State ex rel. Adams v. Burdge

Putney, J.

1. The legality of the action of the defendants, constituting the school board of the city of Beloit, in expelling and excluding the relator’s three children from the *397 public schools in that city, which they were and had been respectively attending, and which they had a lawful right ■to attend, is attempted to be justified by the rule adopted by the state board of health of January 26, 1894, and as •■modified in June, 1894, after this proceeding had been commenced. The defendants were acting only under the supposed authority of the rule of the state board-of health, and this presents the question of the power of the board to adopt and cause such a rule to be enforced. By sec. 1407, E. S., the state board of health is vested with “ a general supervision throughout the state of the interests of the health ■and life of citizens,” and directed to make certain investiga tions, and “voluntarily, or when required, advise public ■boards or officers,” in regard to divers matters affecting the public health. By sec. 1408 the board was “ to have charge •of all matters pertaining to quarantine,” and might from time to time “ make general or local rules and regulations for the preservation or improvement of the public health not inconsistent with law, or those prescribed by local authorities pursuant to law,” and “ all sheriffs, constables, police officers, and all other officers and employees of this ■state, are required to respect and enforce the same, in every particular affecting their respective localities or duties.” By secs. 1409a, 14095, S. & B. Ann. Stats., an annual appropriation of $15,000 was made as a contingent fund, which might be used, under the conditions and restrictions of sec. 14095, “ to prevent the introduction of Asiatic cholera, smallpox, or other dangerous contagious diseases into this state, or the suppression and control of .such disease, if the same ■shall be found already existent within the state.” By sec. 14095, the state board of health, the more effectually to protect the public health, was authorized to establish such systems of inspection as, in its j'udgment, might be necessary to ascertain the presence of the infection of Asiatic cholera or other dangerous contagious diseases, and to put the *398 same in force, and might, “ from time to time, make, alter, modify, or revoke rules and regulations for guarding against the introduction of contagious diseases into the state; for the control and suppression thereof, if within the state; for the quarantine and (disinfection of persons, localities, and things infected, or suspected of being infected, by such diseases ; . . . for the proper sa/nitary ca/re of jails, asylums, school houses, . . . and the premises connected therewith, . . . and may declare any or all of its rules in force within the whole state, or within any specified part •thereof; . . . and in general the state board of health shall have power, and it shall be its duty, to malee such rules and regulations, and to tahe such measures as may in its judgment be necessary for the protection of the people of the state from Asiatic cholera, or other dm,gerous contagious diseases.” By sec. 1409c it is provided that “ any person who shall neglect or refuse to obey the said rules and regulations, or who shall wilfully obstruct or hinder the execution thereof, shall, be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished for each offense by a fine of not less than $25, and not more than $500, or by imprisonment in any county jail for a period of not more than six months, or by both fine and imprisonment, in the discretion of the court.”

The police power of the state is relied on to support the rule in question. This power has been defined in varying language, but of substantially the same general import. “ All laws for the protection of life, limb, and health, for the quiet of the person, and for the security of property,” fall within the general police power of the government. “All persons and property are subjected to all necessary restraints and burdens, to secure the general comfort, health, and prosperity of the state; ” and it has been said that “ it is co-extensive with self-protection, and is hot inaptly termed 1 the law of overruling necessity.’ It is that inherent and *399 plenary power in the state which enables it to prohibit all things hurtful to the comfort and welfare of society.” Tiedeman, Lim. of Police Power, 2-5; Cooley, Const. Lim. 572; Redfield, C. J., in Thorpe v. R. & B. R. Co. 27 Vt. 140 ; Lake View v. Rose Hill Cemetery Co. 70 Ill. 192 ; State v. Hoyes, 47 Me. 189 . As the police power imposes restrictions and burdens upon the natural and private rights of individuals, it necessarily depends upon the law for its support; and, although of comprehensive and far-reaching character, it is subject to constitutional restrictions, and, in general, it is the province of the lawmaking power to determine in what cases or upon what conditions this power may be exercised. As applied to the present case, the relator had a right, secured by statutory, enactment, to have his children continue to attend the city schools in which they ivere respectively enrolled as pupils, and they, too, had a right to so attend such schools. Whether it be called a right or privilege cannot be important, for in either view it was secured to the relator, and to his children as well, by the positive provisions of law, and was to be' enjoyed upon such terms and under such conditions and restrictions as the lawmaking power, within constitutional limits, might impose. . %

