State ex rel. O'Bannon v. Cole

• Decision Date: 22 May 1909
• Parties: THE STATE ex rel. J. E. O'BANNON v. H. B. COLE et al., Appellants
• Court: Missouri Supreme Court

119 S.W. 424

220 Mo. 697

THE STATE ex rel. J. E. O'BANNON v. H. B. COLE et al., Appellants

Supreme Court of Missouri

May 22, 1909

Appeal from Pettis Circuit Court. -- Hon. Louis Hoffman, Judge.

Reversed and remanded (with directions).

Charles E. Yeater for appellants.

(1) The courts refrain from interference with school regulations not oppressive or arbitrary and which are needful for the moral and physical health of the pupils. King v. School Board, 71 Mo. 628; Deskins v. Gose, 85 Mo. 485; Dritt v. Snodgrass, 66 Mo. 286. (2) If smallpox is prevalent, as shown in this record, then even without express statutory authority, vaccination may be required as a condition precedent to the right to attend school. Duffield v. Williamsport School Dist., 162 Pa. St 476; Field v. Robinson, 198 Pa. St. 638; State ex rel. v. Board of Education, 21 Utah 401. (3) Under the power granted by Sec. 9764, R. S. 1899, to make all needful rules for the government of the public schools, the school boards of this State can make a rule requiring the vaccination of pupils as a condition of attendance, and particularly where epidemic conditions prevail, as shown in this record, which endanger life and health in the community. In Matter of Rebenack, 62 Mo.App. 8; Hutchins v School Com. of Durham, 137 N.C. 68. (4) The pleadings of both parties show that the children of relator were sent to the schools by him and that they were refused admission because not vaccinated, and therefore he could not be subjected to the penalities of the compulsory education act. Common -- wealth v. Smith, 9 Pa. Dist. 625. (5) The rule of the school board requiring the vaccination of pupils is imperatively demanded by the highest considerations known to the law, the public health and protection to the life and safety of the citizen, and it in no wise contravenes any section of the Constitution, and the courts of the land have gone further and held statutes for compulsory vaccination to be valid and constitutional. Stull v. Reber, 215 Pa St. 156; Viemeister v. White, 72 N.E. 97; Blue v. Beach, 155 Ind. 121; Bissell v. Davidson, 65 Conn. 183; Jacobson v. Massachusetts, 197 U.S. 11; Com. v. Pear, 183 Mass. 242.

