Viemeister v. White

• Decision Date: 18 October 1904
• Parties: VIEMEISTER v. WHITE, President of Board of Education, et al.
• Court: New York Court of Appeals Court of Appeals

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.

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 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 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.

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 is to promote the public health, there is no invasion of the Constitution, even if the enforcement of the law interferes to some extent with liberty or property. These principles are so well established as to require no discussion, and we cite but a few out of many authorities relating to the subject. Matter of Jacobs, 98 N. Y. 98, 108,50 Am. Rep. 636;People v. Marx, 99 N. Y. 377, 2 N. E. 29, 52 Am. Rep. 34; People v. Arensberg, 105 N. Y. 123, 11 N. E. 277,59 Am. Rep. 483;People v. Gillson, 109 N. Y. 389, 17 N. E. 343,4 Am. St. Rep. 465;People v. Ewer, 141 N. Y. 129, 36 N. E. 4,25 L. R. A. 794, 38 Am. St. Rep. 788;People ex rel. Nechamcus v. Warden, etc., 144 N. Y. 529, 39 N. E. 686,27 L. R. A. 718;People v. Havnor, 149 N. Y. 195, 43 N. E. 541,31 L. R. A. 689, 52 Am. St. Rep. 707;People v. Adirondack Ry. Co., 160 N. Y. 225, 236,54 N. E. 689;People v. Lochner, 177 N. Y. 145, 69 N. E. 373.

The right to attend the public schools of the state is necessarily subject to some restrictions and limitations in the interest of the public health. A child afflicted with leprosy, smallpox, scarlet fever, or any other disease which is both dangerous and contagious, may be lawfully excluded from attendance so long as the danger of contagion continues. Public health, as well as the interest of the school, requires this, as otherwise the school might be broken up and a pestilence spread abroad in the community. So a child recently exposed to such a disease may be denied the privilege of our schools until all danger shall have passed. Smallpox is known of all to be a dangerous and contagious disease. If vaccination strongly tends to prevent the transmission or spread of this disease, it logically follows that children may be refused admission to the public schools until they have been vaccinated. The appellant claims that vaccination does not tend to prevent smallpox, but tends to bring about other diseases, and that it does much harm, with no good.

It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. It has been general in our state and in most civilized nations for generations. It is generally accepted in theory...