Rhea v. Board of Education of Devils Lake Special School District

• Decision Date: 31 January 1919
• Citation: 171 N.W. 103,41 N.D. 449
• Court: North Dakota Supreme Court

171 N.W. 103

41 N.D. 449

LAWRENCE F. RHEA, by His Guardian ad Litem, William F. Rhea, Appellant, v. BOARD OF EDUCATION OF DEVILS LAKE SPECIAL SCHOOL DISTRICT, a Corporation, Respondent

Supreme Court of North Dakota

January 31, 1919

Appeal from the District Court of Ramsey County, Honorable C. W Buttz, Judge.

Reversed and a writ of mandamus awarded.

Reversed.

G. W Young, W. M. Anderson, and Fred. H. Hartwell, for appellant.

In the absence of any statute making vaccination a condition precedent to the right of admission to the public schools neither a board of health having general control of matters affecting the public health, nor a school board, acting under its general power or under the board of health, has authority to exclude children from the public schools where smallpox does not already exist, or is reasonably apprehended. Potts v. Breen, 167 Ill. 67, 47 N.E. 81; Lawbaugh v. Board of Education, 177 Ill. 572, 52 N.E. 850; Trustees v. McMurtry, 169 Ky. 457, 184 S.W. 457; Mathews v. Kalamazoo Bd. of Edu. 127 Mich. 530, 86 N.W. 1036; State v. Burdge, 95 Wis. 390, 70 N.W. 347; Osborn v. Russell, 64 Kan. 507, 68 P. 60; Glover v. Board of Education, 14 S.D. 149, 84 N.W. 761; School Directors v. Breen, 60 Ill.App. 201, affirmed in 167 Ill. 67; People v. Board of Education, 234 Ill. 422, 84 N.E. 1046; Inferentially in Hill v. Bickers, 171 Ky. 703, 188 S.W. 766; Board of Trustees v. McMurtry, 169 Ky. 457, 184 S.W. 390; State v. Turney, 31 Ohio C. C. 222; Waldschmidt v. New Braunfels, 193 S.W. 86, 1077.

William Langer, Attorney General, George K. Foster, Assistant Attorney General, Cuthbert & Smythe and Rolla F. Hunt, State's Attorney, for respondent.

The motion to quash the alternative writ may be made after the answer and return to the petition and writ have been made, without withdrawing the answer and return. 26 Cyc. 463, note 68; High, Extr. Leg. Rem. § 521; Commercial Bank v. Canal Comrs. 10 Wend. 26; Haskins v. Scott County, 51 Miss. 406.

The court will take judicial notice of the fact that the term "vaccinated" used in § 425, C. D. 1913, means inoculated with the virus of cow pox is a prophylactic against smallpox. Lee v. Marsh, 230 Pa. 351, 79 A. 564; 4 Words & Phrases, 2d Series, title "Vaccination."

Courts will take judicial notice as a matter of common knowledge that a great majority of medical writers and practitioners advocate vaccination, and that vaccination is commonly believed by the people of the state to be a preventive of smallpox. Re Viemeister, 179 N.Y. 241, 70 L.R.A. 799, 103 Am. St. Rep. 862, 72 N.E. 99; Auten v. Board of Directors of Special School Dist. (Ark.) 104 S.W. 130; State v. Hay, 126 N.C. 1003, 49 L.R.A. 589, 35 S.E. 461.

Statutes requiring compulsory vaccination are a valid exercise of the police power. Jacobson v. Massachusetts, 197 U.S. 31, note; 3 Bouvier's Law Dict., title Vaccination; 1 American Dig. title Vaccination; 22 New International Enc. p. 842; Re Viemeister, 179 N.Y. 239, 70 L.R.A. 798, 72 N.E. 99, 103 Am. St. Rep. 860; Kidd v. Pearson, 128 U.S. 1, 26, 32 L.Ed. 346, 352; Watertown v. Nayo, 109 Mass. 318; Slaughter House Cases, 16 Wall. 36, 21 L.Ed. 394; Watertown v. Mayo, 109 Mass. 315; 12 C. J. §§ 333, 390, 425, pp. 848, 913; Morris v. Columbus, 102 Ga. 796, 42 L.R.A. 178, 30 S.E. 850, 66 Am. St. Rep. 247; Abeel v. Clark, 84 Cal. 226, 24 P. 383; French v. Davidson, 143 Cal. 658, 77 P. 663; Field v. Robinson, 198 Pa. 638, 48 A. 873; Stull v. Reber, 215 Pa. 156, 64 A. 419; 7 Ann. Cas. 415.

