The San Francisco call., 1910-03-29
Vaccination Decision
Arouses Great Interest
Opinion Of Judge Smith Holds ThOl
State Low Is Discriminatory

contagious disease should break
out in their school district. in
which event they would have the
authority to close all the schools
and thus exclude the school chill
dren wheth't' they were vaccinated
or not. The weight of authority
is to the effect that quarantine and
other public health laws, such as
the one here under consideration.
are merely directory and should be
enforced by the proper authority
only when a public necessity arises
therefor; and when this is done the
law has been fully complied with.
(See authorities last above cited.)
People who are opposed to vac
ing their children excluded from
school during a smallpox epidemic.
which at most could last but a
brief period. But TO have their
the public schools because not vac
cinated when there is no public
necessity for II could not have
been the intent Of the legislature
when it enacted this statute. Again,
another. provision OF the lav
makes it a misdemeanor for par
ents not to send their children TO
school while between certain ages,
whether vaccinated or not. (See
school law, p. 1851 This penal
statute was passed long after the
vaccination law was enacted, and
if the two statutes are repugnant
to each other. as they seem to be.
then the last act repeals the for
mer by implication, and leaves us
without any vaccination law what
ever: 113 Cal. 647. and other cases
cited
1T is no answer to this penal
statute to say, as the counsel for the
state board of health contends. that
W NJ in
cfnation can send their children to
private schools and thus avoid tbs
consequences of the penal statute.
1t is an old and fundamental prin-
ciple of Justice that all criminal
laws should operate alike upon all
classes of people, whether they be
rich or poor. A rich man could
send his children to private
school, as suggested by the attorney
for the state board of health. and
thus avoid being arrested and pun
ished under said penal statute; but
should the poor man be punished as
a criminal because he is unable TO
send his children to private
school, and does not believe in vac
cination, and for that reason his
children are barred from attending
the public schools2 Such an inter
probation of the two statutes would
work a great injustice to large
class of people
While I am opposed to all COM
pulsOry vaccination laws. yet i am
a believer in vaccination as pro-
lection against smallpox. But much
has been said and written by
learned men to the contrary. And
while our state board of health is
rendering valuable services to the
people of the state in many ways.
yet I do not believe the law en-
powers it to compel. by writ OF
mandate, another board of equal
standing before the law to exclude
children from the public schools
when there is no public necessity
for so doing. AS before stated. the
vaccination law. if not repealed by
said penal statute, Is directory
only, and hence the school trustees
are the sole judges when students
not vaccinated should be excluded
from the public schools by reason
of any actual or threatened danger
to the public health from SMALL
pox or any other contagious dis
ease. From what has been said
and authorities cited. IL follows
that the demurrer to the petition
should be sustained and the writ OF
mandate denied and il is so or
dered. LUCAS f. SMITH.
Judge-of the Superior Court.
Dated March %, 1910.