Seubold v. Fort Smith Special School Dist.

• Decision Date: 26 March 1951
• Docket Number: No. 4-9443,4-9443
• Citation: 237 S.W.2d 884,218 Ark. 560
• Parties: SEUBOLD et al. v. FORT SMITH SPECIAL SCHOOL DIST. et al.
• Court: Arkansas Supreme Court

Page 884

237 S.W.2d 884

218 Ark. 560

SEUBOLD et al. v. FORT SMITH SPECIAL SCHOOL DIST. et al.

No. 4-9443.

Supreme Court of Arkansas.

March 26, 1951.

Franklin Wilder, Fort Smith, for appellants.

Daily & Woods, Fort Smith for appellees.

McFADDIN, Justice.

The appellants are attacking the requirement, that school children be vaccinated against smallpox.

Mr. and Mrs. Frank Seubold, residents of Fort Smith, have three children, Ruth, Frank, and T. K., who are 13, 10 and 8 years of age respectively. The parents, for themselves and the minors, filed suit in the Chancery Court against the Fort Smith School District and its School Superintendent, alleging, inter alia:

'That the said Ruth Ann Seubold, Frank N. Seubold, and T. K. Seubold are all of good moral habits, are free from infectious disease, and are not suffering from any disability whatsoever. That they have applied to the defendants for admission to the proper schools within the jurisdiction of the defendants, * * * but that the said defendants have refused, and now continue to refuse, to admit them. That the said defendants in refusing to admit them, are acting for and in behalf of the State of Arkansas, or under color or pretense of its laws, and are thereby denying to the plaintiffs the equal protection of the laws, contrary to Amendment Fourteen to the Constitution of the United States. * * *. That the said defendants unlawfully and without warrant of law, are enforcing, as a condition precedent to admission to the schools, the following administrative rule or regulation:

"Section 4. Smallpox Vaccination.

"(a) No person shall be entered as a teacher, employee or pupil in a public or private school in this State without having first presented to the principal in charge or the proper authorities, a certificate from a licensed and competent physician of this State certifying that the said teacher, employee or pupil has been successfully vaccinated; or in lieu of a certificate of successful vaccination, a certificate certifying a recent vaccination done in a proper manner by a competent physician; or a certificate showing immunity from having had smallpox.'

'Plaintiffs state that the said defendants, and each of them, should be restrained and enjoined from enforcing said rule, or regulation set out above for the reason that said rule or regulation is unlawful and void, for the following reasons:

'Said rule or regulation is so arbitrary, capricious and unreasonable that its enforcement against the said plaintiffs would amount to a deprivation of their liberty and property without due process of law, contrary to Amendment Fourteen to the Constitution of the United States. Said rule or regulation is arbitrary, capricious and unreasonable, because, first, there is no emergency existing to justify compulsory innoculation against smallpox; second, innoculation with smallpox vaccine is not only unnecessary, but is positively dangerous to the health and safety of the plaintiffs, in that it lowers natural resistance to infectious diseases, and in that the vaccine itself is dangerous and constitutes an undue risk to the health and safety of the plaintiffs.'

The prayer of the complaint was that the defendants be enjoined from requiring the Seubold children to be vaccinated. The trial court sustained the defendants' demurrer and dismissed the complaint; and the plaintiffs have appealed. We will refer to the parties as they were styled in the trial court.

Preliminary to a decision of the case at bar, we call attention to some of our earlier cases upholding the requirement of smallpox vaccination. In State v. Martin, 134 Ark. 420, 204 S.W. 622, we upheld the power of the State Board of Health to make rules requiring the compulsory vaccination of school children, and we sustained conviction of a party who refused to have children vaccinated. In Allen v. Ingalls, 182 Ark. 991, 33 S.W.2d 1099, there was a challenge of the validity of the rule of the State Board of Health requiring the vaccination of school children; and we held: that Act 96 of the General Assembly of 1913 ¹ authorized the State Board of Health to adopt and promulgate rules designed to promote public health; that the rule of the State Board of Health requiring vaccination of school children was valid; and that the School Board did not abuse its discretion in requiring children to be successfully vaccinated against smallpox. With these cases in mind, we come to the matters to be decided in the present litigation.

I. The Fort Smith School Authorities Were Enforcing A Valid Regulation. We take judicial notice of the rules of the State Board of Health. See State v. Martin, supra, and cases there cited. Such rules, in addition to Section 4(a) as copied in the complaint, further provide:

'(b) The responsibility for the enforcement of this regulation rests equally on each and every member of the school board, the superintendent, principal, or teacher in charge, and the parent or guardian of the pupil, and each of them shall be separately and individually liable for permitting any violation of this regulation. If, in the discretion of the health authority having jurisdiction, any person to whom this regulation applies shall have physical disability which may contraindicate vaccination, a certificate to that effect, issued by the said health officer, stating the contraindication, may be accepted in lieu of a certificate of vaccination, provided that the exemption shall not apply when such disability shall have been removed.

'(c) The school boards, school superintendents, school teachers, parents and guardians shall be equally responsible for the enforcement of the compulsory vaccination law. They shall furnish such information to the health authorities from time to time as may be required.'

Plaintiffs admit, that in State v. Martin, supra, and in Allen v. Ingalls, supra, we upheld the regulations of the State Board of Health requiring smallpox vaccination, but they seek to avoid those causes by the claims: (a) that those cases were decided prior to 1931; (b) that the Arkansas General Assembly of 1931 adopted Act 169, Ark.Stats. § 80-101 et seq., commonly known as the 'School Law', which gave the State Board of Education control of all school matters; and (c) that said Act 169 impliedly repealed the authority of the State Board of Health to make regulations requiring vaccination of school children.

We find no merit in plaintiff's argument. The Act 169 of 1931 was an Act to codify the school laws of Arkansas. Its caption is 'An Act to Provide for the Organization and Administration of the Public Common Schools'. It was not the purpose of the Act 169 to interfere with health matters; and the Act 169 did not in any manner repeal Act 96 of 1913 which gave the State Board of Health authority to make and enforce regulations for public health. The Act 169 contains no express repeal of the powers theretofore exercised by the State Board of Health and sustained in State v. Martin, supra, and Allen v. Ingalls, supra. Neither does the Act 169 impliedly repeal the powers of the State Board of Health regarding the requirement of vaccination for school children.

What has just been said makes it unnecessary to discuss, whether the Fort Smith School Board, under the authority of such cases as Isgrig v. Srygley, 210 Ark. 580, 197 S.W.2d 39, could have adopted the rule requiring vaccination even in the absence of any rule of the State Board of Health.

II. The Complaint Alleged that the Seubold Children were Normal Children. As previously copied, the complaint said 'That the said Ruth Ann Seubold, Frank N. Seubold, and T. K. Seubold are all of good moral habits, are free from infectious disease, and are not suffering from any disability whatsoever.' (Italics our own.) The rule of the State Board...