Peterson v. Widule

• Decision Date: 17 June 1914
• Citation: 157 Wis. 641,147 N.W. 966
• Parties: PETERSON v. WIDULE, COUNTY CLERK.
• Court: Wisconsin Supreme Court

157 Wis. 641

147 N.W. 966

PETERSON

v.WIDULE, COUNTY CLERK.

Supreme Court of Wisconsin.

June 17, 1914.

Appeal from Milwaukee County Court; F. C. Eschweiler, Judge.

Action for mandamus by Alfred A. Peterson against Louis G. Widule, County Clerk. Judgment for the petitioner and defendant appeals. Reversed and remanded with directions to quash the writ.

Mandamus action. The petitioner applied to the defendant as county clerk for a marriage license, and received a blank form of certificate, such as is required by section 2339m, Stats. Wis. He presented himself to four physicians for examination to determine whether he had a venereal disease, tendering each of them the statutory fee of $3. Each physician refused to make the examination because such fee was insufficient compensation for making the Wassermann test for syphilis, which the physicians considered as necessary to be made before they could make the certificate. The petitioner thereupon renewed his application for a marriage license without a certificate, but was refused, and brought this action to compel the issuance of a license. Return was made to the alternative writ to the effect that the petitioner had not produced the required certificate. Testimony of ten physicians was taken, and the court made the following findings of fact and conclusions of law:

“(1) That in medical science there are three diseases designated under the one head of venereal diseases, viz., syphilis, gonorrhea, and chancroid.

(2) That the term ‘hereditary’ refers to such a disease received by the individual at the time of, or prior to, birth.

(3) That ‘acquired’ is restricted to such a disease starting in the individual after birth.

(4) That ‘clinical’ refers to what may be discovered by the observation of the physician from the body of the individual and without the use of instruments.

(5) That ‘laboratory tests' are those requiring the use of instruments and certain methods of demonstrating the presence or absence of such diseases.

(6) That among such laboratory tests is the one known as the ‘Wassermann test’; that it has been known to the medical world about seven years, is a standard, well-recognized, and very efficient test, and a great many of such tests are being made by those familiar with the use thereof; that it will determine with practical certainty in from 70 to 90 per cent. of the cases tested, the existence of syphilis; and that it is necessary and proper in many cases where there are some clinical evidences.

(7) That a male person over 18 years of age might be possessed of syphilis in a form transmissible to his wife or offspring without such condition being discovered by a ‘clinical’ test.

(8) That in the event last mentioned the Wassermann test is efficient, practical, and necessary in order to determine as nearly as can be the presence or absence of venereal diseases.

(9) That the Wassermann test requires a special laboratory apparatus and equipment.

(10) That there are now, out of the over 3,000 physicians in the state of Wisconsin, not to exceed 25, and among the over 300 in Milwaukee county not to exceed 6, who are equipped and prepared for the Wassermann test.

(11) That the maximum fee of $3 prescribed in the chapter that a physician may charge and receive for such examination and certificate is unreasonably small for the making of the Wassermann test; this finding having been conceded by the counsel for the state and defendant, upon the trial.

And as conclusion of law: That chapter 738 of the Laws of 1913, entitled, ‘An act to create section 2339m of the Statutes, relating to marriage and venereal diseases,’ is an unreasonable and material impairment of the inalienable right of fit and proper persons to enter into the marriage state, and that it is in violation of the rights secured by section 1, art. 1, and section 18, art. 1, of the Constitution of the state of Wisconsin and therefore void, and no defense to the defendant in his refusal to grant petitioner a marriage license, and that the petitioner is entitled to the peremptory writ of mandamus, as prayed in the petition, and judgment is ordered accordingly.”

From this judgment the county clerk appeals.

