possessed the constitutional power to pass such a statute. Of these three answers, we accept the first as sufficient, and express no opinion concerning the other two.

So far as we know, the question under consideration has not been heretofore decided in this Commonwealth, although the reasoning of Duffield's case points strongly to the conclusion we have reached. In the State of California it arose several years ago, and was also decided in favor of the legislative power: Abeel vs. Clark, 84 Cal. 226. Maine and Massachusetts have statutes similar to the section under consideration."

The parents of a child who is refused admission to the public schools because they cannot produce a certificate of vaccination are not liable to the penalty provided by the compulsory education law.7

Registry.

617. The health authorities of said municipalities shall furnish to principals or other persons in charge of said schools, and to physicians, the necessary certificates or blanks for the uses and purposes as set forth and required in sections one, eleven and twelve of this act. The registry of said school shall exhibit the names and residences of all children or persons admitted or rejected for reasons set forth in this act, and said registry shall be open at all times to the inspection of the health authorities.8

Duty of health officers.

618. It shall be the duty of the health authorities in the several municipalities as aforesaid to furnish daily, by mail or otherwise, to principals or other persons in charge of said schools, a printed or written bulletin, containing the name, location and disease of all persons suffering from cholera, small-pox, (variola or varioloid), scarlet fever, typhus fever, yellow fever, relapsing fever, diphtheria, diphtheritic croup, membraneous croup or leprosy, upon receipt by them of reports of such cases from physicians as required in section

6. Nissley vs. Hummelstown Borough School District, 5 D. R. 732, 1896. 7. Commonwealth vs. Bauman, 50 P. L. J. 109, 1902.

one of this act: Provided, That the health authorities of any municipality may, in lieu of the daily bulletin herein required, provide that a notice shall be given to the school or schools attended by the children in whose home or residence any of the diseases mentioned in this section exist, and prescribe the form of said notice.9

Penalty.

619. Any physician, undertaker, principal of a school, superintendent of a Sunday school, sexton, janitor, head of a family or any other person or persons named in this act, who shall fail, neglect or refuse to comply with, or who shall violate any of the provisions or requirements of this act, shall for every such offense, upon conviction thereof before any mayor, burgess, alderman, police magistrate, or justice of the peace of the municipality in which said offense was committed, be liable to a fine or penalty therefor of not less than five dollars, nor more than one hundred dollars.1

Fine and imprisonment.

620. Said fines or penalties shall be paid into the treasury of said municipality, and in default of payment thereof, such person or persons so convicted shall undergo an imprisonment in the jail of the proper county for a period not exceeding sixty days."

Act includes townships.

621. The act of June 18, 1895, relating to vaccination of school children applies to township school districts and is not limited to cities and boroughs. A township is a municipal corporation.'

12

The Act of June 18, 1895, P. L. 203 is a valid exercise of the police power of the state.

622. Said Mitchell, C. J. :-The substantial question in this case is whether the act of June 18, 1895, P. L. 203, requiring the exclusion from the public schools of children who have not been vaccinated is a valid exercise of the police

power of the state. It has been twice so decided by this court. In Duffield vs. School District of Williamsport, 162 Pa. 476, a similar regulation not even enacted by the legislature but enforced by the school directors under an ordinance of the city of Williamsport was held valid. And in Field vs. Robinson, 198 Pa. 638, this very statute of 1895 was held constitutional. It appears to be thought that because the decision was given in a brief opinion per curiam the subject was not fully considered. But the proper inference is precisely the reverse, that the conclusion was so perfectly clear to the whole court that it did not require any extended argumentative support.

After these two decisions the question ought to have been considered as closed. But we have it raised again with small variations of facts and considerations, none of which are at all material.

