XV. Washington.

[State ex rel. McFadden v. Shorrock et al. (supreme court of Washington, Oct. 6, 1909), 104 P., 214.]

1. STATUTES SUBJECTS AND TITLES.

Laws 1897, page 392, section 92, as amended by Laws 1905, page 263, chapter 142, section 3, making it the duty of a board of school directors to require vaccination as a condition of school membership, is germane to the general subject of the act, entitled "An act to establish a general uniform system of public schools," and therefore not in contravention of the provision of the constitution that a bill shall embrace only one subject, and that shall be expressed in the title.

2. SCHOOLS AND SCHOOL DISTRICTS-CONDITIONS OF SCHOOL MEMBERSHIP-StatUTES-REPEAL.

Laws 1897, page 356, chapter 118, establishing a general uniform system of public schools, and by section 92 (p. 392) as amended by Laws 1905, page 263, chapter 142, section 3, making it the duty of a board of school directors to require vaccination as a condition of school membership, is not repealed by Laws 1907, page 569, chapter 231, providing for compulsory education of children, even if the latter makes attendance on public schools compulsory, and with the former makes vaccination compulsory.

3. SCHOOLS AND SCHOOL DISTRICTS-COMPULSORY ATTENDANCE.

The legislature can require all minors to attend public schools, and to be vaccinated before so attending.

4. SCHOOLS AND SCHOOL DISTRICTS-CONDITION OF SCHOOL Membership-ExcepTION TO STATUTE.

An exception to Laws 1897, page 392, section 92, as amended by Laws 1905, page 263, chapter 142, section 3, requiring vaccination as a condition to school membership, is to be presumed in favor of children whose condition of health is such that the operation would endanger their lives, or injure them mentally or physically.

5. SCHOOLS AND SCHOOL DISTRICTS-CONDITION OF SCHOOL MEMBERSHIP-"SUCCESSFUL VACCINATION.'

Laws 1897, page 392, section 92, as amended by Laws 1905, page 263, chapter 142, section 3, making it the duty of a board of school directors to require "successful vaccination" as a condition of school membership, is not too indefinite to be capable of enforcement; a common-sense construction being to treat as successfully vaccinated not only one in whom the customary reaction follows the operation, but one in whom no such reaction follows three several operations, thus evidencing that he can not be vaccinated.

Department 1. Appeal from superior court, King County; Geo. E. Morris, judge. Application by the State, on the relation of J. Clinton McFadden, for writ of mandate against E. Shorrock and others, board of school directors. From an adverse judgment, relator appeals. Affirmed.

FULLERTON, J.: On October 30, 1908, the board of directors of Seattle school district No. 1, King County, State of Washington, at the suggestion of the commissioner of health of the city of Seattle, and the King County Medical Society, adopted a resolution requiring all pupils desirous of attending the public schools of the district to be successfully vaccinated as a condition precedent to their right so to do, further directing that the resolution be not enforced against anyone whose condition of health was such as to render it unsafe for him to undergo vaccination. Under the provisions of this resolution the appellant's minor son was excluded from one of the schools of the district, known as the University Heights School, solely because he refused to submit to vaccination. The appellant as relator thereupon applied to the superior court of King County for a writ of mandate against the board of directors to compel them to admit his son to the school. To his application the board of directors made a return in which they gave, as reasons for excluding the son, the resolution above mentioned, together with the recommendations on which it was founded; the fact that smallpox then existed to a greater or less extent in the city of Seattle, and was epidemic in a mild form in many of the near-by cities; that the minor son of the appellant refused to be vaccinated, and the parents and guardian refused to cause or permit him to be vaccinated, and that to permit him to attend the school would be a menace to good health; and further that by virtue of the laws of the State of Washington the board of directors are clothed with power, and it is their duty, to require successful vaccination as a condition to school attendance whenever in their judgment conditions demand the exercise of the power. To this return the respondent demurred, on the grounds, first, that the act of the legislature on which the resolution of the board of directors was founded is unconstitutional; second, that it was repealed by a subsequent statute; and, third, that it is too indefinite to be capable of enforcement. The superior court held the return to be sufficient, and overruled the demurrer. The appellant then elected to stand on his demurrer, whereupon the court entered a judgment dismissing the application.

