The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1900-01-28


peal from Judge Cherry's Iecision hold
ing that unvaccinated pupils have
right to attend the schools Every ef-
fort viii be made to secure a speedy
hearing and determination Of the vac
cinatlon issue by the supreme court
Every. action of the school board waj
unanimous. President wilson anC'
AIessrs. CritchlOw, Henderson, Nelden,
Walker and Young were present, Out
the minority, Messrs- Glauque, MOyle
and Newman were absent from the /
meeting. Mr.. 8amberger is out Of the
state
After the president stated the pur-
pose Of the meeting 10 be the cOnsidera-
ton of the characterization mandamus
test case, Attorney Varian vas asked
to address the board. Without wasting
time on preliminaries Nj. Narian said
until Monday had been given TO perfect
an appeal and if il were decided to take
the case before the supreme court the
necessary proceedings could be gone
through quickly tomorrow. l. the court
suspended the rule requiring printed
briefs to be filed the case could be heard
on oral argument and be submitted IN
a day or two, provided the judges would
hear it and a full bench were present
or it be agreed that Judges Miner and
Bas6ih shall determine the issue.
In AIR. Varian's opinion the matter
could be submitted on briefs in SIX or
seven days. but the regular term of the
supreme court does not convene till
Feb L, and the consent Of the justices
might be necessary to hear the case
before. but he believed the hearing
could be speeded.
Dissent From Courts Decision.
In answer to Mr.. Critchlow's query as
TO his expectation OF a reversal of
Judge Cherry's decision by the supreme
court, Mr.. Varian said My cOnvic-
ton is, and I so read the statutes, that
they confer the power on the board of
health to do as it did and that the
school board is required to comply in
order to prevent the spread of con- !
tagious and infectious diseases. My
associate. Mr.. Richards, consurS fully
in this opinion"
sJudge Cherry freely expressed his
doubts Of the correctness Of his own
decision" continued Sir. Varian, land
frankly confessed that he had given
the question but limited consideration,
and with the understanding that his
decision would be appealed from. Hence /
the courts opinion IS not entitled to
that weight attaching 30 an ordinary
opinion delivered with elaboration"
Mr.. CritchloW then moved that the
boards attorneys be directed to imme
diately perfect an appeal of the Cox
case to the supreme court.
Henderson Excerpts Also.
Replying to President Wilson's re-
quest fer him TO express his opinion
as a member of the bar on the question
Judge Henderson said he had tried To
free himself from bias but he firmly
believed that Judge Cherrys decision
was absolutely wrong. The regulation
of excluding unvaccinated children
from the schools as a means OF public
safety he believed TO be a reasonable /
regulation in this emergency, the au-
thOrity for doing which seemed TO him
So plain in the statutes.
We obeyed the legally constituted
authorities continued Judge Hender-
son. and I don't believe there is a
court anywhere that would undertake
10 say IN take the place Of the health
boards and the governing boards Of the
schools in an emergency like this
Judge Cherry had TO make his guess at
II, but he did the besr he could. I be-
heve, under the circumstances"
Critchlow Optimistic.
AS to the possibility of there being
a difference of opinion on the efficacy
Of vaccination we all know" said Mr.
CritchlOw, that the petitioner con-
ceCed it. When I recall that Messrs. /
HOwat and Van Colt in their argu-
nentS conceded and Judge Cherry in
his decision agreed that vaccination is
d reasonable means under the law Of
checking smallpox, I fail TO see that the
decision is anything but radically
wrong. The effect Is to prevent the
opening Of the schools 10 5000 vacci-
mated pupils, against whom there can
be no sanitary objection.
When all these things" concluded
Mr.. Critchlow, ARE focused on the
discerning minds Of the supreme court !
at their leisure, there can be only one
result"
Mr.. Critchlow's motion to appeal the
case was carried without objection
Schools to Close Again.
Judge Henderson then offered the fol- /
lowing resolution TO close the schools
again this week:
Whereas. Under the resolution Of this
board adopted on Jan. %. 1900, opening the
schools 20 SuCh pupils as have been vac
ClndJed. an alternative writ OF maudamus
mas uean served III the case Of John J..
toN vs. the board Of education, issuing
rom the 1nlrd district SQUIRT. said wit
naFlug on Jan. Is been decided in favor
OF the plaintiff by Judge cherry to the ef-
Iect that SO long as the schools were open
- any pupils this board cannot prescribe
= co-ciuon excluding pupils who have not
Dcen tlCCIudIed. and
Whereas. This board has at this meet
ing directed an appeal from said decision
to the state supreme court and that il is
Desirable and is believed that speedy
nearing and determination of said cause
can. IN view OF the emergency now exist
ing. De had before the supreme court; and
Whereas. The members Of thi board
under the circumstances believe il is Un-
sale TO Spen the schools 20 al pupils. in
view of tle CirCuuSIa noes set forth in the
aid resolution Of Jan. y. and the facts
appearing to this board and the direction
mm@na
an the board Of health Of Salt Lake City;
ard
Whereas. Il is the opinion Of this boase
that the said decision and determination
g oalq cause Is erroneous and that this
teEl mas the risnr a1ld power. in view Of
- -, e.leI AelcE now existing In salt Lake
NltF, 70 prescribe the regulation heretofore
aoeplel as aforesaid, and that IL was and
- rs duty 90 do 50: and
NJ tl-,eaS. THIS board does not, nor d. the
44t-n1ers thereof, desire TO act COnUIma-
cioUsiy OF in disrs-a-d OF the LEGAL rights
or alS one or Of the orders OF the court;
7Eereas- This board does not desire to
l.lla ser the health and lives Of the pu-
piis ul the scloo-S CT OF the community or
70 tniaWIuuy refuse 10 assist and aid In
enforcing the orders and directions Of the
hoard OF health of Salt lake City. as We
are required 70 do by G1e laws Of the
STATE u L tan: therefore. be 10
hcse-Fod Inal, Notwithstanding said
@Pt1-L- = Special vacation OF the schools
y hereby declared OF one week. beginning
Monday Jan % 1901 10 give an 0ppor-
lemly LOT SAID appeCi 10 Ia brought on
lot nearing ans Determination before the
supreme court and that when the schools
- reopen lhat the5 reopen under the
trius aIa conditions prescribed in the
''ttlyA OF thls board adopted jan -,
- unless The emergency in view OF
ellcn SAID resoluti ofss were passed shan
have ceased TO exist
Reasons For the Action.
preliminary TO taking q vete on the
resolution, Judge Henderson. by way
OF swing reasons for the proposition,