147 N.W. 779 | S.D. | 1914
“Physical Record Card — •Aberdeen Public Schools, S. D. School . Grade . Date ....
Name . Age .
Parents’ Name . Residence .
Nationality . No. in Family — Adults .
Children . Weight . Height Posture .
Activity — Physical . Mental Mouth Breather....
Attendance . Behavior •
Delinquency in Studies
Nasal Voice . Offensive Breath
Fairs — R.. D
Eyes — R . F
Vaccination Scar Fever
Teacher.”
The other side is in w'ords as follows:
'History of Contagious Diseases ...
*173 Heart . Hungs .
Throat, Tonsils, etc..
Skin Diseases . Spine .
Dental Examination.
Permanent teeth needing attention — number .
Temporary -teeth needing attention — number .
(Diagram1 of Teeth)
Teeth or roots to be extracted .¡Yes.... No. ...
Do the -teeth need- cleaning (by dentist) .Yes... . No... .
Has the child any abscesses in mouth .Yes.... No....
Has the child irregular teeth .Yes.... No....
Recom.miendaltjiolnsi .
Results .
Medical Examiner.”
Appellant has two children of school age entitled to the privileges of the school® under respondents’ charge. These children sought admission into such schools at the beginning of the current school year; they were requested to furnish the above card properly filled out; this appellant refused to permit; and they were 'denied admis's-ion.
Upon this appeal, blue right and propriety of requiring the teacher’s report i-s conceded. Appellant’s contention is thus stated in his 'brief:
“It is ¡the contention of the plaintiff, that upon the facts shown 'by the record, plaintiff had a right to have bis children admitted as pupils- in said schools without their submitting to such or any physical examination and that the defendants had no power -or authority, under the laws and 'constitution of South Dakota, to require that plaintiff’s -children submit to a physical examination as a condition, precedent' to he performed by them before they would be admitted as pupils, in said schools, and that -defendants had no legal authority to deny -them admission as pupils therein because they failed to present such card -and refused to submit to1 such physical examination by a licensed physioian.”
Appellant. calls attention to those provisions of our -constitution imposing upon the legislature ¡the duty to establish and maintain -a general- ¡and' uniform system- of public schools, where
It is clear that all police power is based upon necessity and upon the inherent right of self-preservation possessed by all political bodies, and is therefore a power which has been recognized and exercised from the time men first associated together; it “is that inherent or plenary power which enables the 'state to prohibit all things hurtful to the comfort, safety, and welfare of society, and may be termed the law of overruling necessity.(Chicago v. The Gunning System, 214 Ill. 628, 73 N. E. 1035, 70 L. R. A. 230, 2 Ann. Cas. 892) ; it “is the name given to that inherent sovereignty which it is the right and duty of -the government or its agents to exercise whenever public policy in a broad sense demands for the benefit of society ait large, regulations to guard its morals, safety, health, order, or to insure in any respect such economic conditions as our advancing civilization of a highly 'Complex character requires.” (8 Cyc. 863.) While it is possible to clearly define the nature of this power, and, in a general wiay, to point out the scope and extent thereof, yet it would be utterly impracticable — and- in fact’ inconsistent with that very law of necessity upon which police power rests ■ — for the law making power, except -in rare cases, to undertake to restrict, within fixed bounds, the exercise of this power by ‘the several political agencies through which the various functions of giovernment are to- be performed. This becomes very apparent when one contemplates the new and ever-obanging social, economic, and political conditions resultant from the physical, intellectual and -moral evolution of the human race, which, as well as the peculiar conditions existent in a particular locality, may, from very necessity, call for continual changes in the exercise of this power. Whait was a reasonable exercise thereof in the days of our fathers, may today seem so utterly unreasonable as to make it difficult for u-s to comprehend the existence of conditions that would justify same; what would by our fathers have -been rejected as unthinkable, is today accepted as the most proper and reasonable exercise thereof; and what would be a proper exercise thereof under conditions existing in one place would, at the very same time, be improper under the conditions existing in another place. There is nothing known to the .law
Appellant has cited -many cases in which it has been held that it is beyond the power of a school board to require pupils to be vaccinated as a condition precedent ¡to attending scho'ol. Such decisions have no application to the question before us; it is one thing to say that requring a report from which the board may learn the physical condition of a child i-s a reasonable exercise of police power, and quite another thing to say that a rule prescribing a certain method of medical treatment i's -a reasonable exercise of the police power; and yet this count 'has held that, under certain conditions, the requiring that pupils be vaccinated is a reasonable exercise of the police power. Glover v. Bd. of Education, 14 S. D. 139, 84 N. W. 761. By so holding this court recognized that to- the 'school -board there is delegated
Was .the information sought such as would tend to promote the welfare iof the child ¡himself in his school work, as well as to promote the well-being of the school a's a whole? Respondents, in the return to the alternative writ issued herein, referring to the -rule requiring ithe furnishing of the report, alleged:
“That said rule and regulation was adopted and enforced by said Board for 'the purpose of guarding and' protecting' the community and the pupils1 'attending upon1 said 'schools1 against the spread of contagious and infectious diseases and for the purpose of ascertaining and' determining 'whether the attendance of ’any pupil upon 'any of said school's would be a menace to the health of other pupils and to the community alt large on account of any disease with which they might be afflicted.”
