State ex rel. Adams v. Burdge

• Decision Date: 23 February 1897
• Citation: 70 N.W. 347,95 Wis. 390
• Parties: STATE EX REL. ADAMS v. BURDGE ET AL., SCHOOL BOARD.
• Court: Wisconsin Supreme Court

95 Wis. 390

70 N.W. 347

STATE EX REL. ADAMS

v.BURDGE ET AL., SCHOOL BOARD.

Supreme Court of Wisconsin.

Feb. 23, 1897.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Petition by E. J. Adams for a writ of mandamus to R. J. Burdge and others, school board of the city of Beloit. From a decree granting the writ, respondents appeal. Affirmed.

This was a proceeding against the school board of the city of Beloit to obtain a peremptory mandamus commanding the defendants, as such board, to permit the relator's three children to attend the public schools in said city, from which it was alleged they had been wrongfully and unlawfully expelled March 13, 1894, and had been excluded therefrom ever since, without any legal excuse or authority, solely on the ground that they had not been vaccinated with virus, as a preventative of smallpox. The defendants justified said expulsion and prohibition of said children from attending school, for the reason that none of them had presented to the principal or teacher of the school to which they respectively belonged a certificate of a reputable physician that they had been successfully vaccinated with virus, in order to prevent them from having smallpox, and under and by virtue of a certain rule adopted by the state board of health January 26, 1894, and a modified rule adopted in June, 1894, after the commencement of this proceeding. The rule professed, upon its face, to be made under section 1409b, Sanb. & B. Ann. St., and was as follows, namely:

“Section 1. No child shall be allowed to be enrolled as a pupil in any public, private or parochial school in this state, or to attend any such school as a pupil without first presenting to the principal or teacher of the school in which he or she applies for enrollment or attendance, the certificate of a reputable physician that he or she has been successfully vaccinated.”

This rule as amended reads as follows:

“Section 1. No child shall be allowed to be enrolled as a pupil in any public, private or parochial school, without first presenting to the principal or teacher of the school in which he applies for enrollment or attendance, the certificate of a reputable physician, that he has been successfully vaccinated, or in lieu of such certificate of successful vaccination, a certificate from a reputable physician that such child has been vaccinated at least twice within a period of three months next preceding the date of such application; such latter certificate, however, shall be void after the expiration of one year from its date.”

“Sec. 2. No parent or guardian of any child shall allow such child to attend any public, private or parochial school in this state, and no principal or teacher of any such school shall allow a child to be enrolled as a pupil, or to attend such school, without the evidence of vaccination herein required.”

This section, as amended, reads as follows:

“Sec. 2. No parent or guardian of any child shall allow or permit such child to attend any public, private or parochial school in this state, and no principal or teacher of any such school shall allow a child to be enrolled as a pupil or attend such school as such, without the evidence of vaccination herein required, and it is hereby made the duty of the proper school authorities, in their respective localities, to enforce the foregoing rule.”

