
    In the Matter of the Application of Edmund C. Viemeister, Appellant, for a Peremptory Writ of Mandamus, v. Patrick J. White, President of the Board of Education, and F. H. Meade, Principal of Public School No. 12, Borough of Queens, Respondents.
    
      Validity of statutes — hou> determined — constitutional provision for free schools — it confers a privilege- rather than a right — section 200 of the Public Health Law, prohibiting children from attending schools unless they have been vaccinated, is constitutional.
    
    The validity of statutes must be determined solely with reference to constitutional restrictions, and not by natural equity or justice.
    Section 1 of article 9 of the Constitution of the State of New York, which provides, “ The Legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this State may be educated,” did not operate to make education a constitutional right rather than a privilege, and was intended merely to secure a continuance and an extension of an existing privilege.
    The' Legislature has the right to impose any reasonable regulations upon the exercise of this privilege, provided that such regulation operates equally upon all persons in the same class and under the same conditions, and section 200 of the Public Health Law (Laws of 1893, chap. 661), which prohibits children from attending the public schools without first having been vaccinated, is a legitimate exercise of this power of regulation, and is constitutional.
    Such section does not violate the constitutional provision that no citizen shall be deprived of any of his rights or privileges ‘ ‘ unless by the law of the land or the judgment of his peers.”
    Appeal by the petitioner, Edmund C. Viemeister, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clérk of the county of Kings on the 14th day of July, 1902, denying the petitioner’s motion for a-peremptory writ of mandamus.
    
      Edmund C. Viemeister [John Leary with him on the brief], for the appellant.
    
      James McKeen [Walter S. Brewster with him on the brief], for the respondents.
   Woodward, J.:

The relator seeks to compel the respondents, officers of Public School No. 12, in the borough of Queens, to admit his child to such school, admission having been denied because of the fact that the relator’s said child had not submitted to vaccination as required by section 200 of chapter 661 of the Laws of 1893 (renumbered § 210 by Laws of 1900, chap. 667, § 2). The application of the "relator for a peremptory writ of mandamus was denied at Special Term, and appeal comes to this court, it being urged that the section above cited is null and void, as being contrary to certain provisions of the Constitution.

The rule is well established by authority that the validity of statutes must be determined solely with reference to constitutional restrictions, and not by natural equity or justice. (People v. Buffalo Fish Co., 164 N. Y. 93, 97, and authority there cited.) Our attention is called to various provisions of the State Constitution in an effort to establish a conflict between the statute and the fundamental law. First among the provisions. of the Constitution to which our attention is invited is section 1 of article 9, which provides : “ The Legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this State may be educated.” It is urged that this operates to make an education a constitutional right, rather than a privilege, as held in Matter of Walters (84 Hun, 457), but we are of opinion that the Constitution did not intend to change the practice and policy of the State in reference to the schools, but merely to insure a continuance and an extension of the privileges of citizens of this State, and that the Legislature has a right to impose any reasonable regulations upon this privilege which operate equally upon all persons in the same class and under the same conditions. It may be conceded that the Legislature has no constitutional right to compel any person to submit to vaccination, but where the State grants a privilege it has the right to determine the conditionsuponwhich it maybe enjoyed; has a right to regulate the privilege in the interests of the fullest enjoyment by all, and so long as this regulation does not operate to deprive any member of this State of “ any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers” (Const, art. 1, § 1), there is no ground on which the statute may be declared null and void. The vice against which this constitutional limitation was directed was partial legislation; legislation which operated, not upon the legislators and their immediate constituents, but upon limited numbers of people, and it can hardly be doubted that a provision of a statute which provided that Public School Ho. 12 of the borough of Queens should not permit the attendance of persons not vaccinated, but which made no regulation for other schools, would not be the law of the land.” It would not be “ the law of the land ” if it referred to a single county or to a number of counties, for it would still be open to the objection that it deprived the members of this State who lived in those localities of rights and privileges which were secured to citizens in other portions of the State. When the law operates equally upon all; when the rule of conduct is uniform- throughout the State, affecting alike the legislator, his family, his neighbors and friends, the presumption lying at the foundation of representative government is that the Legislature will act wisely and in the interests of all of .the people, and we may fairly look to the Legislature for the repeal or amendment of ■ statutes which, in the course of time and experience, are found to work adversely to the public interests. When, therefore, the fundamental law of the State has limited the Legislature to general laws, in so far as they relate to- the rights and privileges secured to any citizen of the State, and has fixed certain, limits upon encroachments upon individual rights, it leaves the legislative power otherwise untrammeled, and it is not the province of the courts to interfere with the exercise of legislative discretion. If section 200 of chapter 661 of the Laws of 1893 is not-justified ; if it is not wise or proper to impose the condition there named, it must be presumed that the Legislature will, in the future, remedy the wrong — it cannot be done by the courts. In our constitutional system there are three co-ordinate departments — the executive, the legislative and judicial — and it is improper that any one of .these should encroach upon the domain of .the other. Therefore, when the validity of an act of the Legislature is brought before us, we are to determine, not whether the act is wise or- demanded by considerations of a public , nature, but whether it is within the limitations fixed by the People in the fundamental law, and beyond this we are without more power than belongs to any other equal number of citizens of the State.

