State ex rel. Holcomb v. Armstrong

Decision Date10 January 1952
Docket NumberNo. 31857,31857
Citation239 P.2d 545,39 Wn.2d 860
PartiesSTATE ex rel. HOLCOMB, v. ARMSTRONG et al.
CourtWashington Supreme Court

George H. Boldt, Tacoma, King & King, Kirkland, for appellant.

Ballinger, Hutson & Eberharter, Seattle, amici curiae.

Smith Troy, Atty. Gen., John Spiller, Seattle, for respondents.

OLSON, Justice.

The trial court denied an application for a writ of mandamus made on behalf of Dayis Holcomb, whom we will refer to as the appellant. She sought to compel the respondent board of regents to permit her to register as a student at the University of Washington. She was not permitted to register because she refused to comply with the requirement of respondents that, before registration, all students have an X-ray examination of the chest for the purpose of discovering possible tubercular infection.

Since 1941, the respondent board has required all entering freshmen to have this examination as a condition precedent to registration. The appellant entered the university in 1947 as a freshman and, after voicing her objections, submitted to the examination.

In 1950, upon the advice of the health officer of the university, the respondent board extended this requirement to all students desiring to register. When she applied for registration for her senior year, appellant would not comply with this rule. She is a member of the Christian Science church and adheres to its doctrine. She requested exemption from the examination because of her belief that submission to it is contrary to that doctrine and to her personal religious convictions.

The health officer of the university testified to certain facts regarding the nature of tuberculosis, its incidence on the university campus, and the reasons for making the requirement in question. His testimony was uncontroverted and, in summary, was that tuberculosis is an insidious, slow, and progressive disease and is infectious; that a person may be infected with it and show no symptoms of the disease nor be aware of his infection; that its early discovery is difficult, except by an X-ray of the chest; that this method of exploration is generally considered best adapted to mass screening by the medical profession; that a tubercular lesion in the lungs will show as a shadow upon an X-ray film; and that further tests will then permit a positive diagnosis.

An exhibit prepared by the health officer gave the incidence of tuberculosis at the university since 1941:

                          "Active Cases                      Arrested Cases
                             Students                           Students
                         ----------------                   ----------------
                         Entrance                 Entrance                    Grand
                Year      Exams    Clinic  Total   Exams    Clinic    Total   Total
                -------  --------  ------  -----  --------  -------  -------  -----
                1940-41     19              19       14                14      33
                1941-42      3        8     11        3       12       15      26
                1942-43      6        4     10       19                19      29
                1943-44     13              13       19                19      32
                1944-45     10              10       40                40      50
                1945-46     16        2     18       56                56      74
                1946-47      9        5     14       12                12      26
                1947-48     11       12     23       12                12      35
                1948-49      8        8     16       15                15      31
                1949-50      3        7     10       33                33      43
                1950-51      9               9       33                33      42"

The health officer further testified that the cases of active tuberculosis found occasionally among upper classmen by the university health department, in the clinic, were discovered quite accidentally; that cases discovered originally through X-ray, in employees and students, averaged approximately fifty each year; that early discovery prevents the disease from reaching the infectious stage unrecognized and uncontrolled; that in one year eight new cases were traced to one infectious case.

He stated it to be his conclusion that, in order to protect the health of the student body, it is imperative that every effort be made to discover the presence of the disease on the campus, and that for this purpose the requirement of an X-ray examination of all registering students is necessary.

Whether compliance with the questioned regulation is contrary to the doctrine to which appellant adheres is not in controversy, nor is her sincerity.

It is not the proposal of the respondents that any person found to be infected take any prescribed treatment. The regulation is purely for the purpose of discovery. It does not say to this appellant, you must be treated if you are ill; it only says, if you are so unfortunate as to be ill and not know it, you cannot spread your infection to others at the university. Its primary concern is not for the possibly infected student, but is for those jeopardized by contact with such an individual. It is a preventive measure. Noncompliance with it for any reason by one or more of the group tends to make such a measure ineffective.

Appellant's assignments of error raise two questions: the constitutionality of the regulation, and the power of the respondent board to make it.

The material portion of the first amendment to the constitution of the United States is: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *.'

This right is protected against infringement by state action. Cantwell v. State of Connecticut, 1940, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; State ex rel. Bolling v. Superior Court for Clallam County, 1943, 16 Wash.2d 373, 133 P.2d 803. Here the action of the regents is the action of the state.

There is no presumption in favor of the constitutionality of any regulation involving civil rights. Schneider v. State of New Jersey, 1939, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155.

Amendment 4 to the constitution of the state of Washington provides, in part: 'Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or be disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. * * *'

Religious freedom embraces two concepts: '* * * freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. * * *' Cantwell v. State of Connecticut, supra, 310 U.S. at page 303, 60 S.Ct. at page 903, 84 L.Ed. 1213.

This freedom can be restricted 'only to prevent grave and immediate danger to interests which the state may lawfully protect.' West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628. In the Bolling case, supra, this court expressed a similar view. Other restatements of the 'clear and present danger' test have been made in numerous cases since Justice Holmes gave it life in 1919 in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 249, 63 L.Ed. 470. Their citation or review would not be helpful. The test must be applied to the facts of each case because, as its author said, 'It is a question of proximity and degree.'

With these principles in mind, we cannot say the questioned regulation violates any constitutional inhibition. Here the public interest threatened is the health of all of the students and employees of the university. It may lawfully be protected. In this case, it is of more importance than the right of appellant which is infringed. The danger to this interest is clear and present, grave and immediate. Infringement of appellant's rights is a necessary consequence of a practical attempt to avoid the danger. The questioned requirement utilizes the generally approved method of combating the danger, and no practical method which might not possibly infringe a constitutional right is shown. It is a regulation pertaining to the second aspect of the constitutional inhibition, mentioned in the Cantwell case, supra, in which aspect the conduct of appellant is subject to regulation for the protection of others. Her 'freedom to believe' remains absolute.

Appellant's second question places in issue the power of the board of regents to make this regulation. The authority of the board arises from Rem.Rev.Stat. § 4554, and Rem.Rev.Stat. (Sup.), § 4557. In the former, the government of the university is vested in the board of regents. The latter provides, in part: '* * * First. The said board shall have full control of the university * * *.'

There is no express power granted to the regents to pass a regulation regarding the health of the students. Failing an express grant, the regents may only exercise those powers necessarily or fairly implied in or incident to the powers expressly granted or those essential to the declared objects and purposes of the university--not simply convenient but indispensable. Juntila v. Everett School Dist. No. 24, 1934, 178 Wash. 637, 35 P.2d 78, and cases cited.

The trial court found that the questioned regulation was necessary to implement a regulation of the state board of health requiring all employees of the university, including faculty members, to submit to periodic chest examinations. The board of health has not required that students be examined, although, as counsel concede, it might have power to do so. In the absence of this action by the state board of health, the board of regents acted. It is not shown that the power conferred upon the state board of health is exclusive in this field or that its action may not be supplemented. The regents may have been prompted to pass the...

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