Viemeister v. White

CourtNew York Court of Appeals
Writing for the CourtVANN
Citation72 N.E. 97,179 N.Y. 235
PartiesVIEMEISTER v. WHITE, President of Board of Education, et al.
Decision Date18 October 1904

179 N.Y. 235
72 N.E. 97

VIEMEISTER
v.
WHITE, President of Board of Education, et al.

Court of Appeals of New York.

Oct. 18, 1904.


Appeal from Supreme Court, Appellate Division, Second Department.

Application of Edmund C. Viemeister for writ of mandamus to Patrick J. White, president of the board of education of the borough of Queens, and others. From a judgment of the Appellate Division (84 N. Y. Supp. 712), affirming an order of the Special Term denying the writ, relator appeals. Affirmed.


[179 N.Y. 236]John Leary and Edmund C. Viemeister, for appellant.

John J. Delany, Corp. Counsel (James D. Bell, of counsel), for respondents.


VANN, J.

The relator moved for a writ of mandamus to compel the officers having control of a public school in [179 N.Y. 237]the county of Queens to readmit his child, a lad 10 years of age, to said school without requiring him to be vaccinated. It appeared from the moving papers that the boy had been in regular attendance at the school, and that the principal thereof, pursuant to the instructions of the board of education, had excluded him therefrom, because he refused to be vaccinated. It appeared from the papers read in opposition to the motion that when the relator's son was excluded from the school there was a regulation of the board of education in full force which provided that ‘no pupil shall be allowed to attend any school, nor shall any teacher be employed in the same, unless such pupil or teacher has been vaccinated.’ It further appeared that the lad had never been vaccinated, and that he refused to submit to vaccination; but it was not alleged that at the time of such exclusion smallpox was prevalent in

[72 N.E. 98]

the neighborhood, or that there was any special danger, from recent exposure or other causes, of an immediate spread of the disease.

The Constitution requires the Legislature to ‘provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.’ Const. art. 9, § 1. The public health law provides that ‘no child or person not vaccinated shall be admitted or received into any of the public schools of the state, and the trustees or other officers having the charge, management or control of such schools shall cause this provision of law to be enforced. They may adopt a resolution excluding such children and persons not vaccinated from such school until vaccinated. * * *’ Public Health Law, Laws 1893, p. 1495, c. 661, § 200, renumbered section 210 by Laws of 1900, p. 1484, c. 667, § 2. The same law provides for the free vaccination of children of suitable age who wish to attend the public schools, provided their parents or guardians are unable to procure vaccination for them. This is a re-enactment of a statute containing the same provisions in substance, passed in 1860, which remained in force until the passage of the public health law in 1893. Laws 1860, p. 761, c. 438.

[179 N.Y. 238]The question presented is whether the Legislature is prohibited by the Constitution from enacting that such children as have not been vaccinated shall be excluded from the public schools. The appellant claims that the public health law places an unreasonable restriction upon the right of his child to attend school, and that it violates the section of the Constitution already quoted, as well as the general guaranties for the protection of the rights, privileges, and liberties of the citizen. Const. art. 1, §§ 1, 6. The respondents claim that the object and effect of such legislation is the protection of the public health, and hence that it is a valid exercise of the police power. The police power, which belongs to every sovereign state, may be exerted by the Legislature, subject to the limitations of the Constitution, whenever the exercise thereof will promote the public health, safety, or welfare. The power of the Legislature to decide what laws are necessary to secure these objects is subject to the power of the courts to decide whether an act purporting to promote the public health or safety has such a reasonable connection therewith as to appear upon inspection to be adapted to that end. A statute entitled a health law must be a health law in fact as well as in name, and must not attempt in the name of the police power to effect a purpose having no adequate connection with the common good. As we have recently said, it ‘must tend in a degree that is perceptible and clear towards the preservation of the * * * health * * * or welfare of the community, as those words have been used and construed in the many cases heretofore decided.’ Health Dept. of N. Y. v. Rector, etc., 145 N. Y. 32, 39,39 N. E. 833,45 Am. St. Rep. 579. When the sole object and general tendency of legislation...

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90 practice notes
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...to be exercised with caution, and due care must be taken to see that the subject comes within the limits of common knowledge. 23 C.J. 175; 179 N.Y. 235, 72 N.E. 97, 103 Am. St. Rep. 859, 70 L.R.A. 796, 1 Ann. Cas. 334. (b) Care must be taken that the requisite notoriety exists; every reason......
  • Myers v. Schneiderman
    • United States
    • New York Court of Appeals
    • September 7, 2017
    ...some regulation of this medical treatment option would fall within the State's power over public health matters (see Matter of Viemeister, 179 N.Y. 235, 238, 72 N.E. 97 [1904] ).1 In Montana, a terminally ill patient's consent to physician-assisted suicide constitutes a defense to a charge ......
  • Myers v. Schneiderman
    • United States
    • New York Court of Appeals
    • September 7, 2017
    ...some regulation of this medical treatment option would fall within the State's power over public health matters (see Matter of Viemeister, 179 N.Y. 235, 238, 72 N.E. 97 [1904] ).1 In Montana, a terminally ill patient's consent to physician-assisted suicide constitutes a defense to a charge ......
  • Doe v. Zucker, 1:20-cv-840 (BKS/CFH)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • February 17, 2021
    ...which one of two modes was likely to be the most effective for the protection of the public against disease"); Viemeister v. White , 179 N.Y. 235, 239, 242, 72 N.E. 97 (1904) (observing that "some laymen, both learned and unlearned, and some physicians of great skill and repute, do not beli......
  • Request a trial to view additional results
90 cases
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...to be exercised with caution, and due care must be taken to see that the subject comes within the limits of common knowledge. 23 C.J. 175; 179 N.Y. 235, 72 N.E. 97, 103 Am. St. Rep. 859, 70 L.R.A. 796, 1 Ann. Cas. 334. (b) Care must be taken that the requisite notoriety exists; every reason......
  • Myers v. Schneiderman
    • United States
    • New York Court of Appeals
    • September 7, 2017
    ...some regulation of this medical treatment option would fall within the State's power over public health matters (see Matter of Viemeister, 179 N.Y. 235, 238, 72 N.E. 97 [1904] ).1 In Montana, a terminally ill patient's consent to physician-assisted suicide constitutes a defense to a charge ......
  • Myers v. Schneiderman
    • United States
    • New York Court of Appeals
    • September 7, 2017
    ...some regulation of this medical treatment option would fall within the State's power over public health matters (see Matter of Viemeister, 179 N.Y. 235, 238, 72 N.E. 97 [1904] ).1 In Montana, a terminally ill patient's consent to physician-assisted suicide constitutes a defense to a charge ......
  • Doe v. Zucker, 1:20-cv-840 (BKS/CFH)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • February 17, 2021
    ...which one of two modes was likely to be the most effective for the protection of the public against disease"); Viemeister v. White , 179 N.Y. 235, 239, 242, 72 N.E. 97 (1904) (observing that "some laymen, both learned and unlearned, and some physicians of great skill and repute, d......
  • Request a trial to view additional results

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