State ex rel. Cox v. Board of Education of Salt Lake City

• Decision Date: 26 April 1900
• Citation: State ex rel. Cox v. Board of Education of Salt Lake City, 21 Utah 401, 60 P. 1013 (Utah 1900)
• Court: Utah Supreme Court
• Parties: STATE OF UTAH EX REL. JOHN E. COX, RESPONDENT, v. THE BOARD OF EDUCATION OF SALT LAKE CITY AND SAMUEL DOXEY, APPELLANTS

60 P. 1013

21 Utah 401

STATE OF UTAH EX REL. JOHN E. COX, RESPONDENT, v. THE BOARD OF EDUCATION OF SALT LAKE CITY AND SAMUEL DOXEY, APPELLANTS

Supreme Court of Utah

April 26, 1900

Appeal from the Third District Court, Salt Lake County, Hon. A. N Cherry, Judge.

Application in the district court for a writ of mandate to compel the defendant board of education to admit Florence Cox, a female of the age of ten years, to a certain school in said city, as a pupil.Admission was denied on account of non-vaccination and the prevalence of smallpox in the city of Salt Lake.A demurrer to the answer of defendant setting up the prevalence of the disease, the existence of certain health boards, the adoption of certain resolutions, etc., in alleged aid of the public health, was sustained and a peremptory writ of mandate granted.Defendants appealed.

Reversed and remanded.

Messrs Richards & Varian, attorneys for appellants.

The police power of the State is large and expansive enough to meet and satisfy all demands upon the government in this respect.The power is only restricted by the limitations of the constitution.Commonwealth v. Alger,7 Cush. p. 85;Prentice on Police Powers, p. 7;People v. Budd,117 N.Y. 29;State v. Holden,14 Utah p. 95; Justice Gray in re Smith, 146 N.Y. 68, 28 L.R.A. 823;Love v. City of Atlanta, 95 Ga. 133; 22 S.E. 30.

The duty to preserve the public health and guard against the spread of contagion and infection, is enjoined upon the local authorities, who are directed to take such measures as shall be necessary to accomplish the purpose sought, and, of necessity the decision whether an emergency exists, is left to them.In the large and comprehensive matter of the exercise of the police power for the preservation of the public health, it would be impossible for the Legislature in advance to provide for all emergencies and prescribe remedies to be applied by the local boards or municipal bodies.If, in the known state of medical science of to-day, there is a known and accepted preventive and protective remedy against any infectious and contagious disease, the power to apply such remedy to the exclusion of others could not be enjoined upon the local authorities by general statute, which is to stand until the Legislature shall convene again, since it may well be, that when the emergency for the exercise of the power given shall arise, another and better will have been discovered.Consequently such matters were always in the early days of the common law, as well as in later times, left to the determination of the local authorities, and by the delegation of such powers it has never been deemed that the Legislature abdicated its authority.Cooley's Const.Lim., 3d ed., p. 191;Am. and Eng. Ency. Law, Vol. 15, p. 1173;Sutherland Statutory Constitution, Sec. 67, note Sec. 70;Prentice on Police Powers, p. 132.

We shall endeavor to show that the statutes have conferred ample authority upon the boards of health and the board of education, to make and enforce rules and regulations, under which the relator's child was excluded from the Hamilton school.The original charter of the city empowered the council.C. L., Vol. 1, Sub. 40, Sec. 344, p. 345;C. L., Vol. 1, Sec. 1755, par. 64, p. 628;Compiled Laws, Vol. 1, Sec. 1817.

On May 20, 1890, the city council, by ordinance, created a local board of health, consisting of a health commissioner, a city physician, and two other citizens, with the mayor added, as ex-officio chairman.(Revised Ordinances, 1892, p. 126.)

At the same session it enacted an ordinance defining duties and powers of the board of health.Revised Ordinances 1892, Chap. 5, p. 133.

Messrs. Bennett, Harkness, Howat, Sutherland & Van Cott, attorneys for respondent.

Messrs. Harrington & Snow, and Messrs. Powers, Straup & Lippman, of counsel.

Neither boards of health nor boards of education have a right to exclude unvaccinated children from schools, unless express authority is given by the Legislature or ordinance to that effect.

