(concurring). The statute in question, ch. Y38,. Laws of 1913, requires that, upon application for a marriage license, the male party to such marriage must, within fifteen days prior to the application, he examined by a physician of designated qualifications with reference to the existence or nonexistence of any venereal disease in such male person. The licensing officer is prohibited from issuing a license unless a certificate of such a physician is presented setting forth that this male person is free from acquired venereal disease' so far as can be determined by the recognized clinical and laboratory tests of scientific search. Physicians were called as witnesses in the court below and some of them testified, in substance, that the recognized laboratory tests of scientific search include what is known as.the Wassermann test for syphilis. This test requires a special laboratory equipment, and out of 3,000 physicians in this state not more than twenty-five, and out of 300 physicians in Milwaukee county not more than six, are equipped or prepared to apply the Wassermann test. That the fee of $3 fixed by statute is unreasonably small for making the Wassermann test, for which the reasonable charge would be about $25. The Wassermann test is described in volume 20, present edition of The Americana, subject “Syphilis,” and the description need not be repeated. It is said to have been in use about 'seven years, and in the encyclopedia mentioned is somewhat discredited already, and the testimony in this case corroborates such discredit. Eor it was quite unanimously agreed upon that repeated experiments covering quite a long period of time were necessary, that a negative result did not prove the-subject free from syphilis, while a positive result meant that the subject had measles or scarlet fever or tuberculosis or *664typhoid fever or diphtheria or diabetes or syphilis. Also that this test may be frustrated and a negative result obtained by a syphilitic if, preparatory to the test, he load up with alcoholic liquor, salvarsan, or some form of mercurial medication. In the primary and secondary stages of syphilis the diagnosis may be made by inspection of the affected parts; in the third or tertiary stage this cannot be done, usually, .and it is in this latter stage that the Wassermann test fails most frequently. There are other laboratory tests besides the Wassermann test. These other tests, or some of them, •consist of a microscopic examination and pigmentation for the purpose of identifying the bacteria found in the discharge from the affected parts. It seems to me that such testimony goes a long way toward proving that the use of this Wassermann test was not within the contemplation of the lawmakers. The statute indicates that they had in mind laboratory-tests which would be completed within fifteen days and which would be ordinarily compensated by a fee of $3 and which were understood and practiced by ordinary physicians of .good character and standing throughout the state. The rule that statutes should be interpreted with reference to the popular and ordinary understanding of the language employed is a very constant and common-sense rule of law. The legislators probably never heard of the Wassermann test. But they may be presumed to have had the capacity of intelligent persons, the same sort of information, and the •same knowledge on this subject. From this viewpoint we •can say that they believed the three principal venereal diseases were gonorrhea, syphilis, and chancroid; that these ■diseases were each of bacterial origin; that the micro-organism of each was distinct and capable of identification by microscopic examination and staining; and that these last simple laboratory investigations were the laboratory tests referred to in the statute.
I do not concede that, weighted down with the Wasser*665mann test, tbe law would be unconstitutional if it were valid without this handicap, but I do think that it cannot be held upon any fair interpretation of the statute that the legislature intended that the laboratory test required was one which but few physicians could apply, which required such a long time and was so uncertain in its results, and which could not be performed for the fee fixed by the statute. There could not, I think, be much doubt of this were it not for the use of the words “scientific search.” It seems to me, however, these words were, employed to require something more than a mere physical inspection of the person. The words “recognized laboratory tests” mean, I think, those commonly recognized and those ordinarily practiced; those recognized by common usage, not necessarily including all those known to or recognized by the few intellectuals in advance of their day and of the body of their profession.
