30 Misc. 2d 1039 | N.Y. Sup. Ct. | 1961
This is a motion for summary judgment. The defendant board on April 19, 1960 passed the following resolution: “ Resolved, that any child entering the school system, either transferring in or entering kindergarten or first grade, effective September 1960, must present a certificate of vaccination against smallpox.” The plaintiff refuses to permit his five-year-old son to be vaccinated against smallpox because he does not believe in vaccinations and believes them to be detrimental to the health of his children. No medical or other proof has been submitted by the plaintiff to substantiate the plaintiff’s belief. The defendants have refused and still refuse to permit plaintiff’s infant son from attending school until a certificate of vaccination against smallpox has been presented. Section 2130 of the Public Health Law provides that a child who has not been vaccinated against smallpox shall not be admitted or received into a school in a city having a population of 50,000 or more inhabitants. Said section of the Public Health Law also provides if smallpox exists in any other city or school district, or in the vicinity thereof, and the Commissioner of Health shall so certify in writing to the school authorities, then it becomes the duty of such school authorities to exclude all children not vaccinated.
The above sections are mandatory and must be complied with. It is the contention of the plaintiff that, without an act of the Legislature, the defendant board is without authority to require such vaccinations.
The defendant board contends that smallpox is an acute and highly contagious disease necessitating strict measures of treat
Section 200 of chapter 661 of the Laws of 1893, from which section 2130 of the Public Health Law was derived, provided: “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 ”.
Vaccination for smallpox is mandatory in the areas and under the circumstances covered by the provisions of section 2130 of the Public Health Law. The fact that the Legislature has not enacted a law requiring all children or persons to be vaccinated against smallpox before being admitted or received into the public schools of this State now raises a question as to whether or not the defendant school board was without authority or the power to pass the vaccination resolution. “ The experience of the race has taught that to protect the health of communities, to protect the health of man, precautions must be taken against the spreading of disease; and vaccination is necessary to prevent not only sickness of the person not vaccinated, but consequences to those with whom such person might come in contact after being attacked and ravaged by the disease which vaccination prevents.” (Matter of Whitmore, 47 N. Y. S. 2d 143, 145.)
Vaccination against smallpox has universal acceptance. As far back as 1914, although relating to the former statute requiring compulsory vaccination of all children admitted to public schools, the Court of Appeals in the case of People v. Ekerold (211 N. Y. 386, 392) stated: “ The question which within certain limits is presented here is whether the statute and the bylaws of the board of education in that city adopted under and in accordance with the statute requiring vaccination as a condition of attending the public schools, are under ordinary con
This application is made pursuant to rule 113 of the Rules of Civil Practice and if it appears that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross motion. It is the decision of this court that the defendants are entitled to summary judgment in their favor and the plaintiff’s complaint is dismissed, with costs.