Board of Trustees of Highland Park Graded Common School Dist. No. 46 v. McMurtry

• Decision Date: 13 April 1916
• Parties: BOARD OF TRUSTEES OF HIGHLAND PARK GRADED COMMON SCHOOL DIST. NO. 46 ET AL. v. MCMURTRY ET AL.
• Court: Kentucky Court of Appeals

184 S.W. 390

169 Ky. 457

BOARD OF TRUSTEES OF HIGHLAND PARK GRADED COMMON SCHOOL DIST. NO. 46 ET AL. v. MCMURTRY ET AL.

Court of Appeals of Kentucky.

April 13, 1916

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Suit by the Board of Trustees of the Highland Park Graded Common School District No. 46 and others against F. L. McMurtry and others. From a judgment dismissing the petition, plaintiffs appeal. Affirmed.

W. S Sanford, of Louisville, for appellants.

A Scott Bullitt, Co. Atty., and J. L. Sullivan, Asst. Co. Atty., both of Louisville, for appellees.

CARROLL J.

This suit was brought by the board of trustees of the Highland Park graded common school district against the members of the county board of health of Jefferson county and Dr Whittenburg, the county health officer, for the purpose of enjoining them from enforcing an order directing vaccination by a day named in the order of all school children attending the graded school in question who had not been vaccinated within seven years preceding the issual of the order. After the issues had been made up, the case was submitted on the evidence and an agreed state of facts and the petition dismissed.

Section 2049 of the Kentucky Statutes, which is a part of the chapter devoted to the powers and duties of the state board of health, provides, in part, that:

"The board shall have general supervision of the health of the citizens of this state; * * * and are further empowered to make and enforce rules and regulations to obstruct and prevent the introduction or spread of infectious or contagious diseases to or within the state."

In section 2055 provision is made for the appointment of local boards of health for the respective counties in which they reside, and these county boards "are authorized and shall have power to enforce the rules and regulations adopted by the state board of health." It further provides that:

"Such local boards are empowered and it shall be their duty to inaugurate and execute and to require the heads of families and other persons to execute such sanitary regulations as the local board may consider expedient to prevent the outbreak and spread of cholera, smallpox, yellow fever, scarlet fever, diphtheria and other epidemic and communicable diseases, and to this end may bring the infected population under prompt and proper treatment during premonitory or other stages of the disease, and they are empowered to go upon and inspect any premises which they may believe are in an unclean or infectious condition, and it shall be empowered to fix and determine the location of an eruptive hospital for the county, sufficiently remote from human habitation and public highways as in its judgment is safe."

And also directs that:

"The local board shall appoint a competent practicing physician who shall be the health officer of the county and secretary of the board, whose duties shall be to see that the rules and regulations provided for in this act, and the rules and regulations of the state board of health are enforced."

In the chapter on smallpox, embracing sections 4607-4618 of the Statutes, further provision is made for the prevention and spread of smallpox and the duty enjoined on parents, guardians, and other persons having the care, custody, or control of children to have the same vaccinated.

The graded school district here in question is located in Jefferson county, outside the corporate limits of the city of Louisville, and Dr. Whittenburg is the health officer for Jefferson county appointed by the local board of health of the county, which board in turn had been appointed by the state board of health.

It further appears that the state board of health had adopted a regulation known as rule 35, reading:

"No person shall become a member of any public school within the jurisdiction of this board, as teacher or scholar, without furnishing a certificate from some reputable physician that he or she has been successfully vaccinated, and has been revaccinated at least once every seven years."

On January 10, 1916, Dr. Whittenburg, in his capacity as health officer for Jefferson county, and purporting to act by order of the Jefferson county board of health, served on each of the trustees of the graded school a notice in writing, which notice, after setting out rule 35 of the state board, recited that:

"Information has come to this office that the rules concerning vaccination in your school are not being carried out in accordance with the instructions of the board of health. * * * I expect each child enrolled to bring a certificate of successful vaccination, and file same with the teacher and principal in charge. You have at present an infection of smallpox in your immediate school vicinity. * * * Vaccination must follow immediately, and certificates must be on file by the twentieth day of this month from all children who have not already complied with the above instructions. In case of failure, they must be sent home."

It appears, however, that Dr. Whittenburg issued this order or notice without having been expressly so directed to do by the county board or the state board of health; and the trustees of the graded school refusing to obey the instructions contained in the notice, the county board of health, on February 4, 1916, held a meeting and adopted a resolution reciting that:

"It appearing that there are a number of smallpox cases in Highland Park and in the vicinity of the schoolhouses in district No. 46, and that an epidemic is threatened in that neighborhood, and it further appearing that the board of trustees of the Highland Park graded common school district No. 46, and the principal of the school, willfully refused to enforce rule No. 35 adopted by the state board of health; * * * now therefore it is ordered by the county board of health that the county health officer, Dr. Whittenburg. shall take all necessary steps by taking out warrants and instituting prosecutions against said parties, to the end that the vaccination laws of the state of Kentucky and the rules and regulations of the state board of health be vigorously enforced and the lives of the school children and other residents of Jefferson county be protected."

When this resolution was adopted by the county board of health Dr. Whittenburg again notified in writing each of the school trustees to have all children attending school and not holding a certificate of successful vaccination to be sent home and not allowed to re-enter without first showing a certificate of successful vaccination from some reputable physician. This notice further directed the trustees that it must be obeyed within 24 hours after its service.

Aside from the stipulation of fact, in which it was agreed that there was a county board of health in Jefferson county composed of certain named persons, and that Dr. Whittenburg was the duly appointed health officer of the county, and that rule 35 had been adopted by the state board of health, the only evidence in the case consists of the deposition of Dr. Whittenburg. In his evidence he said, in substance, that he issued the notice of January 10th under what he conceived to be his authority as health officer of the county and without having been expressly directed to do so by either the state board of health or the county board of health. That when this notice was not obeyed, the county board of health had a meeting and adopted the resolution which was served on the trustees on February 4th. He further said that at the time of or before the issual of the notice in January, there was a child in the graded common school district who was afflicted with smallpox, and that subsequently several other cases of smallpox developed at different places on the border line of this school district, although none of the persons afflicted lived in the school district.

Further testifying, he was asked and answered the following questions:

"Q. In your opinion, and from what you know of the situation out there, has the existence of those five cases of smallpox also caused a considerable exposure of other people to smallpox? A. Yes; I think so; there can be no question about that. Then you can't tell how far these exposures run. Q. Doctor, at the time you sent these communications about which you have testified, with reference to enforcing this rule 35 of the state board of health, was or not the smallpox situation out there dangerous, or what was the nature of the situation? A. I considered it dangerous. On one occasion here we had one infection here in Louisville, a negro man, and I followed it thoroughly through, and tried to see if I could get in touch with where there were other cases around here, and I was unable to; that I did in the state generally and that winter we had 641 cases from that one negro man. I mention this to show how it will spread where people are unvaccinated. Q. Does the presence of five cases of smallpox constitute an epidemic or create any danger of an epidemic breaking out? A. Yes; there is no question about that. Q. Doctor, from your knowledge and experience as a physician, and especially your knowledge and experience with reference to this disease of smallpox, state whether or not vaccination is a prevention of smallpox. A. It is an absolute, positive, preventive for seven years, and thereafter immunity may partially run out and a mild form may occur later in life, the frequency of its occurring depending on the length of time from vaccination, and I have never seen any one die that had been vaccinated at any time in life, even in infancy, from smallpox. It is the only known method of preventing the disease throughout the civilized world, the only preventive of the disease indorsed by all...