author: Summers, J.

text:
    The City of Mansfield v. Bristor.

      Drain laid by property owners — In public street — Used as sewer emptying into stream — City liable to riparian owners, when— Parties using sewer not jointly liable, when — Power of municipality to prevent nuisances — Municipal law — Law of nuisqnces.

    1. Where a drain laid by property owners in a public street, under permission from the city, empties into a natural stream, and thereafter, without express license from the city, is used.as a , sewer to discharge sewage info the stream to the injury of a lower riparian owner, the drain is a nuisance, and the city is liable for negligence in not abating it.
    2. Where different parties discharge sewage and filth into a stream, which intermingle and cause an actionable nuisance, they are not jointly liable for damages when there is no common design or concert of action, but each is liable only for his proportion of the damages.
    3. The power given to a municipality to prevent injury or annoyance from anything offensive or unwholesome, and to cause any nuisance to be abated, is governmental, and' the municipality is not liable for damages from a private nuisance resulting from its omission to exercise the power by the adoption of resolutions or ordinances, or for damages from such nuisance oc- • casioned by a failure of its officers to enforce resolutions or ordinances adopted in the exercise of that power.
    (No. 9768
    Decided June 4, 1907.)
    Error to the Circuit Court of Richland County.
    Ritter’s Run, a natural water-course and a branch of the Rocky Fork, which is a branch of the Mohican River, flows through the rear of plaintiff’s premises, in the City of Mansfield, on which she has resided for many years. In' 1899 she commenced an action to recover damages from the city for the loss of health and comfort caused by the pollution of this stream by the city. In 1902 and - in March and in September, 1904, she filed supplemental .petitions setting up' that the conditions described in the original petition had continued, occasioning loss of health and comfort to her and her family and the depreciation in value of her premises, for which she asked damages, amounting in the aggregate to $10,500.00.
    The city answered that if the stream had been polluted to the extent that a nuisance was created that it had been done by other riparian proprietors, and that the plaintiff had contributed materially thereto, and set -up the four years’ statute' of limitations. ’
    On the first trial the jury found for the city and on the second trial assessed the plaintiff’s damages at $2,168.00 and the circuit court affirmed a judgment for that amount.

      Mr. L. H. Beam and Mr. G. M. Cummings, city solicitors, for plaintiff in error.
    Omitting the question as to the measure of damages for the present, let us inquire what is the liability of the city for pollution arising from the first two sources.
    The statute under which the city is authorized to act, with reference to streets, is old number 2640; new number Section 28, of the Code and provides in súbstance, that the city shall keep its streets “open and in repair and free from nuisances.”
    For the language, of the courts in passing lipón this section see City of Circleville v. Sohn, 59 Ohio St., 305; Robinson v. Village of Greenville, 42 Ohio St., 625.
    Because of this section of the statutes and the (duty therein enjoined upon the city, the court below held that the city was liable for pollution passing-through private • sewers constructed on public streets. Streets are dedicated under the authority of old Section 2601, now 1536-66, Revised Statutes; Callen v. Light Co., 66 Ohio St., 166; Railway Co. v. City of Elyria, 14 C. C., 48; 7 C. D., 312; Henry v. City of Cincinnati, 25 C. C., 178.
    Under these authorities it would seem that the power granted under Section 2640, now Section 28, Municipal Code, is- limited to the purposes for which the dedication was made, viz.: street purposes. And that the duty enjoined upon the city, to keep its streets open and in a safe condition, is for the purpose of safe-guarding the street for the uses of public travel, and such other purposes as a street can be lawfully used for as a street.
    We contend that the powers delegated to a board of health with reference to the abatement of nuisances is governmental and public, and the board of health acting upon the authority thus conferred, is exercising a part of the police power of the state, for the benefit of the citizens of the corporation, and the corporation would not be liable for any dereliction of duty of the board of health. Turner v. City of Toledo et al., 15 C. C., 627; 8 C. D., 196; Bryant v. City of St. Paul, 33 Minn., 289.
    The city is not liable in damages for failure to abate the nuisance complained of, in so far as the same is caused by the discharge of -sewage, filth and refuse into Ritter’s Run, on the part of divers persons who live along said stream, and are not connected with a sewer constructed by the city for such purpose. Parker & Worthington on Public Health and Safety, Secs. 39, 40, 208, 209; Dillon on Municipal Corporations, Secs. 949, 950, 951, 952, 977; Williams’ Municipal Liability for Tort, Sec. 188; Jones on Negligence of Municipal Corporations, Secs. 27, 28, 29, 30; Tiedeman on Municipal Corporations, Secs. 327, 327a, 355; Wood on Nuisances, pp. 1009, 1011, 1012; College v. City of Cleveland, 12 Ohio St., 375; Wheeler v. City of Cincinnati, 19 Ohio St., 19; City of Chattanooga v. Reid, 103 Tenn., 616; 53 S. W. Rep., 937.
    The record shows that this stream was used, if at all, for secondary purposes only, that the general character of the stream as to pollution, etc., had been the same for more than thirty years, that by common consent of all parties along the stream, it had been a common dumping ground for sewage and filth of all kinds, and had in effect become a huge open sewer during all of this time. Under conditions of this kind, there can be no recovery. City of Cleveland v. Bag & Paper Co., 72 Ohio St., 324.

      Mr. W. H. Bowers, for defendant in error.
    The city is chargeable with the duty of keeping its streets open and in repair and free from nuisance. Section 2640, Revised Statutes; Section 28, Municipal Code; City of Circleville v. Sohn, 59 Ohio St., 305.
    As to the distinction between cases falling within the police power of the corporation and those in which it represents the property rights of the citizens, see City of Ironton v. Kelly, 38 Ohio St., 50; Robinson v. Village of Greenville, 42 Ohio St., 628.
    The term nuisance, derived from the French word nuire, to do hurt or to annoy, is applied in Engdish law indiscriminately to infringements upon the enjoyment of proprietary and personal rights. Village of Cardington v. Admr. of Fredericks, 46 Ohio St., 446; Addison on Torts, 361.
    The record clearly discloses that the city had ample notice of the pollution of this stream .through the several sewers constructed in the streets of said city, upon authority granted by said city, and that no action was taken by said city to abate the. nuisance, save and except by the flushing and liming of the stream on several occasions.
    The defense sought to be made in the' court below, by the plaintiffs in error herein, was, that various persons had contributed to the pollution of this stream and for that reason the city of Mansfield would not be liable, even though the great majority of said pollution passed into said stream through sewers built by said city.
    For the rule of law applicable to joint tort feasors, see Wood on Nuisances, Sec. 685; Gould on Waters, Sec. 222; Boyd v. Watt, 27 Ohio St., 259; City of Mansfield v. Balliett, 65 Ohio St., 451.
   Summers, J.