C. C. Lawson and Barnett & Barnett for respondent.

(1) The school board had no authority to pass the order excluding children from school who had not been vaccinated. The school board is a body of limited jurisdiction. It has only such powers as are conferred upon it by statute. The provisions of the general school law, section 9764, do not include or embrace the power to exclude children from school, for the reason that they have not been vaccinated, because the right to exclude children on account of contagious diseases or liability to transmit the same is expressly provided for in the subsequent section, sec. 9765. This section is the only provision in our statutes authorizing the exclusion of a child from school on account of contagious or infectious disease or by reason of exposure thereto or liability to transmit the same and the mention of this cause is the exclusion of all other causes not mentioned. There could not be a stronger illustration of the maxim "expressio unius est exclusio alterius." The Constitution of Missouri provides for the establishment and maintenance of free schools for the gratuitous instruction of all persons in this State between the ages of six and twenty years, and the Legislature has provided for the carrying out of the powers of said Constitution which provided free public schools for children of that age. Therefore, a rule has been established that all children of said age are entitled to attend the public schools and the Legislature has attempted to prescribe certain exceptions to the rule and the only exception prescribed so far as exclusion on account of diseases is concerned is in section 9765 and a mention of that exception excludes all other grounds of exclusion, other than those mentioned. The exception cannot be enlarged by construction, but is narrowed to the exception named in the statute, and the failure to be vaccinated is not one of the exceptions named in the statute. State ex rel. v. Fisher, 119 Mo. 151. (2) The Legislature has enacted a law making it compulsory for parents to send their children to school. Laws 1905, p. 146. A punishment has been prescribed by act for failure to send children to school, and in view of this compulsory attendance the board can not exclude a child from school on account of failure to be vaccinated for the reason that their failure to send the child makes the parent a law-breaker. Therefore, the school board can not exclude the children from school and thus make the parent a law-breaker for not sending them to school, in obedience to the compulsory education law. Matthews v. Board of Education, 86 N.W. 1036. (3) The general police powers of a city authorizing the passing of ordinances and the making of regulations for the promotion of health or the suppression of disease do not include the passage of an ordinance making vaccination a condition precedent to the right of education. People v. Board of Education, 234 Ill. 422; Matthews v. Board of Education, 86 N.W. 1038. (4) Even if the case of In the Matter of Rebenack, 62 Mo.App. 8, were to be followed by this court yet that case is not in point here as that case was decided under the peculiar provisions of the charter under which the school district of the city of St. Louis was created. (5) We think it will be found that all the cases cited by appellant supporting the authority of school boards to exclude children on the ground that they had not been vaccinated are cases in States where the statute itself expressly provides that children must be vaccinated before they can attend school or where the statute authorizes the school board to exclude children on that ground, or, as in some cases, where the charter of the city, which is a legislative act, authorizes the school board within such city to exclude such children, who have not been vaccinated. Appellant cites two or three Pennsylvania cases, but it will be found that those cases are bottomed upon the statutes of the State of Pennsylvania. The Legislature of Pennsylvania by an Act of Assembly passed June 18, 1895, provided "that persons in charge of schools shall refuse admission to children except upon certificate of a physician that they have been successfully vaccinated or had previously had smallpox." The case of Viemeister v. White, 72 N.E. 86, is a New York case and the laws of New York (Laws 1893) provide "that children must be vaccinated before they are admitted into the schools."

GRAVES, J. Valliant, C. J., absent, and Burgess and Fox, JJ., dissent.

OPINION

In Banc

GRAVES J.

Relator is a resident taxpayer of the city of Sedalia, and of the Sedalia school district. He is also the father of two children, aged between eight and fourteen years, which were excluded from the public schools of said district by reason of the action of the defendants who constitute the board of directors of the defendant school district of the city of Sedalia.

The board of directors of said school district on December 4, 1908, made the following order:

"Whereas it has come to the knowledge of the board of education that smallpox exists within the school district; that they deem it necessary that all children attending school, who have not been vaccinated, must be vaccinated within thirty days."

On January 8, 1909, said board made the following additional order:

"On motion the following resolution was unanimously adopted:

"The board will not accept a certificate of vaccination unless the physician does state that the child has been vaccinated with vaccine virus, and all children who have had smallpox must bring a certificate from the physician in attendance to that effect; and where such certificate cannot be procured, then the parent or guardian must make affidavit that such child has had the smallpox. Any child who has been vaccinated as many as two times without taking, a certificate from the physician will be accepted.

"On motion Dr. Cole was authorized to purchase vaccine points to vaccinate poor children, the bill to be paid by the board."

And on January 12, 1909, the records of said school district show the following additional order:

"Called meeting of the board of education held at the office of J. T. Montgomery. Meeting called to order by the president. Present: William H. Powell, W. M. Johns, Dr. Cole, Charles Hoffman, J. T. Montgomery.

"The president stated the object of the meeting was for the purpose of taking further action on the question of vaccination; that he had been informed by the superintendent that certain doctors had been vaccinating school children by giving powders internally and giving them certificate that they had been vaccinated internally with vaccine virus.

"Dr. Barnum was present and requested to be heard on the subject, which was granted, and Dr. Barnum stated that he had been vaccinating school children by giving the vaccine virus internally and that such treatment would render the patient immune from smallpox.

"On motion the following resolution was passed, that no certificate of vaccination shall be received unless the same states that the person was vaccinated externally with vaccine virus.

"There being no further business, the board adjourned."

Relator's two children were excluded from the schools of the district in January, 1909, under the orders aforesaid, and because they had not been vaccinated as by said orders required. Upon their exclusion the relator instituted this action by mandamus in the circuit court of Pettis county to compel the defendants to reinstate his children as pupils in said schools, and to cancel and...