Stull v. Reber

• Decision Date: 07 May 1906
• Docket Number: 63
• Citation: Stull v. Reber, 215 Pa. 156, 64 A. 419 (Pa. 1906)
• Parties: Stull, Appellant, v. Reber
• Court: Pennsylvania Supreme Court

64 A. 419

215 Pa. 156

Stull, Appellant, v. Reber

No. 63

Supreme Court of Pennsylvania

May 7, 1906

Argued March 6, 1906

Appeal, No. 63, Jan. T., 1906, by plaintiff, from decree of C.P. Franklin Co., Equity Docket 3, page 5, dismissing bill in equity in case of Edward C. Stull v. J. H. Reber, Charles H. Coover, Chester A. Geesaman and Dr. Samuel G. Dixon. Affirmed.

Bill in equity for an injunction. Before ROWE, P.J.

The bill after reciting that the complainant was a resident and taxpayer of the borough of Waynesboro and that Grace Stull was his daughter of the age of fourteen years continued as follows:

"The said Grace Stull is now and has been since the beginning of the present school year or term, to wit: September 4, 1905 properly and justly enrolled as a pupil in and attending the common or public school known as A grammar school conducted in the Snider avenue school building situate in the third ward of the said borough; that she is in good health and is not suffering from any contagious or infectious disease and is legally and justly entitled to continue to attend the said school for the remainder of the school term or year and is entitled to remain enrolled as a pupil thereof.

"J H. Reber is the superintendent of all the common or public schools of the said borough of Waynesboro; Charles H. Coover is the principal of the said Snider avenue school building and has charge of the schools therein conducted; Chester A. Geesaman is the teacher of said A grammar school in which your orator's said child Grace Stull is enrolled and in attendance as a pupil.

"There is not at the time of the filing of this bill, nor has there been for many years, any person in the said borough of Waynesboro or within many miles thereof suffering from smallpox (variola or varioloid).

"Charles H. Coover, principal of said Snider avenue school, and Chester A. Gessaman, teacher of said A grammar school conducted therein, have by order and direction of said J. H. Reber, superintendent of the common and public schools of the said borough, notified your orator and the said Grace Stull, his daughter, that she, the said Grace Stull, will be dismissed and excluded from the said A grammar school conducted in the said Snider avenue school building in which she is enrolled and in attendance as a pupil, on the 11th day of December, 1905. And the said J. H. Reber, superintendent, Charles H. Coover, principal, and Chester A. Gessaman, teacher, as aforesaid, defendants, in violation of their statutory duty and to the prejudice of the petitioner's right in the premises, threaten and intend to dismiss and exclude the said Grace Stull from the said school on the 11th day of December, 1905.

"Your orator avers that unless restrained by your honorable court the said defendants will carry out their said threat and dismiss and exclude the said Grace Stull from the said school, whereby both the said Grace Stull and your orator will suffer great and irreparable injury for which there is no adequate remedy at law."

The bill prayed for an injunction.

The answer admitted the material averments of the bill.

The court found, inter alia, the following facts:

There is not at the time of the filing of this bill, nor has there been for a period of about forty (40) years, any person in the said borough of Waynesboro, or within many miles thereof, suffering from smallpox, (variola or varioloid).

Occasionally it is beyond the power of children of school age as well as adults to be successfully vaccinated, although they may not previously have had smallpox nor previously been vaccinated; that even repeated attempts to perform the operation of vaccination upon such children or adults is without effect and vaccination will not take. In such cases vaccination is not successful and the physician cannot certify that such child or adult has been successfully vaccinated.

Sometimes a child may be suffering from a constitutional weakness or its system may be in such an unhealthy condition as to render the operation of vaccination exceedingly dangerous to said child.

The court entered a decree dismissing the bill.

Error assigned was decree dismissing the bill.

Decree affirmed.

O. C. Bowers, with him Sharpe & Elder, for appellant. -- When personal rights or even the rights of property are invaded under the pretense of police regulation it is the duty of the court to interfere to protect them: In re Jacobs, 98 N.Y. 98; Henderson v. Mayor of New York et al., 92 U.S. 259; Chy Lung v. Freeman, 92 U.S. 275; Mayor of Nashville v. Ray, 86 U.S. 468; East Tennessee University v. Knoxville, 6 Baxter (Tenn.), 166; Chalfant v. Edwards, 173 Pa. 246; R.R. Co. v. Husen, 95 U.S. 465; Com. v. Alger, 61 Mass. 53; Austin v. Murray, 33 Mass. 121; Watertown v. Mayo, 109 Mass. 315.

