Carr v. Board of Education.

not in the district, and while there was no imminent danger of its existence. The decision was by a divided court-three to two. In the majority opinion by Justice Moore, it is said:

"If the rule was that during the prevalence of smallpox in Kalamazoo, the child could not attend school unless vaccinated, a very different result would be reached. These epidemics never last very long and the parent and child might very well say, if they desired, that they would absent themselves from school during the epidemic, and this could be done without their being law breakers."

They have a compulsory education law in Michigan as in Ohio. Continuing, the judge says:

"In the case cited by Justice Long, Duffield v. School District, 162 Pa. St. 476 [29 Atl. Rep. 742; 25 L. R. A. 152], the record shows that smallpox then existed in the school district. The school board had, because of this fact, and at the request of the board of health, adopted the rule requiring vaccination-a very different case than the case at bar."

The judge then cites the case of Potts v. Breen, 47 N. E. Rep. 81 [167 111. 67; 39 L. R. A. 152; 59 Am. St. Rep. 262], and the reservation which that court make in its decision with reference to an emergency, in the exercise of police power, when it is necessary, or reasonably appears to be necessary, to prevent the contagion of smallpox. ***But, like the exercise of similar power in other cases, such power is justified by the emergency, and, like the necessity which gave rise to it, ceases when the necessity ceases."

In concluding the opinion Judge Moore says, page 1040:

"In what I have said, I do not mean to intimate that during the prevalence of diphtheria or smallpox or any other epidemic or contagious disease in a school district, the board may not, under its general powers, temporarily close the schools, or temporarily say who shall be excluded from the schools until the epidemic has passed; but what I do say is that the legislature has not undertaken to give them the power, when no epidemic of contagious disease exists or is imminent in the district, to pass a general, continuing rule which would have the effect of a general law excluding all pupils who will not submit to vaccination."

In Matthews v. School District No. 1 (Board of Ed.), supra, it was admitted that there had been no smallpox in the city of Kalamazoo or in such school district, but that the disease was prevalent in some parts of the United States and Michigan.

This decision, therefore, only decides that under the facts of that case, there being no prevalence of the disease in that city and no case of it in the city, that the board could not make and enforce a permanent rule of exclusion on the ground of non-vaccination.

From the opinion of the majority of the court it clearly appears, as in Potts v. Breen, supra, that under the state of facts disclosed here, the

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decision would have been the other way, and Justice Moore clearly says so.

In the case of Blue v. Beach, 155 Ind. 121 [56 N. E. Rep. 89], the supreme court of that state decided that:

"Section 6711 et seq., Burns, 1894, authorizing and empowering the state board of health to adopt rules and by-laws to prevent the spread of contagious and infectious diseases, is not a delegation of legislative authority in violation of Art. 4, Sec. 1, of the constitution, vesting the legislative authority of the state in the general assembly.

"Under the provisions of Sec. 6718, Burns, 1894, making it the duty of the local boards of heath to protect the public health and arrest the spread of contagious diseases, a local board of health may require that school children be vaccinated as a sanitary condition imposed upon their privilege of attending school during a period of threatened epidemic of smallpox."

In that case the local board found and declared that there had been and was at the time of the order an exposure to and danger of an epidemic within the city of Terre Haute. The court, in the opinion, reviews all the cases upon the subject decided prior to that date, including the cases of State v. Burdge and Potts v. Breen.

In Rebenack, In re, 62 Mo. App. 8, the St. Louis board of education ordered that unvaccinated children should be excluded from the public schools. In that case the charter law of St. Louis provided that the president and directors of the school board should have power to make all rules, ordinances and statutes proper for the government and management of such schools, etc., so that the same shall not be inconsistent with the law of the land. The court decided that the board had the right to require vaccination of school children and to exclude the unvaccinated. In Duffield v. School District, 29 Atl. Rep. 742 [162 Pa. St. 476; 25 L. R. A. 152], it appeared that the child had been excluded under an order requiring vaccination, and that the only authority for it was an ordinance of the city council, which provided that no pupils shall attend the schools of the city except they be vaccinated or furnish a certificate from a physician that such vaccination had been performed. The school board, upon being notified by the board of health of an epidemic of smallpox in other cities and towns in that part of the state, issued an order requiring vaccination as a condition of attendance in the public schools, and this was upheld by the Supreme Court of that state as a valid exercise of the power conferred upon the board. In that case the legislature had nowhere given to school boards, in express terms, the power to require vaccination as a condition of admission, or to suspend or expel pupils for failure to comply with that order.

In State v. Board of Ed., 60 Pac. Rep. 1013 [21 Utah 401], the answer to a writ of mandate, among other things, alleged that smallpox was an infectious contagion and epidemic in the community, and

Carr v. Board of Education.

included types of the most malignant and deadly character, and that the only known preventive therefor, recognized and approved by medical science throughout the civilized world, was vaccination with animal lymph or vaccine matter; that such vaccination was a condition allowing pupils to enter the public schools in order to prevent the spread of such disease therein; that the petitioner, by means of the premises, not having been vaccinated as a condition of entering therein, was liable to carry the disease into the public schools; that an emergency existed for calling into existence such powers as the board of health possessed in order to prevent the threatened spread of smallpox. A demurrer was interposed to the answer in this case: Held, that for the purpose of the hearing, such demurrer admitted as true the material allegations of fact contained in the answer, upon which admitted facts the court must apply the law.

