Waterbury evening Democrat., 1904-06-04

The first slxirmish in the smallpox
 injunction case was fought in the dis
 trict court before Judge Cowell to-day
 at short calendar. The legal name of
 the contention is Elmer D. Tullar
 against Dr Thomas J. Kilmartin,
 health officer, and the board of health
 and others. Mir Tullar seeks perma-
 nent injunction against those named
 from denying his daughter Julia, 5
 years old, instruction in the Sprague
 school in Waterville.
 Before taking up the matter Judge CoWell informed Sheriff Rigney to keep l strict order in court and if necessary l to go out and get constable to assist
 him. Attorney Phelan appeared for
 the plaintiff and Attorney Kellogg for
 the city. Sheriff Rigney having three
 times rapped for order in the court, At
 torney Phelan began with his demur-
 Ter, which in brief is to the effect that
 the board of health had no authority I to issue an order excluding children 1 from school because they were not vac cinated. The Tullar child was ex-
 cluded from the Sprague school on the l grounds stated, and her father refused l to have her vaccinated.
 l MT Phelan claimed the order of the board of health was illegal because it l was inconsistent with the charter and 1 the laws of the state and not warrant 1 ed by law. Had the order of the board been of general nature, that is to say, had it included everybody in town, de- handed that they shall be vaccinated, then it would have been valid. But in it's desired effect it made fish of some l people and flesh of others. In other | 4L O,a%o oiV1 fsrNv4T TNf the people of their liberties, rights and
 privileges.
 l And, again, the matter had already
 been regulated by the state laws which
 provide punishment for such cases as that in question, to wit fine of l S5. The board of health usurped the power of the Waterville school district
 committee in passing the order in dis pute. No board, no law can deprive any part of the people of their rights and privileges, and this is what the board of health did. In Cambridge,
 Mass. a Presbyterian clergyman re 1 fused to be vaccinated and was fined l $5 and costs, and case is now in the l federal supreme court.
 The board of. health had no power to prescribe a penalty for not being vac l cinated It is not in the power of any authority to vaccinate by force, and l that is what the board of health tried ! to do in this case. The board of alder ] men is the authority to enact laws and penalties for local administrations but 1 the laws must be reasonable and not conflict with the state laws.
 If the plaintiff was subject to pen
 atty at all it was subject to the fine of
 s imposed by the state, not exclusion from school. as provided by the board of health. Furthermore, the state laws
 provide a fine of $500 in every case to which a fine has not been already at 1 tached and it was that law that GOV
 cred this case if 1t came near it at all. | The board of health had as much power to pass the order in question as l it had to say to any man that he ~ not go to his work because he is not l vaccinated, or that he shall not ride l in ear or go to church, and it was patent to all that the board had no
 such power.
 l If such an order was found necessary l it was the duty of the board of educa- ton or the duty of the Waterville l school district, committee to consider
 the matter, not the duty of the board of health.
 Tn reply, Attorney Kellogg said that
 part of MT Phelan's argument was
 very Inconsistent He said that sub
 stantially Mir Phelan's claim was that l the plaintiff was subject to only a fine l Of S5. That was all the punishment l that could Joe imposed in the case. In l New Britain some time ago, Mir Kel- 1 logg said. a number of children were
 excluded from school for the same req
 sons precisely as the Tullar child was
 excluded, and the question went to the
 court on the grounds that the exclusion l of the children was unconstitutional.
 But the courts determined that the act l of the board that enacted the exclusion
 order was valid and was part of the
 police duty. and it was therefore req sonable, just and consistent.
 The exercise of the law against any particular portion of community, provided it Is based on proper grounds. l is of course valid. And the exercise l Of the order passed by the board of health and against the plaintiff was perfectly proper and valid. The only question about it was, was it consistent l with the state laws? The city charter
 gave jurisdiction to the board to pass l such orders and rules as it may deem
 necessary, and the board of health has
 jurisdiction over all the town of Wa
 terbury and it is not subordinate to the l board of aldermen. That board mere l ly ratifies the actions of the other
 boards
 l The pivotal claim, in fact the only
 question in the controversy is this:
 Cannot the board of health make and
 exact such orders and rules as it may l from time to time deem proper for the
 preservation of the public health? pro-
 vided of course that such orders and
 rules shall not be inconsistent with
 the charter or state laws. Now the
 board in its discretion enacted this or
 der of exclusion from the schotls un-