The appellant urges in this court the objections to the return he insisted upon in the court below. He argues that the clause of the act of the legislature which the board of directors rely upon to sustain their action is unconstitutional because it is not included in the title of the act of which it forms a part. In 1897 the legislature by a general act under the title "An act to establish a general uniform system of public schools in the State of Washington, and repealing," etc., provided a complete code for the government of the state educational institutions, and repealed by express mention practically all of the prior acts relating thereto then upon the statute books. (Laws 1897, p. 392, chap. 118, amended by Laws 1905, p. 262, chap. 142, sec. 3.) The act, among other things, provided for the organization of school districts in cities having a population of 10,000 or more, and the election of a board of directors to have charge and control of the schools and school property therein. Section 92 of the act read as follows: "Every board of directors shall have power, and it shall be their duty Ninth: To require successful vaccination as a condition of school membership and to provide free vaccination to all who are unable to pay for the same." It is this clause that is thought not to be within the title of the act.

* * *

The section of the constitution providing that "No bill shall embrace more than one subject, and that shall be expressed in the title" (art. 2, sec. 19) has frequently been a subject for consideration by this court. In the early case of Marston v. Humes, 3 Wash. 267, 28 Pac. 520, we said that this word "subject" as used in the constitution could be interpreted in two ways; one to hold that the word is not capable of further reduction, and the other "to hold that it means a single subject in a more enlarged sense in which may be included a large number of subsubjects; that to adopt the first would so tie the hands of the legislature as to make legislation extremely difficult, if not impossible, while to adopt the second would substantially subserve the object which the framers of the constitution had in view, and at the same time leave the legislature free to legislate in a reasonable manner. The more liberal construction was thereupon adopted, and it has been the rule followed by the court since that time. Thus, in Lancey v. King County, 15 Wash. 9, 45 Pac. 645, 34 L. R. A. 817, it was held that an act of the legislature will not be declared void under this clause of the Constitution, except in cases where the violation is most clear, and that both public policy and legislative convenience require that this provision should be liberally construed, that the purpose of the title is only to call attention to the subject-matter of the act, and that the act itself must be looked to for a full description of the powers conferred. In State ex rel. Savings Union v. Whittlesey, 17 Wash. 447, 50 Pac. 119, it was said that while the object of the constitutional provision is that neither the members of the legislature, nor the people, shall be misled by the title of a legislative act, it had never been held that the title should embody all the distinct provisions of the act in detail; that such a construction would be eminently unreasonable, for in such a case the body of the act would be nothing more than a repetition of the title. Again in a number of cases it has been held that title need not be an index to the body of the act, but is sufficient if it gives such notice of its subject as to reasonably lead to an inquiry into its body. (See Seattle v. Barto, 31 Wash. 141, 71 Pac. 735; State v. Sharpless, 31 Wash. 191, 71 Pac. 737, 96 Am. St. Rep. 893; McKnight v. McDonald, 34 Wash. 98, 74 Pac. 1060; Seattle and Lake Washington Waterway Co. v. Seattle Dock Co., 35 Wash. 503, 77 Pac. 845.) In State ex rel. Smith v. Dental Examiners, 31 Wash. 492, 72 Pac. 110, the court, in passing on the question whether a penalty for practicing dentistry without a license could be enacted under a title reading, "An act to regulate the practice of dentistry in the State of Washington, and declaring an emergency" (Laws 1893, p. 88, chap. 55), used this language: "It is true the act shall contain but one subject, and that shall be expressed in its title. While the act shall contain but one subject, yet there are many phases of that subject that may properly be treated in the same act, just as a work upon the subject of damages may treat upon many phases of the general subject. It is impracticable to indicate in the title of either a book or a legislative act every phase of the general subject that may be treated. The subject of an act being to regulate the practice of a given profession, the legislature may include in the act the means related to the subject for effecting the object sought.'

