Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1900-01-26
Judge Cherry Hears Arguments in
the Cox Mandamus Case.
ANSWER OF SCHOOL BOARD.
Zig Array Of Legal Talent - VIII be
submitted This Evening Early
Decision Looked For.

Il
Cox for writ OF mandemus 10 compel
the board OF education to admit to the
Hamilton school his daughter Florence
f., who was denied admisslon Tuesday
morning because she failed 20 present
to her teacher satisfactory evidence Of
her vaccination. came up before Judge
Cherry today on general demurrer
20 the defendant boards answer.
The attorneys who appeared for the
petitioner were Bennett, Hardness.
Howat, Sutherland y Van Colt, Powers.
straup & Lippman. Daniel Harrington
and Il. b. Shepard. Richards & Va
rlan represented the defendant board.
The west half Of the court room was
crowded with spectators. while within
the enclosure sat President Wilson and
a few members OF the school board,
and a number OF well known ladies and
gentlemen.
THE BOARDS ANSWER.
The answer Of the board, filed this
morning, alleges the existence Of the
State and municipal boards Of health
with powers conferred ON them by law
to make and enforce such regulations
as may be deemed proper for the pre-
vention OF the spread Of smallpox or
any other contagious or infectious dis
ease. II is then set out that the board
has no course than to obey the health
authorities. II Is further set out that
there are large numbers OF people In
this city who arc not only opposed TO
vaccination, but who are opposed TO
any kind of medical treatment Of any
disease. The Anu-Compulsory Vac
cinRuon League Is referred TO
and which, II Is alleged. Is
doing its best TO hinder and delay the
board OF health In the effort 10 stay the
progress OF smallpox. Defendant con-
cludes by alleging Il has acted In good
faith and solely In accordance with 8
sense OF public duty.
MR.. VAN CoTT LEADS OUT.
Mr.. Van Colt began his argument by
reading from the Revised Statutes OF
1898 concerning the powers Of the state
and local boards OF health; also the act
CT the LEGISLATURE y 1899 10 relation 20
health and qushintine regulations
Counsel coutended that nowhere in'the
statutes was there any power con-
ferfed upon the State board Of health
or any local board OF health, TO estab-
fish any rule or regulation debarrng
children from admission TO the public
schools BY reason OF not being vacci-
mated. Neither was there TO be found
In any OF the statutes Of the State any
specific power conferred upon any
board Of health. State or local, to COM
pei any citizen 10 subject himself to
the incubation Of virus. or to be vac
cinated. Mr.. Van Colt argued that the
statutes did not confer upon
the board OF education pow
er TO compel vaccination OF
students. neither did the board have
any right to pass a rule or regulation
prohibiting unvaocinated children from
attending the district schools. The stat
utes did not make It the dpty OF school
directors TO enforce orders OF boards
Of health. School boards had no health
powers, neither had the health board
been invested with judicial powers. II
was simply an administrative body.
Counsel quoted numerous authorities
and cited q number OF decisions in sup
port OF his position. Referring to the
case az bar Mr.. Van Colt said the
school board, acting under an order or
resolution OF the local board OF health.
made an order applicable to all schools
in the district, requiring that all pupils
should be yacoinated before being adj
mitted TO any public school Florence
+. Cox had been refused to the Haml-
ton school because she had failed and
refused 10 comply with the order, her
father, the petitioner, not believing In
vaccination.
When you exclude those suffering
with any contagious or infectious dis
ease, whether acute or chronic" said
Mr. Van Colt. that is the end OF the
local board OF healih's authority" Con-
tinuing counsel said II had not been
shown that Florence Cox was suffering
with disease, or that she was liable
TO convey a disease to others. The only
reason offered for her exclusion was
because she had not presented a GER
tifcate showing successful vaccination.
In conclusion Mr.. Van Colt said the |
right or privilege Of attending the pub |
lie schools was given by law TO every |
child OF proper age In the city and |
there v as nowhere to be found any pro. |
vision Of law prescribing vaccination as
condition precedent to the exercise
Of this right. As 10 whether the Legls-
lature had the power 10 make such a |
requirement or not was not the aues- |
tion; il was sufficient to know that Il
had not done So
MR.. vARIAN's ARGUMENT.
Mr. varlan. for the defendant. FOL.
lowed Mr.. Van Colt, and presented an
able argument I'm behalf OF the vaccl- /
nation proposition. An epidemic OF |
smallpox existed In the State or one
was. reasonably apprehended by the
health authorities The disease existed
In twenty-four towns OF the State and
all these localities were connected with
Salt Lake city By trains, etc.
Counsel then referred 10 the statute
giving the health board authority 10
take the necessary steps and measures
IN protecting the health and lives OF
the people. The board Of health had
instructed the board OF
education 10 exclude from the schools
all unvaccinated children. The school
board Justified It's act Of excluding pc
titioner's child and other children on
the ground that the board OF health
had adopted the rules concerning vac
The justification Of the board
Of health was the existence Of smallpox
In the city. The school board. counsel
had the right to exclude
from the public schools not only per-
sons infected but those likely TO be In
fected.
Some Of the cases cited by Mr.. Van
Colt instead Of being against the de-
PENDANT counsel contended were in its
favor. A few. II was further argued,
were not authoritative as against the
case at bar.