Smith v. Wayne Probate Judge

McDonald, C. J. Willie 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 No. 285, Pub. Acts 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 *413 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 ten-day 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 “(e) 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.” Act No. 285, Pub. Acts 1923, § 7. The question presented for our consideration is whether this act is a valid exercise of police power within the limitations of the Constitution. *414 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 *415 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 imbeciles. Thus far we have been attempting to show that this statute, measured by the purpose for which it was *416 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 no.t be inflicted.” The only purpose of this constitutional provision is to plane 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 had no application to the surgical treatment of feeble-minded persQns. It has reference only to punishments inflicted after convictions of crimes. The provision in the Federal Constitution (8th Amendment), quite similar in its language, does not apply to State legislatures. Weems v. United States, 217 U. S. 349 (30 Sup. Ct. 544, 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 Re Thomson, 169 N. Y. Supp. 638 (affirmed without opinion in 185 App. Div. 902), 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, 216 Fed. 413, the act in question required the performance of an operation on criminals *417 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 Atl. 963), it was held that an act violated the 14th 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, 262 Fed. 687, the act in terms applied only to persons convicted of rape, upon a female child under the age of ten years. In State v. Feilen, 70 Wash. 65 (126 Pac. 75, 41 L. R. A. [N. S.] 418, Ann. Cas. 1914B, 512), the statute was somewhat similar to that considered in Davis v. Berry, supra. 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 or the operation of vasectomy on males or salpingectomy on females, or other treatment as may be least dangerous to life. These operations are the least radical known to medical science. None of them requires the removal of any of the organs or sex-glands, the result being accomplished by a severance of the sex-germ carrying ducts. The operation does not destroy sexual desires or capacity for sexual intercourse, but renders procreation impossible. In 2 Penal and Reformatory Institutions, prepared for the Eighth International Prison Congress, Russell Sage Foundation, Dr. Sharp, surgeon of the reformatory at Jeffersonville, Indiana, speaking of vasectomy says: “This operation is indeed very simple and easy to perform. I do it without administering an anaesthetic either general or local. It requires about three minutes time to perform the operation and the subject *418 returns to his work immediately, suffering no inconvenience and is in no way impaired for the pursuit of life, liberty and happiness, but is effectively sterilized. I have been doing this operation for over nine years. I have 456 cases that have afforded splendid opportunity for post operative observation, and I have never seen any unfavorable symptoms. “After observing nearly 500 males, in whom I have severed the vas deferens, I am prepared to state that there is not only a diminution of the muscular and nervous fatigue, resulting from muscular exertion, but also a lessening of fatigue sensation and a decided increase of well being. I have observed splendid results in cases of neurasthenia.” By another authority it is said: “Vasectomy is a very simple operation, which is accompanied by very little shock, and may be performed without an anaesthetic, although most surgeons advise that it be done under local anaesthesia. Its pain without an anaesthetic has been compared by men who were vasectomized to that experienced in the extraction of a tooth.” Salpingectomy is recommended as the best available method for the sterilization of females. It is a more serious operation than vasectomy, but is safely and effectively performed by the skillful surgeon. 3 Surgical Treatment (Warbasse), p. 429. As to the X-ray treatment, Dr. Arthur C. Christie, president of the American Roentgen Ray Society, says that, “no physiological dangers accompany the proper application of X-rays for effecting sterility.” It is clearly apparent, therefore, that the methods provided by the statute for carrying out its purpose are not unreasonable, cruel or oppressive, and that the results are beneficial both to the subject and to society. It is further urged by counsel that the statute makes an unconstitutional classification, that it excepts the insane, that it does not apply to all mental defectives, *419 and thus denies to the class upon which it is intended to operate their constitutional right to equal protection of the laws. In discussing this question we will follow the order in which the classification is made by the statute. Section 7 makes two separate and distinct divisions to which the act is made applicable. “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 “(g) 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. “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.” “It is elementary that legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional because class legislation, if germane to the object of the enactment and made uniform in its operation upon all persons of the class to which it naturally applies; but if it fails to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind by unreasonable or arbitrary subclassification, it comes within the constitutional prohibition of class legislation.” Haynes v. Lapeer Circuit Judge, 201 Mich. 138 (L. R. A. 1918D, 233). Applying the tests announced by Mr. Justice Steeee to the first division of the classification, it would seem clear that it is not unconstitutional as class legislation. *420 It is germane to the object of the enactment, the common good. It is made uniform upon all persons of the class to which it naturally applies. It is a reasonable classification because it applies to a class of feeble-minded persons who are a menace to the public welfare. In making this classification the legislature did not carve a class out of a class, but took a natural class of defectives whose children will have an inherited tendency to feeble-mindedness. It is as reasonable and no more class legislation than the compulsory vaccination of those who have been exposed to