By 'stipulation of parties the following allegations in respondents’ answer lane admitted to be true:
“That since (the adoption and enforcement of the aforesaid rule and' regulation of the Board1 of Education upon the opening of the school in the year 1911, the general condition of the children .as to their healthfulness bias greatly improved and no epidemics of contagious or infectious diseases have -broken out in the schools or caused the closing of the schools, since that time, although contagious and infectious diseases have been epidemic during the school year in ithe city, and in- former years prior to the adoption of said rule it had been carried into the schools to the detriment of the schools and spread through the community, -and that since the adoption of said rule the general condition of 'the 'school® ¡as to cleanliness -and freedom from ñ-lthy vermine has greatly 'improved1 until it has been practically eradicated by the enforcement of this rule.”
Can it be successfully contended that, because the statute has entrusted to some particular board1 the general supervision of matters' pertaining to the health of our people, that by implication they have forbidden school boards from bringing about results such as above, when it can be done by requiring reports such as the one before us?
Respondents further allege in their return:
*179 “That physical culture ancl athletic exercises aniel the1 cultivation of vocal talent were and are among the regular parts of the regularly adopted course of instruction and exercises in said school and said rule and1 regulation was further adopted and is enforced for the purpose of ascertaining and determining whether any pupil presenting himself for 'enrollment in said schools or .for attendance therein 'had or has any physical defeat or ailment or imperfecitions so that such exercises regularly engaged in by other pupils would he dangerous or detrimental to the health of said pupil or pupils, 'and such rule and regulation was further adopted and is enforced for the purpose of ascertaining and determining whether 'any pupil has such physical defect that requires special assistance or attention in 'the regular prosecution of his or her studies, in order to maintain its regular position in its classes1 and whether such pupil requires any special attention or provision to be made for it as to its position in its classes while attending recitations/ so as to» 'be able to hear and see and secure full benefit of ¡the work in such recitation period.”
Was the source from which the information was required a proper -one from which -to seek same? If is evident that this information to be entitled to due consideration, should come from some one having expert knowledge of the matters therein referred to; it could -not be furnished by -the parent nor the teacher. It is true that much of it could -be .as well furnished by a -competent dentist, hut -there is some which he could not furnish, and it all -could be furnished by a competent physician. Recognizing the value to so-oict)- of that learning and skill possessed by the members of -the so-called “learned professions,” among which is the medical, and also realizing- the danger to society that comes from the practice of some of these profession's by those who have little or no skill and learning- therein, there have been enacted laws requiring of -those seeking to practice certain professions, among them the medical, the procuring of a license authorizing them to practice such professions, which license is based'''lipon a-n examination provided for by law. Can any -owe contend, as a legal proposition, that an expert, -licensed as such under the laws of our state and- so licensed 'because he has passed the very examination prescribed! -by law, is not a proper person from whom- to -seek information peculiar to his special field of knowledge?
‘‘If" a physical examination of the child were absolutely necessary as a prerequisite to -its admission -to classes receiving instruction in -physical culture, but i-ts -parent 'objects to the- child submitting to -such phj's-ical examination, then a rule providing that unless the-child submitted- to such physical examination he would be denied admission to .those particular classes, might be upheld as being reasonable.”
1 f the right of a -child to be protected from such, a physical examination as this “Physical Record Card” calls for is a sacred right, we cannot see how any rale, which would deprive a pupil of the right -to take any part of a course lift-less it sub-mill ed to such examination, could be a “reasonable” rule; hut, if the examination would be “reasonable” as a condition precedan to instruction in these extra courses-, it was “reasonable” under the facts before us.
Need a child suffer any indignity or a violation of any sacred rigid by submitting -to such physical examination as would be necessary in. order that a physician might fill out the report called for? Appellant did not prove, nor do we find- anything in the report requiring, that -there need be any exposure, of th-e person of the child or any manipulation, of 'its- body such as would shock the sensibilities of the most refined person. Here again, w-e -must not overlook the person who -makes the examination; the conventionalities of -our time recognize the absolute propriety of submitting one’s body to. the examination of a physician, whenever -such examination is made for the purpose of gaining; information concerning- one’s -physical condition. The established customs. — the conventionalities of the time — are matters to be considered in determining- tibe reasonableness -of a particular action; therefore a -thing may be -reasonable though it conflicts -with- the individual views of the few if it conforms to that of the many. Such -an examination as the report calls for could not subject -a child to anything mot ’‘in perfect harmony with the -conventions of tod-ay, could not subject it to indignity, and would be reasonable.
Repeating -again- that the 'reasonableness -of -any rule involving’ the -exercise of police power must -dep-enid upon the particular circumstances surrounding -the making of the rule, and that, for that .reason, each case must stand by itself, -we- have no hesitancy in holding -that tire requiring of the report in question was, under all the surrounding conditions, reasonable. The judgment appealed from is affirmed.