Section 2339m, Stats. Wis., is as follows:

“(1) All male persons making application for license to marry shall at any time within fifteen days prior to such application, be examined as to the existence or nonexistence in such person of any venereal disease, and it shall be unlawful for the county clerk of any county to issue a license to marry to any person who fails to present and file with such county clerk a certificate setting forth that such person is free from acquired venereal diseases so nearly as can be determined by physical examination and by the application of the recognized clinical and laboratory tests of scientific search. Such certificate shall be made by a licensed physician, shall be filed with the application for license to marry, and shall read as follows: to wit: I, ...... (name of physician), being a legally licensed physician, do certify that I have this ...... day of ......, 19...., carefully and thoroughly examined ...... (name of person), having applied the recognized clinical and laboratory tests of scientific search and find him to be free from all venereal diseases so nearly as can be determined. ............ (Signature of Physician.)”

“(2) Such examiners shall be physicians duly licensed to practice in this state, shall be persons of good moral character and of scientific attainments and at least thirty years of age. The fee for such examination, to be paid by the applicant for examination before the certificate shall be granted, shall not exceed three dollars. The county physician of any county shall, upon request, make the necessary examination and issue such certificate, if the same can properly be issued without charge to the applicant, if said applicant be indigent.

(3) Whenever there is a dispute or disagreement regarding the findings of any medical examiner, laboratory tests shall be made in the state laboratory of hygiene from material submitted by such examiner, and the findings of said laboratory shall be accepted as evidence of the presence or absence in the person examined of any venereal disease.

(4) In any case wherein the certificate of health required by subsection 1 of this section shall be refused and the applicant shall make and file with the county clerk of the proper county an affidavit setting forth the fact that such applicant has not had a fair and impartial examination and that he is entitled to such certificate of health, it shall be the duty of such county clerk to certify such proceedings, at once, to the county court of such county without formality or expense to such applicant. Such application shall be heard by a judge of said court, at the earliest time practicable, without a jury in court or in chambers, during the term or in vacation as the case may be. Notice of the time and place of such hearing shall be given to such applicant by mail. A certified copy of an order of such judge upon his findings in such matter determining that such applicant is entitled to such certificate of health presented and filed with such county clerk, shall have the same force and effect as such certificate and such county clerk shall thereupon issue a license to marry, to such applicant.

(5) Any person a resident of this state, who with intent to evade the provisions of this act shall go into another state and there have a marriage solemnized and who within one year from date of such marriage shall return and reside in this state, shall upon information or knowledge to the district attorney of any county be required by him to file with the county clerk of any county in which such person may be then a resident, a certificate of examination from such physician as set forth in this section. Any person violating the provisions of this subsection shall be punished by imprisonment in the county jail not less than thirty days nor more than one year.

(6) Any county clerk who shall unlawfully issue a license to marry to any person who fails to present and file the certificate provided by subsection 1 of this section, or any party or parties having knowledge of any matter relating or pertaining to the examination of any applicant for license to marry, who shall disclose the same, or any portion thereof, except as may be required by law, shall upon proof thereof be guilty of a felony, and shall be punished by imprisonment in the state prison not less than one year nor more than five years.

(7) Any physician who shall knowingly and willfully make any false statement in the certificate provided for in subsection 1 of this section shall be guilty of perjury and upon conviction shall be punished as for perjury, and a conviction under this subsection shall revoke the license of such physician to practice in this state.”

Marshall and Vinje, JJ., dissenting. Barnes, J., dissenting in part.

George C. Widule, Edward J. Yockey, Dist. Atty., and Henry S. Sloan, Asst. Dist. Atty., all of Milwaukee (Walter C. Owen, Atty. Gen., and B. H. Stebbins, Asst. Atty. Gen., of counsel), for appellant.

Runkel, Runge & McLogan, of Milwaukee, for respondent.

WINSLOW, C. J. (after stating the facts as above).

The case presents simply the question whether the so-called eugenics law is constitutional. It was held unconstitutional by the trial court because: (1) It is an unreasonable restriction upon the inalienable right of marriage; (2) it impairs the inherent right to enjoy life, liberty, and the pursuit of happiness; (3) it interferes with religious freedom.

Before taking up for discussion the specific objections to the law, some general, fundamental propositions, which are not open to question, may profitably be stated.

The power of the state to control and regulate by reasonable laws the marriage relation, and to prevent the contracting of marriage by persons afflicted with...