On May 2, 1894, two health department vaccinators visited a livery stable in the Greenpoint neighborhood where William H. Smith operated an express delivery and hauling business. Smith employed more than a dozen men and boys who delivered goods from factories in the metropolitan area to retail businesses and from businesses to homes, as well as hauling away discarded items. In addition to offices, the upstairs quarters of the stable included a parlor, where Smith sometimes spent the night after working late.41 A case of smallpox had been discovered in the area, and the department was allegedly concerned that because of the nature of their business, Smith and his employees might be vectors for spreading infection.
The inspectors gave Smith and an employee at the office, Thomas Cummings, twenty-four hours to be vaccinated, and when they returned the following day and found that the two men had not followed their orders, stationed a police guard at the front door and declared the business under quarantine. Smith called Charles Walters, his family physician, who— unfortunately for the health department—was a member of the Brooklyn Anti-Compulsory Vaccination League. Walters immediately hired a lawyer to seek a writ of habeas corpus from a special session of the state supreme court, demanding that the two men be released from custody.43
When Gaynor’s ruling came on May 18, it proved a blow to the health department. Refusing to acknowledge that Smith and Cummings were a danger to the community, Gaynor asserted that the legislature had conferred on Emery no power to quarantine those who were not actually infected with a disease. “Arbitrary power is abhorrent to our system of government,” he declared. “If the Legislature desired to make vaccination compulsory, it would have so enacted…. [The law] does not confer on the Commissioner the right to imprison any more than to take life.”47
Emery promptly appealed the decision, hoping to obtain a ruling that would throw the weight of the law behind his actions. Testifying at a later trial, Emery revealed his motivation for pressing the case against Smith. “My motive [in appealing Gaynor’s decision] was for the purpose of obtaining a ruling defining the powers and rights and the duties of the Health Boards, this Health Board as well as others. And I deemed it essential to the efficient discharge of my duty and the duty of my subordinates that my authority should be particularly defined in that crisis.”48
Gaynor’s action was widely reported in the press, garnering notices in the Daily Eagle along with the Times, Daily Tribune, and World,49 and public awareness of the ruling emboldened those who were inclined against vaccination. At the end of May, one of the employees at the Standard Oil factory in the Newtown Creek neighborhood took ill, and the persistent Emery sent a squad to the plant to vaccinate the man’s co-workers. When the men refused and the doctors tried to insist, one of the workers pulled out a copy of a newspaper that had printed Gaynor’s decision. “You can’t touch us,” the men were reported as saying. “We are protected
by the law.”50
Although the imposition of quarantine had been suspended, the use of coercive measures continued. In one late-night raid, a squad of 40 physicians accompanied by 120 police officers swept into an Italian quarter of Flatbush brandishing points. The Eagle reported that upon seeing the policemen’s badges, many “sprang through windows and doors,” but they were soon caught.51 The following night, approximately 50 doctors and more than 100 police conducted another raid. A scuffle broke out when one of the residents lunged at a doctor and attempted to stab him with a pocket knife.52
The Brooklyn Anti-Compulsory Vaccination League had a field day with Emery’s legal troubles, and at the end of May, it publicly called for his removal.53 Emboldened by Gaynor’s ruling, the league next mounted an attack on the state law requiring the practice for school enrollment. Charles Walters—the family physician who had come to William Smith’s aid—filed suit against the principal of Brooklyn Public School No. 22 seeking to compel him to admit Walters’s two children, who had not been vaccinated.54 On this front, however, the group was unsuccessful. A month later a judge ruled, “A common school education, under the existing constitution of the State of New York, is a privilege rather than a right…. It follows that the State can certainly exercise this discretion by debarring from attendance at the public schools such persons as are unwilling to adopt a precaution which, in the judgment of the legislature, is essential to the preservation of the health of the large body of scholars.”55 The judge was careful to point out that the legal question in this case was different from that which Judge Gaynor had considered in the Smith case.