The act in question is general in its operation; it applies to all persons attending the public'schools of this State, and if it transcends none of the specific individual guaranties, it is “the law of the land,” and, as such, binding upon every person within the jurisdiction. “By ‘law of the land,’” say the court in Bank of the State v. Cooper (2 Yerg. 599; 24 Am. Dec. 517, 523), “is meant a general and public law, operating equally on every individual in the community. Such is the opinion of Judge Catron in the case before referred to, and such was the opinion of Lord Coke upon the construction of Magna Cliarta. ' In his commentary on this instrument (2 Institute 51) he says that the terms ‘law of the land ’ were used that the law might extend to all. He informs us that Parliament, by an act in the 11th year of Henry YII violated the principles of the great' charter in this, particular; and that, under the authority of this act, Empson and Dudley committed horrible oppressions and exactions to the. undoing of many people. But that in the first year of Henry VIII, this act was repealed on the. avowed ground that it was a violation of the charter.” Continuing this same learned court say: “ This provision was introduced to secure the citizens against the abuse of power by .the government. Of what benefit is it if it impose no restraint upon legislation ? Was there not as just ground to apprehend danger from the Legislature as from any other quarter ? Legislation is always exercised by the majority. Majorities have nothing to fear ; for the power is in their hands. They need no written constitution defining and circumscribing the powers of the government. Constitutions are only intended to secure the rights of the minority. They are in danger. The power is against them; and the selfish passions often lead us to forget the right. Does it not seem conclusive, then, that this provision was intended to restrain the Legislature from enacting any law affecting injuriously the rights of any citizen, unless at the same time the rights of all others in similar circumstances were, equally affected by it ? If the law- be general in its operation, affecting all alike, the minority are safe, because the majority, who make the law, are operated on by it equally with the others. Here is the importance of the provision and the great security it affords.” And in Jones v. Perry (10 Yerg. 59; 30 Am. Dec. 430) the court, in discussing this same provision, say : “ But the language used is of general application, and forbids the enactment of a partial law by which the rights of any individual shall be abridged or taken away. Nor is there a .single provision in our Constitution more salutary in its character, or that demands in its enforcement the exercise of greater vigilance and energy.” (See Sudd v. State 3 Humph. 483; 39 Am. Dec. 189; Vanzant v. Waddel, 2 Yerg. 260, cited approvingly in Cotting v. Kansas City Stock Yards Co., etc., 183 U. S. 79; Opinion of the Judges of England, 20 Henry VI; Opinion of Judges of England, 2 Richard III; “An Appeal to the Justice and Interests of the People of Great Britain, in the Present Disputes with America, By an Old Member of Parliament” [4th ed.], 1,5,7, 8.; Richard Price, D. D., F. R. 8., .in his “ Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America” [6th ed.], 29.) Webster, in Dartmouth College v. Woodward (4 Wheat. 518, 581), says: “ By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds ' upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.”

We fail to discover that the statute in question violates any specific guaranty; it is not in conflict with any of the .definitions, of the “ law of the land,” for it operates equally upon every person who is, or who may desire to become,, a pupil in our public schools. It affords the equal' protection of the law. required by section 1 of the 14th amendment of the United States Constitution; and however willing we might be to agree with the appellant that the practice of vaccination is attended' with dangers, and that its. efficacy is a matter of uncertainty, these are considerations which should properly be addressed to the legislative department rather than to the courts

The order appealed from should be affirmed, with costs.

Goodrich, P. J., Bartlett and Hooker, JJ., concurred.

Hirschberg, J. (concurring):

I con cut. The provisions of section 200'of chapter 661 of the Laws of 1893 (renumbered § 210 by Laws of 1900, chap. 667, §2), prohibiting children from attending the public schools without first having been vaccinated, constitute a legitimate exercise of the police power. This is defined by the Court of Appeals in People v. King (110 N. Y. 418, 423), as the power by means of which "the Legislature exercises a supervision over matters involving the common weal and enforces the observance, by each individual member of society, of the duties which he owes to others and to the community at large. It may be exerted whenever necessary to secure the peace, good order, health, morals and general welfare of the community, and the propriety of its exercise within constitutional limits is purely a matter of legislative discretion with which the courts cannot interfere.”

It has never been questioned that measures which are obviously designed in good faith to guard and protect the public health are within this power. “ The Legislature has power to pass laws for the protection of the health and safety of its citizens.” (7 Lawson Rights Rem. & Pr. § 3913.) “ Without attempting to define what are the peculiar subjects or limits of this power it may safely be affirmed that every law for the restraint and punishment of crime, for the preservation of the public peace, health and morals must come within this category.” (Mr. Justice Grier, in Thurlow v. Massachusetts, 5 How. [U. S.] 631.) “ The police power of a State extends to all matters which concern its internal regulation. It -embraces those which affect the lives, limbs, health, comfort and welfare of all in their persons and their property. It subjects both persons and property to those restraints and burdens which are neces.sary in order that the general comfort and welfare may be secured.” Commonwealth v. Bearse, 132 Mass. 542, 546.) “Neither the ¿amendment (the 14th), broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people.” (Barbier v. Connolly, 113 U. S. 29, 31.) “The police power,” said Judge Peckham in People v. Budd (117 N. Y. 1, 38), “ it is acknowledged, may be rightfully exercised, among others, in cases involving the public health or the public morals. No one questions it in regard to either of those two important branches of government.”

