The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-12-01
May Require Vaccination
Before Entrance.
OPINION OF COURT.
The Case of Hutchins v. School Com
mittee, from Durham, Decided by
Supreme Court in Favor of De-
PENDANT. Regulation a
Reasonable One.

The very interesting case of j. w.
Hutchings V. the School Committee of
Durham, involving the right of the
committee to require vaccination as a
condition precedent to entrance in the
schools, was decided in an opinion
handed down by the Supreme Court
yesterday favor of the School Com
mittee.
The case has been heretofore refer
red to. 1t came UP upon application
by the plaintiff for mandamus to the
school committee to permit his daugh-
ter to enter the schools. notwithstand-
ing the fact that she had not COM
pied with the regulations of the COM
mittee The case was lost by the
plaintiff in the Superior and appealed
to the Supreme Court. which has now
sustained the rulir~ of the court below.
The gist of the opinion is that the
regulation is a reasonable one on the
part of the committee, which is
charged with the duty of supervising
the management of the schools and
caring for and guarding the health OF
the scholars.
The opinion which is written by
Chief Justice Clark, goes fully into the
reasons OF the decisions. citing strong
authorizes SuSldlllIflS Tic QcClSiOil VI
the court and taking up the conten-
ton of the plaintiff at length.
The sole question, says the court, is
whether the resolutions of the scnooi
committee made upon the recommen-
dation of DR.. n. M. Johnson, the sup
erintendent of health of Durham
county. to the effect that a genera
vaccination of the teachers and chill
dren attending the public schools was
desired and required for the public
safety and that, after April L, 1904
no teacher or pupil who did not pre-
sent certificate of physician show
ing successful vaccination within three
years. or unless such person had been
vaccinated within ten days, should be
admitted to the schools, and that the
regulation was permanent one. was a
reasonable exercise of the powers or
the school committee
After citing the chapter of the laws
under which the pubic schools OF
Durham were placed under the con-
troll, care supervision and manage
ment OF the school committee. with
the proviso that all children resident
in the town between the ages of d
and p years should be admitted free
of tuition charges. the opinion goes o..
to recite the facts upon which the
case arose and the smallpox condi-
tions obtaining in Durham last spring.
During the prevalence of the epidemic
there were in the town over 1,O0C
cases and the number of school cniI-
dren enrolled exceeded $500. Owing
TO the prevalence of the disease and
form of contagion the attendance on
the schools was diminished by over
40 per cent.
1.-The resolution says the opinion
was a proper AID reasonable exer
else of the powers of the defendant.
The question was not one of cOmpuf-
soru vaccination under legislative au
thority-which was decided in State v.
Hays, 126, y. c., 199-but whether
when a child has not been vaccinated
the board can as precautionary
measure exclude all such from the
schools by a resolution under the pow
er given them "to have entire ana ex-
elusive control of the public school
interest and property in the town OF
Durham and to prescribe rules ano
repuiatons and do ali 9TH
conduct and manage the public school
interests in said town.
In support of its decision the court
cites In re Rebewack, 62 Mo. App g.
which arose upon a similar state OF
facts in the city of St. Louis and where
the court said: "If said regulations
are not oppressive and arbitrary the
court cannot or should not interfere"
Another case cited was that of Duff
field v Willamsport, 162 Pa, 416, Is
L. r. A.. 1872, in which it was held that
a school board had the power to adopt
reasonable health regulations for the
benefit OF the pupils and the genera!
public and also the right to exclude
from the schools those who did not
comply with the regulations of the
titv authorities and the said board
might require certificates of vaccina-
ton as a condition of attendance. The
court also cites as authority the cases
of State V. Zimmerman. So l.. r. A..
rs, and Blue V. Beach. l.. r. A., 81
. The constitutional guarantee of free
tuition and open schools is necessarily
subject says the court, to reasonable
regulations to enforce discipline by the
expulsion of the diSorierly and pro-
tecti~~ for morals and health of the
pupils. citing Sherman V. Charleston.
s Cash. 100 where Shaw, c. j., said
that 1.-The right to attend is cot abso-
lutte but one to be enjoyed by ali or,
reasonable conditions.
The reliance of the plaintiff was on
the case of Potts V. Green. l6I, ILL.,,
67 l.. r. A. 39-162, where it was heid
that in the absence of express leglsla-
tive power a resolution requiring vac
cination as a prerequisite TO attend
schools is unreasonable when small
pox does not exist in the community
and there is no reasonable ground 10
apprehend its appearance. with the
present means of nter-communlcatloh
smallpox may make its appearance II
any community at any moment with
out any notice given beforehand and
incalculaDie havoc be made especially
with school children which cannot be
relnedIed by subsequent order ex-
Guiding the non-vaccinated In the
Durham case the smallpox was cpl
demic and still threatened. The lam
eua"e making the regulation "perma,
nent would not permit its repeal. il
upon the subsistence of the danger the
school board Of that day shall deem.
proper to repeai it. If the action IF
the board is not satisfactory to the
neonle. new board may be eIecte1
by them who will rescind the reguIa :
ton.
AS to the contention that it would
be dangerous to vacciaate the plain
tirs daughter on account of her
health, the court says that while thai
would be a compete defense to an
order of general compulsory vaecina-