Omaha daily bee., 1908-03-01
VICTORY FOR DR.. CONNELL
Judge Kennedy Renders Sweeping De-
cision on Vaccination Order.
COURT SAYS ORDINANCE IS VALID
Refuses to Issue Injunction to Pre-
vent Children Not Vaccinated
from Being Excluded
from Schools.

In a sweeping decision in which he up
holds Health Commissioner Connell, Judge
Kennedy of the district court, Saturday
morning refused to issue injunction to
prevent the health and school authorities
from removing unvaccinated children from
the public schools. The injunction was
asked for i'm the case of Kruger against the
school district on the grounds the ordi-
nance requiring the vaccination OF school
children was invalid and that the health
commissioner had exceeded his powers In
issuing his orders.
Judge Kennedy decided the ordinance was
valid and that the school or health author
tiles could exclude children not vac
cinated from attending school. He also
decided the health commissioner has au-
thority when he believes there is public
danger of an epidemic to require general
vaccination of school children. He also
holds it is the duty of the school authorl-
ties to comply with the orders of the health
commissioner in matters relating to health.
F. w. Fitch who sought to secure the
injunction, said he would file a motion
for a new trial and in case It was denied
would probably appeal to the supreme
court.
Valid, Says Judge.
After discussing rule 81 of the ordinances
requiring the vaccination of all school
children and forbiddlng their admission to
schools unless they are vaccinated once in
seven years, Judge Kennedy said:
Under the extensive powers conferred by
the sections Of the charter above cited
am of the opinion, contrary TO my first
impression, that rule 81 was within the
power of the mayor and council to enact
and Is valid and enforceable.
~ DlalntlII
would not be entitled to the relief prayed
The charter makes the health commissioner
purely administrative officer. IL enJoins
upon him the execution an6 enforcement
of all laws OF the state and ordinances OF
the city relating to matters Of health and
sanitation, and all rules and regulations
Of the city relating to the public health.
Legislative functions may not be conferred
upon administrative Officers but rules
which deal with means and methods merely
and orders and instructions which are tenn
porary and designed to meet particular
officers TO meet a particular case under
authority conferred upon them by a mu-
nicipal corporation empowered by the leg
islature TO deal generally with the subject.
Such authority the city council of Omaha
conferred upon the health commissioner
whenever in his judgment the city is af-
| flicted or threatened with an epidemic of
contagious or infectious disease" The or
ders, regulations and instructions so issued
structions OF the Board OF Health or doubt
less by ordinances OF the city, and they
cease to have any vitality with the passing
OF the emergency that called them forth.
But during the emergency they are ef-
/ fCCtiVe.
There remains the question Of the Tela-
/ ton between the Board Of Education, It's
officers and employees and the health de-
partment. Without proceeding at length !
/ will add only that in matters OF health II
seems TO me the statutes contemplate the
supremacy of the department Of health,
and that il Is the duty OF the Board Of
| Education TO comply with all such regu-
| lations or ordinances and TO enforce com
pliance with them upon those whether
officers, teachers or pupils who are within
/ the jurisdiction OF the board, not as as
sistants TO the health commissioner, but
as those on whom the law itself imposes
an Independent obligation by virtue of their
| relation OF authority.