Taking in this wide sweep would include those laboratory tests which obtain recognition for a few months or a few years and then are abandoned and forever afterwards strangers to science. “Eecognized” here and in this connection means “well known,” “accepted,” and “established.” The law requires us to find the statute constitutional if by any reasonable interpretation it can be made to conform to the constitution, and not to search after something which would tend to make the statute invalid. Is the statute, thus interpreted, constitutional? The learned' circuit judge thought that it conflicted with sec. 1, art. I, and sec. 18, art. I, of the state constitution. The first is a declaration that all men are born equal, free, and independent, and have certain inherent rights; among them life, liberty, and the pursuit of happiness. The second relates to freedom of worship and liberty of conscience. It is not contended that the state constitution elsewhere, by express interdict or by necessary implication, prohibits the legislation in question. The statute in question, although often alluded to as “The Eugenic Mar*666l’iage Law,” has little relation to that pseudo science called “Eugenics.” It is primarily a law to prevent the spread of contagious diseases and regulative of the marriage contract, adding to the requirements of age, lack of relationship within the prohibited degree, license, etc., the further requisite of a ■certificate of freedom from venereal disease. This is also indicated by the limitation to “acquired” as contradistin-guished from “inherited” venereal diseases, and it seems to me the statute calls for this construction. This is a subject well within the regulative power of the legislative branch of government, unless prohibited by the constitution. F Ereund, Police Power, § 124; In re McLaughlin's Estate, 4 Wash. 570, 30 Pac. 651; Reynolds v. U. S. 98 U. S. 145; Gould v. Gould, 78 Conn. 242, 61 Atl. 604, 2 L. R. A. n. s. 521; Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723; Boehmer v. Kalk, 155 Wis. 156, 144 N. W. 182.
I have much doubt whether the state or condition called “happiness” in the constitution, or the state, condition, or occupation there described as “the pursuit of happiness,” is capable of judicial ascertainment or identification. This process would seem to be necessary before a court could determine whether a given statute impinges against or encroaches upon such state or condition. It is, however, quite unnecessary to determine this question here, for, assuming for argument’s sake that the vague generalization quoted does guarantee to the citizen certain rights which the legislature may not by statute take away, still the exercise of all constitutional rights is subject to reasonable regulation in the public interest under the so-called police power of the state. Before the statute in question could be declared invalid on this hypothesis it must appear that the statute was not at all conducive to the preservation of public health, welfare, or morals, or that it carried regulation to an unreasonable or unnecessary extent and so as to interfere seriously with constitutional rights. It is said by those who have studied the *667subject that there are no reliable statistics to show the prevalence of venereal disease in civil life. The most contradictory and conflicting estimates may be found. Gonorrhea seems to be about four times as prevalent as syphilis; the latter and chancroid about equally prevalent. There are those who claim that syphilis is not inherited, but affects the offspring merely because the bacterial organisms causing the disease have their habitation in the genito-urinary organs and so reach the foetus and inoculate it by contact, and there are authorities denying this. All, I think, agree that these three venereal diseases are contagious and communicable by contact with the mucous membrane. Gonorrhea is the more readily cured, but all are curable, at least in the early stages of the disease. In bulletins of the federal Bureau of the Census relative to marriage and divorce these diseases are not expressly noted as a cause of divorce, and if they are included under some general designation, still they do not seem to figure largely as a cause. A bulletin of the same bureau entitled “Mortality Statistics,” enumerating 171 causes of .730,538 deaths in territory preponderatingly urban, ascribes only 2,999 to venereal diseases, and of this 1,582 were infants under one year and 1,735 children under five years of age. Bulletin No. 108 (1910).
In vol. 5, part 2, pp. 324 to 368, “Transactions of the Fifteenth International Congress of Hygiene and Demography,” are several papers on this subject, in one of which (p. 338) Dr. Lung endeavors to show that venereal diseases are as prevalent in civil life as in the United States navy. If this is correct, they are very prevalent. Chapin on Municipal Sanitation in the United States contains the statement that these diseases are very prevalent, but the only definite figures given relate to 2,886 examinations in ten months of 230 prostitutes, 'which discovered only forty-two cases. In the army and navy, and in cases of applicants for enlistment as soldiers or sailors, superior opportunities for *668■observing and recording cases of this nature exist, and concealment by tbe afflicted person is next to impossible. Here we find that tbe army and navy of tbe United States leads tbe world, having tbe highest percentage of these three venereal diseases, although the British army and navy is a little ahead of us, and of the rest of the armies of the world, in syphilis. Norris, Gonorrhea in Women-(1913) pp. 137, 138.
This condition of our army and navy is thought by some to be largely due to the greater influence in this country of well-meaning and emotional, but illy-informed, persons, who reject the teachings of experience elsewhere and refuse to recognize the prostitute by compelling her to submit to inspection and regulation. It does not seem probable that this high percentage of venereal disease in the army and navy measures the prevalence of such diseases in civil life, but it shows that there is enough in the last mentioned walks of life to justify legislative action in prevention of its spread. It is also thought by the highest medical authorities that the main source of venereal infection is the prostitute, and that here regulation and prevention may be made most effective.
