Streich v. Board of Education of Independent School Dist. of City of Aberdeen
| Decision Date | 08 June 1914 |
| Docket Number | 3533. |
| Citation | 147 N.W. 779,34 S.D. 169 |
| Parties | STREICH v. BOARD OF EDUCATION OF INDEPENDENT SCHOOL DIST. OF CITY OF ABERDEEN et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brown County; Frank McNulty, Judge.
Mandamus by John H. Streich against the Board of Education of the Independent School District of the City of Aberdeen, in the County of Brown and State of South Dakota, and another. From an order refusing a peremptory writ, the petitioner appeals. Affirmed.
E. C Ryan, of Aberdeen, and Geo. W. Case, of Watertown, for appellant.
R. F Williamson, of Aberdeen (Charles M. Stevens and Geo. N Williamson, both of Aberdeen, of counsel), for respondents.
'This is an appeal from an order refusing a peremptory writ of mandamus. The sole question presented is the right of respondents to require of the children seeking admission into the schools under their charge, and as a condition to their admission, the furnishing of a certain report. For several years there has been in force in said schools a resolution requiring pupils, at the beginning of each school year, to obtain and furnish what is termed a "Physical Record Card." One side of this card is to be filled out by the teacher, and the other by some regular licensed physician. It is optional with the pupil and parents whether such physician be of their own selection and the examination at their own expense, or such examination be made and card filled out by a physician furnished by respondent board and at the expense of the school district. The side of the card to be filled out by the teacher is in words as follows:
............................
Teacher.
The other side is in words as follows:
Has the child any abcesses in mouth... " "
Has the child irregular teeth............ " "
Recommendations: ......................................
Results ...................................................
...........................)27
Medical Examiner.
Appellant has two children of school age entitled to the privileges of the schools under respondents' charge. These children sought admission into such schools, at the beginning of the current school year; they were request-to furnish the above card properly filled out; this appellant refused to permit; and they were denied admission.
Upon this appeal, the right and propriety of requiring the teacher's report is conceded. Appellant's contention is thus stated in his brief:
"It is the contention of the plaintiff that, upon the facts shown by the record, plaintiff had a right to have his children admitted as pupils in said schools without their submitting to such or any physical examination, and that the defendants had no power or authority, under the laws and Constitution of South Dakota, to require that plaintiff's children submit to a physical examination as a condition precedent to be performed by them before they would be admitted as pupils in said schools, and that defendants had no legal authority to deny them admission as pupils therein because they failed to present such card and refused to submit to such physical examination by a licensed physician."
Appellant calls attention to those provisions of our Constitution imposing upon the Legislature the duty to establish and maintain a general and uniform system of public schools, wherein tuition shall be without charge, and which shall be equally open to all, and free from sectarian control; he also calls attention to the fact that the statute has fixed but two qualifications for admission to a school-that the pupil must be of school age, and must reside within the school district; and he contends that there is now law of this state conferring upon teachers or school officers any power or authority to make and enforce any additional requirement for such admission. He contends that "matter of government, legislation, and regulations relating to health of the people come within the police powers of the state, over which the Legislature alone has control;" that "the Legislature *** has conferred such power *** upon a board of health and medical examiners;" that "the Legislature has lodged in the state board of health all authority and power relating to health and health regulations which it has seen fit to delegate to any controlling body or board." Conceding that the action of respondent board in requiring the "Physical Record Card" was a matter of government, was legislation, and was a regulation relating to the health of the pupils-which at least might be one of the incidents to, or results flowing from, such action of the board-and conceding that the police power of the state has been by the people committed to the control of the Legislature, yet it does not follow that, because the Legislature has delegated certain police powers to some specific board, another board or corporate body is denied the exercise of this same power to such extent as may be necessary to carry out the purposes for which such board or body was created; certainly no such claim can be made in a case where such board or body was created or authorized by that very legislative department in whom all police power is primarily intrusted by the people. Respondents contend that there is conferred upon every municipal or quasi municipal corporation, by necessary implication based upon the law of necessity, the right to exercise such police power as is needful for the carrying out of those purposes for which such corporation or quasi corporation has been established. It is therefore conceded by both parties that the power sought to be exercised by respondents belongs to what is known as "police power"; and the sole question presented is the authority of respondents to invoke and exercise this particular power under the circumstances existing at the time of its exercise.
It is clear that all police power is based upon necessity and upon the inherent right of self-preservation possessed by all political bodies, and is therefore a power which has been recognized and exercised from the time men first associated together; it "is that inherent or plenary power which enables the state to prohibit all things hurtful to the comfort, safety, and welfare of society, and may be termed the law of overruling necessity" (Chicago v. Gunning System, 214 Ill. 628, 73 N.E. 1035, 70 L. R. A. 230, 2 Ann. Cas. 892); it "is the name given to that inherent sovereignty which it is the right and duty of the government or its agents to exercise whenever public policy in a broad sense demands for the benefit of society at large regulations to guard its morals, safety, health, order, or to insure in any respect such economic conditions as our advancing civilization of a highly complex character requires (8 Cyc. 863). While it is possible to clearly define the nature of this power, and, in a general way, to point out the scope and extent thereof, yet it would be utterly impracticable-and, in fact inconsistent with that very law of necessity upon which police power rests-for the law-making power, except in rare cases, to undertake to restrict, within fixed bounds, the exercise of this power by the several political agencies through which the various functions of government are to be performed. This becomes very apparent when one contemplates the new and ever-changing social, economic, and political conditions resultant from the physical, intellectual, and moral evolution of the human race, which, as well as the peculiar conditions existent in a particular locality, may, from very necessity, call for continual changes in the exercise of this power. What was a reasonable exercise thereof in the days of our fathers may today seem so utterly unreasonable as to make it difficult for us to comprehend the existence of conditions that would justify same; what would by our fathers have been rejected as unthinkable is to-day accepted as a most proper and reasonable exercise thereof; and what would be a proper exercise thereof under conditions existing in one place would, at the very same time, be improper under the conditions existing in another place. There is nothing known to the law that keeps more in step with human progress that does the exercise of this power; but, while this fact is evidenced to a certain degree by current legislative enactments, yet, for the reasons above stated, it is upon the courts that the people mainly rely for such recognition of changing conditions and such careful supervision over the exercise of this far-reaching and all-important power as will properly guard the rights both...
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