legislature. Take, for example, the first sentence, viz: "The state board of health shall have the general supervision of the interests of the health and life of the citizen of the state." The scope of the language there employed is practically unlimited, and were it not held to be restricted by well-known legal principles applicable in the interpretation and construction of statutes, it would appear to confer more power on this board than the legislature itself possessed. Plainly, it 72 was not intended that any general supervisory power over the health and lives of citizens of the state should be exercised by the board otherwise than in conformity to law, and such as should be necessary, within reasonable limitations, in the performance of the administrative duties which were or should be imposed upon the board by statute. It had and could have no legislative power. Its duties were purely ministerial, and the provision of the statute authorizing the board to make such rules and regulations as it should, from time to time, deem necessary for the preservation or improvement of the public health, cannot be held to confer that broad discretionary power contended for-to prescribe conditions upon which the citizen of the state may exercise rights and privileges guaranteed to him by public law.

In Huesing v. Rock Island, 128 Ill. 465, 15 Am. St. Rep. 129, it was contended that the city had the power, under clause 78 of section 1, article 5, of the city incorporation act, to construct and maintain a city abattoir, as a sanitary measure. This clause is as follows: "To do all acts, make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease." This court, however, held that, in view of the fact that the same section contained other provisions authorizing the city council to do certain specified acts for the preservation of the health of the city and the suppression of disease, the general provision did not enlarge the powers conferred by the special provisions.

As recently held by the supreme court of Wisconsin in a similar case, we are of the opinion that the powers of the board are limited to the proper enforcement of statutes, or provisions thereof, having reference to emergencies requiring action on the part of the agencies of government to preserve the public health and to prevent the spread of contagious or infectious diseases. It will be observed that after the first section the powers and duties of the board with reference to different subjects 73 are minutely specified, and it is required to make report to the governor, and to include therein "such information concerning vital statistics, such

knowledge respecting diseases and such instruction on the subject of hygiene, as may be thought useful by the board, for dissemination among the people, with such suggestions as to legislative action as they may deem necessary." Its duty to recommend legislation is repeated more than once in the act in connection with specifications of the powers and duties of the board, and from no point of view can we regard it as having been within the legislative intent to confer by the first section plenary powers upon the board in all matters pertaining to the public health, without regard to other provisions of the statute or further action by the legislature.

Section 1 of article 8 of the constitution provides that "the general assembly shall provide a thorough and efficient system of free schools, whereby all children of this state may receive a good common school education." And the statute provides that the directors "shall establish and keep in operation for at least one hundred and ten days of actual teaching in each year, ... a sufficient number of free schools for the accommodation of all children in the district over the age of six and under twenty-one years, and shall secure to all such children the right and opportunity to an equal education in such schools." And the statute further provides that they shall adopt and enforce all rules and regulations for the management and government of the schools, and may suspend or expel pupils who may be guilty of gross disobedience or misconduct. The statute also contains provisions of similar import relating to schools in more populous districts and in cities. It is therefore seen that the right or privilege of attending the public schools is given by law to every child of proper age in the state, and there is nowhere to be found any provision of law prescribing vaccination as a condition precedent to the 74 exercise of this legal right. Whether the legislature has the power to make such a requirement or not it is not necessary here to consider. It is sufficient that it has not done so. And it cannot be supposed that the legislature has undertaken, and not expressly, but by mere implication from the general language used in creating the state board, to confer upon that mere administrative body such vast power over the rights and liberties of the individual citizen as to deprive him of his constitutional and statutory rights unless he shall submit his body to be inoculated with vaccine virus as a mere precaution against some possible future contagion of smallpox. It is doubtless true that in a large number of school districts in interior parts of the state no case of smallpox has ever existed in the history of the state, and yet by this order of the

board no citizen who has children to educate, although compelled by law to pay taxes to support the public school, can send his child to such school without first having such child vaccinated as a precaution against a disease which had never appeared, and where there was no apparent danger that it would ever appear in the vicinity. The power to compel vaccination, or to require it as a condition precedent to the exercise of some right or privilege guaranteed to the citizen by public law, can be derived from no other source than the general police power of the state, and can be justified upon no other ground than as a necessary means of preserving the public health. Without the necessity, or reasonable grounds upon which to conclude that such necessity exists, the power does not exist. As such, the board of health has no more power over the public schools than over private schools or other public assemblages, and its order applying to public schools only requiring vaccination as a prerequisite to the exercise of the right to attend a public school, could be justified only upon reasonable grounds appearing that the contagion of smallpox would more likely originate in or be 75 disseminated from the public schools than from other assemblages. Whether or not it might be invested with more power in this respect is a question not involved here and not necessary to consider.

