Streich v. Board of Education of Independent School District

WHITING, J. [1] This is an appeal from- an order refusing a peremptory writ of mandamus. The sole question presented is the right of respondents to require, oif the children seeking admission into the school's under their charge and as -a condition to their admission, the furnishing of a certain report. For several years there has been in force in said sdroofe, a resolution requiring pupils, -at the beginning of each school year, to obtain and furnish what is termed .a “Pl^sioal Record Card.” One side of this card is to :be filled out 'by the teacher, the other by some regular licensed physician. It is optional with, the pupil and parents whether such physician, bie of their own 'selection and the examination at their own expíense, or such examination be made and card filled out by a 'physician furnished by respondent board and at the expense of the school district. The side of the card to. be filled out by the teacher is in words as follows “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 — 174 — in tuition shall be without charge, anidf which shall be equally open to all and free from sectarian control; -he also, calls attention to the fact that the statute hasi fixed but two qualifications for admission to a school — that the piupdl must be of school age and must reside within the school district; ‘and1 he contends that there 'is no law of this state conferring upon teachers or school 'Officers any power or authority to make and enforce any additional requirement for such- admission. He Contends that, “Matters of government, legislation and ‘regulations relating to health of the people come within the police powers ■ of the state over which, "tíre legislature alone ha's control;” [that “The legislature * * * has conferred such power * *• * upon a Board of Health and Medical Examiners;” that, “The ■ legislature has lodged in the State Board of Health all authority and power relating to1 'health and! he'alth regulations which it has 'seen fit to delegate to any controlling body or board.” Conceding that the action of respondent board in requiring the “Physical Record Card” was a matter of government, wasi legislation, and was a regulation relating to< the health of the pupils — which at least might be one of the incidents ¡to or results flowing from, s-uch action of -the board1 — and conceding that the police power of the state has been by the people committed to (the control of the legislature, yet it does not follow that, 'because the legislature has delegated certain police powers 'to some specific board, another board or corporate body is denied the exercise of this same power to such extent as may be necessary to carry out the •purposes for which such board or body was; created; certainly no such claim can be made in a case where such board or body was created or authorized by that very legislative department in whom all police power is primarily entrusted by the people. Respondents contend that there is conferred upon every municipal or quasi-municipal corporation, by necessary implication based upon the law of necessity, the right to exercise such police power as is needful for the carrying out of those purposes for which such o’o'rpióiration or' quasi-carp oration has been established. It is therefore conceded by both parties that the power sought to be exercised by respondents belongs to1 what is known as “police power;” and the solé question presented is the authority of respondents to' invoke and exercise this particular — 175 — power under the circumstances existing at the time of its ex'ercise. 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 — 176 — that keep's miore in step with human progress than does the exercise of this power; but, while this -fact is evidenced to a certain degree by current legislative aniaatmentB, yet for the reasons above stated, it is upon .tire courts that the people mainly rely for such recognition of changing conditions and such careful supervision 'Over the exercise of this far-reaching and all-important ¡power as will properly guard the rights both of the individual and of the public. To the legislature is given the power to create and to authorize 'the creation of municipal and quasi-municipal bodies through which, as governmental agencies, the public welfare is sought to ibe promoted; hence we have townships, towns, cities, counties and school districts. 35 Cyc. 817; Associated Schools etc. v. School Dist., 122 Minn. 254, 142 N. W. 325, 47 L. R. A. (N. S.) 200. Each of such agencies 'has a certain work to perform in the promotion of such public welfare. Necessarily incident to the creation and existence of one of -these political entities is the power to provide (those rules and regulations upon -the proper enforcement of which depends its ability to perform the particular function for which it was created. While express legislation may give to such agency certain express police powers, -it should never he held that the naming of these powers precludes it from exercising -any other powers; but it should be held that upon the creation of a municipal body, it becomes possessed- of all necessary and- reasonable police power, and that express enactments- relating to the police power of such body do not curtail the necessary -and- reasonable polic-e powers of such body except where it is clear that it" was 'the legislative intent to so curtail -them'. The following words, -though spoken of a -city, are just as applicable to other bodies created as governmental agencies.: “The police power primarily inheres in the state; but the legislature may, and -in common practice does, delegate a large measure of it to municipal corporations. The power thus delegated may be conferred in express terms., or it may be inferred from the mere fact of the creation of the corporation. The -Jo-called inferred or -inherent police powers of such corporations -are as -much delegated powers as are those conferred in express terms, the inference of their ‘ delegation growing -out of the fact of -the creation of the corporation, and -the additional fact that the corporation can only fully accomplish the objects — 177 — of its creation by exercising such powers.” City of Crawfordville v. Braden, 130 Ind. 149, 28 N. E. 849, 30 Am. St. Rep. 214, 14 L. R. A. 268. The legislature of this state