Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-06-27
Law IS HELD NOT
CONSTITUTIONAL
Sterilization of Criminals is For.
hidden by Constitution Of
u. s.

keokuk, Ia, June 26.-The Iowa va.
sectomy, or sterilization law passed
by the last general assembly, was de-
clared unconstitutional, null and void
IN a decision filed by Judge Smith Nc
Pherson 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 for
ny Rudolph Davis, an inmate of the
state ~penitentiary, enjoining the mem
'bers of the board Of parole, the ward.
en- and the penitentiary physician
from causing the operation of vesec-
tony to be performed upon the com
plainant.
Judge Walter l.. Smith, United
States Circuit Judge for this, the Sth
district, and Judge John C. Pollock,
United States District Judge for the
District of Kansas, concurred with
Judge Mcpherson.
The defendants in The case were
William H. Berry, .ohn f. Howe and
David c. Mott, constituting the Iowa
State Board Of Parole; James C. Sand
ers, warden of the penitentiary, and
Austin F.. Philpott, p%enitentiary PHYS.
clan.
"The case," says the decision, sis
one Of diversity of citizenship, with
federal questions presented by a dill
in equity with an application for a
temporary injunction to destrain de-.
PENDANTS as state officers from en-
forcing chapter lS7 O fthe acts of the
thirty-fith general assembly (1913),
authorizing a surgical operation call
ed vasectomy on idiots, feeble-minded,
d%runkards, drug-fiends, %epileptics, sy-
philitics, moral and sexual perverts,
and mandatory as to criminals who
have been twice convicted of a felony.
Complainant has been twice convict
ed of a felony, n of which was prior
to the enactment of the statute in
question land in another state), and
the other since lin this state), and for
the latter he is now imprisoned. The
defendant board of parole in February
1914, made an order that the opera
JAVA oAOuAu NC pCAlOl 1ACu upOA CCA tAAl1
designated prisoners, including the
complainant. This action was brought
by the complainant for the purpose IL
enjoining each and every one of the
defendants from s%ubjecting him to the
operation. Since the action was insti-
tuted the board Of parole under a writ
ten opinion of the attorney general Of
the state has rescinded its order, and
they and the prison physician say they
will observe such opinion. The opin-
ion of the attorney general is based
upon the proposition that the statute
is ex post facto if either of the con-
victiOns was for an offense committed
prior to the enactment of the statute.
Complainant's counsel in argument
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, ex-
cept only as to prisoners who have
been twice convicted for felonies COM
mitted since the enactment of the
statute. The statute under any con-
struction is not an ex post facto me.
State of Iowa ex rel. Gregory VS..
Jones, 1928 Fed. Rep, 626; Kelly VS..
People, lis ILL.,, 583 a N. E. 644);
Commonwealth vs.. Graves, 1855 Mass,
1913 go N. E. 500; St~urtevant vs..
Commonwealth, los Mass, 598 (33 N.
E. 64S); in re Miller, 6S N. W., 800
(Michigan); Blackburn VS.. State, so
Ohio State, 428 l36 N. e. 49,; Moore
VS.. State of Missouri, 159 U. S., 673;
Cooley's Constitutional Limitations
It'll Ed, 1872; State VS.. Dowden, 1877
Iowa, 573; Graham VS.. West Virginia,
2A U. S., GIG. He is not being sub
jected to the operation for that which
was by him done prior to the enact
ment of the statute, but because he
voluntarily brings. himself within a
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 ap-
plicable only to prisoners. who have
been twice convicted of felonies com.
mitted since the enactment of the
statute. Section 26, article 3, of the
Iowa constitution provides that a sta
tute shall take effect July 4th follow
ing it's enactment, or, if enacted at a
special session, then at the expiration
of ninety days after adjournment; or,
in case of a declared emergency, by
the publication thereof. But the at
torney general, to maintain the propo-
sition that the law is ex post facto as
applied to one who was convicted the
one time prior to the statute is doing
violence to the state constitution by
c%ontending that the statute would be
effective only as to any prisoner many
years after its enactment.
The defendant board of 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 not is
sue because it will serve no purpose.
There are two nswer to this: death,
resignation, and expiration of terms of
office will bring other men into the
positions now held by the defendants
who may not entertain the same views
as these defendants. The opinion of
tho attorney general is advisory only