Herbert v. Demopolis School Bd. of Educ.

• Decision Date: 16 November 1916
• Docket Number: 2 Div. 630
• Citation: 197 Ala. 617,73 So. 321
• Parties: HERBERT v. DEMOPOLIS SCHOOL BOARD OF EDUCATION.
• Court: Alabama Supreme Court

73 So. 321

197 Ala. 617

HERBERT v. DEMOPOLIS SCHOOL BOARD OF EDUCATION.

2 Div. 630

Supreme Court of Alabama

November 16, 1916

Rehearing Denied Dec. 30, 1916

Appeal from Law and Equity Court, Marengo County; Edward J. Gilder Judge.

Mandamus by W.F. Herbert against the Demopolis School Board of Education. From denial of a writ, relator appeals. Affirmed.

R.B Evins, of Greenboro, and W.F. Herbert, of Demopolis, for appellant.

McCLELLAN J.

The municipality of Demopolis enacted an ordinance providing that "no child shall enter any of the public schools of Demopolis who has not been vaccinated." While this provision was in effect, the district board of education for the Demopolis district refused to admit and would not allow Helen Herbert to enter the Demopolis district public school she being of sound health and of legal age and of proper residence to be entitled to attend that school. Code, § 1755. It is averred that there was "no epidemic of smallpox in the city of Demopolis; that Helen had not been exposed to smallpox." The sole ground of this refusal is alleged to be that Helen had not been vaccinated as required by the ordinance as quoted above. The ordinance in question is not set forth as it was adopted. Whether the matter comprehends all the provisions of the ordinance is not made to appear. The appellant, the petitioner for the writ of mandamus to compel the reception of Helen in the school, is the father and he is, also, one of the five members of the district board of education. The answer to the petition, confessing the allegations thereof, is signed, "Demopolis District School Board, by W.F. Herbert." The summons, to the individuals as a board, to answer was served upon all of the members of the board. There is, to say the least of it, great doubt whether the paper, thus presented by the same person who is the petitioner for the writ without positive averment of his authority to present and file the paper for the body, is any response to the summons. 26 Cyc. p. 447 et seq. If assailed by appropriate demurrer, its insufficiency as an answer would seem to be quite clear. 26 Cyc. p. 451 et seq.

Furthermore, it may be a matter of doubt whether it was not petitioner's obligation to make demand upon the board of education to admit the child to the school as a condition precedent to the remedy sought in this instance. See Moseley v. Collins, 133 Ala. 326, 32 So. 131.

By Code, § 1251, the municipalities of this state are generally empowered to pass ordinances and resolutions not inconsistent with the laws of this state to carry into effect or to discharge the powers and duties set forth in the "Municipal Code," and, among other things, to preserve the health of their jurisdictions.

In defining the powers, etc., conferred on municipalities Code, § 1289, provides:

"To adopt all necessary ordinances and enforce the same to prevent the introduction or spread of contagious, infectious, or pestilential diseases in the cities or towns, and to that end may provide for a system of compulsory vaccination and enforcement of the same."

If the quoted provision of the ordinance is not void, it must be referred for its justification and authority to the statute just reproduced. That statute is a particular expression of the police power of the state; and as such, in the preservation of the health of the people, there can be no real doubt of its constitutional validity, even though its effect is to commit to the municipal authorities a measure of discretion with respect to the circumstances under which the power thus delegated shall be made effective.

Jacobson v. Massachusetts, 197 U.S. 11, 25 Sup.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765. See, also, State v. Hay, 126, N.C. 999, 35 S.E. 459, 49 L.R.A. 588, 78 Am.St.Rep. 691; Morris v. Columbus, 102 Ga. 792, 30 S.E. 850, 42 L.R.A. 175, 66 Am.St.Rep. 243; Re William H. Smith, 146 N.Y. 68, 40 N.E. 497, 28 L.R.A. 820, 48 Am.St.Rep. 769; 21 Cyc. 393. The exercise of the power conferred by the statute, as well as the reasonableness of the means legislatively expressed by the municipal authority for the enforcement of the power thus delegated, may become the subjects of judicial consideration according to the practices ordinarily observed to test the applicability, to a concrete case, or the validity, of an ordinance purporting to exert the power delegated to the municipality. 28 Cyc. pp. 275, 276, and notes 22-24. The question now presented is whether the provision of the ordinance is invalid, the municipality having conferred upon it by valid statute (section 1289) the power described in the statute. The statute (section 1289) authorized the adoption of ordinances and measures for their enforcement to prevent the introduction or spread of classes of diseases of which smallpox is one; and to make this power effective the municipality is further authorized to provide for, and to enforce, a "system of compulsory vaccination." The Legislature avowed its conclusive judgment that the major end in view would be subserved by a system of compulsory vaccination, thus avoiding the application of the general doctrine illustrated in these decisions cited on the briefs for appellant. Potts v. Breen, 167 Ill. 67, 47 N.E. 81, 39 L.R.A. 152, 59 Am.St.Rep. 262; State v. Burdge, 95 Wis. 390, 70 N.W. 347, 37 L.R.A. 157, 60 Am.St.Rep. 123, where the pronouncements were predicated of the absence of a legislative specification that compulsory vaccination was within the contemplation of the Legislature when it wrote the general authorization under which the subordinate administrative agents sought to establish compulsory vaccination within their jurisdictions.

While there are medical men and laymen who yet deny that the practice of vaccination is an effective antitoxin for smallpox, the long dominant opinion of professional men that the practice is efficacious has merited and received the affirmative approval of legislative bodies and of courts throughout this country, as well as elsewhere generally. See Jacobson v. Massachusetts, supra; Viemeister v. White, 179 N.Y. 235, 72 N.E. 97, 70 L.R.A. 796, 103 Am.St.Rep. 859, 1 Ann.Cas. 334.

Where the proper authority has so ordered or enacted, the regulation that vaccination is a condition precedent to the attendance of children upon schools in their communities is a valid exercise of the police power for the prevention of disease and the preservation of the health. Viemeister v. White, 179 N.Y. 235, 72 N.E. 97, 70 L.R.A. 796, 103 Am.St.Rep. 859, 1 Ann.Cas. 334; Cyc., pp. 1117-1118; Bissell v. Davison, 65 Conn. 183, 32 A. 348, 29 L.R.A. 251; State v. Hay, 126 N.C. 999, 35 S.E. 459, 49 L.R.A. 588, 78 Am.St.Rep. 691; Morris v. Columbus, 102 Ga. 792, 30 S.E. 850, 42 L.R.A. 175, 66 Am.St.Rep. 243; Abeel v. Clark, 84 Cal. 226, 24 P. 383; Stull v. Reber, 215 Pa. 156, 64 A. 419, 7 A. & E.Ann.Cas. 415; Duffield v. Williamsport School District, 162 Pa. 476, 29 A. 742, 25 L.R.A. 152; Field v. Robinson, 198 Pa. 638, 48 A. 873; Jacobson v. Mass., 197 U.S. 11, 25 Sup.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765; State v. Board of Education, 76 Ohio St. 297, 81 N.E. 568, 10 Ann.Cas. 879.

It is provided in Code, § 1755, that:

"Every minor over the age of seven years shall be entitled to admission into, and instruction in any public school of his or her own race or color in this state."

While this provision of law is clear and...