On the constitutional question it is said that section 12 of the act contravenes sections 7 and 8 of article 3 of the constitution in that it is local and special legislation, regulating the affairs of school districts. The terms of the act apply expressly to the "several municipalities" of the state. and it is argued that they do not include school districts in townships, and therefore make an unwarranted distinction in regard to such districts. Whether townships are municipalities within the intent of the act it is not now necessary to consider. Even if not, the separate classification of school districts in cities and boroughs with reference to public health where population is dense and the danger of contagion great, would not be unconstitutional. Sugar Notch Borough, 192 Pa. 349.

But the act is in no proper sense a regulation of school districts. It is an act entitled "for the more effectual protection of the public health in the several municipalities of the Commonwealth" and is a general statute on that subject. What bearing it has on schools and school districts is altogether incidental to them as constituents of the community. The constitutional restrictions on special legislation apply to direct legislation, not to the incidental operation of statutes constitutional in themselves upon other

subjects than those with which they directly deal. Sugar Notch Borough, 192 Pa. 349.

It is further said that section 12 contravenes section I of article 10 of the constitution, requiring the maintenance of an efficient system of public schools wherein all children above the age of six years may be educated. It is sufficient to say that this article like all others must be construed and applied in connection with other fundamental governmental powers. The schools and school children, important as they are, are only fractions of the community, and the police power of the Commonwealth in the preservation of the public health must, if necessity arises, sacrifice the less to the greater interest. Salus populi suprema lex. If a child manifestly suffering from small-pox in its contagious stage should be excluded from school, it is hardly conceivable that the propriety of such action should be questioned. At what period before or after the outbreak of the disease the right of exclusion should arise is a legislative not a judicial question. As said by our late brother, Williams, in Duffield vs. School District, 162 Pa. 476, already cited, "It is conceded that the board might rightfully exclude the plaintiff's son if he was actually sick with, or just recovering from, the small-pox. Though he might not be affected by it, yet if another member of the same family was, the right to exclude him notwithstanding he might be in perfect health, would be conceded. How far shall this right to exclude one for the good of many be carried? That is a question addressed to the official discretion of the proper officers; and when that discretion is honestly and impartially exercised the courts will not interfere." These words; it should be remembered, were written with reference to authority exercised under a city ordinance, and a fortiore when the police power of the state intervenes under the authority of a statute its directions are commands that may not be disputed

It is further argued that sections 11 and 12 of the act should be read together, and the right under section 12 to exclude unvaccinated children should be confined to the schools in the districts mentioned in section II, namely those in which small-pox is actually prevalent. But this is

manifestly not the legislative intent. Section II deals with a present and immediate danger, with persons, dwellings and places where the disease actually prevails, and its prohibition includes adults as well as children, vaccinated or not. Section 12 on the contrary is a cautionary and prospective regulation, having in view not the actual presence of the disease, but its appearance in the future. The objects of the two sections are distinctly different.

In this connection the learned judge below found as a fact that there is not at the time of the filing of this bill nor has there been for a period of about forty years any person in the said borough of Waynesboro or within many miles thereof, suffering from small-pox (variolo or varioloid)," and it is argued that this feature distinguishes the case from those heretofore decided by this court. But the language of the act is general and its intent plain. The legislature may well have had in mind that the good fortune of such a community may not continue indefinitely. Immunity for forty years in the past affords no guaranty of immunity for even forty days in the future if a chance visitor from an infected locality or a borough resident returning from such a locality should bring with him the germs of infection. Section 12 is precautionary and preventive, and it is an old and sound maxim that an ounce of prevention is worth a pound of cure.

There is one hardship in the twelfth section that may deserve consideration with a view to a possible remedy. The court below found as a fact "that occasionally it is beyond the power of children of school age as well as adults to be vaccinated, although they may not previously have had small-pox nor previously been vaccinated; that even repeated attempts to perform the operation of vaccination upon such children or adults is without effect and vaccination will not take. In such cases vaccination is not successful and a physician cannot certify that such child or adult has been successfully vaccinated." The health authorities, state or local, might well consider whether they have power to make a regulation as to what should be deemed a successful vaccination or its equivalent; whether