# State v. . Hay > Supreme Court of North Carolina · March 20, 1900 · 49 L.R.A. 588 URL: https://www.frixlaw.com/law-library/cases/9809664 ## Case - **Full name:** State v. W. E. Hay. - **Court:** Supreme Court of North Carolina - **Decided:** March 20, 1900 - **Citations:** 49 L.R.A. 588; 126 N.C. 999; 35 S.E. 459; 1900 N.C. LEXIS 350 - **Precedential status:** Published - **Opinion:** Concurrence by Douglas - **Judges:** Clark, Douglas, Euecíees - **Cited by:** 29 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9809664 ## Opinion text Douglas, J., concurring. While I concur in the judgment of the Court, I fear that there are some expressions in the opinion that may be misconstrued. What I understand the Court to mean is, that while it is in the province of the Legislature to provide for the public ■health by all reasonable means, and incidentally to confer that power upon municipal corporations, yet whenever the exercise of that power is in derogation of natural right, it must be exercised in a reasonable manner’. Compulsory vaccination is not an unreasonable requirement, as experience has shown that it is in times of epidemic necessary for the protection of the community and equally so of the individual. It is ordinarily less harsh than quarantine or isolation, and in the great majority of cases has no injurious effect beyond some slight temporary illness. But there may be cases where vaccination, owing to certain exceptional conditions of health, may be dangerous or even fatal. We can not suppose that the Legislature intended to enforce the rule under such circumstances, and yet there must be some tribunal competent to determine when such conditions exist. By its very nature *1005 tbis power must ultimately rest in the courts, where all other rights of the citizen are determined and administered. Where legislative authority is given, the Board of Aldermen can determine within reasonable limits the existence of the general conditions justifying compulsory vaccination, and may make and enforce all reasonable regulations necessary to carry it into effect; but in case of resistence it can enforce it only by an appeal to the criminal jurisdiction of the courts. There the defendant has a right to be heard. It may be that his refusal to comply with a general ordinance might cast upon him the burden of proving whatever facts he might rely upon to exempt him from its operation; but this question is not now before us. I do not think that the election of anyone as superintendent of health or his employment as vaccinating surgeon would add anything to the weight of his testimony. It might give him the power to demand the vaccination of the individual, and to prosecute in case of refusal, but it would not carry with it any presumption of professional infallibility. He must take his chances before the jury like any other witness. I readily concede that these positions are generally filled by competent men., but we know that they are rarely held by physicians of large practice, because they do not pay enough to justify their acceptance. This is especially so where small-pox is prevalent. No well-established physician could afford to run the risk of contagion which would inevitably cause the loss of his practice. So strong is this feeling that it is sometimes necessary to send to other cities, and even other States, to obtain men willing to undertake the duty. I doi not say this in any disparagement to' them, but simply in justice to the resident physicians, who are entitled to all the credit due their character and professional standing. I think this construction of the law is clearly in accord with the legislative intent, but if it were otherwise, I could *1006 not come to any other conclusion. The Constitution of this State expressly declares “That we hold it to be self-evident that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor and the pursuit of happiness.” Art. I, sec. 1. It does not profess to confer tírese rights, but recognizes them as preexisting and inherent in the individual by “Right Divine.” Therefore any unlawful interference with them is in violation of the express letter of the Constitution. When man entered the social compact he gave up a portion of his natural liberty in exchange for the protection of society, but only so far as was demanded by the general welfare. Even then there must be some limit. Suppose the Legislature should pass an act that all persons afflicted with certain diseases should be killed in order to prevent contagion, would any court permit its enforcement? Therefore, can we suppose that the Legislature either would or could enforce vaccination if under the peculiar conditions of health of the patient it might reasonably be expected to endanger his life ? This discussion, however, is not essential to the determination of the case at bar, as I feel safe in basing my opinion upon a reasonable interpretation of the legislative will without the necessity of resorting to' constitutional limitations. Euecíees, L I concur in this concurring opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9809664. Public record. Not legal advice.