Potts v. Breen

• Decision Date: 10 May 1897
• Citation: Potts v. Breen, 167 Ill. 67, 47 N. E. 81 (Ill. 1897)
• Parties: POTTS et al., School Directors, v. BREEN et al.
• Court: Illinois Supreme Court

167 Ill. 67

47 N.E. 81

POTTS et al., School Directors,

v.BREEN et al.

Supreme Court of Illinois.

May 10, 1897.

Appeal from appellate court, Fourth district.

Suits by Jennie Breen and another, by Michael Breen, their father and next friend, against Lawrence W. Potts and others, school directors of district No. 5, township 2 N., range 12 W., in Lawrence county, Ill.From a judgment of the appellate court(60 Ill. App. 201) affirming a judgment for plaintiffs, defendants appeal.Affirmed.Gee & Barnes, for appellants.

C. J. Borden and C. F. Breen, for appellees.

CARTER, J.

These are two suits between the same parties, one a petition for a writ of mandamus to compel appellants to admit appellees to the public school of their district, and the other an action of trespass to recover damages for the exclusion of appellees from such school.The cases were tried together upon the following facts agreed upon, viz.: Jennie Breen and Jim Breen, appellees, were the children of Michael Breen, a resident and taxpayer of district No. 5, township 2, range 12, Lawrence county, Ill., of which district the appellants were directors.These directors, acting under a certain rule and order of the state board of health, made a general order, applicable to all schools in their district, requiring that all pupils should be vaccinated before being admitted to such schools.They also employed a physician to vaccinate the pupils, and instructed and ordered the teacher of the school in question to impart no instruction to appellees until they should comply with said order; and appellees were refused admission to the school on the sole ground that they had failed and refused to comply with such order, the father of appellees absolutely refusing to permit his children to be vaccinated.The directors acted in good faith, under the belief that they were performing a duty imposed upon them by law, and used no direct force upon appellees, but simply denied them admission to the school, after repeated refusals to obey the orders relating to vaccination.In their answer to the petition, the directors alleged that the state board of health made and promulgated the following order: ‘Resolved, that, by the authority vested in this board, it is hereby ordered that on and after January 1, 1882, no pupil shall be admitted to any public school in the state without presenting satisfactory evidence of proper and successful vaccination;’ and that at the January meeting, 1894, the said state board of health passed the following resolution: ‘Resolved, that the power of the state board of health, under the law creating said board of health, to order the vaccination of all school children, is clear and unquestionable.The consequent duty of the board of school directors to see that such order is strictly enforced in their respective districts is equally clear, and the said order of the board of health is their sufficient authority for so doing.’These orders of the state board of health were sent to the superintendent of schools of said Lawrence county, and were by him transmitted to the appellants, with written directions of the state board of health to enforce the same; and appellants made an order that all children attending the said school in their district should be vaccinated, or should show a physician's certificate of previous vaccination, as a condition of attendance upon the said school.The trial court rendered judgment against appellants, granting the peremptory writ of mandamus as prayed, and assessed appellees' damages in the trespass case at one cent.These judgments have been affirmed, on appeal, by the appellate court, and appellants have prosecuted this appeal to this court.So far as the record discloses, appellees had not been exposed to infection by smallpox, but were in perfect health, and there was no reason for their exclusion except that they had not been vaccinated.There was no epidemic of smallpox prevailing or apprehended in the vicinity of the school.

The record presents the question whether or not the state board of health, or the appellants,as such school directors, acting under its orders or otherwise, had any power to impose, as a condition of the admission of appellees to the public schools, the requirement of vaccination; and, further, if such power existed, and could be enforced as a police regulation, for the preservation of the public health, and to prevent the spread of contagious and infectious diseases, was the regulation and its enforcement, under the facts appearing in the record, a reasonable one?Section 2 of the act creating the board of health (Laws 1877, p. 208) is as follows: ‘The state board of health shall have the general supervision of the interests of the health and life of the citizens of the state.They shall have charge of all matters pertaining to quarantine, and shall have authority to make such rules and regulations, and such sanitary investigations, as they may from time to time deem necessary for the preservation or improvement of public health; and it shall be the duty of all police officers, sheriffs, constables, and all other officers and employees of the state to enforce such rules and regulations, so far as the efficiency and success of the board may depend upon their official co-operation.’Section 3 provides that the board of health shall have supervision over the state system of registration of births and deaths, as hereinafter provided: ‘They shall make up such forms and recommend such legislation as shall be deemed necessary for the thorough registration of vital and mortuary statistics throughout the state.The secretary of the board shall be superintendent of such registration.’Section 4 makes it the duty of all physicians and accouchers to report to the county clerk ‘all births and deaths which may come under their supervision, with a certificate of the cause of death, and such correlative facts as the board may require in the blank forms furnished as hereinafter provided.’Section 8 requires county clerks to render complete reports of all births, marriages, and deaths to the state board of health; and section 9 requires the board of health to prepare the necessary forms.Section 12 provides for an annual report by the board to the governor, ‘and such report shall include so much of the proceedings of the board, and such information concerning vital statistics, and knowledge respecting diseases, and such instruction on the subject of hygiene, as may be thought useful by the board for dissemination among the people, with such suggestions as to legislative action as they may deem necessary.’By reference also to the act of the general assembly to regulate the practice of medicine in this state, which was passed at the same session of the legislature, and which makes reference to the state board of health, and provides for the examination and licensing by said board of persons desiring to practice medicine, it clearly appears that one of the most important duties of the board was to ascertain and certify to the qualifications of practicing physicians and surgeons, and to detect quacks, and to prevent them and all ignorant pretenders from imposing upon the sick and helpless.It is clear that no such power as claimed by the state board of health has been conferred upon it, unless by the broad and general language of the first section of the act creating it.But the general terms there employed must be construed in relation to the more specific duties imposed and powers conferred by the act taken as a whole, and, when thus construed, these general terms are restricted so as to express the true intent and meaning of the legislature.Take, for example, the first sentence, viz.: ‘The state board of health shall have the general supervision of the interests of the health and life of the citizens of the state.’The scope of the language there employed is practically unlimited, and were it not held to be restricted by well-known legal principles, applicable in the interpretation and construction of statutes, it would appear to confer more power on this board than the legislature itself possessed.Plainly, it was not intended that any general supervisory power over the health and lives of citizens of the state should be exercised by the board otherwise than in conformity to law, and such as should be necessary, within reasonable limitations, in the performance of the administrative duties which were or should be imposed upon the board by statute.It had and could have no legislative power.Its duties were purely ministerial, and the provision of the statute authorizing the board to make such rules and regulations as it should from time to time deem necessary for the preservation or improvement of the public health cannot be held to confer that broad discretionary power contended for, to prescribe conditions upon which the citizen of the state may exercise rights and privileges guarantied to him by public law.In Huesing v. City of Rock Island, 128 Ill. 465, 21 N. E. 558, it was contended that the city had the power, under clause 78, § 1, art. 5, of the city incorporation act, to construct and maintain a city abattoir, as a sanitary measure.This clause is as follows: ‘To do all acts, make all regulations, which may be necessary or expedient for the promotion of health or the suppression of disease.’This court, however, held that, in view of the fact that the same section contained other provisions authorizing the city council to do certain specified acts for the preservation of the health of the city and the suppression of disease, the general provision did not enlarge the powers...