The clause in question, it will be noticed, does not empower the board of directors of the district to provide for compulsory vaccination. The appellant may or may not, as suits his desire, require his son to be vaccinated. The act does no more than provide that the board of directors may make vaccination a necessary condition precedent to attendance upon the public schools. It thus stands on the same plane as the provisions contained in the act for the exclusion of those afflicted with infectious or contagious diseases, or who reside in houses wherein such diseases are prevalent. In other words, it defines the class of persons who may be permitted to attend the schools created by the act. It seems to us, therefore, that when considered in the

light of the rule announced by the cases cited, this clause is clearly within the title of the act. One would expect to find in an act establishing a general, uniform system of public schools a provision defining the class of persons who may be permitted to attend on the schools thus created. It was therefore germane to the general subject, and this is sufficient to sustain its enactment under a title covering the general subject.

The second contention is that the act is repealed by the subsequent statute of March 16, 1907 (Laws 1907, p. 569, chap. 231), providing for the compulsory education of children. But this contention is likewise untenable. There is no express repeal of the one statute by the other, nor is there such a conflict between them as to work a repeal by implication. If the later statute required compulsory attendance on the public schools, the two statutes taken together might require compulsory vaccination, but even in that case there would be no repeal of the former by the latter; the legislature has power to require all minors to attend the public schools and to require them to be vaccinated before so attending. Jacobson v. Massachusetts, 197 U.S., 11, 25 Sup. Ct. 358, 49 L. Ed. 643. Nor is the statute void because it makes no allowance for those physically incapable of vaccination. But, as said by the Supreme Court of the United States, in United States v. Kirby, 7 Wall. 482, 19 L. Ed. 278: “"All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always therefore be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter." So here it is not presumed that the legislature intended to require, as a condition of its right to attend the public schools, the vaccination of a child whose condition of health is such that the operation would endanger its life or injuriously affect it mentally or physically. It is presumed that exceptions were intended in favor of such individuals; and, if the officers having in charge the execution of the statute refused to recognize an exception in such a case, the courts can be appealed to, to compel such recognition.

Finally, it is said that the statute is too indefinite to be capable of enforcement. This is founded on the fact that it requires "successful vaccination," and no definition of the term is furnished by the statutes. The board of directors, it appears, construed the statute to mean that a person was successfully vaccinated when the customary reaction was obtained by the operation, or when three operations had been performed without obtaining reaction. Here, again, we think the rule of commonsense construction can properly be invoked. Of course, if the customary reaction follows the operation, there is no question concerning the success of the operation. But if no reaction follows three several operations, it is evident that the individual can not be vaccinated, and such individual can be held to be either successfully vaccinated, or as one not included within the general language used in the statute. To allow individuals to attend the schools who from their condition of health or other causes can not be successfully vaccinated is not a violation of the statute, as the appellant supposes. This is but a recognition of an exception intended by the legislature, but which was not provided for because not foreseen.

We find no objection to the statute itself, nor to the manner it is being enforced. The order appealed from will therefore stand affirmed. RUDKIN, C. J., and CHADWICK and GOSE, JJ., concur.

MORRIS, J., took no part.

TEACHERS' SALARIES AND CONTRACTS.

XVI. Iowa.

[Byrne v. Independent School Dist. of Struble (supreme court of Iowa, Oct. 23, 1908), 117 N. W., 983.]

1. PLEADING-ISSUES-DENIAL OF DAMAGES.

Under Code, section 3622, providing that an allegation of amount of damages shall not be deemed true by failure to controvert it, etc., an answer in an action for breach of contract to teach a public school, which denies nothing but the damages suffered, raises no issue.