Ritter’s Run in the days of the Indian was a limpid stream, but the natural and inevitable result of the coming of the white man with his dirty city was that it degenerated into a fqul drain aiid became a nuisance when it was made the outlet for sewers.

But these consequences do not warrant an attempt to arrest the march of civilization, ór, as it is beautifully expressed by Lord Justice James, in Salvin v. North Brancepeth Coal Co., L. R., 9 Chancery App. Cases, 705: “If some picturesque haven opens its arms to invite the commerce of the world, it is not for this court to forbid the embrace, although the fruit of it should be the sights, and sounds, and smells' of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their ancient solitudes.”

The principal sources of pollution in Ritter’s Run were five drains or sewers, a cess-pool belonging to riparian proprietors and refuse thrown or permitted by them to find its way into the stream. Of the sewers, four were private sewers or drains, one laid in private property and the others in the streets of the city by permission from the city, and only one was constructed by the city, and that was not constructed as a sewer but consisted of two lines of eight-inch pipe that had been laid with open joints, one line on each side of a street, for the purpose of drainage and as part of the improvement of the street.

It does not appear that the city authorized any of these drains to be used as sewers, but that they were so used and that Ritter’s Run became so foul as to occasion material discomfort to the plaintiff does appear. The city had knowledge that sewage was being deposited in the stream through these drains and that this matter in connection or combination with other matters in the stream created a nuisance. There was evidence that the plaintiff was sick for a time, but whether from the ills that flesh is heir to or from the condition of the stream is left wholly to conjecture. There is no evidence of depreciation in the value of plaintiff's property or in its rental value, and it appears that she all the while continued there to reside, so that the amount of the verdict raises a doubt that the jury had any just conception of the measure of the defendant's liability and leads to an examination of the instructions that were given them for their guidance. The court having charged in substance that the owner of land over which a stream of water flows has a right that it should continue to flow over his premises in the quantity, quality and manner in which it is accustomed to flow by nature, subject to the right of upper land owners, over whose land it also flows,.to make a reasonable use of the stream, and that this right is a property right, and that the city would have a right to use this stream for sewerage purposes, providing it could do so without material injury to the lot-owners below, then instructed them, in effect, that the city is given control of its streets and, under Section 203 of the new Municipal Code, Section 1536-857, Revised Statutes, of sewers, drains, ditches and water-courses and charged with the duty of keeping its streets open and free from nuisances, and that it would be liable to the plaintiff in damages for the injuries she suffered in health and comfort from the nuisance created in the,, stream, if they found one was so created, whether it was created by the city or by others, if, after knowledge that they were creating a nuisance, it neglected to prevent them from so doing; and further that it was not essential to liability on the part of the city that it should have caused the entire injury, and that it was no defense that, others in like manner had contributed to it, and that they might consider any evidence offered by the. defendant tending to prove such fact in mitigation of damages only and for no other purpose.

The care, supervision and control of public streets is given to the city and it is made its duty to cause them to be kept open and in repair and free from nuisance, and the city is liable for damages resulting from its negligence in the discharge of this duty. City of Zanesville v. Fannan, 53 Ohio St., 605. The construction of a public sewer in the streets is an authorized use'of the streets (City of Cincinnati v. Penny, 21 Ohio St., 499), and, under the power given it over its streets, a city may grant permission to a lot owner to lay a private sewer in a public street, but neither at common law nor under the statute could it authorize a nuisance, and at common law as well as under the statute it would be liable for damages resulting from its negligence in not abating a nuisance on land in its possession and under its control. In Laugher v. Pointer, 5 B. & C., 547, Mr. Justice Littledale says: “The rule of law may be that in all cases where, a mail is in possession of fixed property he must take care that his property is so used and managed -that other persons are not injured, and that, whether his property be managed by his own immediate servants or by contractors or their servants. The injuries done upon land and buildings are in the nature of nuisances, for which the occupier ought to be chargeable when occasioned by any acts of persons whom- he brings upon the premises. The use of the premises is confined by the law to himself, and he should take care not to bring persons there who do any mischief to others.” This statement of the rule was approved in Quarman v. Burnett, 6 M. & W., 499; and in Rich v. Basterfield, 4 M. G. & S., 782; and by Sir G. Jessel, M. R., in White v. Jameson, 18 L. R. Eq. Cases, 303, where he says: “Now here Jameson was in possession of the property, but he did not demise it to Proffitt, he merely granted to him a revocable license to burn bricks upon it. Consequently he has brought Proffitt on his land and allowed him to commit a nuisance, and for this I hold he is liable to be sued in equity as well as at law.”

The court in effect charged the jury that the city was given control of this water-course by Section 203. of the new Municipal Codé, and that having control of the water-course it was its duty to prevent it from being made a nuisance, and in the event a nuisance was created therein, to abate it after it had notice of the fact. This clearly was prejudicial error. That section provides that the street commissioner, under tlie direction of' council, shall supervise the improvement and repair of sewers, drains, ditches, streams and water-courses. The plaintiff’s injuries were not occasioned by any improvement or repair of the water-course, and moreover the statute applies only to villages. The stream is private propert}^ and as long as it so remains the only authority over it that may be delegated by the legislature to the city is in the exercise of the police power, and for a failure to exercise that power, or for a failure of the city’s agents to enforce regulations prescribed in the exercise of the power, the city would not be liable.

In its charge the court also said: “To hold the city liable it is not necessary that it should have produced or caused,the entire injury; that others’ may have contributed to the injury in the same way would not be a defense, for our own circuit court has said in the language following: ‘Neither is it any defense to an action for a nuisance resulting from the pollution of a stream of water or otherwise, that other persons are also contributing to the injury in the same way with the defendant; the fact that others are committing a wrongful act is no excuse for other’s wrong. It may in a proper case be shown in mitigation of damages, but not to defeat the action.’ And I say to you that you may consider any such evidence offered by the defendant tending, as it claims, to show that other persons contributed to the injury complained of in the same way with the defendant, in mitigation of damages only, in case you find for the plaintiff, and for no other purpose.”