It is a general principle of construction that the powers of these municipal bodies are strictly construed and all doubts are resolved against them.1 Dill. Mun. Cor., Sec. 91;State of Wisconsin, ex rel., Adams v. Burdge,37 L.R.A. 157;Pots, et al., v. Breen,39 L.R.A. 152, (167 Oll., 67);Morris, et al., v. City of Columbus,42 L.R.A. 175(Ga.);see alsoDuffield v. Williamsport School District, 25 L.R.A. 152(162 Pa. 476).

The distinction between delegating legislative authority and delegating a discretion, as to the execution of legislative authority, is well defined.It is held that where the Legislature passes a law, and delegates a discretion as to when, where, and how the same shall be executed, that such delegation is valid; but if the right is delegated as to what the law shall be, then such delegation is void.In the case at bar, as held in the cases heretofore cited, the health board is passing rules which in effect are legislative enactments.Dowling v. Ins. Co.,92 Wis. 70.To the same point see37 L.R.A. 160-1;39 L.R.A. 155;88 Cal. 491.

"It is for the Legislature to determine what is for the public good, and what are necessary and salutary burdens to impose upon a general class of persons to prevent the spread of disease, and its discretion can not be controlled by the courts, if its action is not clearly evasive and unlawful, under pretense of lawful authority."Abeel v. Clark,84 Cal. 227.

Counsel for appellants claim that this is not a case of compulsory vaccination, as children may stay out of school if they do not desire to comply with it; but this is an evasion, because a thing is compulsory when a person is stripped of his statutory rights and privileges for noncompliance.42 L.R.A. 180.

MINER, J., delivered the opinion of the court.BARTCH, C. J., concurs.BASKIN, J., dissenting.

OPINION

MINER, J.

STATEMENT OF FACTS.

The respondent filed his petition in the district court asking that a writ of mandate issue against appellants to compel the board of education of Salt Lake City to admit Florence Cox, a female of the age of 10 years, to the Hamilton school in said city as a pupil.The answer alleged, among other things, that the State board of health had been created, having general supervision and interest in the health of the citizens of the State and matters of quarantine, and that a local board of health had been created in Salt Lake City, with power to declare quarantine against the spread of any contagious disease prevailing in Salt Lake City, and to exclude from schools all persons liable to carry contagious diseases to pupils in attendance upon such schools; that the city council, in accordance with its authority, had passed the following resolution:

"The board of health shall exercise general supervision over the health of the city, and effect all measures necessary to promote the health and cleanliness thereof.* * * It shall take all due measures to prevent the introduction or spread within the city, or within five miles thereof, of any malignant, contagious, or infectious diseases, and remove, quarantine, or otherwise dispose of any person or persons, clothing, or effects attacked with or having been exposed to such diseases, and shall adopt such rules and regulations necessary to prevent the introduction or spread of malignant, contagious, or infectious diseases within the city or within five miles thereof."

It is further alleged that the disease of smallpox was contagious and infectious, and included types of the most malignant and deadly character; that such disease may be brought and carried from one community to another by persons who have been exposed to the contagion; that the only known preventive of smallpox is vaccination of persons with animal lymph or vaccine matter; that such preventive is the only one recognized and approved by medical science and generally by governments throughout the civilized world; that about the 1st of November, 1899, smallpox was brought into this State and developed in a patient at Sterling, in San Pete County, and since then it has spread and developed in many places, and in different parts of the State, about 200 cases being traced directly to the first case at Sterling; that such disease was now epidemic in Eureka, Spanish Fork, Emery County, Sevier County, San Pete County, and in at least 24 towns in the State of Utah; that Salt Lake City is connected by railroads running daily trains carrying passengers to and from said localities thus infected; that there has been a number of cases of smallpox within the city of Salt Lake during the last two months; that sixteen developed cases of smallpox are now within the city pest house, and that a large number of persons within the city have been exposed to the contagion; that smallpox was liable to become an epidemic in the State, that the university of the State, and many of the Sunday-schools and other places of resort had been closed; that about 12,000 school children are enrolled in the public schools of the city, and reside in different parts thereof, less than one half of whom are vaccinated; that smallpox ordinarily develops in from ten days to two weeks after the patient is infected, and until then there are no means by which its presence can be detected; that therefore the regulation excluding all unvaccinated pupils from attending and meeting together in public schools is reasonable, and in aid of the health of the child; that in view of the danger of the contagious disease, the State board of health on December 20, 1899, resolved, "that the secretary so advise the proper authorities of each town where the disease exists, to immediately enact rules requiring that all children that can not show signs of...