2. SCHOOLS AND SCHOOL DISTRICTS-BREACH OF CONTRACT TO TEACH-DAMAGES. The rules applicable to ordinary contracts of employment as to measure of damages obtain in cases of breach of contract to teach a public school.

3. SAME.

Where a contract to teach a public school is disregarded by the district, and the teacher is denied the right to perform, he must find other employment to mitigate the damages, but his damages are not to be diminished for failure to secure other employment, unless by reasonable diligence he might have secured employment of the same grade in the same locality.

Appeal from district court, Plymouth County; David Mould, judge. Action to recover damages for breach of a contract to teach a school in the defendant district. The defendant answered, and to this answer plaintiff demurred. Her demurrer was sustained, and defendant appeals. Affirmed.

DEEMER, J.: Defendant admitted all the allegations of plaintiff's petition with reference to her contract to teach a school in defendant district for the school year 1905-6, admitted plaintiff's wrongful discharge and its refusal to permit her to teach the school as agreed, and denied nothing but the damages suffered by plaintiff. It further pleaded as a third division of its answer the following: "And defendant further says that the plaintiff had opportunity to, and was solicited by the directors of other public schools to, teach public schools during the months of March, April, and May, 1906, at the sum of $36 per month; that she refused to accept said schools or teach the same; that she used no effort whatever to secure other employment as a school-teacher, and intentionally and wilfully refrained from seeking any employment from which she could have received compensation, and thus reduced the damages she might have been entitled to recover from the defendant; that, had the plaintiff made any effort to procure or had she accepted the employment offered her, she would have received compensation therefor equal to the full amount defendant had contracted to pay her for her services under the contract sued on in this petition." The demurrer challenged the sufficiency of this answer, and the trial court held that it did not constitute a defense.

For a reversal defendant relies upon two main propositions, to wit: (1) That the answer, without reference to the third division tenders an issue as to the amount of plaintiff's damage; and (2) that the third division pleads a defense to plaintiff's cause of action, or at least amounts to a plea in mitigation of damages. The second proposition involves two incidental questions: (a) Do the ordinary rules relating to clerks, agents, servants, and employees apply to school-teachers? (b) If so, do the facts recited bring the case within these rules? The only denial of the allegations of plaintiff's petition related to the amount of plaintiff's damages, and it is in this language: "Denies that the plaintiff has been damaged as alleged in her petition in the sum of $200 or any other sum." An allegation in a petition as to the amount of damages is not deemed true by failure to controvert it (Code, sec. 3622), and a denial of any indebtedness to plaintiff whatever raises no issue. McIntosh v. Lee, 57 Iowa, 356; 10 N. W., 895. This is a sufficient answer to defendant's first proposition.

2. The rules applicable to ordinary contracts of employment so far as the measure of damages is concerned obtain in cases of breach of contract to teach school. (Park v. Ind. Dist., 65 Iowa, 209; 21 N. W., 567.) And, when such contract is disregarded by the school district and the teacher is denied the right to perform, it is her duty to find other employment, and, when sued, the school district may show that she has found other employment, or that by the use of reasonable diligence she might have found other employment for the purpose of mitigating the damages; but, if the discharged teacher did not accept other employment, her damages should not be diminished for failure to secure it, unless it be shown that by reasonable diligence she might have secured employment of the same grade in the same locality where she was employed to teach. She was not required to accept employment in another locality or of a different or lower grade. The law is very clear on this proposition. (Jackson v. Ind. Dist., 110 Iowa, 316; 81 N. W., 596; 8 Ency. of Ev., 517-518, and cases cited.) Going now to the allegations of the answer, it will be observed that they do not bring the case within these rules. There is no averment that plaintiff might have found employment in the same locality, or that the schools were of the same grade as that contemplated in the contract between plaintiff and defendant. For these reasons, the third division of the answer did not constitute a defense, nor did it amount to a good plea in mitigation of damages.

The demurrer was properly sustained, and the judgment must be, and it is, affirmed.

PUPILS.

INSTRUCTION, PROMOTION, DISCIPLINE.

