215 S.W.2d 967 | Ky. Ct. App. | 1948
Affirming.
These two consolidated actions were brought by appellants, D.H. Mosier and W.V.N. Stuart, as the fathers and next friends of their infant daughters, against the members of the Barren County Board of Health and of the Glasgow City Board of Education. The petitions asked that the two Boards be enjoined from enforcing a resolution each had passed requiring all school children to be vaccinated for smallpox, or else be excluded from the city schools. The chancellor in an exhaustive opinion refused the injunction, dismissed the petitions and this appeal followed.
In seeking to reverse the judgment appellants insist: 1. There was no reasonable apprehension of a smallpox epidemic, therefore vaccination was unnecessary. 2. The school board was without authority to enforce the regulations of the health board requiring vaccination. 3. Compulsory vaccination interferes with the constitutional rights of these children. 4. The two girls were not *831 physically fit to undergo vaccination and it would be detrimental to their health.
Dr. Paul S. York testified there was reasonable apprehension that smallpox might break out in Barren County due to the fact that Glasgow is located on Highway 31-E, one of the main arteries of travel between the North and South, and that many soldiers coming home from Europe, Asia and different parts of the world, where smallpox existed, were returning to and passing through Glasgow and Barren County. The testimony of five other doctors corroborated Dr. York. The record shows that smallpox is a very contagious disease which may be transmitted through the respiratory organs, as well as by persons coming in contact with objects which have been contaminated or infected. The record further shows that vaccination is not only a sure preventive against the disease but that it is practically safe.
Appellants argue with much force that there is not now, nor has there been, a case of smallpox in Barren or the surrounding counties in years and years and there is no reasonable basis for the apprehension of an outbreak of the disease in the county. The answer to this argument appears in Board of Trustees etc. v. McMurtry,
The State Board of Health adopted rule 64, which reads:
"No person shall become a member of any public or private school within the jurisdiction of this board as a teacher or scholar without furnishing a certificate from some reputable physician that he or she has become *832 successfully vaccinated within seven years, nor shall such person be permitted to remain a member of said public or private school as a teacher or scholar without being vaccinated at least every seven years."
As we understand the record, this is the rule which the school board is attempting to enforce.
Appellants insist that the Legislature has made no provision for the vaccination of school children and rule 64 was made by the State Board of Health under its general authority and the school board is without power to enforce it. They are wrong. It is provided in KRS
We might add in passing that it hardly behooves appellants to ask the aid of a court of equity in their effort to prevent the school board from requiring their children to be vaccinated, when KRS
But little space will be devoted to the question that vaccination violates the constitutional rights of these children. Massachusetts has a statute making vaccination compulsory, and Jacobson v. Commonwealth of Massachusetts,
Both appellants are chiropractors and Stuart pleaded that his religious and conscientious belief prevented him from subjecting his children to vaccination by injecting foreign substances into the veins; consequently, to enforce the resolution of the school board compelling him to have his children vaccinated would interfere with his religious freedom in violation of sec. 1, subsec. 2 of our Constitution and the 14th Amendment of the Federal Constitution. As pointed out in United States v. Ballard,
A learned and exhaustive opinion was written by Judge Tilford while a member of this Court, Lawson v. Commonwealth,
There may be no interference with appellant's, Stuart's, religious belief against vaccination, but he may not endanger the health of the community by refusing to have his daughter vaccinated.
Coming to the fourth and last ground relied upon by appellants for reversal, their daughters were not physically fit to undergo vaccination, it will suffice to say that the medical testimony in the record does not substantiate this claim. The preponderance of the medical testimony is to the effect that any child physically able to attend school can be vaccinated safely and without injury.
For the reasons given, the judgment of the chancellor is affirmed. *834