215 Pa. 156 | Pa. | 1906
Opinion by
The substantial question in this case is whether the Act of June 18, 1895, P. L. 203, requiring the exclusion from the public schools of children who have not been vaccinated is a valid exercise of the police power of the state. It has been twice so decided by this court. In Duffield v. School District of Williamsport, 162 Pa.476, asimilar regulation not even enacted by the legislature but enforced by the school directors under an ordinance of the city of Williamsport was held valid. And in Field v. Robinson, 198 Pa. 638, this very statute of 1875 was held constitutional. It appears to be thought that because the decision was given in a brief opinion per curiam the subject was not fully considered. But the proper inference is precisely the reverse, that the conclusion was so perfectly clear to the whole court that it did not require any extended argumentative support.
After these two decisions the question ought to have been considered as closed. But we have it raised again with small variations of facts and considerations, none of which are at all material.
On the constitutional question it is said that section 12 of the act contravenes sections 7 and 8 of article III of the constitution in that it is local and special legislation, regulating the affairs of school districts. The terms of the act apply expressly to the “several municipalities ” of the state, and it is argued that they do not include school districts in townships and therefore make an unwarranted distinction in regard to such districts. Whether townships are municipalities within the intent of the act it is not now necessary to consider. Even if not, the separate classification of school districts in cities and boroughs with reference to public health where population is dense and the danger of contagion great, would not be unconstitutional : Sugar Notch Borough, 192 Pa. 349.
But the act is in no proper sense a regulation of school districts. It is an act entitled “ for the more effectual protection of the public health in the several municipalities of the commonwealth ” and is a general statute on that subject. What bearing it has on schools and school districts is altogether incidental to them as constituents of the community. The constitutional restrictions on special legislation apply to direct legislation, not
It is further said that sec. 12 contravenes sec. 1 of article X of the constitution, requiring the maintenance of an efficient system of public schools wherein all children above the age of six years may be educated. It is sufficient to say that this article like all others must be construed and applied in connection with other fundamental governmental powers. The schools and school children, important as they are, are only fractions of the community and the police power of the commonwealth in the preservation of the public health must, if necessity arises, sacrifice the less to the greater interest. Salus populi suprema lex. If a child manifestly suffering from smallpox in its contagious stage should be excluded from school, it is hardly conceivable that the propriety of such action should be questioned. At what period before or after the outbreak of the disease the right of exclusion should arise is a legislative not a judicial question. As said by our late Brother Williams in Duffield v. School District, 162 Pa. 476, already cited : “ It is conceded that the board might rightfully exclude the plaintiff’s son if he was actually sick with, or just recovering from, the smallpox. Though he might not be affected by it, yet if another member of the same family was, the right to exclude him notwithstanding he might be in perfect health, would be conceded. How far shall this right to exclude one for the good of many be carried ? That is a question addressed to the official discretion of the proper officers ; and when that discretion is honestly and impartially exercised the courts will not interfere.” These words it should be remembered were written with reference to authority exercised under a city ordinance, and a fortiori when the police power of the state intervenes under the authority of a statute its directions are commands that may not be disputed.
It is further argued that sections 11 and 12 of the act should be read together, and the right under section 12 to exclude unvaccinated children should be confined to the schools in the districts mentioned in section 11, namely, those in which smallpox is actually prevalent. But this is manifestly not the legislative intent. Section 11 deals with a present and immediate danger, with- persons, dwellings and places where the disease
In this connection the learned judge below found as a fact “ that there is not at the time of the filing of this bill, nor has there been for a period of about forty years any person in the said borough of Waynesboro or within many miles thereof, suffering from smallpox (variola or varioloid).” And it is argued that this feature distinguishes the case from those heretofore decided by this court. But the language of the act is general and its intent plain. The legislature may well have had in mind that the good fortune of such a community may not continue indefinitely. Immunity for forty years in the past affords no guaranty of immunity for even forty days in the future if a chance visitor from an infected locality or a borough resident returning from a visit to such locality should bring with him the germs of infection. Section 12 is precautionary and preventive, and it is an old and sound maxim that an ounce of prevention is worth a pound of cure.
There is one hardship in the twelfth section that may deserve consideration with a view to a possible remedy. The court below found as a fact “ that occasionally it is beyond the power of children of school age as well as adults to be vaccinated, although they may not previously have had smallpox nor previously been vaccinated; that even repeated attempts to perform the operation of vaccination upon such children or adults is without effect and vaccination will not take. In such cases vaccination is not successful and a physician cannot certify that such child or adult has been successfully vaccinated.” The health authorities, state or local, might well consider whether they have power to make a regulation as to what should be deemed a successful vaccination or its equivalent; whether the ratio of such immune children is of sufficient importance to justify the exercise of such power if possessed; and whether such regulation.would be undesirable as affording opportunity for the evasion of the statute. The latter, however, are medical and administrative rather than judicial questions.
Lastly, it is argued that construing section 12 as we have
One expression in the opinion of the court below, and in some of the cases cited in the argument, requires a passing note. The act is not a penal statute. It is a broad general act relating to the health of the whole population of the commonwealth. It is not, therefore, to be construed or administered by the rigid technical rules applicable to penal laws, but fairly according to its intent, neither narrowing it to the letter, to the exclusion of cases clearly within such intent, nor stretching it beyond its legitimate scope to cover matters not clearly meant to be included. It is an act touching very closely common rights and privileges and therefore specially requiring a commonsense administration.
Decree affirmed.
