Smith v. Command

• Decision Date: 18 June 1925
• Docket Number: No. 3.,3.
• Citation: 204 N.W. 140,231 Mich. 409
• Parties: SMITH v. COMMAND, Probate Judge.
• Court: Michigan Supreme Court

231 Mich. 409

204 N.W. 140

SMITH

v.COMMAND, Probate Judge.

No. 3.

Supreme Court of Michigan.

June 18, 1925.

Certiorari by Willie Smith, by Fred M. Butzel his guardian ad litem, against Edward Command, Wayne County Probate Judge, to review order for relator's sterilization. Order vacated, and set aside.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.

Wiest, Fellows, and Bird, JJ., dissenting.

William Van Dyke, of Detroit, for petitioner.

Andrew B. Dougherty, Atty. Gen., and Fred L. Warner, Asst. Atty. Gen., for defendant.

McDONALD, C. J.

Whillie Smith is 16 years of age. He was duly adjudged to be feeble-minded by the probate court of Wayne county, and is now confined in the State Home at Lapeer. His father, with the consent of the mother, filed a petition under Act 285, Public Acts of 1923, to have him sterilized. The proceedings resulted in an order by the court appointing a competent physician to treat the plaintiff by X-ray or by vasectomy, or by other treatment that may be least dangerous to life, in order to render him incapable of procreation. To secure a reversal of this order, the plaintiff brings certiorari.

The purpose of the act as expressed in its title is ‘to authorize the sterilization of mentally defective persons.’ Mentally defective persons are deemed to include idiots, imbeciles, and the feeble-minded, but not the insane. When one of this class has been adjudged mentally defective by a court of competent jurisdiction, application may be made to have him treated so that he may be incapable of procreation. Upon filing the application, the court is required to fix a day for hearing, to cause a 10 days' notice thereof to be given, to appoint a guardian ad litem, and to name three reputable physicians to examine into the mental condition of the defective with a view to obtaining their opinions as to whether he should be dealt with under the act. At the hearing, which may be by the court alone or by the court and a jury, full evidence is required to be taken in writing as to the mental and physical condition of the defective and as to his personal history. After such hearing, the court may make an order for treatment or operation to render the defective incapable of procreation whenever it shall be found:

‘1 (a) That the said defective manifests sexual inclinations which make it probable that he will procreate children unless he be closely confined or be rendered incapable of procreation; (b) that children procreated by said adjudged defective will have an inherited tendency to mental defectiveness; and (c) that there is no probability that the condition of said person will improve so that his or her children will not have the inherited tendency aforesaid; or

‘2 (a) That said defective manifests sexual inclinations which make it probable that he will procreate children unless he be closely confined, or be rendered incapable of procreation; and (b) That he would not be able to support and care for his children, if any, and such children would probably become public charges by reason of his own mental defectiveness.’

The question presented for our consideration is whether this act is a valid exercise of police power within the limitations of the Constitution.

It is first urged by counsel for the plaintiff that the act is an unreasonable, arbitrary, and unnecessary interference with the fundamental rights and privileges of individuals, that its effect upon the person or upon the public welfare is experimental, and that courts cannot sustain it as a valid exercise of police power until science or experience has demonstrated its reasonableness.

Biological science has definitely demonstrated that feeble-mindedness is hereditary. The English Royal Commission of 1904, took the testimony of all the noted experts of England on the subject of mental diseases. The consensus of opinion thus gathered was that feeble-mindedness, if not accidental, is hereditary. It would not be advisable to extend this opinion by repeating the testimony of these eminent biological and medical experts. We may content ourselves with quoting from Dr. A. F. Tredgold, one of the greatest authorities on feeble-mindedness, who, after reviewing the findings of the Royal Commission, says:

‘It is quite clear, therefore, that there is now an overwhelming body of evidence from those qualified by experience to express an opinion on this matter, to the effect that in the great majority of cases of amentia (feeble-mindedness) the condition is due to innate or germinal causes, and that it is transmissible.’ Mental Deficiency Edition of 1916 by Dr. A. F. Tredgold.