There is no statute in this state authorizing compulsory vaccination, nor any statute which requires vaccination as one of the conditions of the right or privilege of attending the public schools; and, in the absence of any such statute, we think it cannot be maintained that the rule relied on is a valid exercise of the rightful powers of the state board of health. The state board of health is a creation of the statute, and has only such power as the statute confers. It has no common-law powers. To lawfully exclude the relator’s children from the city schools for the cause relied on required such a change in the existing law as the legislature alone could make, a change that should make vaccination of pupils *400 ■compulsory, or, at least, prescribe it as a condition of the right or privilege of attending the public schools generally, •or during the occurrence of certain emergencies, or upon, the happening of certain contingencies or conditions, in respect to the prevalence of smallpox. The powers of the ■state board of health, though quite general in terms, must be held to be limited to the enforcement of some statute relating to some particular condition or emergency in respect to the public health; and, although they are to be fairly and liberally construed, yet the statute does not, either expressly or by fair implication, authorize the board to enact a rule or regulation which would have the force of a law ■changing the statute in relation to the admission and the right of pupils of a proper school age to attend the public schools. The state board of health had no legislative power, properly so called, and none could be delegated to it. It is ■purely an administrative body. The powers of the state government are vested in three departments, the legislative, to enact the laws; the executive, to execute them; and the judicial, to declare, construe, and apply them. The constitution (art. IY, sec. 1) declares that “ the legislative power •shall be vested in a senate and assembly.” That no part of the legislative power can be delegated by the legislature to any other department or body is a fundamental principle of constitutional law, essential to the integrity and maintenance of the system of government established by the constitution, and repeatedly recognized and asserted by the courts. In the recent case of Dowling v. Lancashire Ins. Co. 92 Wis. 63 , we had occasion to examine and apply this principle to an attempt to delegate the power, essentially legislative, to the insurance commissioner, to prepare, approve, and adopt a so-called standard fire insurance policy, the adoption of which would necessarily effect important changes in the law of fire insurance, a delegation of authority which would •transfer bodily the legislative power on this subject to the *401 insurance commissioner. We are satisfied that the conclusions there reached are correct, and sustained by numerous decisions of the highest courts of the country, some of which were there cited.

The application of the views there expressed is, we think, decisive against the validity of the rule under consideration. The language of the statute (S. & B. Ann. Stats, sec. 14095) is wery general, and goes to the extent of authorizing the state board of health “ to make such rules and regulations and to take such measures as may, in its judgment, be necessary for the protection of the people from Asiatic cholera, or other ■dangerous contagious diseases,” and by sec. 1409d it is declared that the term “ dangerous and contagious diseases,” as used in the act, “shall be construed and understood to mean such diseases as the state board of health shall designate as contagious and dangerous to the public health.” The provisions of the statute import and include, an absolute ■delegation of the legislative power over the entire subject 'here involved, and this, too, without any previous legislative provision for compulsory vaccination, or as a condition of 'enrollment of children of proper school age as pupils in "the public school, or of their right to attend such schools. Without any other legislative authority than the right thus ■conferred, the state board of health assumed the power to so far control the public schools of the state as to require “the proper school authorities in their respective localities to enforce the rule in question.” It cannot be • doubted but that, under appropriate general provisions of law in relation to the prevention and suppression of dangerous and contagious diseases, authority may be conferred by the legislature upon the state board of health ór local boards to make reasonable rules and regulations for carrying into effect such general provisions, which will be valid, and may be enforced accordingly. The making of such rules and .-regulations is an administrative function, and not a legis *402 lative power, but there must first be some substantive provision of law to be administered and carried into effect. The true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, “is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and- conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.” The first cannot be done. To the latter, no valid objection can be made. Per RaNney, J., in Cincinnati, W. & Z. R. Co. v. Comm'rs of Clinton Co. 1 Ohio St. 88 . The same Conclusions substantially were reached in Field v. Clark, 143 U. S. 650 , 681, 694. Where an act is clothed with all the forms of law, and is complete in and of itself, it may be provided that it' shall become operative only upon some certain act or event, or, in like manner, that its. operation shall be suspended; and the fact of such act or event, in either case, may be made to depend upon the ascertainment of it by some other department, body, or officer, which is essentially an administrative act. There need therefore be no delay or embarrassment in such cases, as the legislature may easily so formulate the act as to adapt it, and make it operative upon any contingency or emergency. Locke’s Appeal, 72 Pa. St. 491-498; Moers v. Reading, 21 Pa. St. 202; Blanding v. Burr, 13 Cal. 358 . In the present instance neither method of legislation was adopted, and the fatal vice of the rule, in our judgment, is that there was ne precedent or existing law under which it. could be framed and adopted as an adjunct or act of administrative authority, to effectuate its purposes and carry it into effect. School Directors v. Breen, 60 Ill. App. 201 . The cases of Abeel v. Clark, 84 Cal. 226 , and Bissell v. Davison, 65 Conn. 183 , were sustained by' ample legislative authority. In the case of Duffield v. Williamsport School Dist. 162 Pa. St. 476, the-authority to .exclude from the schools those who had not been *403 vaccinated rested upon an ordinance of the city, but whether there was precedent legislative authority does not appear. The making of such rules and regulations, to carry into effect the provisions of an act of strictly legislative authority, as was said in In re Griner, 16 Wis. 423, 434 , “no more partakes of legislative power than that discretionary authority intrusted to every department of the government in a variety of cases. This practice of giving discretionary power to other departments or agencies, who were intrusted with the duty of carrying into effect- some general provisions of law, had its origin at the adoption of the constitution, and in the action of the first congress under it, as the federal legislation abundantly shows.But a distinction must be made of those important subjects which must be entirely regulated by the legislature itself from those of less interest in which a general provision may be made. . . . The line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself from those of less interest in which a general provision may be made, and power given to those who are to act under such general provision to fill up the details.” It not unfrequently occurs that provisions are found in legislative enactments rvhich might well have been determined and regulated by some board or body having administrative powers, but it is safe to say, we think, that, where the provision in question lies strictly and solely within the domain of legislative authority, in all such cases there can be no delegation of the power to enact it. Our conclusion is that the rule under consideration could be made operative only as an act of legislative power, and it does not come within the domain of the power to make rules and regulations in aid or execution of some general statutory provision'. This view is illustrated by reference to certain of the general provisions contained in sec. 14095, yet of a sufficiently definite character^ so that the state board of health, as an ad *404 ministrative body, might be authorized to adopt reasonable rules and regulations to carry them into effect. As to the matter of inspections authorized by the act, to ascertain the presence of the infection of Asiatic cholera or other dangerous and contagious diseases, and the power conferred on the inspector to enter any building, vessel, railway car, etc., as well as the quarantine authorized by sec. 1409, the power of the state board of health to make appropriate rules and regulations to effectuate the general purposes thus declared would seem to be free from doubt. Hurst v. Warner, 26 L. R. A. 484, 489, 492, 102 Mich. 238 ; Train v. Boston Disinfecting Co. 144 Mass. 523 -531; Health Dept. v. Knoll, 10 N. Y. 535 .

