The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-06-06
.OFGREAT INTEREST
Is the Decision Of Judge PAUL. Sin
characterization Case.
HE CONCLUDES THE BOARD

HE CONCLUDES THE BOARD
or Education has not the Power TO
Compel Vaccination When There Is
not Imminent Danger of an Epi.
dcmic of SmalI.pox--ThcD Decision Is
Supported by Number. of Legal
Decisions Which arc Cited by tho
Court.
A decision Of great interest through
out this state-and even beyond West
Virglna-was handed down yesterday
by Judge Paul, of the Ohio county cir
cult court, In the case Of Albert Bau-
mann and others vs.. the Board OF Edu-
cation Of the school district Of Wheel
ing. and Mary Reppeto. Mr.. Bau-
mann's child was ordered to be vaccin-
ated by Miss Reppeto. principal Of
Webster school In this city. before 1t
would be enrolled. the principal acting
on rules of the board Of education. The
child's parents determined to test the
matter, and suit was entered as stated
above. Judge Paull's decision is In eff
feet that children cannot be required
to be yaccnuted when there Is not I'm
mlnent danger OF an epidemic of small
pox. His decision In full Is as follows:
Albert Baumann and others VS.. the
Board of Education OF the School Dis
trlct Of Wheeling, and Mary D. Rep
'petto.
This is q petition for a writ OK man.
damus to compel the defendants TO per-
init the petitioners to attend the Sixth
ward, or Webster, school OF the city of
Wheeling, from which they have been
excluded because OF their refusal TO be
vaccinated us required by rule 100 OF
said board.
In State VS.. Burdge, 95 wis. 800, 60
Am. st. Rep. 1913 1t was held: .'Conced-
Ing that state board of health has
power TO make a rule excluding from
the public schools children who do not
present certificates Of vaccination, such
rule Is not valid exercise Of the
police power Of that board. but void, on
account Of It's unreasonableness and eX.
traordinary character where, at the
time OF its adoption. there Is no appar-
ent or immediate necessity for Its ex-
istence: and no such necessity for the
enforcement OF rule of that kind, In
particular locality. is shown by the eX-
istence OF few cases of smallpox scat
tered throughout the state, and of but
one in the locality. which has been
properly quarantlned, II there is no epi-
demic of smallpox existing In the
state"
In Potts VS.. Breen, 167 III. 67,59 Am.
St, Rep. SO, It was held: 1.-THE directors
OF n public school have no right. either
under their own rules. or by order OF
state board Of health. to exclude chill
dren who refuse to be vacclnated, IN
less 1t is necessary, to prevent the con-
tagion Of smallpox. A remote fear OF
the disease does not justify such cx-
cluslon."
Judge Carter. In delivering the opin-
ion Of the court in this case, IS, 26S,
says: while school directors and
boards of education are invested with
power to establish, provide for, govern
and regulate public schools, they are In
these respects nowise subject to the d.
rectior or control OF the state board OF
health. and. as before pointed out. they
have no authority to exclude children
from the public schools on the ground
that they refuse to be vaccinated; I'M
less, indeed, In cases OF emergency, In
the exercise. OF the police power. It Is
necessary, or reasonably appears to be
necessary, to prevent the conta glon OF
smallpox. Undoubtedly, also, children
infected or exposed to smallpox may be
temporarily excluded or the school be
Ia, I'll 10 49,,
exercise OF similar power in other cases
such power is justified by the emer-
gencT. and. like the necessity which
gives rise to II, ceases when the neces-
sfty ceases. No one would contend that
a child could be permanently excluded
from public school because 1t had
been exposed to smallpox. or that the
school could be permanently closed be-
cause of the remote fear that the dis
ease of smallpox might appear In the
nelghborhood. and that II the school
should then be open and children In at
tendance upon II the public would be
exposed to the contagion. And upon
the same line OF reasoning, without n
law making vaccination compulsory, or
prescribing 1t. upon grounds deemed
sufficient by the legislature as neces-
sary to the public health, as a condI-
on the public schools. neither the state
board nor any local board mas any pow
err 10 make or enforce rule or order
having the force OF a general law In the
respects mentioned"
Now, the board bases It's right TO
make and enforce rule No. lO9 arore-
said solely upon section H. of the ac-
tlop of the leGisla ture establishing the
said board, which reads: 1.-THE board OF
education shall have power to make all
necessary rules and regulations 80
for the government of the schools Of
the district; for the admission of pu-
pills therein; for the exclusion of chill
dren whose attendance would be dam
gcrous TO the health or detrimental 10
the morals or discipline OF the
schools"
It Is clear that this provision concers
no express authority upon the board to
make vaccination condition upon
which children may be permitted to at
tend the public schools: nor does It con-
fer any such authority by Implication,
except In cases where the attendance
therein OF unvaccinated children
would be dangerous to the health
OF the schools"
But the board comedies that there Is
not now and has not been for several
months past any smallpox In the city
OF Wheeling. In this vicinity or even In
this state: and there Is no claim that
petitioners have ever been exposed TO
this disease.
Under these circumstances the at
tendance OF the petitioners ut one OF the
public schools OF this city. cannot be re-
garded as dangerous to the health OF
that school. solely because they hav. not