No court in this State, so far as I have been able to learn, has ever declared an act unconstitutional which was simply designed to protect the public health. It is only in cases where, under the guise of health regulations, enactments have been passed, having other ulterior objects in view that the courts have declared the acts unconstitutional. These cases in no degree weaken the broad doctrine that the State in the exercise of its sovereign power may-control and restrain the individual citizen by fair and reasonable laws designed to promote the public health and hy which all are treated alike. They only establish, said the court in People v. Ewer (141 N. Y. 129, 135), that “the Legislature has no right, under the guise of protecting health, or morals, to enact laws which, bearing but remotely, if at all, upon these matters of public concern, deprive the citizen of the right to pursue a lawful occupation.”

The provision of the act in question in reference to vaccination has no object beyond the maintenance and preservation of the public-health and invades no rights of the citizen. It relates solely to the children attending the public schools, and aims to protect the great mass of the people who have adopted a generally recognized preventive- of the spread of smallpox from dangerous and enforced association with the few who refuse to join in the protection. It has long been on our statute books. As originally passed in 1860 (Chap. 438, § 1) it directed boards of education “ to exclude from the benefits of the common schools therein any child or any person who has not been vaccinated ; ” and as re-enacted by section 2Q0 of' chapter 661 of the Laws of 1893 it expressly provides that “no child or person not vaccinated shall be admitted or received into any of-the public schools of the State.” Assuming that the State has aright to determine whether or not the practice of vaccination tends to prevent disease, and assuming that the State has a right to determine that the general and intimate association for long periods of unvaccinated persons, and especially of unvaccinated, susceptible . children, is a menace to the public health, no reasonable doubt can exist as to the propriety and legality of this exercise of its sovereign , power. The legitimacy of its exercise is recognized by text writers. (See Prent. Pol. Pow. 132; Tied. Lim. Pol. Pow. § 15; and Park. &. W. Pub. H. & S. § 123.) It is not in conflict with the-assumed duty of the State to furnish education. Cooley in his work on Torts says (p 287): “ To furnish to its citizens the means of an education is a duty which the State, at its option, will assume or decline; and when the duty is assumed, the State, in the provision it makes, will go so far as its law makers shall think proper, and no further.” This principle was recognized by the Court of Appeals in the case of People ex rel. King v. Gallagher (93 N. Y. 438), and Chief Judge Ruger, referring to a well-known case, viz., the Slaughter House Cases (16 Wall. 36) then recently decided by the United States Supreme Court, said (p. 447): “ It would seem to be a plain deduction from the rule in that case that the privilege of receiving an education at the expense of the State, being created and conferred solely by the laws of the State, and always subject to its discretionary regulation, might be granted or refused to any individual or class at the pleasure of the State. This view of the question is also taken in State ex rel. Garnes v. McCann (21 Ohio St. 210) and Cory v. Carter (48 Ind. 337; 17 Am. Rep. 738).” It is unnecessary to go as far as Judge Ruger did. It is sufficient that on principle and authority .the duty to educate is not so far absolute as to exclude the right to enforce reasonable prohibitory regulations.

In many of the States vaccination laws in relation to school children have been held to be constitutional and within the legitimate exercise of the police power, provided they are enforced only when an epidemic of smallpox threatens the community, but in many other States besides our own it has been expressly held that independently of any specific menace of disease, a regulation excluding unvaccinated children from the public schools is reasonable, valid and constitutional. Among the latter cases may be cited Abeel v. Clark (84 Cal. 226); Duffield v. School District (162 Penn. St. 476); Field v. Robinson (198 id. 638); Bissell v. Davison (65 Conn. 183); Blue v. Beach (155 Ind. 121) and Matter of Rebenach (62 Mo. App. 8). In some of these jurisdictions there existed at the time of the respective decisions a constitutional guaranty of education similar in character to that embraced in our present fundamental law. (Const, art. 9, § 1.) Thus, in Indiana, by article 8, section 1, the Constitution provided in substance that tuition should be free and the schools open to all; in California, by article 9, section 5, of the Constitution, it is provided that the Legislature shall provide for a system of common schools, by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school lias been established ; ” and by article 10, section 1, of the Constitution of Pennsylvania, the Legislature is required to maintain a “ system of public schools wherein all the children of this Commonwealth above the age of six years may be educated.” Nevertheless the Vaccination Law was upheld by the court of last resort in each of the three States referred to, in the cases (supra) respectively of Blue v. Beach, Abeel v. Clark and Duffield v. School District.

For the reasons herein expressed, and those contained in the opinion of Mr. Justice Woodward, I vote for an affirmance of the order.

Goodrich, P. J., Bartlett and Hooker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
       See Vanzant v. Waddel (2 Yerg. 260, 270)—[Rep.
     