Blue v. Beach
| Citation | 56 N.E. 89,155 Ind. 121 |
| Decision Date | 01 February 1900 |
| Docket Number | 18,004 |
| Parties | Blue v. Beach et al |
| Court | Supreme Court of Indiana |
Rehearing Denied June 20, 1900.
From the Vigo Circuit Court.
Affirmed.
S. C Stimson, H. A. Condit, R. B. Stimson and A. M. Higgins, for appellant.
W. L Taylor, Attorney-General, W. A. Ketcham and Merrill Moores, for appellees.
Appellant, Frank D. Blue, instituted this action to enjoin the appellees, Fannie M. Beach and Orville E. Connor, the former being a teacher and the latter superintendent of a graded public school in the city of Terre Haute, from excluding his son, Kleo Blue, from attending said school.
The complaint, inter alia, discloses that appellant, plaintiff below, is a resident taxpayer of the city of Terre Haute, Vigo county, Indiana, and is the father of said Kleo Blue, and that the latter is a well and healthy child, between the ages of six and twenty-one years, unmarried, residing with his father in the school district wherein the school of which appellees are in charge is situated. The complaint further charges that the defendants have excluded said Kleo from the said public school, and are threatening to prevent his further attendance as a pupil therein.
Appellees filed an answer in three paragraphs, the first being a general denial, which subsequently was withdrawn. By the second paragraph they sought to justify the act of which appellant complained, upon the facts therein alleged and set forth, that there was an exposure to and danger of an epidemic of the disease of smallpox within the limits of the city of Terre Haute and that the board of health of the State of Indiana had, in 1891, in pursuance to law, made, adopted, and published a certain rule or by-law, numbered eleven, and, further, that the legally organized and constituted board of health of said city had made and adopted a certain order. The latter, together with the above mentioned rule of the State board of health, is incorporated in and made a part of the answer.
It is then further alleged that, in pursuance to and in accordance with said order of the local board of health, the secretary thereof had notified and directed the board of school trustees of said city, together with the superintendent of its public schools, not to allow or permit any person whatever to attend such schools unless he or she had been vaccinated. In pursuance of said order of the board of health and the notice given by said health officer, said superintendent of schools directed appellees not to allow or permit any person whatever to attend the public school mentioned in the complaint unless such person had been vaccinated. In pursuance of such order and directions, appellees notified appellant, and also notified his son, Kleo Blue, that, unless the latter was vaccinated, he would not be permitted to attend said school as a pupil. Appellant failed and refused to have his son vaccinated, and the son also refused to be vaccinated; and, by reason of the order and directions aforesaid, it is alleged that appellees refused to permit him to attend said school.
The third paragraph of the answer is substantially the same as the second except that it sets out and incorporates therein an ordinance of the city of Terre Haute, adopted in 1881, whereby the board of health of said city was created, and invested with certain specified powers. Rule eleven of the State board of health, in force at and prior to the time of the order made by the local health board, and made a part of the answer, is as follows:
The order made by the local board of health, and made a part of the answer, is as follows: "Whereas, there has been and is an exposure to and a danger of an epidemic of smallpox within the city limits of the city of Terre Haute, Indiana; and "whereas, vaccination is the only preventive of the disease of smallpox, and the only preventive of the same becoming an epidemic; and whereas, it is dangerous to allow and permit persons to attend the public schools within the limits of said city without being vaccinated; therefore, be it adjudged, decreed and ordered, that there has been and is an exposure to and danger of an epidemic of smallpox within the limits of said city of Terre Haute, and that it is dangerous and would cause an exposure to and an epidemic of smallpox in said city to allow and permit persons to attend public schools within said city without being vaccinated, therefore no persons shall be allowed or permitted to attend any public school within the limits of said city without first being vaccinated according to law; and be it further ordered, that the secretary of this board notify the board of school trustees and the superintendent of the public schools of this order and judgment."
The ordinance, pertaining to the board of health, adopted by the common council of the city of Terre Haute in December, 1881, which, as previously stated, was made a part of the third paragraph of the answer, among other things, provides as follows: "The board of health, hereby established, shall have general supervision of the sanitary condition of the city, and is hereby invested with power to establish and enforce such rules and regulations as they may deem necessary to promote, preserve, and secure the health of the city, and to prevent the introduction and spreading of contagious, infectious or pestilential diseases."
A demurrer was overruled to each paragraph of the answer, and plaintiff replied in seven paragraphs, the first of which is a general denial. The second paragraph of the reply set out several rules adopted by the State board of health. The fourth alleged that the local board of health, in addition to the order mentioned in the answer, had, by another rule, excepted all children from said order who presented a certificate from a physician to the effect that they were in feeble health, or were subject to scrofulous or other blood diseases. The sixth paragraph merely averred that a local board of health had been organized under an ordinance adopted by the city of Terre Haute by virtue of the provisions of the general law of the State of Indiana.
By the third paragraph of reply it was sought to show that, at the time plaintiff's son was excluded from the school in question, the danger of an epidemic of smallpox in the city of Terre Haute had passed away. By the fifth paragraph it is averred that there had been no exposure to smallpox in the city of Terre Haute, and that but one case had been reported as existing in the State, which was at the city of Muncie. By the seventh paragraph plaintiff alleged and sought to show that vaccination in all cases produced a loathsome constitutional disease which poisoned the blood of the patient, and frequently resulted in death, and that vaccination was not a preventive of smallpox.
A demurrer was sustained to the second, fourth, and sixth paragraphs of the reply, and overruled as to the third, fifth, and seventh. Upon the issues joined, there was a trial by the court which resulted in a judgment in favor of appellees.
The evidence is not in the record, and appellant seeks a reversal of the judgment below upon the ruling of the court in holding the answer sufficient upon demurrer, and in sustaining the demurrer to the second, fourth, and sixth paragraphs of reply.
The contention of appellant's learned counsel is that each paragraph of the answer is bad, and that the facts and matters therein disclosed will not justify the appellees in excluding appellant's son from the public schools. Their insistence may be said to embrace the following propositions:
(1) The exclusion of a pupil from the public schools of this State who is "well and healthy", as the complaint discloses was the condition of Kleo Blue, and where there has been no exposure to the infection of smallpox, can not be sustained merely because such pupil refuses to be vaccinated.
(2) The right of appellant's son, under the facts shown by the complaint, to attend the public school in question is guaranteed by the Constitution, and the qualifications necessary to the exercise of this privilege are prescribed by statute, and, as there is no statute providing that vaccination of a pupil shall become a condition precedent to this privilege, hence it is contended that the order made by the local board of health was without authority of law.
(3) It is further insisted that rules or by-laws adopted by the State board and local boards of health do not have the force of laws within their respective jurisdiction, and that the power of the State board to adopt a by-law, or rule, of the nature of rule eleven, is legislative; therefore, under article 4, § 1 of the State Constitution, whereby all legislative authority is lodged in the General Assembly, the power to make such rules can not be delegated by it to boards of health.
Appellant in the course of his argument strenuously insists that vaccination is in no manner a preventive of smallpox, and that its failure in this respect is, as he contends, now conceded by many eminent medical authorities. In the objections which he urges against...
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