"Where it is admitted that an emergency existed, and that the contagious and infectious disease of smallpox was prevalent, and vaccination is admitted by the pleadings to be the only safe preventive recognized and approved by medical science throughout the civilized world, a rule of the board of health and the board of education, excluding all unvaccinated pupils who are liable to carry smallpox into the schools, from attending the public schools during the prevalence of the disease, is not only a reasonable regulation in aid of the public health, and justified by a reasonable construction of Secs. 9 and 24, Chap. 45, Sess. Laws 1899. but it also finds ample support in the police power inherent in the state." In that case the court says, p. 1015, in the opinion, that:

"Until it (the disease), is developed, there are no means by which its presence can be detected. * * * Exposure to the disease may come to the child without her knowledge and when least expected. When infected the child may communicate the disease to hundreds of children before the patient is aware she is infected with it."

There is a statute in Utah which empowers the board to exclude those from the schools who are liable to convey such infectious diseases as smallpox to those in attendance, but there does not appear to be any statute requiring vaccination as a condition of attendance. In the case of State v. Zimmerman, 90 N. W. Rep. 783 [Minn.], decided by the Supreme Court of Minnesota on June 6, 1902, it was held that:

"Legislative grants of power to municipalities, intended to secure the preservation of the public health, and to provide for the enforcement of proper and necessary sanitary regulations to prevent the spread of contagious diseases, are, notwithstanding the individual liberty of the citizen, is, in a measure, involved, entitled to a broad and liberal construction by the courts, in aid of the beneficial purposes of their enactment.

"2. The various provisions of a municipal charter adopted under a constitution authorizing cities to frame their own charters as to subjects

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properly belonging to the government of municipalities, have all the force and effect of legislative enactments.

"3. The provisions of the charter of the city of St. Paul, adopted under and pursuant to constitutional authority, providing for a commissioner of health, and defining his duties, held, valid, and, as respects the duties there imposed on such commissioner, self-executing, requiring no action on the part of the board of health or the city council to authorize the performance of the same.

"4. A general grant of power in broad and comprehensive terms, to do all acts and make all rules and regulations deemed necessary and expedient for the preservation of the public health, vests in the authorities to whom granted power to enforce in cases of emergency, rendering it reasonably necessary in the interests of the public health and for the prevention of the spread of smallpox, a regulation requiring children to be vaccinated as a condition to their admission to the public schools.

"5. Such a regulation made by the commissioner of health of the city of St. Paul, held valid and enforcible."

In the opinion the court said:

"The question whether the public authorities may require the vac cination of children as a condition precedent to their right to attend public schools, has been much discussed by the courts. The authorities are not uniform on the subject. By some courts it is held that the power exists and may be exercised without regard to the existence of an emergency occasioned by an epidemic of smallpox ; other authorities limit the right to exercise the power, whether expressly conferred by legislative enactment or not, to the presence of an epidemic and when there is imminent danger of the disease spreading among the people of the community; and by still other courts that, even without legislative authority, health officers possess the power to impose such conditions and may enforce them in cases of emergency amounting to 'an overruling necessity.' *** But whatever may be the correct rule to apply to controversies of this kind, if the power may be exercised under any circumstances where legislative authority has been granted, it should be where, as in the case at bar, there is an epidemic of smallpox and imminent danger of its spreading. The courts are not concerned with the question of the efficacy of this treatment, nor with the considerations relative to its necessity and propriety as a police regulation, except, perhaps, in those cases where the abuse of power is pleaded and shown. The treatment may be, as claimed by some, a gross interference with individual liberty, or as claimed by others, a certain preventive of a much dreaded disease, and the spread of the same, and therefore a great public benefactor. We are not to be understood as expressing an opinion upon the merits of the treatment."

The court then quotes the decision of the Indiana supreme court in

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Blue v. Beech, supra, that the question is one for the legislature and boards of health, and not for the courts.

The state of Minneasota has a compulsory education law like Ohio, and the court says with reference to that, page 786:

"It is very true that the statutes of our state provide that admission to the public schools shall be free to all persons of a defined age and residence, and that every parent having control of any child of school age, is expressly required to send such child to school. *** But all these statutory provisions must be construed in connection with and subordinate to the statutes on the subject of the preservation of the public health and the prevention of the spread of contagious diseases."

Pennsylvania has a compulsory education law. In Commonwealth v. Smith, 9 Pa. Dist. Rep. 625, it was held that where a child was excluded from school for failure to comply with an order for vaccination, and the parent was prosecuted, that it was a complete defense and that the parent complies with the requirement when he has sent his child to school from which he is excluded.

The supreme court of Indiana reaffirms its decision in State v. Beil, 60 N. E. Rep. 672 [157 Ind. 25].

As a result of my investigation of this subject, I have found no case in which a court denied the power of a board of health or board of education, in the presence of an epidemic of smallpox, or when such. an epidemic was imminent, to require vaccination as a condition of admission to the schools. While State v. Burdge, supra, does not make any reservation in its decision, yet the facts show that smallpox was not prevalent, and that only one case existed in the city, and that was quarantined.

The Illinois court expressly recognizes that such a power might be exercised if the facts of the case had been sufficient to warrant it, and in the Michigan case the court expressly says that under such a condition as is disclosed by the answer in the case at bar, the decision would have been the other way.

I have also reached the conclusion, as stated, that it is very doubtful whether the legislature has conferred upon health boards the power to issue such an order as the board of health of this city issued to the board of education.

I do not find it necessary, however, to decide that question, as, in my opinion, the board of education have authority under the general law to which I have referred, Sec. 3986 Rev. Stat., to issue and enforce the order in question in this case. It might be suggested that the order is not the order of the board of education, but only the order of the board of health, but the statute does not apparently empower boards of health to issue such orders to boards of education, but reposes this power as to vaccination in the board of education, and upon the averments of the answer it appears that the board of education did not sim