Morris v. City of Columbus

• Decision Date: 28 February 1898
• Citation: 30 S.E. 850,102 Ga. 792
• Parties: MORRIS et al. v. CITY OF COLUMBUS.
• Court: Georgia Supreme Court

30 S.E. 850

102 Ga. 792

MORRIS et al. v. CITY OF COLUMBUS.

Supreme Court of Georgia

February 28, 1898

Syllabus by the Court.

The general assembly may, in the exercise of the police power confer upon the municipal corporations of this state authority to make and enforce ordinances requiring all persons who may be within the limits of such corporations to submit to vaccination whenever an epidemic of smallpox is existing, or may be reasonably apprehended.

Error from superior court, Muscogee county; W. B. Butt, Judge.

G. W Morris and others were convicted in the recorder's court of the city of Columbus of a violation of a municipal ordinance, and applied to the superior court for certiorari to review such conviction. On a hearing, the petition was denied, and defendants bring error. Affirmed.

C. J Thornton and Cameron & Hargett, for plaintiffs in error.

Francis D. Peabody and S. P. Gilbert, Sol. Gen., for defendant in error.

COBB J.

In 1890 the general assembly conferred upon the mayor and aldermen of the city of Columbus authority to "declare by resolution that vaccination shall be compulsory upon all persons living in the county of Muscogee, or any part thereof,"--the resolution to provide "the time within which all persons living in said county, or any part thereof, shall be vaccinated"; the act further providing that "any person failing to be vaccinated within the time required in said resolution, shall, upon conviction," be punished as therein prescribed. Acts 1890-91, vol. 2, p. 508. On August 7, 1897, the city council passed a resolution for compulsory vaccination of each and every person resident of that city, over the age of two years, and of all persons nonresident who were employed in the city, excepting such as would produce physicians' certificates that they had been successfully vaccinated since January 1, 1897, or that such person was an immune, or was in such state of health that vaccination would be dangerous: provided, that any person should have the right to be vaccinated by the physician of his choice. Two days later the city council passed a further resolution that all persons residing within a radius of three miles from the city should be vaccinated within 10 days from its passage, except such persons as might produce a certificate of a reputable physician that vaccination was not necessary, or would be dangerous, in a given case. Each of these resolutions provided a penalty for its violation. On September 13, 1897, a further resolution was passed, providing for a house to house vaccination, with penalty for failing or refusing to be vaccinated. Morris, Newsom and Yarbrough were arraigned before the recorder's court for a violation of these resolutions. Upon conviction they applied to the superior court for a writ of certiorari, and the refusal of that court to sustain the certiorari is the error assigned here. From the record, it appears that plaintiff in error Morris resided outside of the city limits, in Muscogee county, but was an employé of a factory within the city limits, and was at the factory at the time he refused to be vaccinated or to produce a certificate of a physician showing that he was within any of the exceptions enumerated in the resolution. Newsom and Yarbrough were residents of the city. Morris excepted to the decision of the recorder on the ground that that court had no jurisdiction of him, and because the resolution, the violation of which was charged, was illegal and unconstitutional. Newsom and Yarbrough excepted on the grounds that the recorder's court refused to grant them time to procure counsel and prepare their defense, that the evidence was not sufficient to authorize the judgment, that no necessity appeared for the enforcement of the resolution, and that the same is unconstitutional and void. It appears from the record that there was no smallpox in the city when the plaintiffs in error refused to be vaccinated or to furnish a certificate, but there was smallpox in the city when the two resolutions were passed by the council, that the disease is one which grows more prevalent in winter, and that there was smallpox at the date of the trials in the city of Birmingham, Ala. All of the plaintiffs in error attack the constitutionality of the act of the general assembly conferring authority upon the city council of Columbus to require vaccination in certain cases. Before discussing this question, we will dispose of the other questions raised by the petitions for certiorari.