This statement of the law is found in the opinion of the circuit court in the case of City of Mansfield v. Hunt, 19 O. C. C. Rep., 488, 497, and is a quotation from Wood on Nuisances. But if the learned author and the circuit court are to be understood, as they were by the trial court, as declaring the law to be that a riparian proprietor, who hás been injured by the pollution of a stream by the acts of several, may in a suit against one recover against him for the entire injury, excepting to the'extent that the jury may mitigate the amount of the recovery by the consideration of evidence tending to prove the extent to which the acts of others contributed, then it is to be observed that the quotation is not a correct statement ’of the law and is not supported by the cases cited by Wood or by the cases and authorities cited in the opinion of the circuit court.

Crossley & Sons, Limited, v. Lightowler, 3 L. R. Eq. Cases, 279, was a suit to restrain the defendants from suffering the foul water from their dye works to flow into or foul the water of the stream or from otherwise preventing or interfering with the plaintiffs having the use or enjoyment of the water of the brook in its natural state, and Vice-Chancellor Wood, upon the authority of St. Helen’s Smelting Co. v. Tipping, 11 H. L. C., 642, ruled that “It is no answer to a plaintiff complaining of a private nuisance to say that a great many other persons are committing the same sort of nuisance,” and on. appeal, 2 L. R., Ch. App. Cases, 478, the ruling was approved. And in Attorney-General v. Leeds, Corporation, 5 L. R., Ch. App. Cases, 583, it is held that “though the river Aire was polluted before it received the drainage of Leeds the land owners on the banks were entitled to restrain the further pollution.” To the same effect are the other cases and authorities cited and in none of them is the view suggested taken.

It will be observed that all but one of the cases cited were suits for injunction against several defendants, and not only was it not ruled in any of them that all of the damages might be recovered in one action or from one defendant but the question was not even raised. And in Woodyear v. Schaefer, 57 Md., 1, and in Warren v. Parkhurst, 92 N. Y. Supp., 725, one of f;he grounds assigned for entertaining jurisdiction to enjoin is that there is no adequate remedy at law because of the difficulty in proving the ' extent to which each party had contributed to the injury.

In Chipman v. Palmer, 77 N. Y., 51, it is held that “where different parties pollute a stream by the discharge of sewage therein, each in his own premises, and each acting separately and independently of the others, one of the number is not liable for all of the” injury suffered by another, because of the nuisance they cre-ated; each is liable only to the extent of the wrong committed by him.” In the opinion Miller, J., says: “The fact that it is difficult to separate the injury done by each one from the others furnishes no reason for holding that one tort-feasor should be liable for the acts of others with whom he is not acting in concert.” He also criticises Wood on Nuisances, Section 831, cited as authority for the contention that one who contributes to the production of the nuisance is chargeable with all the damages, and he reviews the cases cited and says they do not sustain such a principle.

Twelve years later, in 1898, in Miller v. Highland Ditch Co. et al., 87 Cal., 430, it was held: “Where debris is deposited upon the lands of the plaintiff by means of different ditches constructed and operated by several defendants, between whom there was no concert of action, a joint action may be- maintained to enjoin them all from continuing the wrong, but a joint judgment for damages in such action is erroneous, and will be reversed.”

The rule is thus stated in 1 Cooley on Torts, 244, 246, (3d Edition) : “All who actively participate in any manner in the commission of a tort, or who command, direct, advise, encourage, aid or abet its commission, are jointly and severally liable therefor.” And again:_ “In respect to negligent injuries, there is considerable difference of opinion as to what constitutes joint liability. No comprehensive rule can be formulated which harmonizes all the authorities. The authorities are, perhaps, not agreed beyond this, that wliere two or more owe to another a common duty and by a common neglect of that duty such other person is injured, then there is a joint tort with joint and several liability.”

The case of Swain v. Tennessee Copper Co. et al., 111 Tenn., 430, received very careful consideration. Very great interests were involved, as will appear from the statement of facts in the subsequent case of Madison et al. v. Ducktown Sulphur, Copper and Iron Co., Limited, 113 Tenn., 331. In the former case a great many cases are examined, and it is there ruled that “Where two distinct corporations in proximity to each other operate their respective and separate plants for reducing and converting copper ores into metal- ingots or commercial copper, from each of which are emitted immense volumes of noxious, foul, and poisonous smoke and gases, which afterwards indistinguishably mingle, commingle, and intermingle into clouds of noxious, deadly, and poisonous vapors, creating an actionable nuisance, but there is no common ownership or operation of the plants, no community of interest, nor common' design, purpose, concert, or joint action, a suit by an adjoining or adjacent property owner' against them jointly for damages caused by their wrongful acts so separately committed is not maintainable.” Also that each corporation was liable only for its proportion of the damages. To the same effect is Bowman v. Humphrey., Jr., 124 Iowa, 744. And in Watson et al. v. Colusa-Parrot Mining and Smelting Co., 31 Mont., 513, 79 Pac. Rep., 14, it is held that “Where a nuisance arises from the individual acts of different mining and reduction companies, which have discharged deleterious and poisonous matter into the waters of a creek, and the injury is in no sense a joint one, each company is liable to the person injured for the damage caused by its own wrongful acts, and not for that caused by the acts of others, regardless of the difficulty of determining what part of the damage is occasioned by the acts of each.” In Martinowsky v. City of Hannibal, 35 Mo. App., .70, it is held that: “Where a waterway is made the receptacle of masses of filth and offensive substances thrown into it by a number of persons at various points along its course, so that a nuisance is created to the injury of an adjacent resident, such injured person can not maintain an action against all the contributors jointly, blit may sue each of them separately, and can then recover in each case only for the proportionate amount of injury caused by the acts of the defendant therein. Nor can a defendant in any one of such cases set up a defense on the ground that the nuisance was the combined effect of all the acts done by himself and others.” And 'in Sloggy v. Dilwor.th et al., 38 Minn., 179, it is held that “Where lands are unlawfully flooded with surface water, as the result of the joint act of several parties, each may be sued for the entire damage. But where the damage is the result of the acts of several,' acting independently of each other, each is liable for his proportion only.”