has not forbidden school . districts the exercise of such police power as may be reasonably necessary to- insure the proper discharge of the work for which the districts are created. In determining whether, in a given case, there has been a- reasonable exercise of this inherent power, the court must consider the .particular facts of that case; each case must stand by itself. [2] Appellant urges that respondents were adding to the qualifications for admission prescribed by law. There is no merit in this contention; one might as well contend that to require a pupil to take his term examination to ascertain his progress. in school work, was the adding of a qualification for membership in the school. Under the regulation complained of, no person is excluded from the schools except upon his own volition. Respondents merely seek to learn those things, concerning the mental and physical condition of the pupil, which they think useful and needful in the proper discharge of -the functions of the school and especially in the proper handling of the individual pupil. The report asked for would lead to- -the exclusion of the pupil only when it showed that the child was not of school age, that it was not a resident of the district, or, if -the respondents so ordered,. when it showed that the child was then suffering from some disease rendering, it a menace to its associates. 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 — 178 — the right to exercise such police power as is 'reasonably necessary in carrying out the duties imposed upon it. 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.” [3] Appellant urges that physical culture, athletics, and the cultivation of vocal talent are -mot among the things prescribed by Statute to be taught in the public schools; that, inasmuch as they are not so prescribed, ia pupil cannot he required- to take this part of the course provided'; and that, for these reasons, there exists no grounds for 'requiring .any physical report seeking information to be used in coinneation with 'this part of 'the school wiork of respondents’ scho'ols. While the statutes doi not prescribe these 'and many other things norw- provided for in the up-to-date school of today- — especially in the schools of the larger cities where sufficient .revenue can be raised with which the necessary teachers and equipment are secured — yet there is nothing in such statute's forbidding school districts 'to' provide for instruction' in branches other ¡than those 'specified therein; and when the taxpayers of a school district have furnished the needed revenues, and- the school officers have supplied the teachers and equipment, every child 'attending the school has- a, right to share the benefits in so far as he is 'physically and mentally able. It is not necessary for us, at this time, to intimate any views on the power of respondents to require pupil's to pursue studies not prescribed by statute, for the reason that it does not ap — 180 — pear that appellant ever advised respondents, nor did he advise the trial court in this action, that 'he did not wish bis children to take the courses in physical culture, athletic exercises and vocal culture. The information sought through these reports would necessarily lend to aid respondents in giving to appellant's children the greatest benefit possible in pursuing -these additional courses ‘provided for them. 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? [4] Does the furnishing of this report necessitate such a physical examination->as amounts to an-unreasonable violation of a sacred right, and, therefore, the requiring of this report amount to an unreasonable exercise -of police power? It is certainly clear, for all the reasons hereinbefore stated, that this is a reasonable exercise of the police power unless it is made unreasonable from the fact that it is such a violation of personal right as is not justified 'by the- end sought. Appellant urges that, “The rule in question compelled the plaintiff’s children to- submit, .either to -a trespass upon their most private and -sacred rights — 181 — or yield lip their right to attend the public schools conferred up-' on and granted to them by the state.” It-seems to its that appellant confesses -that he has no standing, under the -fact-s before ns, when he says in bis brief: ■ -• ‘‘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. — 182 — [5] In appellant's brief it is, urged that the examination, called ' for may result in such mental suggestion of diseases as may result in mental -disease germs. Counsel lias quoted1 an article in support of such contention, but he has failed to point out how the examination called for need, in -any manner, suggest disease to the child, the child -need not know the contents of the report. If such .an examination is a menace to a child’s health owing to1 the danger of mental .suggestion, the s'tu-dy of physiology and hygiene should be banished from ou-r schools. The time may come when the contentions of appellant will become the accepted doctrine of the clay; but counts must follow tire -accepted doctrine of the present, -except when-, through competent evidence submitted, the fallacy of a particular -doctrine is established. No question of therapeutics is presented by this appeal. [6] Appellant’s brief suggests that the requiring of the physical examination of appellant’s child against appellant’s wishes is “an invasion of the rights of citizens under the constitution and laws of the land, and the higher right of the freedom of his mental 'determination of -that which to him -constitutes the mos-t sacred right, and to him it may be a part of hi-s worship of Deity.” In these last words we might conclude there was to be found the real foundation -of appellant's opposition to- the rule which he is seeking .to have set -aside, were it not for the fact that his eo-unsel, upon the -oral argument of this -cause, repeatedly assured this- court that the question -before us was in no sense a religious question but one -entirely 'separate -and distinct from anyone’s religio-us belief. We agree fully with counsel, as certainly the school-boards of our land, in maiding rules for the control of our public school®, should- -not -base the same upon the tenets of -any particular re-ligioUis sect or -s-e’cts. 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.