
    HEALTH — SCHOOLS AND SCHOOL DISTRICTS.
    [Summit (8th) Circuit Court,
    September 30, 1905.]
    Marvin, Winch and Henry, JJ.
    State, ex rel. Milhoof, v. Barberton (Bd. of Ed.).
    •Boabd. of Education mat Enfoece Reasonable Rules as to Vaccination.
    By the provisions of Rev. Stat. 3986 (Lan. 6464) a board of education is clothed with an express grant of power over the subject of vaccination, and may enforce all reasonable rules with reference thereto.
    [For other cases in point, see 5 Cyc. Dig., “Health,” §§ 38-41; 7 Cyc. Dig., “Schools and School Districts,” §§ 435-439. — Ed.]
    Appeal from Summit circuit court.
    Rogers, Rowley & Rockwell, for plaintiff.
    Stuart & Stuart and H. M. Hagelbarger, for defendant:
    A board of education may require the vaccination of children as a condition precedent to their enjoyment of school privileges. Revised Statute 3986 (Lan. 6464).
    Courts will take judicial notice of the facts that the common belief of the people is, that vaccination is a preventative of smallpox. ’ Viemeister v. White, 179 N. Y. 235 [72 N. E. Rep. 97; 70 L. R. A. 796; 103 Am. St. Rep. 859].
    A rule requiring vaccination is not in conflict with any constitutional right, and may be adopted when smallpox is not prevalent nor threatened. Hutchins v. Durham, Sch. Committee, 137 N. C. 68 [49 S. E. Rep. 46]; Commonwealth v. Jacobson, 183 Mass. 242 [66 N. E. Rep. 719; 67 L. R. A. 935]; Bissell v. Davison, 65 Conn. 183 [32 Atl. Rep. 348; 29 L. R. A. 251]; Fields v. Robinson, 198 Pa. 638 [48 Atl. Rep. 873]; Abeel v. Clark, 84 Cal. 226 [24 Pac. Rep. 383]; Morris v. Columbus, 102 Ga. 792 [30 S. E. Rep. 850; 42 L. R. A. 175; 66 Am. St. Rep. 243].
   MARVIN, J.

The petition sets out that the relator resides in Barberton, and has two children of school age who are entitled to be admitted as pupils in the schools, and that they are excluded for the reason, and only for the reason that they have not been vaccinated for smallpox, and he seeks a mandamus compelling the board of education to admit these children into the schools.

The ease was heard and some evidence introduced, and it appears that the facts are as stated in the petition. The board has a rule which it adopted at a time when smallpox was prevalent in the village of Barberton; that prevalence does not now exist, nor is there any smallpox in the vicinity of Barberton — in Akron, or any other place connected with Barberton, but the rule is still there and still in force. Revised Statutes 3986 (Lan.- 6464) provides that—

“The board of each district may make and enforce such rules and regulations to secure the vaccination of, and to prevent the spread of smallpox.among the pupils attending or eligible to attend the schools of the district, as in its opinion the safety and interest of the public require; and the boards of health and councils of municipal corporations, and the trustees of townships, shall, on application of the board of education of the district, provide at the public expense, without delay, the means of vaccination to such pupils as are not provided therewith by their parents or guardians.”

In accordance with that statute the board adopted this rule; it is still in force. In numerous cases which were cited on the hearing in other states such rules have been upheld. It is urged that in view of the fact that there is compulsory education in this state, the policy of the state is to encourage, indeed, to enforce education upon the children, that there ought not to be a rule which will exclude children from the schools because they have not been vaccinated, but the' statute says they may, or, rather, that they may enforce the vaccination and make such rules as in the judgment of the board are necessary. They have adopted this rule. There is nothing in the decisions to which our attention has been called, or of which we have any knowledge, nor is there anything in the facts which would justify us in holding that the rule of the school board is unreasonable, and the petition is therefore dismissed at the costs of the plaintiff.

Winch and Henry,.JJ., concur.  