People ex rel. Hill v. Bd. of Educ. of City of Lansing

• Decision Date: 01 October 1923
• Docket Number: No. 378.,378.
• Citation: People ex rel. Hill v. Bd. of Educ. of City of Lansing, 224 Mich. 388, 195 N.W. 95 (Mich. 1923)
• Parties: PEOPLE ex rel. HILL, Health Officer, v. BOARD OF EDUCATION OF CITY OF LANSING et al.
• Court: Michigan Supreme Court

224 Mich. 388

195 N.W. 95

PEOPLE ex rel. HILL, HealthOfficer,

v.BOARD OF EDUCATION OF CITY OF LANSING et al.

No. 378.

Supreme Court of Michigan.

Oct. 1, 1923.

Certiorari to Circuit Court, Ingham County; Leland W. Carr, Judge.

Mandamus by the People, on the relation of S. Rowland Hill, Health Officer of the City of Lansing, against the Board of Education of the City of Lansing and another.Writ issued, and defendants bring certiorari.Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.

Moore, Bird, and Sharpe, JJ., dissenting.Brown & Kelley and S. H. Person, all of Lansing, for appellants.

John McClellan, city Atty., and Barnard Pierce, Pros.Atty., both of Lansing (A. M. Cummins, of Lansing, of counsel), for appellee.

FELLOWS, J.

In the case of Mathews v. Kalamazoo Board of Education, 127 Mich. 530, 86 N. W. 1036,54 L. R. A. 736, this court held that, where there was no case of smallpox in the district, it was beyond the power of the board to require vaccination of pupils as a condition of admission to the schools, but it was there said in the prevailing opinion, written by Justice Moore:

‘If the rule was that, during the prevalence of the smallpox in Kalamazoo, the child could not attend school unless vaccinated, a very different result would be reached.* * * In what I have said I do not mean to intimate that during the prevalence of diptheria or smallpox, or any other epidemic of contagious disease, in a school district, the board may not, under its general powers, temporarily close the schools * * * until the epidemic has passed; but what I do say is that the Legislature has not undertaken to give them the power, when no epidemic of contagious disease exists or is imminent in the district, to pass a general, continuing rule which would have the effect of a general law excluding all pupils who will not submit to vaccination.’

The instant case was foreshadowed in that opinion.During the winter of 1922-23 smallpox existed in the city of Lansing.The board of health and the board of education for a time worked in harmony.On January 8, the board of health, after consulting with the secretary of the state board of health, the president of the board of education, and others, passed a resolution directing that steps be taken to prevent the spread of the disease, these steps including quarantine and free vaccination.On January 25 it adopted a further resolution requiring the exclusion from the public schools of school children, teachers and janitors who had not been vaccinated.Notwithstanding the former harmonious relations between the two boards, on January 30 the board of education passed a resolution reciting that there were but 17 cases of smallpox then existing in the city, and directing the admission of children to the schools who had not been vaccinated.This proceeding in mandamus was then instituted in the circuit court for the county of Ingham to require the enforcement of the regulations of the board of health.The writ issued, and the proceeding is here reviewed by certiorari.

We are plowing no virgin field in considering the questions here involved.Numerous decisions, both federal and state, have considered the questions now before us.They are not all in accord and in some instances are not reconcilable.There is, however, a very marked trend in them in one direction, that which upholds the right of the state, in the exercise of its police power and in the interest of the public health, to enact such laws, such rules and regulations, and will prevent the spread of this dread disease.The power of the state to require vaccination in case the disease was present in a community was upheld in Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643,3 Ann. Cas. 765, where it was said by Justice Harlan, speaking for the court:

‘But the liberty secured by the Cnstitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.There are manifold restraints to which every person is necessarily subject for the common good.On any other basis organized society could not exist with safety to its members.Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.* * * Applying these principles to the present case, it is to be observed that the Legislature of Massachusetts required the inhabitants of a city or town to be vaccinated only when, in the opinion of the board of health, that was necessary for the public health or the public safety.The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body, and surely it was appropriate for the Legislature to refer that question, in the first instance, to a board of health, composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions.To invest such a body with authority over such matters was not an unusual nor an unreasonable or arbitrary requirement.Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.It is to be observed that, when the regulation in question was adopted, smallpox, according to the recitals in the regulation adopted by the board of health, was prevalent to some extent in the city of Cambridge and the disease was increasing.If such was the situation-and nothing is asserted or appears in the record to the contrary-if we are to attach any value whatever to the knowledge which, it is safe to affirm, is common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety.Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large, was arbitrary and not justified by the necessities of the case.’

In the case of State v. Hay, 126 N. C. 999, 35 S. E. 459,49 L. R. A. 588, 78 Am. St. Rep. 691, it was said:

‘* * * It is everyday common sense that, if a people can draft or conscript its citizens to defend its borders from invasion, it can protect itself from the deadly pestilence that walketh by noonday, by such measures as medical science has found most efficacious for that purpose.We know, as an historical fact, that prior to the discovery, 101 years ago, of vaccination, by Edward Jenner, smallpox often destroyed a third or more of the population of a country which it attacked, and so futile was every precaution, and the most careful seclusion, that the greatest sovereigns fell victims to this loathsome disease, which Macaulay has styled ‘the most terrible of all ministers of death.’If this was so in days of imperfect communication, the present repaid means of intercourse between most distant points would so spread the disease as to quickly paralyze commerce, and all public business, if government could not at once stamp it out, by compelling all alike, for the public good as much as for their own, to submit to vaccination.* * * But, even if we were of opinion with the small number of medical men who contend that vaccination is dangerous to health, and not a preventive of the disease, the court is not a paternal despotism, gifted with infallible wisdom, whose function is to correct the errors and mistakes of the Legislature.'

In the Matter of Viemeister, 179 N. Y. 235, 72 N. E. 97,70 L. R. A. 796, 103 Am. St. Rep. 859,1 Ann. Cas. 334, the court held, as it has been held in other states, that the courts would take judicial notice of the fact that the common belief of the people is that vaccination is a preventive of smallpox, and it was there said:

‘The right to attend the public schools of the state is necessarily subject to some restrictions and limitations in the interest of the public health.A child afflicted with leprosy, smallpox, scarlet fever, or any other disease which is both dangerous and contagious, may be lawfully excluded from attendance so long as the danger of contagion continues.Public health as well as the interest of the school requires this, as otherwise the school might be broken up and a pestilence spread abroad in the community.So a child recently exposed to such a disease may be denied the privilege of our schools until all danger shall have passed.Smallpox is known of all to be a dangerous and contagious disease.If vaccination strongly tends to prevent the transmission or spread of this disease, it logically follows that children may be refused admission to the public schools until they have been vaccinated.’

In Morris v. City of Columbus, 102 Ga. 792, 30 S. E. 850,42 L. R. A. 175, 66 Am. St. Rep. 243, the court sustained the validity of a vaccination ordinance of the city enacted under delegated authority, and it was said:

‘The ordinance is aimed only at those who have not been vaccinated within a certain time, who are not immune, or who have not furnished a certificate from some physician that the injection of the virus into their system would be injurious.It is even more liberal than that; it allows to every person the privilege of being inoculated by the physician of his choice.There can be no question that this is a reasonable exercise of the power conferred upon...