Bissell v. Davison
32 A. 348
Conn.
1894
Check Treatment
Torrance, J.

On the 10th of March, 1894, the school committee of the town of ISTew Britain passed the following vote: “ That every pupil attending the public schools shall, at or before the beginning of the school term of this year, present to their teachers satisfactory evidence of vaccination before he or she shall be allowed to attend school, and hereafter every pupil upon entering school shall conform to this requireme'nt. That after the beginning of the spring term of this year all pupils shall be excluded from -the schools unless they have been properly vaccinated, and it shall be the duty of the superintendent to see that this order shall be enforced. Free vaccination shall be provided for all those unable to pay for the same.”

Under thе provisions of this vote the plaintiff’s minor son, a pupil in the high school of New Britain, was excluded from said school, solely because he refused and neglected to be vaccinated.

*189Uрon the application of the plaintiff, the Superior Court issued' an alternative writ of mandamus to the school committee of New Britain, in substance requiring them to admit said minor as a pupil in the high school, or to show cause to the contrary to said court. In their return to this writ the school committee gave, in substance, as their reasons for excluding said minor from the high school, the fact of the existence of said vote, and the further fact that the minor neglected ‍​​​​‌‌​​​‌​​‌‌‌‌​‌‌​‌‌​‌​‌​‌‌‌​​​‌‌‌‌‌‌​​​​​‌‌​‌‍apd refused to comply with its terms. ■ To this return the plaintiff demurred upon the ground, first that the vote was not warranted by law; second because it is in violation of the Constitution of this State; and third because it is in violation of the fourteenth amendment to the Constitution of the United States. The Superior Court held the return to bе sufficient and overruled the demurrer, and the action of the court in so doing is the sole error assigned on this appeal.

Under the provisions of §§ 2137 and 2197 of the General Statutes, the school committee of New Britain is invested with the power to require that every child shall be vaccinated before being permitted to attend the public schools. The vote in question was passed in pursuance of the power so given. It is one way of exercising that power, and, so far as we can now see, it was an unobjectionable way of exercising it. If, then, the statute conferring this рower upon the committee is a valid one, it would seem that the vote was warranted by law.

But the plaintiff urges that the vote was not warranted by law, because at the time it was passed, “it doеs not appear that there was a single case of small pox in the town of New Britain, nor any indication that an epidemic of that disease was likely to present itself.” This claim assumes thаt the power in question cannot be exercised by the school committee, unless at the time of its exercise one or more cases of small pox exist in town, or an epidemic оf the disease, is reasonably to be apprehended. But the statute conferring the power has imposed no such conditions upon its exercise, and we see no good reasons why any such condi*190tions should be implied. We think the vote was clearly warranted by law, provided ‍​​​​‌‌​​​‌​​‌‌‌‌​‌‌​‌‌​‌​‌​‌‌‌​​​‌‌‌‌‌‌​​​​​‌‌​‌‍the statute in question is a valid one, which is the next point to be considered.

This proceeding may be regаrded either as one brought to vindicate some right of the plaintiff, or some right of his minor son. The right, as it is called, to attend the public school is one belonging to the minor, and not to the plaintiff, and shоuld properly be vindicated in a proceeding brought by or on behalf of the minor. Stephenson v. Hall, 14 Barb., 222; Spear v. Cummings, 23 Pick., 224; Donahoe v. Richards, 38 Me., 376. On the other hand the plaintiff is the natural guardian of the minor, charged by law with the duty of sending him to school, and, to enable him to perform that duty, is perhaps entitled on his own behalf to bring a proceeding of this kind. People v. Board of Education of Detroit, 18 Mich., 400. In discussing the validity of the statute, it will perhaps make the discussion briefer and clearer if we treat thе proceeding, ‍​​​​‌‌​​​‌​​‌‌‌‌​‌‌​‌‌​‌​‌​‌‌‌​​​‌‌‌‌‌‌​​​​​‌‌​‌‍as was done in the argument, as if it were brought to vindicate the right of the minor to attend the public school.

