Rhea ex rel. Rhea v. Board of Education

Birdzell, J. Tbis is an appeal from a judgment entered in the district court of Ramsey county, wbicb dismisses the appellant’s action, quashes an alternative writ of mandamus, and awards costs to the defendant. Although an answer was filed and stipulation entered into by the respective parties, covering certain of the facts alleged, the matter was finally brought to a hearing before the lower court on a motion to quash the alternative writ of mandamus. The correctness of the judgment entered must therefore depend upon the sufficiency of the amended petition of the plaintiff and appellant. The proceedings were instituted by William F. Rhea, guardian ad litem of his son, Lawrence F. Rhea; the latter, at the time the suit was instituted, being a schoolboy thirteen years of age. The defendant is the school corporation of the special school district of the city of Devils Lake. The petition alleges all facts necessary to entitle the plaintiff to attend the public schools maintained by the defendant, unless his exclusion on the ground that he had not been vaccinated be lawful. The facts concerning his exclusion are alleged as follows: .“That on or about the month of July, 1917, the state board of health of the state of North Dakota, without any legal or other authority, attempted to pass and make and issued an order fixing and placing the time of vaccinating children, and directing that all school -directors and teachers be and they were thereby ordered to enforce this -regulation in their respective districts by requiring every pupil to give to certain authorities satisfactory evidence of vaccination before permission be granted to attend school. “That said state board of health on or about November 21, 1913, without any legal or other authority so to do, attempted to pass and make and issued the following rule and order, to wit: ‘No child shall be permitted to enter any school in the state until satisfactory evidence of vaccination has been given to the proper authorities.’ That said rule and order applies to and covers pupils of other schools in the state of North Dakota besides and other pupils than the pupils attending the public schools. . . . “That the board of education of said Devils Lake special district, — 453 — claiming to act under and pursuant to tbe above-attempted and illegal rules of tbe state board of health, bave unlawfully made an order, without authority, applicable to all tbe public schools of said Devils Lake special school district, requiring that all pupils shall be vaccinated before being admitted to such schools, and shall present a certificate of successful vaccination to the superintendent or teacher in charge before being admitted as pupils, and have unlawfully and without authority ordered that the superintendent of such public school refuse admission and to impart no instruction to children of proper school age until they shall first have complied with said order.” It is further alleged that the plaintiff is in sound bodily health, and has never been exposed to the infection or either smallpox or varioloid; that, at the time the order of exclusion was promulgated and enforced against him and for a long time past, there was and had not been a case of smallpox within the Devils Lake special school district; that the disease had never been epidemic within the state of North Dakota; and that there was no reason to apprehend the appearance of smallpox in the defendant district. The authority upon which the defendant relies to support its action in excluding the plaintiff from attendance upon the school is found in the sections of the Code which contain the expression of the powers of the state board of health and of school boards, and which require parents and guardians to have minors under their control vaccinated. Section 400 of the Compiled Laws of 1913 makes it the duty of the board of health: “3. To make and enforce all needful'rules and regu: lations for the prevention and cure, and to prevent the spread of any contagious, infectious, or malarial diseases among persons and domestic animals.” By § 1346, Compiled Laws of 1913, the boards of all school corporations are authorized to employ physicians as medical inspectors, and it is made the duty of the medical inspector to “co-operate with state, county, and township boards of health in dealing with contagious and infectious diseases.” Section 426 of the Compiled Laws of 1913 makes it the specific duty of