smallpox. The feeble-minded include distinct types of which the imbeciles and' idiots are lower orders. The legislature took one of these natural classes and applied the law to all members alike. The insane do not belong in this class and there are apparent good and substantial reasons why the legislature differentiated between them. While we do not know, of course, what the legislature had in mind, it is reasonable to suppose that they knew that the insane have less of the sexual impulses than the feeble-minded, and that biological science has not so definitely demonstrated their inheritable tendencies. We think the classification made in the first division of section 7 of the statute is not arbitrary or unreasonable, and that in this respect it does not offend the constitutional provision which gives to every person equal protection of the laws. The second division of the classification in section 7 presents a different situation. It brings within the operation of the law only those of the feeble-minded class who are unable to support any children they might have and whose children probably will become public charges by reason thereof. The evident purpose of the legislature in enacting the second division was to protect the public from being required to support the children of mentally defective persons. *421 In attempting to do so, an element inconsistent with the beneficial purpose of the statute was introduced. It is not germane to the object of the enactment as expressed in its title. It carves a class out of a class. In that it does not apply to those of the class who may be financially able to support their children, it is not made applicable alike to all members of the class. We think that it is subject to the constitutional objection discussed by Justice Steere in Haynes v. Lapeer Circuit Judge, supra, and by Justice Sharpe in Peninsular Stove Co. v. Burton, 220 Mich. 284. As the first division of section 7 is a complete classification in itself, its constitutionality is not in any way affected by that of the second. Nor does this statute violate the “due process of law” clause of the Constitution. It requires ample notice of the time and place of hearing by personal service not only on the alleged defective but upon the prosecuting attorney of the county, upon the relatives, father, mother, wife or child of the defective, or upon the person with whom he resides, or at whose house he may be; and in ease no relatives can be found service is required upon a guardian ad litem appointed by the court to receive such notice and to represent the defective at the hearing. Regular proceedings are followed and opportunities to defend with the right of appeal are provided. Nothing further is required by the “due process of law” clause of the Constitution. It is further urged that the statute is a violation of article 11, § 15, of the State Constitution, which reads as follows: “Institutions for the benefit of those inhabitants who are deaf, dumb, blind, feeble-minded or insane shall always be fostered and supported.” This constitutional provision, that institutions for the benefit of the feeble-minded “shall always be fostered and supported” is in no way controlling of *422 the question before us. Many people believe that the most effective way of accomplishing the result aimed at is by segregation. The legislature, in pursuance of the constitutional provision, has established a home for the feeble-minded at Lapeer. In its opinion, as evidenced by this statute, additional legislation was needed to prevent the spread of feeble-mindedness among our people. In terms it specifically applies to inmates of such institutions. Its provisions in no way violate either the letter or spirit of this provision of the Constitution. Further objection is made to the statute because it does not provide what court shall have jurisdiction of the cases to be brought under it. While this is not done in the regular way, we think subdivision (d) of section 3 sufficiently shows that the legislature intended the probate court, before which all matters pertaining to mental defectives are usually heard, to have jurisdiction to hear and to determine cases to be dealt with by this statute. The other objections urged against the statute by counsel for the plaintiff in his very able and exhaustive brief we have considered, but as they clearly appear to be without merit we do not discuss them. Our attention is called to the recorded decisions of other States where sterilization laws have been held to be unconstitutional. In most of them there was a plain and unreasonable violation of constitutional rights. But an examination of these cases will show that the great weight of authority supports the right of the State in the exercise of its police power to enact reasonable legislation for the sexual sterilization of certain natural classes of mental defectives and degenerates. In examining the recorded decisions of other jurisdictions, we have read the sterilization statutes of 10 States. In most of them the matter of determining *423 whether a defective shall be dealt with under the act is left to an administrative officer or board. In the Michigan statute that matter is left to court procedure and judicial determination, aided by the expert knowledge of three competent physicians. The distinguishing feature of our statute is found in these provisions and in the safeguards which it throws around those of the class who have not the inherited tendencies which bring them within the operation of the law. .It provides for a jury trial and the right of appeal. It requires all testimony to be taken in writing and a complete record made, so that it may be reviewed. In the operation of this statute the only serious question, as we view it, is whether the fact that defective mentality is of such a character and due to such causes that children procreated by a person so afflicted will have an inherited tendency to mental defectiveness, can be determined with reasonable certainty. Primarily, this question was for the legislature, and they have answered it in the affirmative by the enactment of the statute. As was said in Adkins v. Children’s Hospital, 261 U. S. 525, 544 (43 Sup. Ct. 394, 24 A. L. R. 1238): “The judicial duty of passing upon the constitutionality of an act of congress is one of great gravity and delicacy. The statute here in question has successfully borne the scrutiny of the legislative branch of the government which, by enacting it, has affirmed its validity; and that determination must be given great weight.” After referring to the “unbroken