Summary
challenging school immunization requirement on Freedom of Conscience Clause grounds
Summary of this case from Pelphrey v. Cobb County, Ga.Opinion
33621.
DECIDED JUNE 29, 1951.
Failure to send children to school; from Reidsville City Court — Judge Cowart. April 13, 1951.
Chalmers Chapman, for plaintiff in error.
R. N. Odum, Solicitor, John P. Rabun, contra.
1. Under Code and Ann. Supplement § 32-911 the boards of education of each county are empowered to make regulations as in their judgment will insure the vaccination of pupils in their respective schools as a prerequisite to admission, and this power is unaffected by the provisions of Code § 32-1801 relating to similar powers of county boards of health.
2. A person's right to exercise religious freedom ceases where it overlaps and transgresses the rights of others.
3. It being the duty of the parents under Code (Ann. Supp.) § 32-2104 to enroll and send their children between the ages fixed by the statute to school, and it being the duty of the school authorities to fix reasonable rules and regulations under which they shall attend, it was not error for the trial court under the facts of this case to charge the jury in substance that if the defendants failed and refused to have their children immunized against certain contagious diseases, which immunization was required, as a prerequisite to their attendance, and by reason of this refusal the children were sent home by their teachers, this would be a refusal by the defendants to enroll and send their children to school and they would be guilty as charged.
DECIDED JUNE 29, 1951.
The defendants, Mr. and Mrs. Otis Anderson, were charged in the City Court of Reidsville with a violation of Code (Ann. Supp.) § 32-2104, as follows: "Every parent, guardian or other person residing within the State of Georgia having control or charge of any child or children between their seventh and sixteenth birthdays, shall enroll and send such child or children to a public or private school under such penalty for noncompliance herewith as is hereinafter provided." A violation of this statute is made a misdemeanor under Code (Ann. Supp.) § 32-9914.
The undisputed evidence on the trial of the case was that the defendants' children were by then enrolled in Collins High School in Tattnall County at the beginning of the school term and remained for about seven days; that at that time the county nurse under the direction of the county board of education attempted to vaccinate the children against certain contagious diseases, to which the defendants objected on the ground that it was against their religious beliefs; that they do not believe in taking vaccine or immunization against disease but do believe in divine healing through faith; that the matter was taken up at a meeting of the county board of education, which indicated its willingness to dispense temporarily with the vaccination requirement if the parents and pastor of their church signed a certificate stating that their religious sect was opposed to the use of medicine in the treatment of disease; that the pastor refused to sign this certificate on the ground that the opposition to the use of medicine and immunization were not a part of the church creed, but a belief embraced by certain of its members individually, including these defendants; that the parents were notified to put their children in school; that the children came back to school but were not allowed to be vaccinated, whereupon the teachers were ordered not to accept them until they were vaccinated; that they returned home and have not attended school since. The defendant made a statement in which he contended that he was being tried on a religious issue; that it was his individual belief that healing is through faith and not by medicine, and that it was not his intention to violate the law.
Upon conviction, the defendants made a motion for a new trial on the general grounds which was later amended by the addition of ten special grounds, and the overruling of this motion is assigned as error. Counsel for the defendant contended in his brief and oral argument that the four issues to be decided are as follows: first, whether it was essential to the State's case to prove the regulation of the county board of health requiring the vaccination of school children upon which the county board of education, requiring such action, acted; second, whether the trial court had jurisdiction in view of Code § 32-1801 which empowers county boards of health to make rules and regulations for preventing contagious diseases, expressly provides that such rules and regulations of county boards of health shall not apply in any incorporated city or town, and because the evidence here failed to show that the defendants lived outside the limits of an incorporated city or town; third, whether the court erred in failing to charge without request Article I, Section I, Paragraph XII of the Constitution of Georgia (Code § 2-112), and, fourth, whether it erred in charging in substance that if the defendants failed and refused to have their children immunized in accordance with the requirement of the board of education as a prerequisite to their attending school and for this reason the children were sent home by the school authorities, the defendants would be guilty as charged. We will consider these issues in this order, and all grounds of the amended motion for a new trial which do not relate to them are treated as abandoned.
