State v. Hay

• Citation: 35 S.E. 459
• Parties: STATE v. HAY.
• Decision Date: 20 March 1900
• Court: United States State Supreme Court of North Carolina

35 S.E. 459

STATE v. HAY.

Supreme Court of North Carolina

March 20, 1900

Appeal from superior court, Alamance county; Brown, Judge.

W. E Hay was indicted for the violation of an ordinance of the town of Burlington requiring all persons not vaccinated within three years past to be vaccinated before a date named. From a judgment of not guilty, the state appeals. Reversed.

A special verdict, in a prosecution for the violation of an ordinance for compulsory vaccination, that defendant had been examined by S., a reputable physician, who told him that he did not need vaccination, and that P., another physician told him that he had rheumatism, and could not submit to vaccination, is too ambiguous and defective to determine whether the jury found either that defendant did not need vaccination, or that his condition of health made it dangerous for him to submit thereto.

Special verdict found by the jury, among other things: That the ordinance under which the defendant was indicted was not enacted at a joint session of the board of aldermen and the local or county board of health, and there is no evidence that it was enacted under the direction of such boards of health, or either of them, as required by Acts 1893, c. 214 § 23; that defendant had not been vaccinated successfully within three years prior to March 13, 1899; that Drs. Faucett and Patterson were appointed by the aldermen to vaccinate all citizens at the expense of the town; that Dr. Faucett called on the defendant on March 16, 1899, after the passage of the ordinance, and proposed to vaccinate him, and defendant refused upon the ground that he believed and was advised that it was dangerous for him, by reason of his then physical condition; that Faucett told him he was at liberty to get any physician to vaccinate him, but he must be vaccinated; that Dr. Stafford, a reputable physician, had examined him, and told him he did not need vaccination, as he had the scar of a successful vaccination then on his arm, and Stafford gave defendant a certificate; that when Faucett called on defendant to vaccinate him he told Faucett that he (Faucett) was attending smallpox patients, and could not vaccinate him under any circumstances; that on March 17, 1899, defendant saw Dr. Patterson, and in good faith told him he had rheumatism, and that he could not submit to vaccination; that on March 20th defendant was arrested, and tried for violation of said ordinance, and then was vaccinated by Dr. Stafford his family physician, and it did not "take." If, upon the above facts, the court is of opinion that the defendant is guilty, then the jury so find, and, if not guilty, then the jury so find. The defendant contended that the board of aldermen had no power to pass such an ordinance; that the ordinance is too broad, in that it makes no exception as to persons whose physical condition rendered vaccination dangerous; that the power to enact rules and regulations for administering vaccination by compulsion is not given to the board of aldermen alone, but only when acting jointly with the board of health, or committee chosen by board of health, as per section 23, c. 214, Acts 1893. The court, being of opinion with defendant, directed a verdict of not guilty. The state appealed.

Copy of ordinance: "That all citizens of Burlington not successfully vaccinated within the last three years shall be vaccinated between this date [March 13, 1899] and Friday night, March 17th, and all persons refusing to be vaccinated shall be fined $10 for every day they refuse after being called upon by the doctor appointed, or imprisoned for 30 days."

The Attorney General, for the State.

CLARK J.

Chapter 214 of the Laws of 1893 is a well-considered and carefully drawn statute for the preservation of the public health. Section 23 thereof, which is specifically in regard to vaccination, contains, among other provisions, this clause "The authorities of any city or town, or the board of county commissioners of any county may make such regulations and provisions for the vaccination of its inhabitants under the direction of the local or county board of health or a committee chosen for the purpose, and impose such penalties as they deem necessary to protect the public health." There is no provision of the constitution which forbids the legislature so to enact, and it is, indeed, an exercise of that governmental police power to legislate for the public welfare, which is inherent in the general assembly, except when restrained by some express constitutional provision. "Salus populi suprema lex,"--"the public welfare is the highest law,"--is the foundation principle of all civil government. It is the urgent cause why any government is established; for, as Burke says, "any government is a necessary evil." It is, however, a much lesser evil than the intolerable state of things which would exist if there were no government to bridle the absolute right of every man to do "that which seems right in his own eyes," like the Israelites in the days of Micah. The above maxim, quoted from Lord Bacon, is placed appropriately first by Broom in his treatise on "Legal Maxims," with this just observation: "There is an implied assent on the part of every member of society that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty, and life shall, under certain circumstances, be placed in jeopardy, or even sacrificed, for the public good." This observation, which is almost a literal translation from Grotius, he fortifies by quotations from Montesquieu, Lord Hale, and many judicial opinions from both sides of the Atlantic. But it needs none, for it is everyday common sense that, if a people can draft or conscript its citizens to defend its borders from invasion, it can protect itself from the deadly pestilence that walketh by noonday by such measures as medical science has found most efficacious for that purpose. We know as an historical fact that prior to the discovery, 101 years ago, of vaccination, by Edward Jenner, smallpox often destroyed a third or more of the population of a country which it attacked, and so futile was every...