197 U. S. Argument for Plaintiff in Error. v. Justice, L. R. 17 Q. B. D. 191; Dutton v. Atkinson, L. R. 6 Q. B. 373; Pitcher v. Stafford, 4 Vest. & S. 775; Allen v. Worthy, L. R. 5. Q. B. 163; Tebb v. Jones, 37 L. T. (N. S.) 576. The law is not of general application as children are exempted. Compulsion to introduce disease into a healthy system is a violation of liberty. The right to preserve life is the most sacred right of man, Slaughter House Cases, 16 Wall. 36, and is specially provided for in the Preamble of the Federal Constitution. If injured the person vaccinated is damaged without compensation. Miller v. Horton, 152 Massachusetts, 546. The law is not within any cognizable principle of criminal law. 1 Bishop, §§ 204, 230, 490, 513; Commonwealth v. Thompson, 6 Massachusetts, 134. The exemptions are unconstitutional. Minors are exempt while adults are penalized. The classification is not a reasonable one. M., K. & T. Ry. Co. v. May, 194 U. S. 267; Gulf, Colo. & S. F. v. Ellis, 165 U.S. 150. Plaintiff in error offered to show that he had suffered seriously from previous vaccination, thus indicating that his system was sensitive to the poison of vaccination virus. The like illness of his son indicated that a hereditary condition existed which would cause the system to rebel against the introduction of the vaccine matter. If the plaintiff in error had offered the opinion of a physician that vaccination might even be deadly in its effects upon the plaintiff, the law recognized no such defense, and the evidence must have been excluded. The law itself testifies to its own oppressive and unreasonable character. It is not due process of law, when such defense is excluded. It is not equal protection of the laws, when such defense is open to parents for the protection of children and is not open to parents themselves. The right is of such an important and fundamental character as to deprive plaintiff of his liberty without due process of law. West v. Louisiana, 194 U. S. 258, 262. The Board of Health is entrusted with arbitrary powers, and determines the necessity for, and methods of, vaccination VOL. CXCVII-2 Argument for Defendant in Error. 197 U. S. and plaintiff's rights in regard thereto without a hearing, thus depriving him of his liberty without due process of law. Chi., M. & St. P. v. Minnesota, 134 U. S. 418; Hagan v. Reclamation Dist., 111 U. S. 701. The law is not justified by necessity. Miller v. Horton, 152 Massachusetts, 546; Am. School of Healing v. McAnnulty, 187 U. S. 94. Plaintiff in error was entitled to show the facts as they existed about vaccination and its effects. Mr. Frederick H. Nash, with whom Mr. Herbert Parker, Attorney General of the State of Massachusetts, was on the brief, for defendant in error: It is no argument that the conviction was repugnant to the spirit or to the Preamble of the Constitution. An act of the legislature of a State and regular proceedings under it are to be overthrown only by virtue of some specific prohibition in the paramount law. Forsythe v. City of Hammond, 68 Fed. Rep. 774; Walker v. Cincinnati, 21 Ohio St. 14, 41;. State v. Staten, 6 Coldwell, 233, 252; State v. Gerhardt, 145 Indiana, 439, 450; State v. Smith, 44 Ohio St. 348, 374; People v. Fisher, 24 Wend 214, 219; Redell v. Moores, 63 Nebraska, 219, overruling State v. Moores, 55 Nebraska, 480. The Fifth Amendment does not apply to action by a State. Barron v. Baltimore, 7 Pet. 243, 247; Eilenbecker v. Plymouth Co., 134 U. S. 31; McElvaine v. Brush, 142 U. S. 155, 158; Brown v. New Jersey, 175 U. S. 172; Capital City Dairy Co. v. Ohio, 183 U. S. 238; Lloyd v. Dollison, 194 U. S. 445. It is now too late to argue that the provisions of the Fifth Amendment, securing the fundamental rights of the individual as against the exercise of Federal power, are by virtue of the Fourteenth Amendment to be regarded as privileges and immunities of a citizen of the United States. Slaughter House Cases, 16 Wall. 36; Maxwell v. Dow, 176 U. S. 581. The privileges and immunities of the plaintiff in error except where he comes in contact with the machinery of the 197 U.S. Argument for Defendant in Error. Federal Government, are those which his own State gives him. In his relations with his State he takes no benefit from the Fifth Amendment or from the Preamble of the United States Constitution. In its unquestioned power to preserve and protect the public health, it is for the legislature of each State to determine whether vaccination is effective in preventing the spread of smallpox or not, and deciding in the affirmative to require doubting individuals to yield for the welfare of the community. In re Smith, 146 N. Y. 68, 77; Powell v. Pennsyl vania, 127 U. S. 678, 683. The statute in the present case was enacted as a health measure, and has a real and substantial relation to that object. Compare, by contrast, the statute forbidding the manufacture of cigars in tenement-houses, In re Jacobs, 98 N. Y. 98, the statute forbidding people to give away articles in connection with a sale of food, People v. Gillson, 109 N. Y. 389, and the statute forbidding bakers' employés to work more than ten hours a day, People v, Lochner, 177 N. Y. 145. Dissenting opinion. Only in such