1 (a). Code § 32-911 as amended by the act of 1946 (Ga. L. 1946, p. 206, 207) provides as follows: "The boards of education of each county and independent school system may make such regulations as in their judgment shall seem requisite to insure the vaccination of the pupils in their respective schools and may require all scholars or pupils to be vaccinated as a prerequisite to admission in their respective schools." Similar statutes have been widely held to be valid delegations of legislative power to the designated county or municipal authorities for the purpose of requiring vaccination as a prerequisite to school attendance, or as a health measure. See Jacobson v. Mass., 197 U.S. 22, ( 25 Sup. Ct. 358, 49 L. ed. 643); Hartman v. May, 168 Miss. 477 ( 151 So. 737, 93 A.L.R. 1408); Hartman v. Board of Education, 197 Ala. 617 ( 73 So. 321); Allen v. Ingalls, 182 Ark. 991 ( 33 S.W.2d 1099); Bissell v. Davison, 65 Conn. 183 ( 32 A. 348). See also Morris v. City of Columbus, 102 Ga. 792 ( 30 S.E. 850); Williams v. Ragsdale, 205 Ga. 274, 278 ( 53 S.E.2d 339). Here, the following excerpt from the minutes of the Tattnall County Board of Education was admitted in evidence without objection: "The superintendent reported that the county board of health had requested the county board of education to require children entering school to take the immunizations for smallpox, diphtheria and typhoid at least. Mr. Rabun moved that as a requisite to the further attendance of any pupil in school [he] be required to take the immunization of all infectious diseases required by the county board of health. This . . was carried." The objection appears to be, not to the sufficiency of evidence of the resolution of the county board of education, but because of a failure to show any immunization requirements of the county board of health. Since Code (Ann. Supp.) § 32-911, supra, empowers the board of education without regard to any rules or regulations promulgated by the board of health to require as a prerequisite to admission in the public schools over which it has jurisdiction, the vaccination of children, the fact that its action was taken here pursuant to a request by the county board of health is immaterial. The board of education could have taken the same action without such request. It follows, therefore, that the failure of the State to prove a requirement of the board of health affords no ground for reversal.
(b) The defendant further contends that the evidence fails to support the verdict because, under Code § 32-1801, rules of the county boards of health shall not apply in incorporated areas, and it is not shown here whether or not the defendants resided in an incorporated area. This contention is without merit because, as has been pointed out, the vaccination required of the defendants' children as a prerequisite to their remaining in school was pursuant to rules and regulations promulgated by the county board of education as authorized by Code (Ann. Supp.) § 32-911 and not by virtue of any rule or regulation of the county board of health as authorized by Code § 32-1801. It is not contended that the board of education did not have jurisdiction of the school in question.
