Summary
In State v. Drew, 89 N.H. 54, the defendant sought to justify his refusal to submit his son to vaccination upon the basis of rights of conscience and religious freedom guaranteed by Articles 4 and 5 of Part I of the New Hampshire Constitution.
Summary of this case from State v. PinsinceOpinion
Decided June 1, 1937.
There is no unqualified constitutional right of either a parent or his child that the latter attend the public schools; and a reasonable requirement such as vaccination before attendance, as provided in P. L, c. 123, s. 1, is constitutional. Under P. L, c. 123, ss. 1, 3 it is the legal duty of a parent to have his child vaccinated and send it to school unless exempted by the act; and a parent who refuses to comply with the statute is liable to the penalty under section 3. In a complaint upon the act the argument of the solicitor that when a law does not please a person he has no right to ask a jury to permit him to violate it was warranted by the evidence and proper.
COMPLAINT, alleging that the defendant, on November 19, 1935, at Dover, having the custody and control of Othniel Drew, a child eight years of age, and residing in a school district in which a public school was annually "taught," failed to cause the said child to attend the public school to which he was assigned or an approved private school during all the time the said school was in session. Othniel not having been excused by the School Board of the said district on account of his physical or mental condition. Trial by jury; verdict, guilty. The defendant's bill of exceptions was allowed by Johnston, J.
The defendant relies upon the following exceptions: (1) To the denial of his motions to dismiss at the close of the State's evidence and at the close of all the evidence; (2) To a certain instruction given to the jury; (3) To argument by the County Solicitor.
The statute under which the complaint was brought is P.L., c. 118, ss. 1, 2. "Every child between eight and sixteen years of age shall attend the public school to which he is assigned or an approved private school during all the time the public schools are in session, unless he is more than fourteen years old and has completed the studies prescribed for the elementary schools, or has been excused from attending on the ground that his physical or mental condition is such as to prevent his attendance or to make it undesirable. . . . Every person having the custody of a child shall cause the child to attend such a school during all the time the public schools are in session." A penalty is provided for by s. 6.
Also involved is P.L., c. 123, s. 1. "No child shall attend a public or private school in this state unless he has been vaccinated; or has had the smallpox; or has submitted not less than three times to the process of vaccination; or holds a certificate of the local board of health that he is unfit subject for vaccination. The local board of health shall issue such a certificate on the advice of a registered physician approved by it." A penalty is provided for in s. 3.
The defendant, in September, 1935, called upon the Superintendent of Schools at Dover and desired to enter his son Othniel in the public schools. He was told that he must present a birth-certificate and a vaccination-certificate. Later the defendant sent to the School Board a letter "making legal tender" of his children of school age, unvaccinated, and demanding in effect that they be received and instructed in that condition.
The superintendent then called upon the defendant and suggested that he see Dr. Marcotte, the City Physician. Later the defendant reported to the superintendent that he had seen Dr. Marcotte, who said "there was no condition that would relieve a child of vaccination." The defendant added, "We refuse to have our children vaccinated."
The matter was then reported to the State Commissioner of Education, who sent the State Truant Officer to interview the defendant. In answer to the officer's inquiries, the defendant said that his reason for not sending the child to school was "partly religious and partly because he didn't want that poison injected into his child," but he did not elaborate or explain this statement. The defendant refused to have his child vaccinated, and the complaint was sworn out the next day. The defendant did not testify at the trial, and the nature of his scruples appears no further than has been stated.
Thomas J. McGreal, County Solicitor, for the State.
Florence M. Dederick (under power of attorney, by brief and orally), for the defendant.
The defendant contends that his motions to dismiss should have been granted on the broad ground that the vaccination law is invalid because in conflict with the Fourteenth Amendment, s. 1, of the Federal Constitution and Articles 4, 5, 12 and 19 of the New Hampshire Bill of Rights.
In his motions, the defendant relied upon allegations that may be summarized thus: (1) that the "charge is a fraud and subterfuge"; (2) that he in good faith offered to send his son to school on condition that the School Board accept him unvaccinated; that this offer was a "legal tender" of the boy, whose rejection estopped the School Board and the State Truant Officer to enter this complaint; (3) that the defendant could not be compelled to place himself in "legal jeopardy," as he would be forced to do if he sent his unvaccinated son to school under penalty of the law; (4) that consequently the defendant had complied with his legal duties as custodian of his son; (5) that he had a legal right to refuse to submit his son to "a surgical operation such as vaccination or the deliberate diseasing of his son"; (6) that there is no legal authority to compel vaccination or make it a requirement for school attendance, and that forcible vaccination is in law an assault and trespass; (7) that the State may not practice medicine; (8) that in some other instances complaints similar to this have been nol prossed.
