For the prosecutors, Charles L. Bertini.
For the respondents, Sher, Malech & Sher (Morris Malech, on the brief).
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
EASTWOOD, J. Certiorari has been allowed to review a certain resolution of the Board of Education of the Borough of Carlstadt, Bergen County, adopted on May 6th, 1947, making vaccination of school children in the public schools of the Borough of Carlstadt compulsory. Upon the failure and refusal of prosecutors to be so vaccinated they were excluded from the schools by the respondent Edward F. Krom, supervising principal of the Carlstadt public schools. It has been provided, however, upon the allowance of the writ that the order of exclusion be held in abeyance until the further rule or order of this court in the premises.
The resolution of May 6th, 1947, requiring vaccination or revaccination of school children as a prerequisite to their admission in the public schools of the Borough of Carlstadt was adopted in accordance with the provisions of R.S. 18:14-52. The statute reads as follows:
"A board of education may exclude from school any teacher or pupil who has not been successfully vaccinated or revaccinated, unless the teacher or pupil shall present a certificate signed by the medical inspector appointed by the board of education that the teacher or pupil is an unfit subject for vaccination."
It is urged by the prosecutors that both the resolution of May 6th, 1947, and its parent statute, R.S. 18:14-52, are unconstitutional in that they violate the guaranties of the federal and New Jersey Constitutions pertaining to personal and religious liberties. It is said that (1) the resolution excluding the prosecutors from the free public schools denies to them the equal protection of the laws; (2) the resolution was not based upon any judicial determination requiring such action and is, therefore, unlawful and invalid; (3) the resolution
denies to certain of the prosecutors the constitutional right to attend the free public schools on account of religious principles and is, therefore, invalid; and (4) the legislature has violated its constitutional duty of maintaining a free public school system when it compels acceptance of the vaccination theory as a fact, and the resolution adopted under R.S. 18:14-52 is, therefore, invalid. Per contra, the respondents contend that the resolution of May 6th, 1947, was a proper exercise of the police power through its legislative grant; that the ostensible object of the legislation is a valid exercise of legislative authority for the protection of the health and safety of school children, resulting in promoting the efficiency of the public school system and tending for the protection of the public welfare.
So far as we have been able to ascertain the matter before us is one of first impression in this state, although the question of compulsory vaccination has received considerable attention in the federal courts and those of numerous sister States. We have carefully considered the depositions taken under the writ as well as the able briefs of counsel and are of the opinion that the resolution of May 6th, 1947, under review was proper and efficacious. At the outset we desire to observe that the question of the desirability or efficacy of compulsory vaccination by virtue of R.S. 18:14-52 and whether it is wise or unwise is strictly a legislative and not a judicial question. It is not the province of the court to pronounce that vaccination is or is not a suitable and satisfactory means of combating disease. Judicial notice, however, will be taken that vaccination is commonly believed to be a safe and valuable means of preventing the spread of certain diseases, particularly smallpox, and that this belief is supported by high medical authority.
The question of general compulsory vaccination laws has received consideration by the United States Supreme Court in Jacobson v. Massachusetts, 197 U.S. 11; 49 L. Ed. 643; 25 S. Ct. 358, opinion by Mr. Justice Harlan. Our examination of that case leads us to the conclusion that the decision therein is dispositive of the issue before ...