Chipman v. Palmer, 77 N. Y., 51, supra, is cited as the leading case in support of the rule that the parties who merely contribute to the pollution of a stream are not jointly liable, but evidently it is based upon Little Schuylkill Navigation, R. R. & Coal Co. v. Richards’ Admr., 57 Pa. St., 142, which may be characterized as the original if not the leading case. What the case was as well as the reasoning upon which the conclusion was reached will appear from the following portions of the opinion by Agnew, J.: “The plaintiff’s intestate was the owner of a* dam’ and water power upon the Little Schuylkill river. In process of time, from 1851 to 1858, the basin of the dam became filled with the coal-dirt, washed down by the stream from the mines above, of several owners, upon Little Schuylkill, Panther Creek and other tributaries. They were separate collieries, worked independently of each other. The plaintiff seeks to charge the defendants below with the whole injury caused by the filling up of his basin. The substance of the charge and answers to points was, that if at the time the defendants were engaged in throwing the coal-dirt into the river, about ten miles above the dam, the same thing was being done at the other collieries, and the defendants knew, of this, they were liable for the combined result of all the series of deposits of dirt from the mines above from 1851 till 1858.” “The doctrine of the learned judge is somewhat novel, though the case itself is new; but, if correct, is well calculated to alarm all riparian owners, who may find themselves by a slight negligence overwhelmed by others in gigantic ruin.

“It is immaterial what may be the nature of their several acts, or how small their share in the ultimate injury. If, instead of coal-dirt, others were felling trees and suffering their tops and branches to float down the stream, finally finding a lodgment in the dam with the coal-dirt, he who, threw in the coal-dirt, and he who felled the trees would each be responsible for the acts of the other. In the same manner separate trespassers who should haul their rubbish upon a city lot, and throw it upon the same pile, would each be liable for the whole, if the final result be the only criterion of liability. But the fallacy lies in the assumption that the deposit of the dirt by the stream in the basin is the foundation of liability. It is the immediate cause of the injury, but the ground of action is the negligent act above. The right of action arises upon the act of throwing the dirt into the stream — this is the tort, while the deposit below is only a consequence. The liability, therefore, began above with the defendant’s act upon his own land, and this act was wholly separate, and independent of all concert with others. His tort was several when it was committed, and it is difficult to see how it afterwards became joint, because its consequences united with other consequences. The union of consequences did not increase his injury. If the dirt were deposited mountain high by the stream his dirt filled only its own space, and it was made neither more nor less by the accretions. True, it may be difficult to determine how much dirt came from each colliery, but the relative proportions thrown in by each may form some guide, and a jury in a case of such difficulty, caused by the party himself, would measure the injury of each with a liberal hand. But the difficulty of separating the injury of each from the others would be no reason that one man should be held to be liable for the torts of others without concert. It would be simply to say, because the plaintiff fails to prove the injury oñe man does him, he may therefore recover from that one all the injury that others do.

“This is bad logic and hard law. Without concert of action no joint suit could be brought against the owners of all the' collieries, and clearly this must be the test; for if the defendants can be held liable- for the acts of all the others, so each and every other owner can be made liable for all the rest, and the action must be joint and several. •But the moment we should find them jointly sued, then the want of concert and the several liability of each would be apparent. These principles are fully sustained by the following cases: Russell v. Tomlinson et al., 2 Conn., 206; Adams v. Hall, 2 Vt., 9; Van Steenburgh et al. v. Tobias, 17 Wend., 562; Buddington v. Shearer et al., 20 Pick., 477; Auchmuty v. Ham, 1 Denio, 495; Partenheimer v. Van Order, 20 Barb., 479. These were cases where the dogs of several owners united in killing sheep, and where the cattle of different owners broke into an enclosure and united in the damage. The concert and united action of the dogs and cattle were held to create no.joint liability of their owners, notwithstanding the difficulty of determining the several injury done by- the animals of each.”

In The Chicago & Northzvestern Ry. Co. v. Hoag, 90 Ill., 339, the court refused to charge to the effect that if the jury found the damage to plaintiff’s property was the combined result of the acts of the defendant and another that then the plaintiff could not recover against the defendant for the damage occasioned by the-acts- of the other party; and that if the jury could not determine what part or portion, if any damage, was occasioned by the defendant’s acts then in no event could they find for the plaintiff more than nominal damages. In the opinion Sheldon, J., says: “The -first clause of the instruction is well enough, but the last one is objectionable as liable to misle'ad the jury to the extent that unless they could determine to a certainty the extent of damages from each of these sources, they could find only nominal damages for the plaintiff. The evidence justified the belief that the water came mainly from the tank and the plaintiff was entitled to recover for all damages from that source; and if they could not separate and distinguish between the several amounts of the damage caused by the water from the tank and the surface water respectively, they should have been left at liberty to estimate as1 best they might, from the evidence, how much of the whole damage was occasioned by the water from the tank.”

And in Babbitt v. Safety Fund National Bank, 169 Mass., 361, where the trial court refused to instruct the jury that it was necessary for the plaintiff to show, in order to recover damages of the defendant, precisely what part of the damage was caused by the negligence and unlawful act of the defendant, and if the facts did not disclose what part of the whole damages was caused by the defendant’s negligent act, there could be no recovery, and did charge “if you find there is evidence of such a discharge, and that the defendant contributed by its acts to the increase of the volume of water and its discharge upon the plaintiff’s land, then the plaintiff would be entitled-to recover the precise amount of damage caused by the defendant’s act. The plaintiff would not be entitled to recover from the defendant what damage was caused to it by the acts of the city,. for the fact that sewers passed through that- street and discharged its sewage in such a way as to fill up the stream.” And it was held that if there was any inaccuracy in any of the instructions it did the defendant no harm.

The view that each person contributing to the fouling of a stream is liable only for the damages caused by his own acts is vigorously combatted by Kay, J., in Blair and Sumner v. Deakin, 57 L. T. R. (N. S.), 526.

In Boyd v. Watt, 27 Ohio St., 259, it is ruled that “where the damages resulting arise from incapacity from business, and loss of estate, caused by such habitual intoxication, and it becomes impossible to separate the damages caused by others from those caused by the .defendant, he is liable for all such damages, if the natural and probable consequences of his illegal acts were to cause such injury.” But that case w;as upon the interpretation of a statute, and the conclusion reached may be based upon the legislative intent, and is not, therefore, binding authority in a case controlled by the general principles of law.

