Davis v. Walton

• Decision Date: 09 April 1929
• Docket Number: 4809
• Citation: 276 P. 921,74 Utah 80
• Court: Utah Supreme Court
• Parties: DAVIS, Warden, v. WALTON

276 P. 921

74 Utah 80

DAVIS, Warden, v. WALTON

No. 4809

Supreme Court of Utah

April 9, 1929

Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.

On petition of R. E. Davis, as Warden of the Utah State Prison the State Board of Corrections ordered that Esau Walton, an inmate, be asexualized. From an order of the district court affirming the order of asexualization, the inmate appeals.

REVERSED AND REMANDED.

Parley P. Jenson, of Salt Lake City, for appellant.

George P. Parker, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for respondent.

ELIAS HANSEN, J. CHERRY, C. J., and EPHRAIM HANSON and FOLLAND JJ., STRAUP, J., concurring.

OPINION

ELIAS HANSEN, J.

On November 5, 1925, Esau Walton was committed to the Utah state prison for the crime of robbery. He has been an inmate of that institution since the date of his commitment. In May 24, 1927, the state board of corrections of the state of Utah ordered that Esau Walton be asexualized. He appealed from the order thus made to the district court of Salt Lake county. The district court affirmed the order of asexualization. He prosecutes this appeal, and here seeks a reversal of the order directing that he be asexualized. He urges that the order appealed from should be reversed, because (1) the law authorizing asexualization is unconstitutional; (2) the evidence does not support the order.

This proceeding is had under the provisions of Laws Utah 1925, c. 82, p. 159, and is entitled "An Act to Prevent the Procreation of Habitual Sexual Criminals, Idiots, Epileptics, Imbeciles and Insane and Providing Penalties for the Violation Thereof." The act provides for the asexualization of persons afflicted with habitual sexual criminal tendencies, insanity, idiocy, imbecility, feeble-mindedness, and epilepsy, who are confined in the Utah state hospital and sanatorium, the state industrial school, and the state prison. To secure an order authorizing the asexualization of any inmate in any of the mentioned state institutions, the act provides that the following procedure shall be followed: When the warden of the state prison or the superintendent of the state hospital and sanatorium or of the state industrial school shall be of the opinion that it is for the best interests of any inmate of the institution under his care and of society that such inmate should be sexually sterilized, he is directed to present a verified petition setting forth the facts and grounds for his belief to the board of control of the institution wherein the person to be asexualized is confined. A copy of the petition, together with a written notice of the time and place of hearing the petition, shall be served upon the inmate, his legal guardian, if he has such guardian, and his parents, if living, when the inmate is a minor. If the inmate has no legal guardian, the warden or superintendent, as the case may be, is directed to apply to the district court of the county wherein the institution is situated for the appointment of a guardian for the inmate. A copy of the petition and notice must likewise be served upon the guardian so appointed. The hearing is had before the board in control of the institution in which the person sought to be asexualized is confined. The inmate, his guardian, and parents have a right to attend the hearing and be represented by counsel. Provision is made for an appeal to the district court from the order of the board, and likewise an appeal may be taken from the judgment of the district court to this court. When an appeal is taken from the order of the board to the district court, the records and files in the proceeding, including the evidence, which must be reduced to writing, are directed to be transmitted to the district court. The district court, in determining the appeal, may consider the record and proceedings had before the board and such other evidence as may be proper.

The act also contains these provisions:

"The said special board may deny the prayer of the said petition or if the said special board shall find that the said inmate is habitually sexually criminal, insane, idiotic, imbecile, feebleminded, or epileptic, and by the laws of heredity is the probable potential parent of socially inadequate offspring likewise afflicted, that the said inmate may be sexually sterilized or asexualized without detriment to his or her general health, and that the welfare of the inmate and of society will be promoted by such sterilization or asexualization the said special board may order the said superintendent or warden to perform or to have performed by some competent physician to be named in such order upon the said inmate, after not less than thirty days from the date of such order, the operation of vasectomy or asexualization if a male or salpingectomy or asexualization if a female." Section 2.

