Pox_ An American History - Michael Willrich [182]
Pickering and Ballard could find only three state supreme court cases that considered the constitutionality of a general vaccination measure like the one their clients had violated. Two were decided in North Carolina, the other in Georgia—southern states hard hit by “mild type” smallpox. As C.P. Wertenbaker had so often observed during his smallpox work, southern communities were riven with conflict over vaccination, due in large part to the harsh effects of the bacteria-laden dry points in wide use there. Assistant D.A. Bancroft urged that the three cases had raised the “precise question” of the Pear and Jacobson litigation, and in all three cases, “statutes substantially the same as the one before us have been upheld.”79
In Morris v. Columbus (1898), the Georgia Supreme Court upheld an 1890 state law that gave municipalities the right to compel vaccination in order to prevent smallpox. The litigation arose from the prosecution of three men in Columbus, where local officials believed an epidemic was “imminent.” One of the men was a factory worker who had refused to be vaccinated at his workplace. “In no proper sense can the act of the General Assembly attacked in this case be said to deprive the plaintiffs in error of any right without due process of law, or to deny them the equal protection of the laws,” the state court declared. “We do not propose to enter into a discussion as to whether or not [vaccination] is a preventive of smallpox.” Five months later, the same court held that municipalities were not liable for injuries caused by impure vaccine used by their health officers. If the Supreme Judicial Court wanted a model of unquestioning judicial deference to public health power, Georgia was it.80
The North Carolina Supreme Court had also defended the right of municipalities to issue general vaccination orders when authorized by a state law. In 1900, the court reviewed the case of the Burlington merchant W. E. Hay, who had been prosecuted for violating a local vaccination ordinance. Hay told the local trial court that he had been advised that the operation would be dangerous for him due to his physical condition. To test the validity of the ordinance, the local court issued a special verdict for the defendant, enabling the city solicitor to appeal. The supreme court approved compulsory vaccination with the resounding declaration that “Salus populi supreme lex, ‘the public welfare is the highest law,’ is the foundation principle of all civil government.” The court even marshaled government statistics to show that the legislature had good reason to believe vaccination protected communities against smallpox. Writing for the majority, Justice Walter McKenzie Clark, a Confederate Army veteran, compared the community’s right to vaccinate to its right to repel an invasion. He added that modern social conditions—the incessant movement of people, goods, and viruses from place to place—made this method of checking smallpox ever more necessary.81
The next year, the North Carolina court heard the case of Koen Levin. An itinerant Jewish peddler, Levin sued the Piedmont town of Burlington for “wrongful arrest, detention, and ill treatment.” Levin’s case presented public health at its most extreme. In February 1899, the peddler stayed overnight at Mary Ingle’s boardinghouse. The next morning, he drove his wagon nine miles to the Altamaha factory, where he planned to sell his wares. A Burlington police