. That case involved a most heinous offense, that of the ravishment of a female child, and the statute provided that in addition to life imprisonment the jury and the court might determine whether he should be subjected to the operation of vasectomy. So that on the question now presented there was due process of law in that the matter was judicially determined. The other case, by the Supreme Court of New...

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15 practice notes
  • Moore's Sterilization, In re, No. 72
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 29, 1976
    ...1094 (1918), Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); or cruel and unusual punishment, Davis v. Berry, 216 F. 413 (S.D.Iowa 1914), Rev'd on other grounds, 242 U.S. 468, 37 S.Ct. 208, 61 L.Ed. 441 Our research does not disclose any case which holds that a state......
  • Gallardo v. Porto Rico Ry., Light & Power Co., No. 2058.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 11, 1927
    ...assumed (the answers admit) that the treasurer and commissioner intend to do their full apparent duty under the act. Davis v. Berry (D. C.) 216 F. 413, 415. The plaintiff attacks the whole undertaking as invalid; if this contention be sound, it is clear that the threatened injury was immine......
  • Skinner v. State of Oklahoma Williamson, No. 782
    • United States
    • United States Supreme Court
    • June 1, 1942
    ...to be heard on the issue as to whether he is the probable potential parent of socially undesirable offspring. See Davis v. Berry, D.C., 216 F. 413; Williams v. Smith, 190 Ind. 526, 131 N.E. 2. It is also suggested that the Act is penal in character and that the sterilization provided for is......
  • In re Hendrickson, 28248.
    • United States
    • United States State Supreme Court of Washington
    • March 5, 1942
    ...not fairly and adequately afford the defective subject notice and assure him his day in court violates this guaranty. Davis v. Berry, D.C., 216 F. 413; Williams v. Smith, 190 Ind. 526, 131 N.E. 2; Brewer v. Valk, 204 N.C. 186, 167 S.E. 638, 87 A.L.R. 237; and, to the same effect, see an adv......
  • Request a trial to view additional results
15 cases
  • Moore's Sterilization, In re, No. 72
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 29, 1976
    ...1094 (1918), Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); or cruel and unusual punishment, Davis v. Berry, 216 F. 413 (S.D.Iowa 1914), Rev'd on other grounds, 242 U.S. 468, 37 S.Ct. 208, 61 L.Ed. 441 Our research does not disclose any case which holds that a state......
  • Gallardo v. Porto Rico Ry., Light & Power Co., No. 2058.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 11, 1927
    ...assumed (the answers admit) that the treasurer and commissioner intend to do their full apparent duty under the act. Davis v. Berry (D. C.) 216 F. 413, 415. The plaintiff attacks the whole undertaking as invalid; if this contention be sound, it is clear that the threatened injury was immine......
  • Skinner v. State of Oklahoma Williamson, No. 782
    • United States
    • United States Supreme Court
    • June 1, 1942
    ...to be heard on the issue as to whether he is the probable potential parent of socially undesirable offspring. See Davis v. Berry, D.C., 216 F. 413; Williams v. Smith, 190 Ind. 526, 131 N.E. 2. It is also suggested that the Act is penal in character and that the sterilization provided for is......
  • In re Hendrickson, 28248.
    • United States
    • United States State Supreme Court of Washington
    • March 5, 1942
    ...not fairly and adequately afford the defective subject notice and assure him his day in court violates this guaranty. Davis v. Berry, D.C., 216 F. 413; Williams v. Smith, 190 Ind. 526, 131 N.E. 2; Brewer v. Valk, 204 N.C. 186, 167 S.E. 638, 87 A.L.R. 237; and, to the same effect, see an adv......
  • Request a trial to view additional results

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