In Sadler v. Great Western Railway Co. (1895), 2 Q. B., 688, in the Court of Appeals, the case was this: The plaintiff, a dealer in cycles, brought an action against two railway companies which had parcel offices adjoining his shop on opposite sides, alleging that each company caused carts to stand on the highway in front of its office for an unreasonable length of time, and that these combined acts prevented all access to his shop by vehicle or cycle, and caused him special inconvenience and loss of trade. He claimed damages and an injunction. One of the companies obtained an order in chambers staying the action unless the claim was maintained by striking* out the name of the other company as a defendant and it was held that the order was right, for that the two companies were separate tort-feasors, and could not be joined as co-defendants in -an action for damagés. Smith, L. J. said: “He is trying to sue as co-defendants two independent separate alleged tort-feasors, neither of whom has any control or power over the acts of the other tort-feasor. He is trying to sue them jointly in one action. * * * In my opinion these two torts, if they are torts, are independent torts by the different companies, although, as I have already stated, the acts of each company can be taken into account in considering the acts of one company and deciding whether" they amount to a nuisance or not. The acts of the other company can be taken into account because it may be that the one company ought not to be doing what it was when the other company was doing what it did. But that does not make these two causes of action a joint cause of action or give any right to join one company with the other in one action.” Rigby, L. J., dissented, btit in Sadler v. The Great Western Railway Co., (1896) A. C., 450, in the House of Lords, the order was affirmed. Lord Halsbury, L. C., said: “I really think this case is too plain for argument, notwithstanding the period it has lasted.”

Pollock on Torts, 2d Ed., 356, is cited in Simmons et al., Admrs., v. Everson et al., 124 N. Y., 319. That edition is not at hand, but in the seventh edition, 406, it is said: “A cause of action for nuisance may be created by independent acts of different persons, though the acts of one -only of those persons would hot amount to á nuisance.” “Suppose one person leaves a wheelbarrow standing on a way, that may cause no appreciable inconvenience; but if a hundred do so that may cause a serious inconvenience, which a person entitled to the use of the way has a right to prevent; and it is no defense to any one person among the hundred to say that what he does causes of itself no damage to the complainant.” And then the learned author adds: “But this does not mean that a plaintiff may make two or more independent wrongdoers co-defendants in a single action for damages whatever may be the rule where only an injunction is claimed.” And he cites as authority for the statement the two cases just noticed.

The cases have been noticed at such great length because in the recent case of West Muncie Strawboard Co. et al. v. Slack et al., 164 Ind., 21, 72 N. E. Rep., 879, it is said, “A distinction, however, is recognized between such acts which-are wrongful only because injurious to individual rights, and those which combine and constitute a public nuisance.” And it was there ruled that “one who creates a public nuisance is responsible to individuals especially damaged, not only for the actual loss he alone has occasioned them, but also for the damages caused by similar acts of third persons which independently concur in causing the injury complained of.”

The reason given for the distinction is thus stated: “In the former class of cases each separate wrongdoer is chargeable with his own acts alone, in the absence of a joint purpose among the participants; in the latter, each may be answerable in a joint and severable action, no.t only for what he himself does, but likewise for the acts of those who, with him, violate public as well as private rights. If a party deliberately places himself in opposition to the entire community by performing an act which, in combination with the independent wrongful act of others, violates an express statute and creates a public nuisance, he is not in a position to assert that he should be held responsible to individuals specially damaged for only the actual loss he alone, has occasioned them. He must have anticipated the natural and probable consequences of his acts, namely, the violation of a public right; and the public interest requires he shall, if need be, even in a civil action, bear the full burden of the wrong he has assisted in inflicting. Nor is it material that his act of itself, and without reference to the co-operation of others, would create a public nuisance. He must be deemed to know, in a case such as the present, that, if this wrong combines with similar acts of third parties, the result will be to intensify the public and private injury. The welfare of the community demands that he who thus intentionally and aggressively assists either in creating or maintaining a public nuisance in defiance of positive enactments shall answer in civil damages for all injurious consequences proximately resulting therefrom to private individuals who bring themselves within the requirements of the law.”

The cases cited as supporting this view are: Simmons et al., Admrs., v. Everson et al., 124 N. Y., 319; Irvine v. Wood et al., 51 N. Y., 224; City of Valparaiso v. Moffitt et al., 12 Ind. App., 250. The latter case is based upon the first and need not be noticed. Simmons v. Everson is this: Three adjoining stores, in fact, one building, but each store belonging to a separate person, were destroyed by fire, leaving the front wall standing and leaning towards the street until it afterwards fell into the street and killed the plaintiff’s intestate. The entire wall fell, but no part of the material of the wall or that part of the wall in front of one of the owners touched the party killed, but it was held that the three owners were jointly and severally liable. Chipman v. Palmer, 77 N. Y., 51, supra, was urged against the joint liability, but Follett, C. J., said: “The case at bar does not belong to the class of actions arising out of acts or omissions which are simply negligent, and while the defendants did not intend by their several acts to commit the injury, their conduct created a public nuisance which is an indictable misdemeanor under the statutes of this state and at common law.”

“Persons who by their several acts or omissions maintain a public or common nuisance, are jointly and severally liable for such damages as are the direct, immediate and probable consequences of it.” And Irvine v. Wood et al., 51 N. Y., 224; Slater et al. v. Mersereau, 64 N. Y., 138; Timlin, Admx., v. Standard Oil Co. et al., 54 Plun, 44; Klauder v. McGrath, 35 Pa. St., 128, are cited in support of the ruling. With all due respect it ma}^ be said that the neglect of the several owners did not cause the wall to fall. If the wall was owned jointly, or if the injury resulted from the concurring negligence of the several owners, then it was the duty of each to abate the nuisance and in consequence of the neglect of each to perform the common duty the plaintiff was injured and so they were jointly and severally liable. The reason for a joint liability in such cases is thus stated by Strong, J., in Klauder v. McGrath, 35 Pa. St., 128, which was an action against two persons to recover for damages from the falling of a party wall: “The maintenance of an insecure party wall was a tort in which they were both participants. The act was single, and it was the occasion of the injury to the plaintiff. It is difficult, therefore, to see why both were not liable, and liable jointly. The case is not to be confounded with actions of trespass brought for separate acts done by two or more defendants. There, if there has been no concert, no common intent, there is no joint liability. Here, the keeping of the wall safe was a common duty, and a failure to do so was a common neglect. ' The rule often recognized is, that when an injury has resulted from the concurrent negligence of several persons, they are jointly responsible.” In Irvine v. Wood et al., 51 N. Y., 224, the lessor, and lessee of premises were held jointly and severally liable for injuries sustained by a fall into a coal hole in front of the premises, and in the opinion, Earl, J., says: “Each one of several persons who continue a nuisance is responsible for it, and he may, as in all cases of wrong, be sued alone or with the other wrongdoers.” It will be seen that the ground for a liábility assigned here is in fact the same as that in the case just preceding, that is, negligence in not abating a nuisance, and because of the neglect of a common duty the defendants were jointly and severally liable.