The granting of power to the state board of health to order school children to be vaccinated is not an improper delegation of legislative power. Neer v. State Live Stock Sanitary Bd. (N.D.) 168 N.W. 605; Blue v. Beach, 155 Ind. 132, 50 L.R.A. 69, 56 N.E. 93, 80 Am. St. Rep. 194, 204, 205; citing Cooley, Const. Lim. 114; State v. Chittenden, 127 Wis. 515, 107 N.W. 516; Dowling v. Lancashire, Ins. Co. 92 Wis. 70, 31 L.R.A. 114, 65 N.W. 739; Adams v. Beloit, 105 Wis. 368, 47 L.R.A. 444, 81 N.W. 870; Angellus v. Sullivan, 158 C.C.A. 280, 246 F. 60; United States v. Sugar, 243 F. 423. See also Re Griner, 16 Wis. 423; Cook v. Burnquist, 242 F. 329; United States v. Cudahy Packing Co. 243 F. 441; State v. Turner, 37 N.D. 635, 164 N.W. 924.

It is not necessary that an epidemic exist to make the vaccination order valid. Westlake v. Anderson, 33 N.D. 330, 156 N.W. 927; State v. Normand, 76 N.H. 541, 85 A. 899, Ann. Cas. 1913E, 996; State v. Morse, 84 Vt. 387, 34 L.R.A. (N.S.) 190, 80 A. 189; 2 Ann. Cas. 427, note; 3 Ann. Cas. 350, note.

BIRDZELL, J. ROBINSON, J. (concurring). COLE, District Judge, dissenting.

OPINION

BIRDZELL, J.

This is an appeal from a judgment entered in the district court of Ramsey county, which dismisses the appellant's action, quashes an alternative writ of mandamus, and awards costs to the defendant. Although an answer was filed and stipulation entered into by the respective parties, covering certain of the facts alleged, the matter was finally brought to a hearing before the lower court on a motion to quash the alternative writ of mandamus. The correctness of the judgment entered must therefore depend upon the sufficiency of the amended petition of the plaintiff and appellant.

The proceedings were instituted by William F. Rhea, guardian ad litem of his son, Lawrence F. Rhea; the latter, at the time the suit was instituted, being a schoolboy thirteen years of age. The defendant is the school corporation of the special school district of the city of Devils Lake. The petition alleges all facts necessary to entitle the plaintiff to attend the public schools maintained by the defendant, unless his exclusion on the ground that he had not been vaccinated be lawful. The facts concerning his exclusion are alleged as follows:

"That on or about the month of July, 1917, the state board of health of the state of North Dakota, without any legal or other authority, attempted to pass and make and issued an order fixing and placing the time of vaccinating children, and directing that all school directors and teachers be and they were thereby ordered to enforce this regulation in their respective districts by requiring every pupil to give to certain authorities satisfactory evidence of vaccination before permission be granted to attend school.

"That said state board of health on or about November 21, 1913, without any legal or other authority so to do, attempted to pass and make and issued the following rule and order, to wit: 'No child shall be permitted to enter any school in the state until satisfactory evidence of vaccination has been given to the proper authorities.' That said rule and order applies to and covers pupils of other schools in the state of North Dakota besides and other pupils than the pupils attending the public schools. . . .

"That the board of education of said Devils Lake special district, claiming to act under and pursuant to the above-attempted and illegal rules of the state board of health, have unlawfully made an order, without authority, applicable to all the public schools of said Devils Lake special school district, requiring that all pupils shall be vaccinated before being admitted to such schools, and shall present a certificate of successful vaccination to the superintendent or teacher in charge before being admitted as pupils, and have unlawfully and without authority ordered that the superintendent of such public school refuse admission and to impart no instruction to children of proper school age until they shall first have complied with said order."

It is further alleged that the plaintiff is in sound bodily health and has never been exposed to the infection or either smallpox or varioloid; that, at the time the order of exclusion was promulgated and enforced against him and for a long time past, there was and had not been a case of smallpox within the Devils Lake special school district; that the disease had never been epidemic within the state of North Dakota; and that there was no reason to apprehend the appearance of smallpox in the defendant district. The authority upon which the defendant relies to support its action in excluding the plaintiff from attendance upon the school is found in the sections of the Code which contain the expression of the powers of the state board of health and of school boards, and which require parents and guardians to have minors under their control vaccinated. Section 400 of the Compiled Laws of 1913 makes it the duty of the board of health: "3. To make and enforce all needful rules and regulations for the prevention and cure, and to prevent the spread of any contagious, infectious, or malarial diseases among persons and domestic animals." By § 1346, Compiled Laws of 1913, the boards of all school corporations are authorized to employ physicians as medical inspectors, and it is made the duty of the medical inspector to "co-operate with state, county, and township boards of health in dealing with contagious and infectious diseases." Section 426 of the Complied Laws of 1913 makes it the specific duty of principals, superintendents, teachers, parents, and guardians of children to refuse to permit any child having any contagious or infectious disease, including smallpox, to attend any public or private school. Also to refuse such permission to any child residing in any house in which any such disease exists or has recently existed. Section 425 of the Compiled Laws of 1913 is as follows: "Each parent or guardian having the care, custody, or control of any minor or other person shall cause such minor or other person to be vaccinated." Section 433, Compiled Laws of 1913, declares any person not complying with the provisions of the article, of which § 425 is a part, to be guilty of a misdemeanor and...