Glover v. Board of Education of Lead

• Decision Date: 31 December 1900
• Citation: Glover v. Board of Education of Lead, 14 S. D. 139, 84 N.W. 761 (S.D. 1900)
• Parties: GLOVER v. BOARD OF EDUCATION OF LEAD et al.
• Court: South Dakota Supreme Court

84 N.W. 761

14 S.D. 139

GLOVER v. BOARD OF EDUCATION OF LEAD et al.

Supreme Court of South Dakota

December 31, 1900

Appeal from circuit court, Lawrence county; Joseph B. Moore, Judge.

Action by George W. Glover, as guardian ad litem of George W Glover, Jr., against the board of education of the city of Lead and another. From an order discharging defendants from contempt, plaintiff appeals. Affirmed.

James P. Wilson and Granville G. Bennett, for appellant. Thomas L Redlon and Moody, Kellar & Moody, for respondents.

FULLER P. J.

At the conclusion of a contempt proceeding, based upon an alleged violation of a peremptory writ of mandamus, an order was entered discharging the defendants, and plaintiff appeals. In the manner provided by the rules of this court, appellant has fully presented the record essential to a determination of every material question, and nothing in the way of costs will be allowed for the printing of respondents' two additional abstracts. On the 17th day of January, 1900 appellant's son, George W. Glover, Jr., was suspended from the public schools of the city of Lead for the sole reason that he refused to furnish satisfactory evidence of vaccination. At the hearing of an orderly proceeding for a mandamus made returnable 15 days after the suspension respondents tacitly conceded that at and prior to the time the boy was suspended there was no "case of smallpox in said city of Lead, or in said Lawrence county, and said alleged order is needless, and without justification, as a sanitary or preventive measure, and was issued by said board without cause, and without authority of law, and is unjust and oppressive." Upon the affidavit from which we quote this admission, and with the consent of respondents' counsel, a peremptory writ of mandamus issued, on the 2d day of February, 1900, commanding such school board and superintendent to "immediately admit to the public schools of the said city of Lead the said George W. Glover, Jr., as a pupil, without requiring of him a certificate of vaccination or compliance with the order of said board of education requiring pupils of said schools to be vaccinated." Conformable to this mandate, the boy was permitted to return to school, where he was received as a pupil on the 5th day of February, but in the afternoon of the same day he was presented with the following notice: "Lead, So. Dak., Feb. 5, 1900. George W. Glover: By order of the board of education of the city of Lead, passed February 3, 1900, you are refused admission as a pupil of the public schools of the city of Lead until you present satisfactory proof of your vaccination against smallpox. [ Signed] C. M. Pinkerton, Superintendent." By a demurrer to the verified answer and return of respondents to the order to show cause why they should not be adjudged guilty of a contempt of court for a violation of its mandate, appellant admits that subsequently to the service thereof, and before his son had been readmitted to the schools in compliance therewith for a day, most alarming local sanitary conditions were officially brought to their attention by the service of resolutions and orders of the state, county, and city boards of health, respectively, showing that smallpox was then prevalent in the vicinity of the city, and requiring the health authorities to exclude all children and pupils from the public schools who fail or refuse to furnish satisfactory evidence of vaccination. The resolution of the respondent board, passed at a regular session held on the 3d day of February, 1900, provides for vaccination without expense to indigent pupils, and the only reason why appellant refused to permit his son to comply with the order was that he rejects as fallacious the medical theory that vaccination is necessary to prevent the dissemination of smallpox. For the purpose of presenting to the trial court their reasons for the belief that an emergency existed on the 5th day of February, when for the second time appellant was suspended, and to show their good faith in the matter, respondents recite in their verified return the following, which is admitted by the demurrer: "That at the time the said orders hereinbefore referred to, and each of them, was made, there was, and still is, at the present time, imminent and impending danger of an epidemic of smallpox in the city of Lead, which said disease is of a contagious and infectious character, and reasonable ground to suspect and believe such an epidemic would take place there; that at that time, as these defendants are credibly...