Slater et al. v. Mersereau, 64 N. Y., 138, is- a case in which by reason of the negligence of separate contractors in the construction of a building water from their different parts of the building found its way into the cellar and there united and found its way through the walls on to an adjoining property where it did injury,.and it was there held: “where separate and independent acts of negligence of two parties are the direct cause of a single injury to the third person and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury; and this, although his act alone might not have caused the entire injury, and although without fault' on his part the same damage would have resulted from the act of the other.” The opinion is by Miller, J., the same judge who wrote the opinion in Chipman v. Palmer, 77 N. Y., 51, supra, and in the latter case he says the former “was a case where the separate and independent acts of negligence of two parties was the cause of a single injury to a third person, and as was said in the opinion, .was somewhat analogous to a case where the injury was caused by the concurrent negligence of the trains of two railroad corporations. That case was well decided and in no way upholds the doctrine contended for by the plaintiff’s counsel, and is not in point.”

Timlin, Admx., v. Standard Oil Co. et al., 54 Hun, 44, is a case in which a wall fell and killed a person working near it and it was held that the lessors and lessees were jointly and severally liable for the same reasons for which they were held liable in the case of the coal hole in the sidewalk.

It will be observed that in none of these cases is the fact that the act was a public nuisance, as distinguished from a private nuisance, given as a ground of joint liability. Indeed Slater et al. v. Mersereau, 64 N. Y., .138, supra, is a case not of public but of private nuisance.

The distinction suggested in West Muncie Strawboard Co. v. Slack et al., 164 Ind., 21, supra, has no foundation in precedent and is not believed to be maintainable on principle. The distinction assumes that several torts have been committed but holds the perpetrator of one liable for the damage from' all on the sole ground that his act is a public wrong. If I give you a beating to-day, or rather, if you to-day beat me and to-morrow another does likewise, and in consequence I take to my bed, are you liable to me in damages for all of my injuries because your act was unlawful ? In White v. Conly, 14 Lea, 51, the facts are that White and Conly, at a trial before a justice of the peace, engaged in a fight, and while so engaged White’s son, acting in sympathy and in aid of his father, but without his knowledge, cut Conly with a knife, of which wound he died, and the widow of Conly sued both father» and son to recover damages. The court charged, in substance, that if the father willingly fought he was engaged in an unlawful act, and that if while so engaged the son inflicted the wound, both were liable, and accordingly a verdict was returned against both, but the supreme court overruled Beets v. The State, Meigs’ R., 106 (19 Tenn.), on which the instruction was based, and approves what is said in 1st Bishop’s Criminal Law, Section 439, that “the true view is doubtless as follows: every man is responsible, criminally, for what of wrong flows directly from his corrupt intentions; but no man, intending wrong, is responsible for an independent act of wrong committed by another.”

That an act was a delict, as distinguished from a quasi delict, may be a reason for denying contribution among those answerable for it (Palmer v. Wick and Pulteneytown Steam Shipping Co., Ltd., 1894, L. R. A. C., 318), but it is not a ground for making one wrongdoer answer for the wrongs of another merely because they result in injury to the same person.

The city requested twenty special instructions, only two of which were given. That some that were not given should have been given will appear from what has been already said. They are too numerous to set out or to consider in detail, and it is sufficient to say that no injury to the plaintiff’s property was shown, that the discomforts arising from the acts complained of were not so serious as to induce her to seek to restrain them, that the recovery should have been limited to damages for injury to plaintiff’s comfort occasioned solely by the acts of the city, and that the amount of the recovery must be attributed to the erroneous instructions given to the jury.

Judgments reversed.

Shauck, C. J., Crew, Spear and Davis, JJ., concur.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    The State, ex rel. Milhoof, v. The Board of Education of the Village of Barberton, Ohio.

      School board may make and enforce rules for vaccination — Section ■ 3986, Revised Statutes, a valid enactment — Children not vaccinated may be excluded from public schools, when — Constitional law — Interpretation of law.

    1. Section 3986, Revised Statutes, authorizing and empowering the • boards of education of each school district, “to make and enforce such rules and regulations to secure the vaccination of, and to prevent the spread of smallpox among the pupils atr ten dirig or eligible to attend the schools of the district,, as in its .opinion the safety and interests of the public require,” is a valid enactment, not repugnant to the constitution of the state of Ohio, nor violative of the Fourteenth Amendment to the constitution of the United States. And under the power thereby conferred, boards of education, in the exercise of a sound discretion, may exclude from the public schools all. children who have not been vaccinated.
    2. The enactment of said statute by the general assembly was but a reasonable exercise of the police power of the state, and under its provisions, the validity of the action taken by a board of education in excluding from the public schools* all children who have not been vaccinated, or who do not furnish 'a physician’s certificate excusing them from vaccination, does not depend upon the actual existence of smallpox in the' school district or community, nor upon the apprehended epidemic of that disease.
    3. Whether a rule or regulation adopted by the board of education under favor of the provisions of .above Section 3986, is a reasonable rule or regulation, is to be judged of in the first instance by the board of education, and the courts will not interfere, unless it be clearly shown that there has been an abuse of official discretion.
    (No. 9848
    Decided May 7, 1907.)
    Error to the Circuit Court of. Summit County.
    The present proceeding in error is prosecuted by relator, William A. Milhoof, from an order and judgment of the circuit court of Summit county, Ohio, denying relator’s application for a peremptory writ of mandamus to compel the defendant Board of Education to admit his children to the public schools of the village of Barberton. The facts are stated in the opinion.

