The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1914-06-24
AN IOWA LAW
HELD NOT GOOD
Decision of Judge Mcpherson
Does away with LegaIize
Sterilization There
Affects OTHER STATES
Penlte ntiary Boards and Others
Prohibited from Having 0p
erations Performed.
tsr AaseeiArrs ssrs.,

tsY AsseeiAuEs saEaui
KEoKuK. Ia, June 24-The Iowa
vasectomy. or sterilization law
passed by the last general assembly,
was declared unconstitutional. null
and void in a decision filed by Judge
Smith Mcpherson. of Red OAK. Ia.,.
United States district Judge of the
Southern district of Iowa, here today
The decision, which was written BY
Judge Mcpherson, and Affects similar
laws in other states, grants the writ
OF temporary Injunction applied fog
by Rudolph Davis. an inmate OF the
penitentiary, enjoining the members
OF the board Of parole, the warden
and the penitentiary physician from
causing the operation of vasectomy
to be performed upon the complain
ant.
Judge Walter I. Smith, United
States circuit Judge for this, the
Eighth district, and Judge John q
Pollock, United States district Judge
for the District of Kansas, coneuis
red with Judge Mcpherson.
The defendants In the case were
William II. Berry, John +. Howe and
David 9. Mott, constituting the Iowa
state board Of parole; James e.
Sanders, warden of the penitntiary
and Austin F. Philpott, penftentiary
physician.
The case" says the decision, .as
one OF diversity Of citizenship, with
federal questions presented by bill
In equity with an application for
temporary injunction to restrain de.
PENDANTS as state officers from en-.
forcing chapter 1877 Of the iacts OF
the thirty-fifth general assembly
1913, authorizing surgical opera.
ton called vasectomy on idiots, Zee.
ble-minded, drunkards, drug-dends,
epileptics, syphilitics, moral and sex.
ual peryerts and mandatory as Ia
criminals who have been twice con
victed of a felony
Complainant has been twice con-
victed of a felony, one OF which was
prior to the enactment of the sta ute
IN question, and in another State, and
the other since, in this stats and
for the latter he is now imprisoned.
The. defendant, board of. par6lk ID
February, 1914. made an order thar
the operation should be performed
upon certain designated prisoners.
including the complainant. This
action was brought by the complain
ant for the purpose of enjoining each
and every one of the defendants
from subiecting him to the operation.
Since the action was instituted the
board OF parole under written opin-
ion OF the attorney general OF the
state has recinded its order and they
and the prison physician say they
VIII observe such opinion. The opin-
Ion or the attorney general Is based
upon the proposition that the statute
is ex post facto If either Of the CON
ytctions was for an offense committed
prior to the enactment Of the stat
ute. Compliments counsel In argu.
ment conceded the, statute is not an
ex post facto one.
The attorney general was in error
when he advised the board Of parole
that the statute in question Is void
by reason OF its being ex'post facto.
except only as to prisoners who have
been twice convicted for feionies
committed since the enactment Of
the sttute. The statute under any
consideration is not an ex post faoto
one. State of Iowa ex. rel. Gregory
VS.. Jones, 1913 Fed. Rep, 626; kelley.
VS., People. 115 ILL.,, 53s, A N. p. GA;
commonwealth VS.. Graves, 155 Mass
1853, 20 N. E. 579; sturtevant VS..
Commonwealth, 1853 Mass. SOS, 3S
N. q. 648; in re Miller. 6s N. W.
$50, Michigan; Blackburn vs.. stats.
so Ohio State, 42S, SO N. q. liz;
Moore vs.. State OF Missouri, 159 u.
S., 637; Cooley's Constitutional Ilimi-
tations, It'll Ed, 1872; State VS.. Dow
den, 1877 Iowa, 573; Graham vs.. West
Virginia, 224 U. S., 616. He is not
being subjected to the operation for
that which was done by him prior to
the enactment Of the statute, but be-
cause he voluntarily brings himself
within class covered by the statute,
and he does this subsequent to the
enactment Of the statute,
The attorney general also advised
the board Of parole that the statute
should be SO construed as to be appli-
cable only to prisoners who have been
twice convicted Of felonies committed
since the enactment Of the statute.
Section g., article 3, Of the Iowa con-
stitution provides that a statute shall
take effect July 4th following It's en-
actment or, II enacted at special
session, then at the expiration OF
ninety days after adjournment; or, IN
case OF a declared emergency, by the
publication thereof. But the attorney
general to maintain the proposition
that the law is ex post facto as APP
piled to one who was convicted the
one time prior to the statute Is doing
violence to the state constitution By
contending that the statute would be
effective only as to any prisoner many
years after its enactment.
The defendant board or parole BY
resembling the order subjectihg COM
plainant to the surgical operation and
the defendant warden and physician
through the attorney general now In
sist that an Injunction should not
issue because 1t viii serve no purpose.
There are two answers to this: death.
resignation, and expiration OF terms
OF ONCE will bring other men into the
positions now held by the defendants
whomay not entertain the same views
as these defendants. The opinion 81
the attorney general Is advisory only
and Is not at all binding on either
these defendants or their Aucceseora