Spofford v. Carleton

Braley, J. If the second paragraph of the regulations adopted by the respondents, who are the school committee of the city of Haverhill, relating to the admission of unvaccinated pupils is valid, the petition for a writ of mandamus requiring them to admit the three minor children of the petitioner to the public schools cannot be maintained. It reads as follows: “Every pupil in attendance at the public school, or who may hereafter be in attendance at such school, who has been given a certificate by a physician stating that such pupil is not a fit subject for vaccination, shall be required to renew such certificate once in two months; provided, however, that in the case of such pupil who fails to renew such certificate as required, such pupil will not be excluded from school until a period of two weeks after failure to renew such certificate.” The express requirement, that children must be vaccinated before they can be admitted to the public schools first appears in St. 1855, c. 414, § 2, which provides, that “The school committee of the several towns and cities, shall not allow any child to be admitted to, or connected with the public schools, who has not been duly vaccinated.” By this enactment which was continued in force by Gen. Sts. c. 41, § 8, Pub. Sts. c. 47, § 9, St. 1894, c. 498, § 9, vaccination was made a condition precedent to the right of a child to attend the public schools. See St. 1884, c. 64; St. 1885, c. 198. It was not until St. 1898, c. 496, § 11, that this requirement was modified by the words, “ except upon presentation of a certificate signed by a regular practising physician that' such child is an unfit subject for vaccination,” and the same wording is sub [531] stantially found in R. L. c. 44, § 6. It was unchanged by St. 1906, c. 371, when § 6 was recast, but by St. 1907, c. 215, § 6, was amended by inserting after the word “ certificate,” the words, “granted for cause stated therein.” By St. 1918, c. 117, an act to make uniform physicians’ certificates of exemption from vaccination, § 6 was further amended so that the certificate should be in conformity with the certificate required by R. L. c. 75, § 139, as amended by St. 1902, c. 190, § 2, and c. 544, § 10. The result is that § 6, as amended, is to be read in connection with St. 1902, c. 190, § 2, and c. 544, § 10. The certificate accordingly must contain the additional words “while such conditions continue.” See now G. L. c. 76, § 15; c. 111, § 183. The intention of the Legislature is clear that the exemption is not to cover absolutely the entire period of the child’s attendance, but the certificate is limited to the period when his physical condition is such that in the opinion of the certifying physician he is an unfit subject for vaccination. The respondents as the school committee of the city are given “general charge and superintendence of all the public schools. . . .” R. L. c. 42, § 27. G. L. c. 71, § 37. The scope of this power is pointed out in Morse v. Ashley, 193 Mass. 294, 296, Hammond v. Hyde Park, 195 Mass. 29, 30, and cases there cited. It is sufficiently broad to promote and secure not only the best interests of the pupils, but the general welfare of the community in the management of schools. The respondents had authority notwithstanding the certificates which the petitioner presented, and .which had been accepted when his children were admitted, to subsequently exclude them if an epidemic of smallpox had appeared. Hammond v. Hyde Park, 195 Mass. 29. It is true that in the case at bar thfs condition did not exist. But the uniform policy of the Commonwealth requires general vaccination as a preventive measure against the infection and spread of one of the most dangerous and highly contagious diseases with which mankind are afflicted. Commonwealth v. Jacobson, 183 Mass. 242. Jacobson v. Massachusetts, 197 U. S. 11. It is common knowledge, that a public school composed of pupils from all sections of the city may become at any moment a source of danger to the public health unless the laws relating to vaccination are strictly enforced. The argument is pressed by counsel for the petitioner that under [532] R. L. c. 44, § 3, as amended by St. 1911, c. 268, every child has the right to attend the public schools of the city or town in which his parent or guardian has a legal residence, or in which the child himself actually resides, if he is without parent or guardian, and that this right cannot be abridged by the school committee. But this section also provides that such attendance is subject to such reasonable regulations as to the number and qualifications of pupils to be admitted to the respective schools, and as to other school matters, as the school committee shall from time to time prescribe, and is to be read in connection with § 6, and amendatory statutes to which reference has been made, that the right of attendance may be made in some instances conditional. See Alvord v. Chester, 180 Mass. 20; Commonwealth v. Connecticut Valley Street Railway, 196 Mass. 309, 311. The precedent condition as limited by the statute is controlling, and the exemption ceases when the physical condition of the child has become such that his health will not be endangered, or impaired by vaccination. If to determine this further medical examination is necessary, it is wholly within the supervision of the parent or guardian, upon whom rests the burden of compliance with the law. The regulation is not as matter of law so unreasonable or arbitrary as to be invalid, nor is it discriminatory. Roberts v. Boston, 5 Cush. 198. Barnard v. Shelburne, 216 Mass. 19, 21. Wulff v. Wakefield, 221 Mass. 427, 429, and cases cited. The petition for the reasons stated must be dismissed. So ordered.