2. The defendant further contends that the court, even without request, should have charged Art. I, Sec. I, Par. XII of the Constitution of Georgia (Code, § 2-112) as follows: "All men have the natural and inalienable right to worship God, each according to the dictates of his own conscience, and no human authority should, in any case, control or interfere with such right of conscience." The defendants contend that they are members of a religious sect which permits them to choose for themselves the application of the tenets of their sect; that they interpret their religious instruction to mean that they should not use medicinal aids; that this is a part of their religion and to deprive them of it is to deprive them of their freedom of worship; that they do not wish to deprive their children of an education but, when forced to make a choice between depriving them of an education and allowing them to receive medical treatment, they must choose the former. The ill effects of contagious disease, and its power to wipe out entire populations, is a matter of history. Many of these scourges of the past have been completely dissipated by the preventive methods of medical science. The purpose of the legislature in passing the statute embodied in Code (Ann. Supp.) § 32-911 was to prevent the spread of these diseases, not only for the protection of those actually immunized but for the protection of others with whom they might come in contact. The refusal of the defendants here to have their children vaccinated amounted to a transgression of the rights of others. In Jones v. City of Moultrie, 196 Ga. 526, at page 531 ( 27 S.E.2d 39), it is held as follows: "A person's right to exercise religious freedom, which may be manifested by acts, ceases where it overlaps and transgresses the rights of others. Every one's rights must be exercised with due regard to the rights of others. `Sic utere tuo ut alienum non laedas' has been a maxim of legal application since the days of the civil law of the Roman Empire. To construe this constitutional right as being unlimited, and to hold as privileged any act if based upon religious belief, would be to make the professed doctrine of religious faith superior to the law of the land, and in effect would permit every citizen to become a law unto himself." In City of New Braunfels v. Waldschmidt, 109 Tex. 302 ( 207 S.W. 303) the court, ruling that an ordinance denying pupils the right to attend school unless vaccinated for smallpox did not interfere with any rights of conscience in matters of religion, held as follows: "No more does section 6 of the Bill of Rights in our State Constitution relieve one from obedience to reasonable health regulations enacted under the police power of the State, because such regulations happen not to conform to one's religious belief." In State v. Drew, 89 N.H. 54 ( 192 A. 629), the defendant was convicted of failure to cause his child to attend a public or private school, by reason of failure to allow him to be vaccinated as a prerequisite to attendance, the court there holding, "So it is irrational for the defendant to say that he did his full duty as a citizen and father when he demanded that his son be admitted to the school without vaccination. Equally irrational is his argument that he would be subject to penalty if he sent the boy to school unvaccinated; for it is his legal duty to send him vaccinated, and his refusal to do so is the cause of his conviction."
Liberty of conscience is one thing. License to endanger the lives of others by practices contrary to statutes passed for the public safety and in reliance upon modern medical knowledge is another. The validity of the statute is not questioned, and the wisdom of the legislative enactment is not a matter for the decision either of this court or of any individual citizen. The opinion of the defendants that they should practice healing without the aid of medicine is not a legal justification for refusal to abide by the statutes of this State and regulations passed pursuant thereto, and for this reason freedom of worship was not an issue in the case. The failure of the court to charge on this subject was not error.
3. The fourth and final contention of the defendant is that the court erred in charging the jury as follows: "I charge you that if the defendants failed and refused to have their children take the immunization shots and then sent them back to school and the children were sent home by the teachers for this reason; this would be a refusal by the defendants to enroll and send their children to school and they would be guilty as charged."
Code (Ann. Supp.) § 32-2104 imposes upon parents of children between the ages of seven and sixteen years the duty of enrolling and sending such children to a public or private school. Code (Ann. Supp.) § 32-9914 fixes the penalty for non-compliance with this duty. As hereinbefore pointed out, Code and Ann. Supplement § 32-911 empowers the county boards of education to fix rules and regulations insuring the vaccination of such school children as a prerequisite to admission. These provisions of our statute law therefore impose upon the parents the duty of sending the children to school and upon the school authorities the duty of fixing the rules and regulations under which they shall attend. The defendants in this case sought to comply with their duty to send their children to school but at the same time usurp the prerogative of the school authorities, and also undertook to fix the rules under which they should attend. Their contention therefore that they did actually enroll the children unvaccinated constitutes no valid defense. It is the same contention urged in State v. Drew, supra, where the offer to send the children unvaccinated to the school was sought to be treated as a "legal tender" and the rejection was sought to be treated as an estoppel of the school board. Such a contention is unsound for the reason that an offer to do a thing only upon waiver of the conditions precedent thereto amounts to no offer at all. Further, our statute specifically provides, not only that the child shall be enrolled, but kept in school for a minimum of 175 days or the full session thereof, subject to certain exceptions. Under these circumstances, the action of the parents in refusing to meet the prerequisites of attendance in public school constituted a violation of the statute and the court did not err in so charging.
The judgment of the trial court overruling the motion for a new trial as amended is without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.