Viemeister v. White

88 A.D. 44

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1903
• Status: Published

Opinions

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.

See Vanzant v. Waddel (2 Yerg. 260, 270)—[Rep.