To the same effect are the opinions of many notable biological students in this country. In the Trend of the Human Race, by Samuel J. Holmes of the University of California, it is said:

‘The fact that defective mentality is strongly transmitted is established beyond the possibility of sane objection, and the particularly disastrous results that are pretty sure to follow from the mating of two mentally defectives have certainly been made sufficiently impressive by the work of recent investigators.’

From this and a great quantity of other evidence to which we will not here refer, it definitely appears that science has demonstrated to a reasonable degree of certainty that feeble-mindedness is hereditary. This fact, now well known with its alarming results, presents a social and economic problem of grave importance. It is known by conservative estimate that there are at least 20,000 recognized feeble-minded persons in the state of Michigan-eight times as many as can be segregated in state institutions. The Michigan Home and Training School at Lapeer is full to overflowing with these unfortunates, and hundreds of others are on the waiting lists. That they are a serious menace to society no one will question.

In view of these facts, what are the legal rights of this class of citizens as to the procreation of children? It is true that the right to beget children is a natural and constitutional right, but it is equally true that no citizen has any rights superior to the common welfare. Acting for the public good, the state, in the exercise of its police powers, may always impose reasonable restrictions upon the natural and constitutional rights of its citizens. Measured by its injurious effect upon society, what right has any citizen or class of citizens to beget children with an inherited tendency to crime, feeble-mindedness, idiocy, or imbecility? This is the right for which Willie Smith is here contending. It is a right which this statute, enacted for the common welfare, denies to him. The facts and conditions which we have here related were all before the Michigan Legislature. Under the existing circumstances it was not only its undoubted right, but it was its duty, to enact some legislation that would protect the people and preserve the race from the known effects of the procreation of children by the feeble-minded, the idiots, and the embeciles.

Thus far we have been attempting to show that this statute, measured by the purpose for which it was enacted and the conditions which warranted it, and justified by the findings of biological science, is a proper and reasonable exercise of the police power of the state. The next question that naturally follows is whether the means provided by the statute to carry out its object are so cruel, inhuman, unreasonable, and oppressive that the Legislature has no constitutional right to enforce them.

It is claimed that the statute violates section 15, art. 2, of the Constitution, which provides that ‘cruel or unusual punishment shall not be inflicted.’ The only purpose of this constitutional provision is to place a limitation on the power of the Legislature in fixing punishment for crimes. There is no element of punishment involved in the sterilization of feeble-minded persons. In this respect it is analogous to compulsory vaccination. Both are nonpunitive. It is therefore plainly apparent that the constitutional inhibition against cruel or unusual punishment has no application to the surgical treatment of feeble-minded persons. It has reference only to punishments inflicted after convictions of crimes. The provision in the federal Constitution (Amend. 8), quite similar in its language, does not apply to state legislatures. Weems v. United States, 217 U. S. 349, 30 S. Ct. 544, 54 L. Ed. 793,19 Ann. Cas. 705, and cases referred to therein. The following cases, cited to sustain the claim that the act is in violation of the above provision, do not justify the conclusion reached:

In Osborn v. Thomson, 103 Misc. Rep. 23, 169 N. Y. S. 638, affirmed without opinion in 185 App. Div. 902, 171 N. Y. S. 1094, it is said:

‘The operation upon the feeble-minded is in no sense in the nature of a penalty, and therefore whether it is an unusual and cruel punishment is not involved.’

In Davis v. Berry (D. C.) 201 F. 413, the act in question required the performance of an operation on criminals who had been convicted of a felony. It in no way referred to feeble-minded persons.

In Smith v. Board of Examiners, 85 N. J. Law, 46, 88 A. 963, it was held that an act violated the Fourteenth Amendment, which secures to all persons ‘the equal protection of the laws.’ The statute applied also to the feeble-minded, but the court said that, as the prosecutrix was an epileptic, it was not concerned with the criminal aspect of the act.

In Mickle v. Henrichs (D. C.) 262 F. 687, the act in terms applied only to persons convicted of rape upon a female child under the age of 10 years.

In State v. Feilen, 70 Wash. 65, 126 P. 75,41 L. R. A. (N. S.) 418, Ann. Cas. 1914B, 512, the statute was somewhat similar to that considered in the Davis v. Berry Case. It in no way referred to feeble-minded persons.

But the methods provided by the statute to accomplish its purpose are not cruel or inhuman. It requires treatment by X-rays...