We contend further that section 12 of the act of 1895, under which the defendants claim that they are required to exclude pupils from school who do not present certificates of having been successfully vaccinated, read in connection with section 11 of the same act is special in its application in that it only applies to a child or children attending public, private, parochial, Sunday or other schools, and does not apply to teachers or adults or other persons attending such schools, from whose presence there would or might be the same danger of contagion or infection as from the presence of the child or children whose attendance is prohibited.

Walter & Gillan and Frank M. Eastman, with them Hampton L. Carson, Attorney General, for appellee. -- Section 12 of the Act of June 18, 1895, P.L. 203, is constitutional: Jacobson v. Massachusetts, 197 U.S. 11 (25 S.Ct. Repr. 358); Nissley v. Hummelstown Boro. School Directors, 5 Pa. Dist. Rep. 732; Sprague v. Baldwin, 18 Pa. C.C. Rep. 568; Com. v. Smith, 9 Pa. Dist. Rep. 625; Gerhard v. Packer Twp. School Dist., 24 Pa. C.C. Rep. 339; Cousins v. Burgie, 13 Pa. Dist. Rep. 368.

The act is a proper exercise of police power: Penn. R.R. Co. v. Riblet, 66 Pa. 164; Powell v. Com., 114 Pa. 265.

The police power permits compulsory vaccination: Com. v. Jacobson, 183 Mass. 242 (66 N.E. Repr. 719); Morris v. Columbus City, 42 L.R.A. 175.

Exclusion of unvaccinated pupils is sustained in other states: Viemeister v. White, 179 N.Y. 235 (72 N.E. Repr. 97).

The act of 1895 is not a special or local law: Com. v. Smith, 9 Pa. Dist. Rep. 350; Sprague v. Baldwin, 18 Pa. C.C. Rep. 568; Buckley v. Eckert, 3 Pa. 368; Slatterly v. Murphy, 8 Luz. L. Reg. 272.

Sections 11 and 12 of the act of 1895 are not to be construed together: Nissley v. School Directors, 5 Pa. Dist. Rep. 732.

Before MITCHELL, C. J., FELL, BROWN, MESTREZAT and ELKIN, JJ.

OPINION

MR. CHIEF JUSTICE MITCHELL:

The substantial question in this case is whether the Act of June 18, 1895, P.L. 203, requiring the exclusion from the public schools of children who have not been vaccinated is a valid exercise of the police power of the state. It has been twice so decided by this court. In Duffield v. School District of Williamsport, 162 Pa. 476, a similar regulation not even enacted by the legislature but enforced by the school directors under an ordinance of the city of Williamsport was held valid. And in Field v. Robinson, 198 Pa. 638, this very statute of 1875 was held constitutional. It appears to be thought that because the decision was given in a brief opinion per curiam the subject was not fully considered. But the proper inference is precisely the reverse, that the conclusion was so perfectly clear to the whole court that it did not require any extended argumentative support.

After these two decisions the question ought to have been considered as closed. But we have it raised again with small variations of facts and considerations, none of which are at all material.

On the constitutional question it is said that section 12 of the act contravenes sections 7 and 8 of article III of the constitution in that it is local and special legislation, regulating the affairs of school districts. The terms of the act apply expressly to the "several municipalities" of the state, and it is argued that they do not include school districts in townships and therefore make an unwarranted distinction in regard to such districts. Whether townships are municipalities within the intent of the act it is not now necessary to consider. Even if not, the separate classification of school districts in cities and boroughs with reference to public health where population is dense and the danger of contagion great, would not be unconstitutional: Sugar Notch Borough, 192 Pa. 349.

But the act is in no proper sense a regulation of school districts. It is an act entitled "for the more effectual protection of the public health in the several municipalities of the commonwealth" and is a general statute on that subject. What bearing it has on schools and school districts is altogether...