Hill v. Bickers

• Decision Date: 25 October 1916
• Citation: Hill v. Bickers, 171 Ky. 703, 188 S.W. 766 (Ky. Ct. App. 1916)
• Parties: HILL ET AL. v. BICKERS ET AL.
• Court: Kentucky Court of Appeals

188 S.W. 766

171 Ky. 703

HILL ET AL. v. BICKERS ET AL.

Court of Appeals of Kentucky.

October 25, 1916

Appeal from Circuit Court, Henry County.

Suit for injunction by B. F. Hill and others against E. E. Bickers and others.From a judgment of the circuit court granting the injunction, the defendants appeal.Injunction dissolved.

Moody &amp Barbour, of New Castle, for appellants.

Turner & Turner and Chas. H. Sanford, all of New Castle, for appellees.

MILLER C.J.

This action is by Hill, the principal teacher in the Bethlehem graded common school, the five district trustees, and ten patrons of the school, as plaintiffs, against the Henry county board of health and the county health officer, to prevent the defendants, by injunction, from enforcing an order of the county board of health which required the teachers and pupils in the common schools of the county to be vaccinated as a condition to their further attendance.

By virtue of section 2049 of the Kentucky Statutes, giving it general supervision of the health of the citizens of the state, with power to make and enforce rules and regulations to prevent the introduction or spread of infectious or contagious diseases to or within the state, the state board of health promulgated rule 35, which reads as follows:

"No person shall become a member of any 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 in each seven years."

On August 31, 1916, the Henry county board of health took steps to enforce rule 35, supra, on and after September 11, 1916 by notifying the teachers and trustees of the county schools to obey the rule.Hill conceived the idea that he had no right or authority as teacher to reject any pupil that offered to attend; and, backed by Stone, the chairman of the district board of trustees, who took the ground that the local board of health had no authority to enter or enforce the order of August 31st, Hill declined to prohibit the attendance of unvaccinated pupils.Thereupon the local health board caused warrants to be issued against Hill and Stone for disobedience of said order; and the petition alleges that the defendants are threatening to have other and repeated similar warrants to issue against the plaintiffs.The affidavits show that the residents of Bethlehem district, almost without exception, are violently opposed to the enforced vaccination of their children, and regard it as an unnecessary and unwarranted invasion of their rights.

The circuit judge having granted the relief asked, by enjoining the enforcement of rule 35, the local health board has applied for a dissolution of the injunction.The motion was orally argued before the judges of the Western division sitting in chambers.

The general and uniform rule is that, when there is a reasonable apprehension of the outbreak of a communicable disease, such as smallpox, health boards have authority to take such action as was here directed, in order to stamp out the disease and prevent its spreading.Even without a specific delegation of power, local or administrative authorities having control of the schools or general care of the public health are justified, by the existence of an emergency, in making vaccination a condition for admission to the public schools.21 Cyc. 393.And the Legislature may also, by express provision, in the exercise of its police power, require or empower a local or administrative authority to require vaccination of children as a condition of their being admitted to the public schools, although smallpox be not prevalent, or its outbreak be not apprehended.Id.;Re Viemeister, 179 N.Y. 235, 72 N.E. 97, 70 L. R. A. 796, 103 Am. St. Rep. 859, 1 Ann. Cas. 334;People v. Ekerold,211 N.Y. 386, 105 N.E. 670, L. R. A. 1915D, 223, Ann. Cas. 1915C, 552.But the converse is equally true, that unless such power is clearly conferred local bodies may not require vaccination in the absence of smallpox, or the apprehension of an immediate outbreak thereof.SeePeople v. Board of Education,234 Ill. 422, 84 N.E. 1046, 17 L. R. A. (N. S.) 709, 14 Ann. Cas. 943, and note thereto.

The general rule and its limitations were fully recognized and approved by this court in the recent case of Board of Trustees of Highland Park G. C. S.D. v. McMurtry,169 Ky. 459, 467, 184 S.W. 390.Indeed, it would seem that this case comes squarely within the rule announced in the McMurtry Case and is controlled by it.

The plaintiffs insist, however, that the McMurtry Case is not controlling, in its facts, since the action of the local health board was there sustained because there was a reasonable apprehension of the outbreak of smallpox in Highland Park district, while, it is claimed, no such apprehension does or can exist in Bethlehem district.In the McMurtry Case the court was careful to say that the question of the power of the state board of health, or of the local board in the absence of smallpox or an apprehension of its outbreak, to order the vaccination of all children as a condition to their attendance on school,...