principals, superintendents, teachers, parents, and guardians of children to refuse to permit any child having any contagious or infectious disease, including smallpox, to attend any public or private school. Also to refuse such permission to any child residing in any house in which any such disease exists or has recently — 454 — existed. Section 425 of tbe Compiled Laws of 1913 is as follows: “Each parent or guardian having the care, custody, or control of any minor or other person shall cause such minor or other person to be vaccinated.” Section 433, Compiled Laws of 1913, declares any person not complying- with the provisions of the article, of which § 425 is a part, to be guilty óf a misdemeanor and punishable by a fine of not less than $10 nor more than $50, or imprisonment in the county jail, or both. Other provisions of the Constitution and the statutes bearing upon the case are those defining, the public policy with reference to free schools and compulsory attendance. Section 147 of the Constitution makes it the duty of'the legislative assembly to provide “for the establishment and maintenance of a system of public schools which shall be open to all children of the state of North Dakota and free from sectarian control.” Section 1343, Compiled Laws of 1913, makes all public schools “at all times equally free, open, and accessible to all children over six and under twentyLone years of age residing in the district.” Section 1342, Compiled Laws of 1913, provides for compulsory attendance of children between the ages of eight and fifteen, and* § 1344, Compiled Laws of 1913, penalizes parents, guardians, and other persons failing to comply with the preceding requirements. The question for our determination is whether or not, under the foregoing statutes, the board of education of Devils Lake was legally justified in excluding the plaintiff from the schools on the ground that he had not been vaccinated. While the researches of counsel and our own investigations have failed to disclose the existence of any direct authority upon the exact question presented under the facts in this case, it appears that there axe-ample precedents for the principles which we deem controlling. Boards of health and boards of education possess only such powers as the statutes confer upon them. The power to legislate cannot be delegated to them, but when the legislative policy is determined by the competent legislative authority ample administrative powers may be vested in executives or boards to the end that the legislative rule may be properly enforced. Marshall Field & Co. v. Clark, 143 U. S. 650, 36 L. ed. 294, 12 Sup. Ct. Rep. 495; State ex rel. Adams v. Burdge, 95 Wis. 390, 37 L.R.A. 157, 60 Am. St. Rep. 123, 70 N. W. 347. — 455 — There being no statute in this state making vaccination a condition precedent to the right to attend the public schools, we are not confronted with the question of the constitutionality of such a statute, and it is consequently improper to express an opinion concerning the same. We are only called upon to determine the meaning and scope of.the statutory provisions previously referred to. Bearing in mind the rule that statutory boards possess only the authority vested in them, the maxim “expressio wvius est exclusio ulterius” applies with peculiar force where a statute, while clearly defining a duty to exclude pupils from schools on the ground of the danger of spreading contagious and infectious diseases, does not include nonvaccination as a ground for exclusion. This statute, § 426, Comp. Laws 1913, predicates the exclusion either upon the ground that the pupil is infected or that he comes from an infected habitation. It would seem, if it were intended that nonvaccination should be considered a reason for withholding permission to attend schools, that it would be included in any enumeration of the grounds for exclusion in a statute such as § 426, supra. This appeals with peculiar force here, as the compulsory vaccination statute is the immediately preceding section of the same chapter, both being adopted at the same time. See Sess. Laws 1893, chap. 90, §§ 13 and 14. We are of the opinion that the failure to include non-vaccination as a ground for excluding a pupil from attendance at school, in § 426, Compiled Laws of 1913, is a strong indication that such .a power was not intended to be given, either to the board of health or a board of education. But it is contended that, since § 425 of the Compiled Laws of 1913 requires the vaccination of minors