While school directors and boards of education are invested with power to establish, provide for, govern, and regulate public schools, they are in these respects nowise subject to the direction cr control of the state board of health, and, as before pointed out, they have no authority to exclude children from the public schools on the ground that they refuse to be vaccinated; unless, indeed, in cases of emergency, in the exercise of the police power, it is necessary, or reasonably appears to be necessary, to prevent the contagion of smallpox. Undoubtedly, also, children infected with or exposed to smallpox may be temporarily excluded or the school be temporarily suspended; but, like the exercise of similar power in other cases such power is justified by the emergency, and, like the necessity which gives rise to it, ceases when the necessity ceases. No one would contend that a child could be permanently excluded from a public school because it had been exposed to smallpox, or that the school could be permanently closed because of the remote fear that the disease of smallpox might appear in the neighborhood, and that if the school should then be open and children in attendance upon it the public would be exposed to the contagion. And upon the same line of reasoning, without a law making vaccination com

pulsory, or prescribing it, upon grounds deemed sufficient by the legislature as necessary to the public health, as a condition of admission to or attendance upon the public schools, neither the state board nor any local board has any power to make or enforce a rule or order having the force of a general law in the respects mentioned.

We are not called upon to consider whether or not vaccination is a preventative, or the best known preventative, of smallpox. That it is so seems to be the consensus 76 of opinion of a learned and honorable profession, borne out by the history of its use for a century, and we can only so regard it; but, when compulsorily applied, it must, like all other civil regulations, be applied in conformity to law. However fully satisfied, by learning and experience, a board might be that anti-toxine would prevent the spread of diphtheria, no one could contend that a rule enforcing its use as a condition precedent to the admission of a child to the public schools would, as the law now is, be valid. It is a matter of common knowledge that the number of those who seriously object to vaccination is by no means small, and they cannot, except when necessary for the public health and in conformity to law, be deprived of their right to protect themselves and those under their control from an invasion of their liberties by a practically compulsory inoculation of their bodies with a virus of any description, however meritorious it might be.

The same conclusion was reached by the supreme court of Wisconsin, in State v. Burdge, 95 Wis. 390, 60 Am. St. Rep. 000, in a case similar in all respects to this. In that case the court also, upon the question of the power of the legislature to delegate to such board the power to make a rule having the force of a general law, cited Dowling v. Lancaster Ins. Co., 92 Wis. 63, which held, that the legislature could not delegate to the insurance commissioner the power, essentially legislative, to prepare, approve, and adopt a form of "a standard fire insurance policy" for use in that state, and which use was to be enforced by penal sanction of the act. See, also, on this subject, O'Neil v. American Fire Ins. Co., 166 Pa. St. 72, 45 Am. St. Rep. 650, and Anderson v. Manchester Fire Assur. Co., 59 Minn. 182; 50 Am. St. Rep. 400. See, also, Tugman v. Chicago, 78 Ill. 405.

As said in State v. Young, 29 Minn. 551: "It is a principle not questioned, that except where authorized by the constitution, as in respect to municipalities, the legislature cannot delegate legislative power cannot confer

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Hurst v. Warner, 102 Mich. 238, 47 Am. St. Rep. 525, construed an act of the Michigan legislature which provided that, in certain contingencies specified in the act, the state board of health should be authorized to establish a quarantine, and to make rules for the disinfection of baggage belonging to persons coming from a country where contagious disease exists, and, through an inspector acting thereunder, to detain for disinfection baggage of passengers passing through the state and coming from localities where a dangerous, communicable disease exists. It was held by the court that the act did not authorize a rule subjecting the baggage of all immigrants to disinfection, whether such immigrant came from a part or locality where dangerous, communicable disease existed or not.

The case of Abeel v. Clark, 84 Cal. 226, was a mandamus proceeding to compel the principal of a public school to admit Abeel as a scholar, who had been refused admission because he had not complied with the vaccination act. This act provided that the school trustees and board shall "exclude from the benefits of the common schools any child or any person who has not been vaccinated." The act was held constitutional. The court say: "Vaccination, then, being the most effective method known of preventing the spread of the disease referred to [smallpox] it was for the legislature to determine whether the scholars of the public schools be subjected to it."

The case of Duffield v. School Dist., 162 Pa. St. 476, was a mandamus proceeding to compel the admission of plaintiff's minor child into the common schools of Williamsport. The facts in this case were, that there was an ordinance of the city of Williamsport in force providing that no pupil "shall be permitted to attend any public or private school in said city without a certificate of a practicing physician that such pupil has been subjected to the process of vaccination"; that smallpox was then 78 existing in Williamsport and had been epidemic in many near-by cities and towns; that the board of health and the school board, in view of the general alarm prevailing in the city over the report that a case of smallpox was in the city, had adopted a resolution in conformity with said city ordinance. The questions raised related to the power of the school board to adopt reasonable health regulations, and to the reasonableness of the particular regulation complained of, and the action of the board was sustained. But the case was unlike the one at bar in the fact that smallpox was then in the city, and was prevalent in adjoining communities. A similar conclusion was reached in Bissell v. Davison, 65 Conn. 183,