The general question of constitutionality here raised was considered in Barber v. School Board, 82 N.H. 426 and Cram v. School Board, 82 N.H. 495. The statute was held valid. We see no reason to re-examine the question now. The special grounds upon which the defendant based his motion to dismiss were all disposed of by the authorities relied upon in the Barber and Cram opinions.
Our statute provides for the vaccination of all school children, with certain exceptions not applying to the defendant's son. In connection with the school attendance law, it may be conceded that it penalizes failure by a parent to cause his child of school age to be vaccinated, if the child be a fit subject or be not reasonably immune to smallpox. A direct provision for vaccination, with a penalty for refusal to submit, is valid. Commonwealth v. Pear, 183 Mass. 242; Jacobson v. Massachusetts, 197 U.S. 11; Morris v. Columbus, 102 Ga. 792; State v. Hay, 126 N.C. 999. Compare State v. Martin, 134 Ark. 420.
Neither the defendant nor his son has a constitutional right to schooling which may not be limited by a reasonable requirement, such as we have, that the child be vaccinated before attending. Viemeister v. White, 179 N.Y. 235; Bissell v. Davison, 65 Conn. 183; State v. Board c. 76 Oh. St. 297; Stull v. Reber, 215 Pa. St. 156; Blue v. Beach, 155 Ind. 121; French v. Davidson, 143 Cal. 658; In re Rebenack, 62 Mo. App. 8; McSween v. School Board, 60 Tex. Civ. App. 270; Hill v. Bickers, 171 Ky. 703; State v. Martin, supra; Hagler v. Larner, 284 Ill. 547; State v. Board c., 21 Utah 401; Zucht v. King, 260 U.S. 174. A more recent case reaches the same conclusion. Hartman v. May, 168 Miss. 477.
So it is irrational for the defendant to say that he did his full duty as 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. Irrational also are his claims that the statutes involve the State in the practice of medicine, and that other complaints similar to this having been nol prossed, this must be dismissed.
The defendant's individual ideas, whether "conscientious," "religious" or "scientific" do not appear to be more than opinions. They are not shown to involve any question of religious liberty. Since they are mere opinions, they are irrelevant and immaterial. The defendant's views cannot affect the validity of the statute or entitle him to be excepted from its provisions. Commonwealth v. Pear, 183 Mass. 242, 246. It is for the legislature, not for him or for us, to determine the question of policy involved in public health regulations. If all men were to take the position that individual opinions are equivalent to rights, law would be replaced by anarchy. Upon the defendant's theory, no man could be convicted of drunkenness who insisted upon the view that a noisy spree is a private right; and no charlatan could be prevented from assuming to practice medicine provided he felt the "call" to do so. The defendant cannot claim constitutional rights under Articles 4 and 5 of the Bill of Rights without making concessions of some of his natural rights under Article 3.
It follows that it was perfectly proper for the County Solicitor to remind the jury that when a law does not please a person, he has no right to ask a jury to permit him to violate it, and for the solicitor further to state that dissatisfied persons must seek relief in such a case from the legislature and not from the jury. Equally correct was the argument that the jury should not consider the defendant's feeling that the law is unjust or unconstitutional.
Finally, our statute does not involve an assault or trespass upon the body of any child. To the extent that it requires parents under certain circumstances to have their children vaccinated, it is a reasonable measure for the protection of the public health. Stull v. Reber, 215 Pa. St. 156, 162. We do not need to consider whether forcible vaccination by a public official would be an assault under our statute as it now stands. There was not even an attempt at such vaccination here. The defendant merely refused to send his child to school vaccinated. So he must pay the penalty for not submitting to a valid law. Commonwealth v. Pear, supra.
It follows that it was proper for the court to give the jury the instructions excepted to, including the sentence, "It was the legal duty of the defendant Lawrence E. Drew to have his child vaccinated and to cause it to attend school."
Exceptions overruled.
All concurred.