XVII. Mississippi.

[Hobbs et al. v. Germany et al. (supreme court of Mississippi, May 31, 1909) 49 So., 515.] 1. INJUNCTION-SCHOOL OFFICERS RESTRAINING ENFORCEMENT OF RULES.

Code 1906, section 4487, providing that the board of education shall decide all appeals from decisions of county superintendents, etc., and section 4503, providing that in all controversies arising under the school law the opinion of the county superintendent shall be first sought, from whose decision an appeal may be taken to the state board of education, do not exempt the school authorities, acting beyond the scope of their powers and in violation of law, from interference by the courts; and equity has jurisdiction to enjoin the trustees and the teacher of a school district from enforcing an invalid rule.

2. SCHOOLS AND SCHOOL DISTRICTS-AUTHORITY OF SCHOOL OFFICERS STATUtes. Code 1906, section 4525, empowering the trustees of school districts to prescribe and enforce rules not inconsistent with law for the government of schools, and to suspend and expel pupils for misconduct, and section 4623, authorizing teachers to enforce rules prescribed for schools, and to hold pupils to a strict account for disorderly conduct on the way to and from school, on the playgrounds, etc., do not authorize the adoption of a rule requiring all pupils of the school to remain in their homes and study between designated hours in the evening.

Appeal from chancery court, Lincoln County; G. G. Lyell, chancellor.

Suit by W. T. Germany, individually and as next friend for his minor son, Henry Germany, against G. A. Hobbs and others. From a decree sustaining the injunction granted, defendants appeal. Affirmed.

MAYES, J.: The town of Bogue Chitto composes a separate school district, and the appellants are the trustees thereof and teachers therein. This controversy grows out of the attempted enforcement of a certain rule, adopted by the teachers of the school and ratified by the trustees, by which it is required that all pupils of the school shall remain in their homes and study from 7 to 9 p. m., and the rule provides that any pupil who shall violate it shall be punished, either corporally or otherwise, in the discretion of the teacher.

Henry Germany, a minor about 16 years of age and living with his father in the town of Bogue Chitto, was attending this school. Some time during October, 1908, between the hours of 7 and 9 p. m., the father attended religious services held near by in the town of Norfield, and took with him his son Henry, which the teachers considered a violation of the above rule. On the son's returning to school, the teachers, in pursuance of the purpose to enforce this rule, undertook to punish him for this breach of their rule, and gave him his choice of submitting to corporal punishment or confinement in the schoolroom for forty minutes during the noon hour for the period of five days. Under these facts, and being guilty of no other breach of the school law, young Germany refused to submit to either of the proposed punishments, whereupon the school authorities compelled him to withdraw from the public school. When this was done, the father, individually and as next friend for the son, filed this suit in the chancery court, alleging that the adoption of the rule is beyond the lawful power of either the trustees or the teachers, and constitutes a usurpation of authority not conferred upon them by law. The bill prayed for an injunction against the trustees and teachers enforcing this rule, and also prayed that they be required to reinstate young Germany in the school during the pendency of the suit and prohibited from inflicting any punishment because of his infraction of the rule. The answer admits the adoption of the rule and its proposed enforcement, and the question being submitted to the chancellor on a motion to dissolve this injunction, the motion was overruled, and the injunction retained, from which judgment an appeal is prosecuted.

The sole question presented by the record is as to the power of the school authorities to make and enforce this rule. The first contention is that the chancery court is without jurisdiction to entertain this proceeding, and section 4503, code of 1906, is cited as authority for this contention. That section is as follows: "In all controversies arising under the school law, the opinion and advice of the county superintendent shall first be sought, from whose decision an appeal may be taken to the state board of education upon a written statement of the facts, certified by the county superintendent or by the secretary of the trustees." And again section 4487 provides: "The board of education shall decide all appeals from decisions of county superintendents, or from the decisions of the state superintendent; but all matters relating to appeals shall be presented in writing, and the board's decision shall be final." It is argued that under