The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1914-06-24
Decision of Judge Mcpherson
Does away with Legalized
Sterilization There.
AFFECTS OTHER STATES
Penitentiary Boards and Others
Prohibited from Having Op-
erations Performed.
tnv AsseelArso eaEas,

,thf AseoetAfGn AREne1 llFs
kEoKUK, Ia, June 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, Ias
United States district Judge Of the
Southern district Of Iowa. here today.
The decision, which was written 81
Judge MCPHERSON, and Affects similar
laws In other states, grants the writ
OF temporary injunction applied for
by Rudolph Davis, an inmate Of the
penitenuary, enjoining the members
OF the board of parole, the warden
and the penitentiary physician from
causing the operation of vasectomyS
TO be performed upon the complains
ant.
Judge Walter /. Smith, United
States circuit judge for this. the
Eighth district, and Judge John e.
Pollock, United States district Judge
Tor the District OF Kansas, concur
red with Judge Mcpherson.
The defendants In the case were
William H. Berry. John r. Howe and
David G. Mott, constituting the iowa
state board of parole; James d.
Sanders, warden Of the penitnfiary.
physician.
The case" says the decision, ;ia
one OF diversity of citizenship. with
tederal questions presented by a bill
IN equity with an application for
temporary Injunction to restrain de-
PENDANTS as state officers from en-
forcing chapter 1877 of the acts Of
the thirty-afth general assembly.
1913, authorizing a surgical opera
ton called vasectomy on idiots, fee
,ble-minded, drunkards, drug-flends.
epileptics, syphilitics, moral and SEX
ual perverts and mandatory as 70
criminals who have been twice cori-
Wcted of felony.
Complainant has been twice con-
Vtcted of a felony, one of which was
prior to the enactment Of the statute
In question, and in another state and
the other since, in this state. and
Tor the latter he is now Imprisoned.
Ihe defendant board of parole ia
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 subjecting him to the operation.
since the action was instituted the
BOARD OF parole under a written opin-
ION OF the attorney general Of the
state mas recinded Its order and they
and the prison physician say they
VIII observe such opinion. The opiTi-
Ion Of the attorney general is based
upon the proposition that the statute
IS ex post facto IL either of the con-
Vtctions was for an oftense committed
prior to the enactment of the stat
ute. Compartments counsel in areu-
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 felonies
committed since the enactment OF
the sttute. The statute under any
consideration is not an az post facto
one. State of Iowa ex. rel. Gregory
VS.. Jones. 128 Fed. Rep. 626: Kelley
vs.. People, lis Ill, 53S, A N. q. s644:
Commonwealth VS.. Graves. 155 Mass.
l6S. 20 N. e. $40; Sturteyant vs..
Commonwealth, 15S Mass, 59S. gy
N E. 64S; in re Miller, 6S N. w,
$50, Michigan; Blackburn VS.. State;
so Ohio State, 428, SO N. e. Is;
Moore VS.. State Of Missouri, 159 u
s., 63T; Cooley's Constitutional Linni-
tations, 7th Ed, 1872; State VS.. Dow
den, 1877 Iowa, 573; Graham VS.. West
Virginia, pa 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 ne 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 appiis
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-
stttution provides that a statute shall
take effect July 4th following Its 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 tine
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 subjecting COM
plainant to the surgical operation and
the defendant warden and physician
through the attorney general now, In
sist that an Injunction should mot
issue because Il will serve NO purposs.
There are two answers to this: death.
resignation, and expiration Of terms
81 Office Will bring other men into the
positions now held by the defendants
who may not entertain the same views
Is these defendants The opinion Of
The attorney general Is advisory Only
and Is not an binding on either
these defendan Is OF their sficcess6f6