We are not authorized to set up our judgment on such matters against that of the legislature or do more than measure the statute against the constitution, and if we find therein no prohibition expressed or necessarily implied against such legislation the statute must be enforced.
For my part I have no sympathy with this statute. I think it tends to discourage marriage rather than to prevent the spread of venereal diseases. All experience goes to show that laws making marriage expensive or difficult or subject to objectionable requirements tend to increase illegitimate sexual intercourse. The latter tends to promiscuousness, hence to the spread of venereal diseases. The notion that wives are infected only by husbands who at the time of marriage have venereal diseases seems very simple. If a man *669knows that be bas a venereal disease and notwithstanding this desires to be married, be will not submit himself to any honest examination for very obvious reasons. He. will go out of the' state to be married. If he has such disease' and does not know it he must be quite unsophisticated. If there are cases where a man is so afflicted and does not know it, they must be so rare as to be quite negligible for the purpose of justifying such legislation. So I think the law will reach only those males desiring to marry who have no venereal diseases and therefore do not fear the examination, or those who have so little sense or so little disease as to be unaware of their affliction. In case a marriage • engagement is announced a year or thereabouts before marriage and the pros-.-pective groom fails to pass the examination and must either break the engagement or resort to the scandalous or mortifying appeal to the county judge,-neither the bride nor her parents are allowed to disclose any matter relating or pertaining to the examination of the applicant for a license to marry. This may be a great damage to the girl, give rise to unworthy suspicion and gossip, and the penalties imposed upon persons making such disclosure are, I think, exorbitant and unreasonable, as are those imposed on the county clerk who shall unlawfully issue a license. But I think this part of the act jcan be held invalid without affecting the validity of that portion of the act requiring an examination by and a certificate from a licensed physician to the effect that the male person intending to marry is free from all venereal diseases so nearly as can be determined. The form of the certificate itself is a sort of an insult, a Scotch verdict of “not proven;” and the statute in all its parts is, in my opinion, about as silly and obnoxious a piece of legislation as could be devised. But the ineffectiveness of the law, or its folly if it be foolish, or the fact that it was passed in a modern spirit of legislating first and investigating afterwards, is quite remote from the question of its constitutionality. The people *670must learn to hold their legislators responsible for the enactment of laws which, however unwise and absurd, are still within the constitutional power of the legislature. It will be for the benefit of both the people and the legislature to recognize this responsibility and to know that they cannot look to the supreme court for relief in every case of an objectionable but constitutional law. So long as the legislature believes there was enough venereal disease in this state to justify the enactment of the statute in question, we cannot gainsay it, for that was a matter for the legislature to decide. Assuming the prevalence of venereal disease, its contagious nature, and its communicability by contact, it was within the power of the legislature to enact statutes wholly or partially preventative of the spread of these diseases. If the legislature libeled the people of this state by making it to appear that venereal diseases were prevalent here when in fact they were not, the members of that body must for such error answer to the electors and not to the supreme court. If I concede, as I must, the power to require a marriage license, I must also concede the power to require of the licensee reasonable qualifications, and it cannot be said to be unreasonable that he be free from venereal disease.
I cannot imagine how this law can be said to interfere with freedom of worship or liberty of conscience. The notion that marriage was a sacrament, not a civil contract creating a status, once vigorously asserted, has long since passed away. A point is made that requiring the prospective husband to submit to the examination without making the prospective wife do so conflicts with the Fourteenth amendment to the United States constitution, which forbids the states to deny the equal protection of the laws. But the men desiring to marry form a very definite class quite germane to the object-sought to be accomplished by the statute. And we read' in the learned medical treatises that while the primary source of venereal infection is usually the prostitute, still such dis*671eases are generally brought into the family by the husband rather than by the wife. The legislature was justified in so deciding.
It is probable that in an action by a doctor under thirty years of age but otherwise qualified, or by an applicant for a license who held a certificate from such physician as is last described, that portion of the statute in question which requires the applicant for a marriage license to present to the licensing officer the certificate of a physician “at least thirty years of age” would be held invalid under the rule of Smith v. Texas, 233 U. S. 630, 34 Sup. Ct. 681. But the relator is in no position to raise this question, and the last mentioned part of the act is clearly severable from the remainder and cannot be said to be either an inducement to the enactment in question or an essential part thereof without which the legislature would in all probability not have enacted the remainder of the statute. I find no ground for holding that part of the statute here involved unconstitutional.