      Messrs. Rogers, Rowley & Rockwell, for plaintiff in error,
    cited and commented upon the following authorities:

      Morris et al. v. City of Columbus, 30 S. E. Rep., 850; 42 L. R. A., 175; State, ex rel., v. Zimmerman et al., 58 L. R. A., 78; Mathews v. Board of Education, 86 N. W. Rep., 1036; 54 L. R. A., 736; Potts et al. v. Breen et al., 167 Ill., 67; 47 N. E. Rep., 81; 39 L. R. A., 152; Blue v. Beach et al., 56 N. E. Rep., 89; 50 L. R. A., 64; Osborn et al. v. Russell et al., 68 Pac. Rep., 60; People, ex rel., v. Board of Education, 52 N. E. Rep., 850; State, ex rel., v. Burdge et al., 70 N. W. Rep., 347; 37 L. R. A., 157; Section 3986, Revised Statutes.

      Mr. H. N. Hagelbarger and Messrs. Stuart & Stuart, for defendant in error,
    cited and commented upon the following authorities:
    Law Notes, “Compulsory Vaccination,” December, 1904, 405; Viemeister v. White, 72 N. E. Rep., 97; Hutchins v. School Committee, 49 S. E. Rep., 46; Commonwealth v. Jacobson, 66 N. E. Rep., 719; Bissel v. Davison, 32 Atl. Rep., 348; Field v. Robinson, 198 Pa. St., 638; Abeel et al. v. Clark, 24 Pac. Rep., 383; State, ex rel., v. Zimmerman et al., 38 L. R. A., 78; Mathews v. Board of Education, 86 N. W. Rep., 1036; Blue v. Beach et al., 56 N. E. Rep., 91; Potts et al. v. Breen et

      al., 47 N. E. Rep., 81; Osborn et al. v. Russell el al., 68 Pac. Rep., 60; State, ex rel., v. Burdge et al., 70 N. W. Rep., 347; Section 3986, Revised Statutes.
   Crew, J.

On September 20th, 1905, relator, William A. Milhoof, a citizen, taxpayer and resident of the village of Barberton, Summit county, Ohio, filed his petition in the circuit court of said county against the defendant in error, The-Board of Education of the Village of Barberton, praying for a writ of mandamus to compel the defendant to admit the children of relator to the public schools of said village of Barberton, without requiring them to be vaccinated. The issues having been duly made up, the cause was submitted to the circuit court upon the pleadings and evidence, and the court being fully advised in the premises — at the request of relator that its, findings of fact be stated separately from its conclusions of law — found and stated as its conclusions of fact;

“1. That said relator is a citizen, taxpayer and resident of the village of Barberton, Summit county, Ohio. 2. That said defendant is the Board of Education of the Village of Barberton, duly organized and existing under and by virtue of the laws of the state of Ohio, and as such board of education, has jurisdiction and control of the public schools of said village of Barberton. 3. That said relator is the father of two children of the names and ages, respectively, as follows, to-wit: Henry, aged nine years, and Jennie, aged six years. 4. That said children are under his care, custody and control, and but for the adoption and enforcement of the rule with respect to vaccination hereinafter set forth, are entitled to attend the public schools of the village of Barber-ton. 5. That said children on the fifth day of September, A. D. .1905, and ever since said last mentioned date, have been denied admission to the public schools of the village of Barberton for the sole reason that .their parents have neglected and refused to comply with the rules stated in the seventh finding. 6. That relator’s children have not been vaccinated, • neither have they presented a physician’s certificate excusing them therefrom. 7. That in the spring of the year 1903, and also from November 15, 1903, to January 22, 1904, smallpox was epidemic in said village of Barber-ton, and on or about the twenty-third day of November, 1903, the board of education of said village adopted a rule that 'No child shall be admitted into the public schools after December 1, 1903, not having physician’s certificate showing successful vaccination, or a physician’s certificate excusing said child therefrom, such excuse to be approved by the board of education/ 8. The court further finds that the disease of smallpox is not prevalent at the present time in said village of Barberton, nor in said school district, nor in the community where relator and his said children reside, and at the present time there is.no threatened epidemic of smallpox, nor has there been a threatened epidemic of smallpox since said twenty-second day of January, 1904; that there is no evidence tending to show that the children of the relator have been exposed to smallpox. ’ 9. That the village of Barberton is largely a manufacturing town, having a population of over five thousand, many of whom are a transient class, and that said village is located within five miles of 'the city of Akron.”