2. The circuit court held that the rule in question was unreasonable, and therefore void; and, had the state board of health possessed the power to make the rule, we agree it would have been void for that reason. The rule was an unreasonable and extraordinary one, and serves to enforce the importance and necessity of a strict adherence to'the constitutional rule, that the power to make the law cannot be delegated to any board or body not directly responsible to the people. "When the rule in its original form was adopted, there was no epidemic of smallpox existing in the state, but there were a few cases scattered throughout the state. There had been but one case in Eeloit, which had been properly quarantined; and when the substituted rule was adopted in June, 1894, as well as when this proceeding was instituted, there was no epidemic of smallpox in or near the city of Be-loit, or approaching it, and the defendant board of education had no belief or apprehension that it was prevalent in Beloit or approaching it. None of the relator’s children had been exposed to it or varioloid, and there was no immediate necessity for the rule requiring scholars to be vaccinated. All these facts are established by the findings of the court, the correctness of which was not questioned ai the argument; *405 and yet, by an arbitrary rule, as by a single stroke of the pen, every child of school age, throughout the entire state, that had not been vaccinated, was excluded from the common schools, and forbidden to be enrolled as a pupil, or to attend school, without a certificate of successful vaccination from a reputable physician, or, in lieu thereof, a certificate showing that such child had been vaccinated twice within a period of three months next preceding its application for admission.

There must.be, at least, circumstances apparently rendering such a rule or regulation necessary for the preservation of the public health. It would be a very extraordinary condition that would justify such a sweeping and far-reaching exercise of the power to make a rule of the character of the one in question either justifiable or proper, as the statute provides for making rules and regulations of local application only. Whether rules and regulations framed by an administrative body are reasonable or not is a question that may be determined in the. courts, and, were there no other question in regard to the validity of this rule, we should feel compelled to declare it void as unreasonable and unnecessary. Kosciusko v. Slomberg, 68 Miss. 469 ; In re Smith, 146 N. Y. 68 ; School Directors v. Breen, 60 Ill. App. 201 -208.

The question as to the validity of legislation making vaccination of children attending school compulsory is not presented by the record, and in respect to it we express no opinion. Two of the relator’s children, affected by the rule of exclusion, are within the age prescribed for compulsory education of children by ch. 187, Laws of 1891; but, as this objection may be obviated by subsequent legislation, there is no occasion now to express any opinion in respect to it.

It follows from these views that the judgment of the circuit court is correct.

By the Court.— The judgment of the circuit court is affirmed.