It was alleged in the return, in substance, that said rules of the state board of health had been transmitted to the defendants, the Beloit school board, with a request that the same should be enforced, and that said school board passed a resolution by which it was provided that the clerk be instructed to notify the superintendent of the city schools of Beloit to require all school children to be vaccinated who were so required to be under the order of the state board of health, or to show successful certificates of vaccination on or before March 12, 1894, and that notice was given to the teachers of the public schools, accordingly, that said rule must be enforced, etc.; that the relator's children had never been vaccinated, and he had at all times positively refused to allow them to be vaccinated; and that none of them had ever produced or presented to any principal or teacher of any public school of said city any certificate of successful vaccination, as required by said rule of said state board of health, and which, by order of the Beloit board of health of February 19, 1894, the superintendent of the city schools was directed to enforce; and that they were therefore excluded from attending public schools. It was admitted that there was not an epidemic of smallpox in said city at the time of such exclusion, but it was alleged that there was great danger of that disease becoming epidemic in the city, though there was not any case of smallpox in the immediate vicinity of the home or schools of said children. At the trial, before the circuit court of Rock county, that court found that said rules of January 26th were passed by the board of health, and a copy thereof transmitted by it to C. W. Merriman, superintendent of the public schools of the city of Beloit, about February 6, 1894; that the schools of said city were public schools, organized and maintained at public expense by a system of taxation for the purpose of furnishing means of education to the resident children of the city of Beloit, Wis., between the ages of 4 and 20 years, free of charge; that the defendants were then acting as the school board of the city of Beloit, and had in charge the management of said schools, and that on the 19th of February, 1894, they passed a resolution directing the superintendent of the city schools to require all children to be vaccinated, under said order, or to show certificates of successful vaccination on or before March 12, 1894, and that no child who would not comply with the same, and produce the proper certificates of successful vaccination before March 12, 1894, should be allowed to attend any of said schools after that date; that during the said months of January and February, 1894, there was no epidemic of smallpox existing within the state of Wisconsin, but that there were a few cases scattered throughout the state, and that there had been but one case in the city of Beloit, which had been duly and properly quarantined; that the relator was a resident, citizen, and taxpayer of the city of Beloit, and had three minor children, named in the writ, of the proper school age, living with him, and depending upon him for support and education; that they had been attending the public schools of the city of Beloit, in their proper grades, prior to the making of said resolution by the said defendant school board, and did so attend until about the 13th of March, 1894; that said relator refused to allow his children to be vaccinated, and said children refused to be vaccinated, on account of their belief, as Christian Scientists, that the operation or treatment of vaccination was morally wrong, and that the laws of God permit no such operation or treatment, and that to permit it is a breaking of such laws; that said children were of sound bodily health, and entitled to attend such public school, unless debarred by their refusal to be vaccinated, and they were expelled by reason of such refusal, and thereafter were not allowed to attend school; that in June, 1894, the substitute rule was adopted, and at that time, and at the time of filing the petition, there was no epidemic of smallpox, nor any case of smallpox in or near said city of Beloit; that the board of education had no belief or apprehension that it was prevalent in Beloit, or approaching it; that none of relator's children had been exposed in any manner to any case of smallpox or varioloid; and that there was no immediate present necessity for a rule compelling scholars to be vaccinated. It was further found that two of relator's children were within the ages prescribed for the compulsory education of children by chapter 187, Laws Wis. 1891. The court granted a peremptory writ of mandamus, as prayed for, and gave judgment accordingly, and for costs and disbursements against the defendants, from which the defendants appealed.

John C. Rood and William Ruger, for appellants.

Fethers, Jeffris & Fifield, for respondent.

PINNEY, J. (after stating the facts).

The legality of the action of the defendants, constituting the school board of the city of Beliot, in expelling and excluding the relator's three children from the public schools in that city, which they were and had been respectively attending, and which they had a lawful right to attend, is attempted to be justified by the rule adopted by the state board of health of January 26, 1894, and as modified in June, 1894, after this proceeding had been commenced. The defendants were acting only under the supposed authority of the rule of the state board of health, and this presents the question of the power of the board to adopt and cause such a rule to be enforced. By section 1407, Rev. St., the state board of health is vested with “a general supervision throughout the state of the interests of the health and life of citizens,” and directed to make certain investigations, and “voluntarily, or when required, advise public boards or officers,” in regard to divers matters affecting the public health. By section 1408 the board was “to have charge of all matters pertaining to quarantine,” and might from time to time “make general or local rules and regulations for the preservation or improvement of the public health not inconsistent with law, or those prescribed by local authorities pursuant to law,” and “all sheriffs, constables, police officers, and all other officers and employees of this state, are required to respect and enforce the same, in every particular affecting their respective localities or duties.” By sections 1409a and 1409b, Sanb. & B. Ann. St., an annual appropriation of $15,000 was...