As its conclusion of law, from the foregoing facts, the court found and adjudged as follows: “That said defendant had the right to adopt the rule aforesaid, and to enforce the same as a permanent rule or regulation, and to exclude relator’s children thereunder from attending the public schools of the village of Barberton; and the petition of the relator is hereby dismissed at the costs of the relator.” It will be seen from the foregoing that the children of relator were refused admission to the public schools of the village of Barberton on the ground, and for the reason only, that they had not complied and would not comply with the rule or regulation adopted by the board of education of said village on Novernber 23d. 1903, which provided: “That no child shall be admitted to the Barberton public schools after December 1st, 1903, not having a physician’s certificate showing successful vaccination, or a physician’s certificate excusing said child ther.efrom, such excuse to be approved by ‘the board-of education.” In the present case, therefore, the sole question presented is, was this rule or regulation one which under the constitution and laws-of the state of Ohio, the board of education had the power to adopt and enforce. By Section 3986, Revised Statutes, it is -provided, as to boards of education, 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 oil 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.” It was in pursuance of the power which it claimed was conferred upon it by this statute that the board of education of the village of Barberton adopted the rule in question; and it would seem to follow, that if this statute is a valid enactment the rule adopted by the board under favor of its provisions, if not an unreasonable exercise of the power conferred, is equally valid, and may be enforced. The question here, is not one of the right to enforce compulsory vaccination under legislative authority, but whether the legislature in the proper exercise of the police power which is inherent in every sovereign state, may rightfully confer upon boards of education having control of the public schools authority to exclude therefrom, as a precautionary measure, all children who have not been successfully vaccinated, or who do not furnish a physician’s certificate excusing them from vaccination. While it is perhaps almost impossible to frame a definition of the police power, which shall accurately indicate its precise. limits, so far as we are aware, all courts that have considered the subject have recognized and sanctioned the doctrine that under the police power there is general legislative authority to pass such laws as it is believed will promote the common good, or will protect and preserve the public health. And -the power to determine what laws are necessary to promote or secure these objects, rests primarily with the general assembly, subject to the power of the courts to decide, whether a particular enactment is adapted to that end. . Vaccination, while made compulsory in but few- of the states, is countenanced and promoted by legislation in nearly all of them. And statutes substantially the same as the one now under consideration, authorizing boards of education, or the local school authorities, to require vaccination as a prerequisite to attendance upon fhe- public schools, have been almost uniformly upheld and sustained by the courts, as a reasonable and proper exercise of the police power. Abeel et al. v. Clark, 84 Cal., 226; Commonwealth v. Pear, 183 Mass., 242; Hutchins v. Durham, 137 N. C., 68; Blue v. Beach et al., 155 Ind., 121; In the Matter of August Rebenack, 62 Mo. App., 8; Duffield v. Williamsport School District, 162 Pa. St., 476; Field v. Robinson, 198 Pa. St., 638; Tiedeman, State and Federal Control of Persons and Property, Vol. 1, Sec. 17; Parker & Worthington’s Public Health and Safety, Sec. 123. Legislation requiring vaccination is mentioned by Mr. Justice Brown, in delivering the opinion of the court in Lawton v. Steele, 152 U. S., 133, 136, as a proper exercise of the police power. While the duty of providing for the education of the children of the state by the support and maintenance of an efficient system of common schools, is one enjoined by the Constitution of Ohio, Article I, Section 7, and Article VI, Section 2, yet it must be conceded' that the privilege of attendance upon the public schools of the state is, and of necessity must be, subject to such reasonable restrictions and limitalions as may be imposed by the' proper authorities, either in the interest of the public health, or to promote the efficiency and general welfare of the schools themselves. ■ In Bissel v. Davidson et al., 65 Conn., 183, a statute authorizing the school authorities to require vaccination as a condition precedent to the right to attend -the public schools was held to be a valid enactment, and in discussing the question of the right or privilége of all ■children of school age to attend the public schools, the court in that case said: “This privilege is granted and is to be enjoyed upon such terms and under such reasonable conditions and restrictions as the law-making power, within . constitutional limits, may see fit to impose; and, within those limits., the question what terms, conditions and restrictions will best subserve the end sought in the establishment and maintenance of public schools, is a" question solely for the legislature and not for the courts. The statute in question .authorizes the committee to impose vaccination' as ■one of those conditions. It does not authorize or compel compulsory vaccination; it simply requires •vaccination as one of the conditions of the privilege of attending the public school. Its object is to promote the usefulness and efficiency of the schools by caring for the health of the scholars. * * * The statute is essentially a police regulation, as much só as would be one giving the power to exclude temporarily scholars afflicted with infectious or contagious diseases, or coming from homes or districts where such diseases were ■prevalent.” In re Rebenack, 62 Mo. App., above cited, a resolution passed by the school authorities of the city of St. Louis, very similar to the one now under consideration in the present case, was held to be reasonable and valid, the court saying: “In the nature of things, it must rest with the boards of education to determine what regulations are needful for a safe and proper management of the schools, and for the physical and moral, health of the pupils entrusted to their care. If such regulations are not oppressive or arbitrary the courts can not, or should not interfere.” To the same effect is State, ex rel., v. Zimmerman et al., 86 Minn., 353, where it is .said: “The welfare of .the many is superior to that of the few, and as regulations compelling vaccination are intended and enforced solely for the public good, the rights conferred thereby are primary and. "superior to the rights of any pupil to attend the public schools.” In the cas.e at bar the point is made, by counsel for plaintiff in error, that inasmuch as the circuit court found the fact to be, — “that the disease of Smallpox is not prevalent at the present time in said village of Barberton, nor in said school district, nor in the community where relator and his said children reside, and at the pres-' ent time there is-no threatened epidemic of smallpox, nor has there been a threatened epidemic of smallpox since said 22d day of January, 1904,- and that there is no evidence tending to- show that the children of the relator have been exposed to smallpox,” that, therefore, the resolution of November 23d, 1903, adopted by the board of education of the village of Barberton can not, under such conditions, now properly be enforced. The claim being, that a rule or regulation requiring vaccination' as a prerequisite to the right to attend the public schools becomes and is unreason.--’ able, and can not be enforced, at a time when smallpox does not exis.t in the community, and there is no present reasonable ground to apprehend its appearance. Such claim necessarily assumes that the power conferred upon boards of education by Section. 3986, Revised Statutes, can not rightfully be exercised by them unless at the time of its exercise smallpox actually exists in the community, or an epidemic of the disease is then reasonably to be apprehended. But the statute conferring the power, has imposed no such con-' dition or limitation upon its exercise, and we know of no reason or authority from which such condition may be implied. It is matter of universal knowledge, that' with our present rapid means of intercommunication, smallpox is liable to make its appearance at any moment . in any community. If then, as is the common belief, vaccination is a preventive, or a protection against, this dread disease, which Macauley denominated “the most terrible of all ministers of death,” certainly it may not be said, that for a board of education to adopt, as a protective and precautionary measure, a rule or regulation requiring vaccination as a prerequisite to the right to attend public schools, is an unwarranted or unreasonable exercise of the power expressly conferred upon it by statute, even though smallpox does not at the time actually exist in the district or community, for it may truly be said that, “An ounce of prevention is worth a pound of cure.” In a comparatively recent case decided by the court of appeals of New York,. October 18th, 1904, that court says: “It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has' a decided tendency to prevent the spread of this fearful disease and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people as well as by most members of the medical profession. * * * The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong and that science may yet show it to be wrong is not conclusive, for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people through their chosen representatives, practical legislation admits of no other standard of action, for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the constitution and would sanction measures opposed to a republican form of government. While we do not decide and can not decide that vaccination is a preventive of smallpox, we take judicial notice of the fact that this, is the common belief of the people of the state, and with this fact as a foundation, we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power. It operates impartially upon all children in the public schools and is designed not only for their protection but for the protection of all the people of the state. The relators son is excluded from school only until he complies with the law passed to protect the health of all, himself and his family included. No right conferred or secured by the constitution was violated by that law or by the action of the school authorities based thereon.” In the matter of the application of Edmund C. Viemeister for a Peremptory Writ of Mandamus v. Patrick I. White, as President of the Board of Education, etc., et al., 179 N. Y., 235. A careful examination of the authorities cited by counsel for plaintiff in error leads to the conclusion that under the facts, respectively found in those cases, with possibly one exception, they are not in substantial conflict with the cases above cited, or at war with the conclusion reached by us in this case. In fact, there is much asserted in the cases cited by counsel for plaintiff in error that is in entire harmony with our holding in the present case. Our conclusion- in this case is in accord with the conclusion reached by the circuit court, and the judgment of that court is therefore

Affirmed.

Shauck, C. J., Price, Spear and Davis, JJ., concur.