Plaintiff in error Morris contends that the court had no jurisdiction of him, because he was a nonresident of the city, although he lived but 300 feet from the city limits, and in Muscogee county. The general assembly, by an act approved November 15, 1895, amendatory of the act of 1890 creating a new charter for the city of Columbus (Acts 1895, p. 187), gave jurisdiction to the mayor and aldermen of Columbus over all persons living within a radius of one mile and a half from the city limits, so far as requiring vaccination was concerned; and, if the legislature had power to pass this act (and it is not contended that it did not), then it follows that the recorder's court had jurisdiction to try and punish any person within the prescribed limits for a violation of the city's ordinance. It is not necessary, however, to decide in this case whether or not the general assembly could give the municipal authorities jurisdiction over persons who live outside the city limits, and do not come into the city, or whether or not the authorities have transcended their power in passing an ordinance designed to affect persons living further from the city than 1 1/2 miles, as the question raised by plaintiff in error Morris is whether or not the city authorities have jurisdiction over a person who, while he has his legal residence outside of the city limits, is actually in the city during the day, while engaged in his employment. As we have seen, this power was expressly conferred upon the municipal authorities by the legislature, and it is certain that the legislature could give the city jurisdiction over such a person. If this were not true, vaccination, if efficacious, would afford scant protection to the inhabitants, when persons living outside of the city, and who had been exposed to the contagion, might come into the city and scatter it broadcast among them before they had been innoculated, and thus rendered immune. But, even without express legislative permission, it is the current of authority that municipal ordinances have the same effect upon persons who come within the limits of a city, as they have upon regular inhabitants. 1 Dill. Mun. Corp. § 355; Bott v. Pratt, 33 Minn. 323, 23 N.W. 237; Village of Buffalo v. Webster, 10 Wend. 100; Wilmington v. Roby, 30 N.C. 250; City Council v. Pepper, 1 Rich. Law, 364; Kennedy v. Sowden, 1 McMull. 323; City of Knoxville v. King, 7 Lea, 441; Folmar v. Curtis, 86 Ala. 354, 5 So. 678.

The next question raised by the petitions for certiorari is that there was no necessity for the enforcement of the ordinance. The right to enforce vaccination (assuming for the present that its enforcement is constitutional) is derived from necessity; and, although the authority conferred upon the municipal corporation of Columbus is very broad, still we cannot assume that the legislature intended that they should exercise this authority save in cases of necessity. Did the necessity for the enforcement of the ordinance against the plaintiffs in error exist? We think there can be no question under the facts appearing in the record, but that the municipal authorities had reasonable grounds for apprehending that an epidemic of smallpox was imminent. While the disease did not exist in the community at the time of the trial, it was prevalent in Birmingham, an adjacent city; it was present in Columbus when the resolution was adopted; and winter was approaching, at which season the disease is more highly contagious than at any other time. Taking these facts into consideration, we think the authorities were warranted in enforcing the ordinance, unless it invaded some constitutional right of the plaintiffs in error. And this brings us to a discussion of the main question in the case. Before doing so, however, it may be well to remark that a number of objections that are usually urged against compulsory vaccination cannot be considered under an exception to the constitutionality of the law. Other than as above indicated, no attack has been made on the ordinance itself. The municipal authorities have carried into execution the power conferred upon them by the general assembly. They have, it would seem, in no way transcended that power. The ordinance is aimed only at those who have not been vaccinated within a certain time, who are not immune, or who have not furnished a certificate from some physician that the injection of the virus into their system would be injurious. It is even more liberal than that; it allows to every person the privilege of being innoculated by the physician of his choice. There can be no question but that this is a reasonable exercise of the power conferred upon the city authorities by the legislature. With the wisdom or policy of vaccination, the courts have nothing to do. We do not propose to enter into a discussion as to whether or not it is a preventive of smallpox. That question is not a proper subject-matter for review by the courts. The legislature has seen fit to adopt the opinion of those scientists who insist that it is efficacious, and this is conclusive upon us. Our only province is to see that none of the rights guaranteed to the plaintiffs in error by the fundamental law are infringed. "What is for the public good, and what are public purposes, and what does...