The San Francisco call., 1910-03-29

The general interest in the subjeef
If vaccination which has been aroused
the state makes the follow
ng opinion of Superior Judge Lucas +
Smith of Santa Cruz county denying
he state board of health a writ o.
mandate in the Watsonville case valu
lble reading. The full opinion reads:
In the Superior Court of Santa Cruz
County, State of California State
Board of Health, Petitioner. VS..
School District ct al. Respon-
dents:
This is a proceeding instituted by
the state board of health asking
writ of mandate to compel the
board OF trustees of the Watson
Vile school district to exclude from
the public schools of said district
all school children who have not
been vaccinated, as provided by the
statutes of 1889. page 80.
As will be seen, this statute ex-
empts from It's provisions all school
children attending private schools,
together with all other persons not
attending any school, and for that
reason it is claimed to be special
legislation and therefore unconsti-
tional and void. 1t Is conceded
schools are as liable to contract
and SPREAD smallpox as those at
tending the public schools, yet this
law selects the latter class TO be
mated. to be excluded from the
public schools. while children at
lending private schools, together
with all other persons, are eX-
empted from vaccination. Such
DISCRIMINATING laws have been held
be unconstitutional.an and void by
some of the most learned judges
and courts in this country.
1t is claimed, however, that the
supreme court of this state, in the
cases of Abel Clark, "a Cal, 226,
and French VS.. Davidson. 143 Cal.
65S. has sustained this vaccina ton
law by holding 1T to be constitu-
to be the fact, the court simply
held in those two cases that the
principals of the schools in queS-
tion had the right to exclude the
pupils because they were not vacci-
mated. The facts are not stated in
the opinions of the court. but IL is
safe TO presume that smallpox en-
listed in the community at the time.
and as a precautionary measure the
teachers believed il wise to act as
they did, just as the school trustees
would act under like conditions
No one disputes the authority
conferred upon school trustees in
such matters, but the legal queS-
tion here presented for determina-
LlO0 Is. as 10 WncJHSr IL Is QlSCTc-
tionary with the trustees to deter
mine when such authority should
be exercised. l am fully satisfied
that the statute in question is
merely directory and not manda-
tory. and this is the construction
which seems to be given by our su-
preme court in reference to all pub
lie health statutes: 9e Cal, As: 56
Cal, 357; SO Cal. 4ST; so Cal, 52S,
and authorities cited.
There is no allegation in the pc
tition here under consideration
that there is an epidemic of small
poX now existing. or even threat
ened. in the Watsonville school
district. or that the disease exists
there at all, and hence the trustees
can exercise their legal discretion
as to when the public safety re-
quires action on their part in ex-
Guiding children from the public
schools because not vaccinated. The
law presumes that the trustees
will faithfully discharge their Of
fetal duties. and there is nothing
alleged in plaintiffs petition show
ing wherein they have failed to do
So The trustees would have the
same discretion in case any other