From March through August of 1894, when the epidemic finally dwindled, the health department administered approximately 225,000 vaccinations (close to one-quarter of the city’s population). Of the vaccinations performed by city doctors, close to three-quarters were done house-to-house (basically police escorted doctors who essentially put a gun to their head).56
In February 1895, Emery claimed a victory for health department authority when an appellate court overturned Gaynor’s ruling of the previous May asserting that Emery had overstepped his bounds. The new ruling underscored just how ambiguous the definition of terms such as “compulsory” could be, and how much disagreement remained over whether vaccination constituted an assault or a public service. “There was neither coercion nor compulsion” in the health department’s actions, the judges ruled. Smith and Cummings “were isolated and deprived of their freedom because they had been exposed to small pox and were liable to be seized therewith…. If they availed themselves of the privileges tendered to them, their acceptance would terminate their quarantine.”57 It was an unalloyed victory for the kinds of broad powers Emery had claimed for the department of health.
Lawyers for Smith and Cummings appealed, however, and on May 3, 1895, exactly a year after the health department had placed the quarantine on Smith’s business, a three-judge panel on the court of appeals affirmed Gaynor’s original ruling that Emery had overreached. “That the powers conferred upon the health commissioner by the provisions of the city charter give him the right to compel the vaccination of every citizen in the city of Brooklyn, if he would escape quarantine, seems an unnecessary and it is an unwarrantable inference in the language,” the decision said.
Smith had also filed suit against Emery seeking damages for lost business during his confinement. Smith’s complaint alleged that the health department’s action constituted an unlawful arrest without probable cause that had led to the loss of $10,000 as a result of his inability to continue his business. (The suit for damages, Smith v. Emery, was a separate legal action from In re Smith, the original suit contesting forced vaccination, although for several months during 1894–95, both were pending simultaneously in the state court system.) The second suit came to trial in the Brooklyn circuit court on the first day of December 1895, and two weeks later, the judge awarded Smith $641.32 in damages after the jury found in his favor.59
The trial of the damages suit revealed the wide gap between the rationale of the health department doctors and the legal perspective of the court. To justify the attempt to force vaccination on Smith and Cummings, Emery’s lawyers produced multiple types of propaganda to demonstrate the rapid spread of smallpox and the grave peril it posed to the population: statistics on the incidence of the disease, city maps depicting the distribution of cases, testimony by department inspectors, resolutions from the Common Council and the medical society describing the scope of the threat. But Judge Charles Brown found all of this irrelevant. “I do not regard it as at all material that there was smallpox in the City of Brooklyn or that they had 140 cases a day,” he told Emery’s lawyers during cross-examination.60 The sole relevant issue, according to Brown, was whether or not Smith himself had actually been diagnosed with the disease; failing that, quarantine was unjustified.61 Brown’s decision over the use of quarantine, like Gaynor’s before him, underscored the difference between types of evidence that were persuasive to health officials and those that stood up in courts of law.
Smith’s suits over quarantine were not the only legal actions arising from the smallpox outbreak. In 1895–1896, the health department faced at least three other suits charging it with either assault or wrongful death as a result of vaccination. These suits were among a handful brought during this period against private or public sector doctors by disgruntled citizens who claimed they had been harmed by forced vaccination.62 These actions partly reflected a larger legal trend around the turn of the twentieth century: a sharp rise in personal injury lawsuits. But only a tiny fraction of these suits involved medical malpractice; most were for injuries sustained in the workplace or through traffic or transportation mishaps.63
In December 1896, the circuitous legal battles between Emery and his antagonist William Smith finally came to an end when a panel of judges in the appellate division of the state supreme court heard Emery’s appeal of the damage award that Smith had won against the health department a year earlier. The court found that the judge in the earlier trial had improperly excluded from consideration the evidence Emery’s lawyers had submitted concerning the prevalence of smallpox and his judgment about Smith’s and Cummings’s risk of contracting the disease through their work. The appeals court ruling affirmed the validity of the professional opinion Emery had attempted to present. “The conditions requisite to constitute exposure, and whether those which actually exist … are not necessarily, and may not be, matters within common understanding,” the judges declared, showing striking deference to the authority of scientific knowledge. “They present medical questions, and the effect of them in a given case is the subject of professional opinion.”70 With these words, they overturned the previous court’s ruling.
It was at best an ambiguous victory for Emery and the health department, finding not that the attempt to compel vaccination was justified but that Emery had not had adequate opportunity to prove it so. Smallpox having passed from the city, however, the issue had lost its urgency for the moment. But the question of the limits of compulsion would resurface in a few years, in a somewhat different form, when the disease returned to the city just after the commencement of the new century.