cases of legislative dissimulation is it held that a law, apparently looking to the protection of the public health and working without undue classification, is a violation of the Fourteenth Amendment. Mugler v. Kansas, 123 U. S. 623; Sentell v. New Orleans &c. Ry. Co., 166 U. S. 698, 704, 705; Hawker v. New York, 170 U. S. 189, 192; Holden v. Hardy, 169 U. S. 366. In Lawton v. Steele, 152 U. S. 133, 136, it is said, by way of illustration, that compulsory vaccination is a proper exercise of the police power, see also Morris v. City of Columbus, 102 Georgia, 792, and State v. Hay, 126 N. Car. 999. The courts may not listen to conflicting expert testimony as to the efficacy or hurtfulness of vaccination in general. The legislature is the only body which has power to determine whether the anti-vaccinationists or the majority of the medical profession are in the right. Argument for Defendant in Error. 197 U. S. That the legislature has large discretion to determine what personal sacrifice the public health, morals and safety require from individuals is elementary. Cases cited supra, and Booth v. Illinois, 184 U. S. 425; Austin v. Tennessee, 179 U. S. 343; Fertilizing Co. v. Hyde Park, 97 U. S. 659. The legislature of Massachusetts has power to require the vaccination of its inhabitants and fix appropriate penalties for refusal. As to the form of the legislation and its application to the plaintiff in error, the exception of minors and wards from the provisions of the statute, rests upon a reasonable basis of classification and denies to nobody the equal protection of the laws. The advantage of uniform and general laws is best attained by vesting discretionary power in local administrative bodies. Wilson v. Eureka City, 173 U. S. 32; Health Department v. Rector of Trinity Church, 145 N. Y. 32. A perfectly equal law may easily be the most unjust. A statute requiring the vaccination of all the inhabitants of a State at a specified time irrespective of the presence of smallpox and without regard to individual conditions of health, or a set of rules and regulations made by the legislature itself, which must necessarily be more or less inelastic, would be far less just than this statute which delegates discretion to local public officials. It is wise legislation which leaves the necessity for general vaccination and the decision as to the time for vaccination of each individual to the local boards of health. If they act in an arbitrary manner, depriving any individual of a right protected by the Fourteenth Amendment, their action in such individual case is void. Thus the law in general stands, but particular cases of oppression may be prevented. Compare Yick Wo v. Hopkins, 118 U. S. 356, and Jew Ho v. Williamson, 103 Fed. Rep. 10, with Williams v. Mississippi, 170 U. S. 213; Ex parte Virginia, 100 U. S. 339; Carter v. Texas, 177 U. S. 442; Tarrence v. Florida, 188 U. S. 519. The order of the Board of Health is clearly within the authority of the statute. Matthews v. Board of Education, 127 197 U.S. Argument for Defendant in Error. Michigan, 530; Potts v. Breen, 167 Illinois, 67; State v. Burdge, 95 Wisconsin, 390; Lawbaugh v. Board of Education, 177 Illinois, 572; In re Smith, 146 N. Y. 68; Wong Wai v. Williamson, 103 Fed. Rep. 1; Wilson v. Alabama &c. R. R. Co., 77 Mississippi, 714; Hurst v. Warner, 102 Michigan, 238, distinguished, as the rules were held to be broader than the statute. And see where regulations were sustained, Field v. Robinson, 198 Pa. St. 638; State v. Board of Education, 21 Utah, 401; Blue v. Beach, 155 Indiana, 121; Bissell v. Davidson, 65 Connecticut, 183; Morris v. City of Columbus, 102 Georgia, 792. In State v. Hay, 126 N. Car. 999, the court observed that if the jury had found that the defendant's health made it unsafe for him to be vaccinated that would be a sufficient excuse for his non-compliance, since to vaccinate him under such conditions would be an arbitrary and unreasonable enforcement of the statute. See also Abeel v. Clark, 84 California, 226; State v. Bell, 157 Indiana, 25; State v. Zimmerman, 86 Minnesota, 353; Matter of Walters, 84 Hun, 457. The action taken by the Board of Health in the case of the plaintiff in error did not infringe his rights under the Federal Constitution. Arbitrary action by the Board of Health, "with evil mind," might result in a denial of due process of law. If they picked out one class of persons arbitrarily for immediate vaccination, while indefinitely postponing action toward all others, or if they otherwise abused their discretion their action might be in violation of the Fourteenth Amendment, cases cited supra, but there is no suggestion of arbitrary conduct. It is not even hinted that in the exercise of their discretion they failed to make proper discrimination as to temporary conditions. If there were special reasons why the plaintiff in error could not be vaccinated at the time required by the Board of Health, he should have made them a ground of his refusal; and, if the Board neglected to consider them, a defense to his prosecution. Penn. R. R. Co. v. Jersey City, 47 N. J. L. 286. The statute did not require the vaccination and revaccination of all the inhabitants, without discrimination, |