generally, it was proper for the state board of health to promulgate an order which would not affect adversely, anyone who had complied with the statute. The failure to comply with the compulsory vaccination statute results in making the one who thus fails guilty of a misdemeanor and subjects him to the prescribed punishment. It is not particularly the function of the board of health to compel compliance with this statute. The board is not the public prosecutor. Even the public prosecutor could not compel vaccination. He can only punish for violations of the statutes, and to exclude one from school on the same ground would be to add a penalty not included in the statute. The powers of the board of health are limited to — 456 — such needful rules and regulations as may be required for tbe prevention and spread of contagious and infectious diseases, and tbe fact that tbe legislature bas purported to make vaccination compulsory does not add to or subtract from tbe scientific data upon wbicb tbe board of bealtb may determine wbetber or not a proposed rule or regulation is “needful.” The authorities uniformly bold that a board of health, constituted as our board of bealtb is, possessing requisite general powers for tbe prevention and spread of contagious diseases, cannot promulgate and enforce rules which merely have a tendency in that direction, but wbicb are not founded upon any existing condition or upon a danger not reasonably to be apprehended. Potts v. Breen, 167 Ill. 67, 39 L.R.A. 152, 59 Am. St. Rep. 262, 47 N. E. 81; Lawbaugb v. Board of Education, 177 Ill. 572, 52 N. E. 850; People ex rel. Jenkins v. Board of Education, 234 Ill. 422, 17 L.R.A.(N.S.) 709, 84 N. E. 1046, 14 Ann. Cas. 943; State ex rel. Adams v. Burdge, 95 Wis. 390, 37 L.R.A. 157, 60 Am. St. Rep. 123, 70 N. W. 347; Blue v. Beach, 155 Ind. 121, 50 L.R.A. 64, 80 Am. St. Rep. 195, 56 N. E. 89; Mathews v. Kalamazoo Bd. of Edu. 127 Mich. 530, 54 L.R.A. 736, 86 N. W. 1036. In an apparently contrary authority in North Carolina, Hutchins v. Durham, 137 N. C. 68, 49 S. E. 46, 2 Ann. Cas. 340, it nevertheless appeared that the general powers were exercised during a violent epidemic. The authorities principally relied upon by counsel for the respondent will be found to sustain one of two general propositions with which we are not concerned in the instant case. They either support the right of a board of education or a board of health to make vaccination a condition of attendance at school where there is an express statute or ordinance to that effect, as in State v. Hay, 126 N. C. 999, 49 L.R.A. 588, 78 Am. St. Rep. 691, 35 S. E. 459; Morris v. Columbus, 102 Ga. 792, 42 L.R.A. 175, 66 Am. St. Rep. 243, 30 S. E. 850; Re Viemeister, 179 N. Y. 235, 70 L.R.A. 796, 103 Am. St. Rep. 859, 72 N. E. 97, 1 Ann. Cas. 334; People v. Ekerold, 211 N. Y. 386, L.R.A. 1915D, 223, 105 N. E. 670, Ann. Cas. 1915C, 552; Duffield v. Williamsport School Dist. 162 Pa. 476, 25 L.R.A. 152, 29 Atl. 742; Bissell v. Davison, 65 Conn. 183, 29 L.R.A. 251, 32 Atl. 348; Com. v. Pear, 183 Mass. 242, 67 L.R.A. 935, 66 N. E. 719; Stull v. Reber, 215 Pa. 156, 64 Atl. 419, 7 Ann. Cas. 415; State ex rel. McEadden — 457 — v. Shorrock, 55 Wash. 208, 104 Pac. 214; Abeel v. Clark, 84 Cal. 226, 24 Pac. 383; and French v. Davidson, 143 Cal. 658, 77 Pac. 663; or they support the right of such boards to exercise the power to compel vaccination or exclusion as a means of controlling and preventing the spread of the disease during an actual or reasonably imminent epidemic, as in Com. v. Pear, 183 Mass. 242, 61 L.R.A. 935, 66 N. E. 719; Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765; Blue v. Beach, 155 Ind. 121, 50 L.R.A. 64, 80 Am. St. Rep. 195, 56 N. E. 89; State ex rel. Freeman v. Zimmerman, 86 Minn. 353, 58 L.R.A. 78, 91 Am. St. Rep. 351, 90 N. W. 783; State ex rel. O’Bannon v. Cole, 220 Mo. 697, 22 L.R.A.(N.S.) 986, 119 S. W. 424; Glover v. Board of Education, 14 S. D. 139, 84 N. W. 761; Zucht v. San Antonio School Bd. — Tex. Civ. App. —, 170 S. W. 840; State ex rel. Cox v. Board of Education, 21 Utah, 401, 60 Pac. 1013, and Hutchins v. Durham, 137 N. C. 68, 49 S. E. 46, 2 Ann. Cas. 340. See also L.R.A.1915D, 223, note. We are in no wise disposed to question the latter of these two propositions; and, since the former involves a constitutional question not presented in this case, judicial propriety requires that we should refrain from expressing an opinion. For the foregoing reasons the judgment appealed from is reversed.