line of decisions” holding “that every possible presumption is in favor of the validity of an act of congress until overcome beyond rational doubt,” it is said: “But if by clear and indubitable demonstration a statute be opposed to the Constitution we have no choice but to say so.” *424 Many of our Michigan cases announcing a similar rule will be found cited in Moore v. Harrison, 224 Mich. 512, 515. To answer the question suggested- in the negative, we must be satisfied “beyond rational doubt” that the facts’which under the statute must be found to exist by the probate court to justify the making of an order for sterilization cannot be established by competent proof. If the proofs submitted be insufficient, he should, of course, refuse to make the order. That feeble-mindedness is hereditary in certain cases, there can be no doubt. While a difference of opinion undoubtedly exists as to whether the condition of feeble-mindedness in a particular person is such that it is reasonably certain his children will, or will not, be affected thereby, we are of the opinion that the weight of authority, as evidenced by scientific writings and reports, are convincing that it may be so determined. We can at least say that we are not convinced to the contrary “beyond rational doubt.” In comparison, our statute is much more reasonable and conservative than the laws of other States. Yet those States, with less perfect laws on the subject, have found that in their practical working out they have been satisfactorily beneficial both to the person and to society. California, a pioneer State in the matter of sexual sterilization, during the period between 1907 and 1921, sterilized 2,558 persons. During the same period, under the various statutes, a total of 3,233 persons were sterilized in the United States. Of these 1,853 were males operated on by vasectomy and 1,380 were females operated on by salpingectomy. See Laughlin’s Statistical Summary in “Eugenieal Sterilization in the United States.” These statistics are referred to in refutation of the claim that our law is an experiment. The Michigan statute is not perfect. Undoubtedly *425 time and experience will bring changes in many of its workable features. But it is expressive of a State policy apparently based on the growing belief that, due to the alarming increase in the number of degenerates, criminals, feeble-minded and insane, our race is facing the greatest peril of all time. Whether this belief is well founded is not for this court to say. Unless for the soundest constitutional, reasons, it is our duty to sustain the policy which the State has adopted. As we before have said, it is no valid objection that it imposes reasonable restraints upon natural and constitutional rights. It is an historic fact that every forward step in the progress of the race is marked by an interference with individual liberties. Except as to the second division of section 7, this statute should be sustained as a reasonable exercise of the police powers of the State within the limitations of the Constitution. While sustaining the statute as a valid exercise of the police power vested in the legislature, we are of the opinion that the order made by the defendant should be set aside because the statutory proceedings were not followed. The return to the writ states that all of the records and proceedings in the probate court are fully set forth in the petition for the writ. The calendar entries are annexed. The petition to the probate court was filed on December 28, 1928. The physicians were at that time appointed, and an order fixing January 24, 1924, for hearing was made. On that day, the certificates of' the physicians were filed and the hearing continued until February 14th, on which day the petition was “heard and submitted.” On April 14th, two months thereafter, Mr. Butzel was appointed guardian ad litem. On the 19th he filed objections to the making of the order for sterilization. It was made on April 21st. *426 There was no such substantial compliance with the statute as conferred jurisdiction upon the court to make the order. It contains specific provisions as to the procedure in such cases. When the petition is filed, an order of hearing shall be made and served, as directed in section 4. A copy must be served on the guardian ad litem. Clearly, the guardian must be appointed when the order of hearing is made. There is no provision for the filing of certificates made by the physicians. The procedure is in no way similar to that provided for on petitions to commit to an insane asylum (1 Comp. Laws 1915, § 1325). Section 5 provides: “The court shall cause the defective to be examined by three reputable physicians * * * with a view to obtaining the opinion of said physicians on the Question whether the adjudged defective should be dealt with under the terms of this act.” The intent is clear that the physicians shall appear in court at the hearing and submit to an examination by the court, the prosecuting attorney, the guardian or other person upon whom notice has been served. The certificates filed in this case are simply statements in the language of the statute that the facts are present which the court must find to warrant the making of the order. It is not for the physicians to determine the question before the court. While, of course, they may express their opinions concerning it, the reasons for such opinions should be inquired into in order that the court may, after due consideration thereof and of the other proof submitted, as provided for in section 6, determine whether the person examined should be dealt with under the terms of the act. Section 6 reads: “The court shall take full evidence in writing at the hearing as to the mental and physical condition of the adjudged defective and the history of his case." * * * *427 No witnesses were examined. This provision is mandatory, and must be complied with. No more important duty devolves on a probate judge than that imposed on him under this act. The responsibility of determining that a surgical operation shall be performed on a human being who is mentally defective “for his own welfare or the welfare of the community” rests upon him, and it may properly be discharged by him only on the most painstaking and thorough investigation of the facts disclosed upon the hearing. The requirements of the statute above referred to are jurisdictional, and no valid order can be made without a substantial compliance with them. It follows that the order made will be vacated and set aside. Sharpe, Moore, and Steere, JJ., concurred with McDonald, C. J.