135 A. 159 | N.H. | 1926
This is a proceeding which was designed to determine the respective rights and duties of parents and public officers to the vaccination of children of school age. All parties desire a decision which will settle their differences. In this situation, the questions have been considered without reference to any defect in the form of the petition.
When the proceeding was instituted, Laws 1921, c. 85, pt. VIII, s. 1, was in force. This section has now been superseded by P.L., c. 123, s. 1. The present rights and duties of the parties are to be determined by the law which is now in force.
Two questions are raised: I, whether the statute is constitutional, and II, whether a school board may require a new exemption certificate after one has been furnished.
I. The constitutionality of vaccination statutes has been passed upon in many cases, and the uniform conclusion has been that they constitute a valid exercise of the police power of the state. Jacobson v. Massachusetts,
In some of these instances the act was compulsory in terms. In others the compulsion was indirect, or partial, as it is here. Under our statute the child may not attend school unless vaccinated, or properly excused from vaccination (P.L., c. 123, s. 1); while by other provisions the parent or custodian of the child is liable to certain penalties for failing to cause the child to attend (P.L., c. 118, ss. 1-6). According to all the cases cited, these statutes are valid.
The supposed conflict of authority, referred to in People v. Lansing Board of Education,
In view of these authorities, and of the liberal definitions of the police power already adopted here (State v. Normand,
II. The statute provides: "No child shall attend a public or private school in this state unless he has been vaccinated; . . . 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 certificate on the advice of a registered physician approved by it." P.L., c. 123, s. 1.
A proper certificate was furnished in 1924. The demand for a new certificate in 1925 precipitated the present controversy. The statute is silent as to how often a certificate may be required. It was the legislative intent to provide efficient protection, and the statute is to be construed accordingly. Conditions making it improper to vaccinate the child at one time might not exist at a later date. Jacobson v. Massachusetts,
The claim that the burden is upon the defendants to justify their action, cannot be sustained. This is, in substance, a petition to review the action of a board whose findings of fact and orders are conclusive, if there is no error of law. Attorney-General v. Littlefield,
The case is here upon the pleadings, in which the grounds for the defendants' action in demanding a new certificate are not disclosed. Until it appears that they acted in violation of some rule of law, their conclusion must stand.
In Massachusetts a local rule requiring a new certificate every two months was sustained as "not as matter of law so unreasonable or arbitrary as to be invalid." Spofford v. Carleton,
The demurrer to the defendants' answer was properly overruled.
Certain questions which are said to be presented in another case have been argued by the plaintiff. They are not involved in this suit, and have not been considered.
Exception overruled.
All concurred.