The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-06-24
iowa Law VOID.


CONTINUED from Page One)
eEafe board Of parole; James c. Sand
ers. warden Of the penitentiary. ana
Austin F. Philpott. peniteutiary physi-
clan.
me case, says the decision. is
one Of diversity of citizenship. with
federal questions presented by Dill IN
equity with e application for tenn
porary injunction to restrain defend
ants as state officers from enforcing
chapter 1877 of the cast Of the thirty
fifth general assembly (1913). author
ixing a surgical operation called vasec-
tony on Idiots. feeble-mtnded, drunk
ards, drug-fiends, epileptics, syphil-
itics' moral and sexual perverts, and
mandatory as to criminals who have
been twice convicted Of a felony.
Twice Convicted of Felony.
Complainant has been twice con-
victed OF felony, one OF which was
prior to the enactment of the statute
in question land in another state). and
the other since Gin this state), and for
the latter he is now imprisoned. the
defendant board Of parole In Feb
ruary, 1914, made an order that the
certain designated prisoners. including
the complainant. This action was
brought by the complainant for the
purpose of enjoining each and every
one OF the Q0lonQdnIS ITOH SuUJcClAA6
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has rescinded its order. and they and
the prison physician say they will OBJ
serve such opinion. The opinion OF
the attorney general is based upon the
proposition that the statute Is ex post
facto If either of the convictions was
for an offense committed prior to the
enactment of the statute. Complain
ants counsel in argument conceded
the statute is not an expost 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. ex-
cept only as to prisoners who have
been twice convicted for felonies COM
mitted since the enactment of the
statute.
Attorney Generals Opinion.
The defendant board of parole by
resembling the order subjecting COM
plainant to the surgical operation,
and the defendant warden and physi-
clan through the attorney general
now insist that an injunction should
not issue because it will serve no pur-
pose. There are two answers to this:
death. resignation, and expiration OF
terms of Office will bring other men
into the positions now held by tho
defendants who may not entertain the
same views as these defendants. The
opinion of the attorney general is adj
visory only and Is not at all binding
on either these defendants or their
Successors in Office.
Again, the statute in question pro-
vides that certain persons may be su D.
jected to the surgical operation; but
the latter part of section l provides
that such operations shall be per-
formed upon prisoners who have been
twice convicted Of a felony. such as
the complainant.
1t il the duty of an officer to follow
the mandates OF the statute. OF course,
every officer must act at his peril
under a statute that another party
claims to be unconstitutional and void
but where a person will suffer an ir-
reparable injury II the statute fs car
ried out. the presumption Is. that such
statute will be observed and that an
Injunction should issue to enjoin the
enforcement of q void statute.
The sole purpose of the operation il
to destroy the power of procreation
; The operation as originally performed
WaS that OF castration.
There 10 a difference between the op.
Grafton OF castration and vasectomy
castration being physically more severe
than the other. But vasectomy in its
results is much the coarser and more
vulgar. But the purpose and result Of
the two operations are one and the
same. tt D.f-
But each operation is to destroy the
power OF procreation. 1t is, of course
to follow the man during the balanc.
Of his life. The physical suffering MAY
not be so great. but that is not tn,
only test Of cruel punishment; the hu
initiation, the degradation the menta
suffering are always present ant
known by all the public and will follow
him wheresoever he may CO. This be
longs to the dark ages. Esarss
Where Society Comes ln.sts~
As. of course, all persona conced
that 1t would be better tor s0ciety i
some men did not beget chilJr6n: dis
eased, deformed. mentally weak chill
dren and criminally Inclined ar
brought into the world. oftentimes /,
their own shame and againat the in
terest Of the public. But are they no
in the minimum? And must the mar
riage relation be formed under thes
newly conceived laws based upon tn
brutalities Of many centuries sine
and be allowed to take the place o
the marriage relation formed alon
the true lines? Must the marriage re
1afion be based and enforced by stat
ute according to the teachings of tn
farmer in selecting his male animal
to be mated with certain femals ami
mails only?
While 1t is true that there are differ
ences between the two operations Q
castration and vaSectomy. and while
- true that the ehect upon the maj