State v. Drew

• Decision Date: 01 June 1937
• Citation: State v. Drew, 89 N.H. 54, 192 A. 629 (N.H. 1937)
• Parties: STATE v. DREW.
• Court: New Hampshire Supreme Court

192 A. 629

STATE

v. DREW.

Supreme Court of New Hampshire. Strafford.

June 1, 1937.

Exceptions from Superior Court, Strafford County; Johnston, Judge.

Lawrence E. Drew was convicted for not causing eight year old child in his custody to attend school, and he brings exceptions.

Exceptions overruled.

Complaint, alleging that the defendant, on November 19, 1935, at Dover, having the custody and control of Othniel Drew, a child eight years of age, and residing in a school district in which a public school was annually taught, failed to cause the said child to attend the public school to which he was assigned or an approved private school during all the time the said school was in session, Othniel not having been excused by the school board of the said district on account of his physical or mental condition.Trial by jury; verdict, guilty.The defendant's bill of exceptions was allowed by Johnston, J.

The defendant relies upon the following exceptions: (1) To the denial of his motions to dismiss at the close of the State's evidence and at the close of all the evidence; (2) to a certain instruction given to the jury; (3) to argument by the county solicitor.

The statute under which the complaint was brought is P.L. c. 118, §§ 1, 2."Every child between eight and sixteen years of age shall attend the public school to which he is assigned or an approved private school during all the time the public schools are in session, unless he is more than fourteen years old and has completed the studies prescribed for the elementary schools, or has been excused from attending on the ground that his physical or mental condition is such as to prevent his attendance or to make it undesirable.Every person having the custody of a child shall cause the child to attend such a school during all the time the public schools are in session."A penalty is provided for by section 6.

Also involved is P.L. c. 123, § 1, as amended byLaws 1929, c. 139."No child shall attend a public or private school in this state unless he has been vaccinated; or has had the smallpox; or has submitted not less than three times to the process of vaccination; or holds a certificate of the local board of health that he is an unfit subject for vaccination.The local board of health shall issue such a certificate on the advice of a registered physician of the state and practicing in the town in which the child resides."A penalty is provided for in section 3.

The defendant, in September, 1935, called upon the superintendent of schools at Dover and desired to enter his son Othniel in the public schools.He was told that he must present a birth certificate and a vaccination certificate.Later the defendant sent to the school board a letter "making legal tender" of his children of school age, unvaccinated, and demanding in effect that they be received and instructed in that condition.

The superintendent then called upon the defendant and suggested that he see Dr. Marcotte, the city physician.Later the defendant reported to the superintendent that he had seen Dr. Marcotte, who said "there was no condition that would relieve a child of vaccination."The defendant added, "We refuse to have our children vaccinated."

The matter was then reported to the state commissioner of education, who sent the state truant officer to interview the defendant.In answer to the officer's inquiries, the defendant said that his reason for not sending the child to school was "partly religious and partly because he didn't want that poison injected into his child," but he did not elaborate or explain this statement.The defendant refused to have his child vaccinated and the complaint was sworn out the next day.The defendant did not testify at the trial, and the nature of his scruples appears no further than has been stated.

Thomas J. McGreal, Co. Sol., of Somers-worth, for the State.Florence M. Dederick, for defendant.

PAGE, Justice.

The defendant contends that his motions to dismiss should have been granted on the broad ground that the vaccination law is invalid because in conflict with the Fourteenth Amendment,§ 1, of the Federal Constitutionandarticles 4, 5, 12, and 19 of the New Hampshire Bill of Rights.

In his motions, the defendant relied upon allegations that may be summarized thus: (1) That the "charge is a fraud and subterfuge"; (2) that he in good faith offered to send his son to school on condition that the school board accept him unvaccinated; that this offer was a "legal tender" of the boy, whose rejection estopped the school board and the state truant officer to enter this complaint; (3) that the defendant could not be compelled to place himself in "legal jeopardy," as he would be forced to do if he sent his unvaccinated son to school under penalty of the law; (4) that consequently the defendant had complied with his legal duties as custodian of his son; (5) that he had a legal right to refuse to submit his son to "a surgical operation such as vaccination or the deliberate diseasing of his son"; (6) that there is no legal authority to compel vaccination or make it a requirement for school attendance, and that forcible vaccination is in law an assault and trespass; (7) that the State may not practice medicine; (8) that in some other instances complaints similar to this have been nol prossed.

The general question of constitutionality here raised was considered in Barber v. School Board, 82 N.H. 426, 135 A. 159, andCram v. School Board, 82 N.H. 495, 136 A. 263.The statute was held valid.We see no reason to re-examine the question now.The special grounds upon which the defendant based his motion to dismiss were all disposed of by the authorities relied upon in the Barber and Cram opinions.

Our statute provides for the vaccination of all school children, with certain exceptions not applying to the defendant's son.In connection with the school attendance law, it may be conceded that it penalizes failure by a parent to cause his child of school age to be vaccinated, if the child be a fit subject or be not reasonably immune to smallpox.A direct provision for vaccination, with a penalty for refusal to submit, is valid.Commonwealth v. Jacobson, 183 Mass. 242, 66 N.E. 719, 67 L.R.A. 935;Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765;Morris v. Columbus, 102 Ga. 792, 30 S.E. 850, 42 L.R.A. 175, 66 Am.St.Rep. 243;State v. Hay, 126 N.C. 999, 35 S.E. 459, 49 L.R.A. 588, 78 Am.St.Rep. 691.CompareState v. Martin & Lipe, 134 Ark. 420, 204 S.W. 622.

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