The plaintiff contends that the statute conferring the power to rеquire vaccination as a condition of admittance to, or attendance at, the public schools, violates certain provisions of the Constitution of this State, and of the fourteenth amendment to the National Constitution. He says in effect that it allows the privileges of the common schools to those who believe in vaccination, and denies it to those, who do not; thаt it deprives him of his rights without dué course or process of law, and denies to him the equal protection of the laws.

These objections to the validity of the statute, and the reasons and arguments urged in support of them, seem to proceed upon a misconception or misapprehension of the real nature and object of the statute. The statute in question forms a pаrt of the laws relating to our common school system, and must be read as a part of those laws. The duty of providing for the education of the children within its limits, through the support and maintenance of public schools, has always been regarded in this State in the light of a *191governmental duty resting upon the sovereign State. It is a duty not imposed by constitutional provision, but has always been assumed by the Stаte; not only because the education of youth is a matter of great public utility, but also and chiefly because it is one of great public necessity for the protection and welfarе of the State itself. In the performance of this duty, the State maintains and supports at great expense, and with an ever watchful solicitude, public schools throughout its territory, and secures tо its youth the privilege of attendance therein. This is a privilege or advantage, rather than a right in the strict technical sense of the term. This privilege is granted, and is to be enjoyed upon such terms and under such reasonable conditions and restrictions, as the law-making power, within constitutional limits, may see fit to impose ; and, within those limits, the question what terms, conditions, and restrictions will best subserve the end sought in the establishment ‍​​​​‌‌​​​‌​​‌‌‌‌​‌‌​‌‌​‌​‌​‌‌‌​​​‌‌‌‌‌‌​​​​​‌‌​‌‍and maintenance of public schools, is a question solely for the legislature and not for the courts. The statute in question authorizes the committee to impose vaccination as one of those conditions. It does not authorize or compel compulsory vaccination ; it simply requires vaccination as one of the conditions of the рrivilege of attending the public school. Its object is to promote the'usefulness and efficiency of the schools by caring for the health of the scholars. It is of the same general naturе as the power given in the same section to exclude from the schools children of school age, under the age of five years, whenever in the judgment of the board or committee thе interests of the school will be thereby promoted. The statute is essentially a police regulation, as much so as would be one giving the power to exclude temporarily scholars аfflicted with infectious or contagious diseases, or coming from homes or districts where such diseases were prevalent.

In California a statute gave to the trustees of the general cоmmon school districts, the power to exclude from the schools scholars who had not been vaccinated, and this was upheld as a valid exercise of the police power. Abeel v. Clark, 84 Cal., 226. In Duffield v. Williamsport *192School Distriсt, 162 Pa. St., 476, a recent case, the resolution of a school board requiring vaccination as a condition of the right of attending the public school, was upheld as a reasonable health regulation for the benefit of the pupils and the general public. In the case at bar the required condition is made to operate impartially upon all children alike; it affects all in the same way; and reasonable provision is made for providing free vaccination where necessary. It is a reasonable exercise of the power to require vaccination, if such requirement ever can in the nature of things be a reasonable one. If vaccination is a preventive of small pox, as claimed by what appears to be the great majority of the medical profession, the requirement would seem to be a reasonable one. Public opinion also upon 'this question, as crystalized into law, seems to regard it as such a preventive. It is a question, however, about which medical men differ greatly, and upon which public opinion at the present day may be said to be divided. However this may be, we think that in a cаse like the one at. bar, touching the terms and conditions of attendance at the public schools, the question of 'the reasonableness, in this sense, of such a requirement, is one exclusivеly for the legislature.

The question before us is not whether the legislature ought to have passed ‍​​​​‌‌​​​‌​​‌‌‌‌​‌‌​‌‌​‌​‌​‌‌‌​​​‌‌‌‌‌‌​​​​​‌‌​‌‍such a law ; it is simply whether it had the power to pass it.

In no proper sense can this statute be said to contravene the provisions of § 1 of the first article of our State Constitution, as claimed by the plaintiff. It may operate to exclude his son from school, but if so, it will be because of his fаilure to comply with what the legislature regards, wisely or unwisely, as a reasonable requirement enacted in good faith to promote the public welfare.

Nor in any proper sense can the statute be said to deprive the plaintiff of any right without due process of law, or to deny to him the equal protection of the law.

We think the demurrer was properly overruled.

There is no error.

In this opinion the other judges concurred.