"Nothing in this Act shall be construed so as to prevent the medical or surgical treatment for sound therapeutic reasons of any person in this State, by a physician or surgeon licensed by this State, which treatment may incidentally involve the nullification or destruction of the reproductive functions." Section 6.

"Except as authorized by this Act, every person who shall perform, encourage, assist in or otherwise promote the performance of any of the operations described in this Act, for the purpose of destroying the power to procreate the human species, unless the same shall be a medical necessity, shall be guilty of a felony." Section 7.

The act contains other provisions, but they do not have any bearing on the questions presented for determination on this appeal.

Appellant contends that the law under which this proceeding is had is contrary to, and in violation of, article 1, § 9, of the Constitution of Utah, in that it provides for the infliction of cruel and unusual punishment. The provision of the Constitution referred to provides:

"Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted. Persons arrested or imprisoned shall not be treated with unnecessary rigor."

In support of appellant's contention in such respect the following cases are cited: Davis v. Berry (D. C.) 216 F. 413; Mickle v. Henrichs (D. C.) 262 F. 687; Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, 19 Ann. Cas. 705; Whitten v. State, 47 Ga. 297. These cases support, or tend to support, appellant's contention where the operation of vasectomy or asexualization is adopted as a means of punishing a convicted criminal. In the case of State v. Feilen, 70 Wash. 65, 126 P. 75, 41 L. R. A. (N. S.) 418, Ann. Cas. 1914B, 512, a different conclusion is reached. It is there held that a law which provides that "whenever any person shall be adjudged guilty of carnal abuse of a female person under the age of ten years, or of rape, or shall be adjudged to be an habitual criminal, the court may, in addition to such other punishment or confinement as may be imposed, direct an operation to be performed upon such person, for the prevention of procreation," is not contrary to or in violation of the Constitution of the state of Washington which prohibited cruel punishment.

Appellant further contends that the law under review violates the Fourteenth Amendment to the Constitution of the United States, in that it denies him equal protection of the law. The following cases may be said to support, or lend support, to this contention of appellant: Smith v. Board of Examiners, 85 N.J.L. 46, 88 A. 963; Osborn v. Thomson et al., 103 Misc. 23, 169 N.Y.S. 638; Williams et al. v. Smith, 190 Ind. 526, 131 N.E. 2; Haynes v. Lapeer Circuit Judge, 201 Mich. 138, 166 N.W. 938, L. R. A. 1918D, 233; Smith v. Wayne Probate Judge, 231 Mich. 409, 204 N.W. 140, 40 A. L. R. 515. In the case of Buck v. Bell, 143 Va. 310, 130 S.E. 516, 51 A. L. R. 855, which was appealed to the Supreme Court of the United States and there affirmed, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000, it is held that a law very similar to that under review did not violate the Fourteenth Amendment of the Constitution of the United States.

It will be observed that the provisions of the law involved in this proceeding require that before the operation of asexualization may be performed it must be made to appear (1) that the person to be operated upon is an inmate of either the state hospital or sanatorium, the state prison, or the state industrial school; (2) that the inmate is either habitually sexually criminal, insane, idiotic, imbecile, feebleminded, or epileptic; (3) that the inmate, by the law of heredity, is the probable potential parent of socially inadequate offspring likewise afflicted; (4) that the inmate may be sexually sterilized or asexualized without detriment to his or her general health; (5) that the welfare of the inmate will be promoted by sterilization or asexualization; (6) that the welfare of society will be promoted by sterilization or asexualization of the inmate. The act is in no sense a penal statute. The operation provided for is not a punishment for a crime. Its purposes are eugenic and therapeutic. Therefore cases dealing with laws that provide for asexualization as a punishment for crime are not applicable to the law here under consideration. It is clear, however, that one of the purposes of the law is eugenic. The Legislature, by the act, seeks to improve the race by preventing from being born persons who will probably become defectives or criminals. It is urged that the act is class legislation; that to require the asexualization of those confined in public institutions without requiring similar treatment of persons of the same class who are not so confined offends against the equal protection of the law guaranteed by...