I con cut. The provisions of section 200'of chapter 661 of the Laws of 1893 (renumbered § 210 by Laws of 1900, chap. 667, §2), prohibiting children from attending the public schools without first *49having been vaccinated, constitute a legitimate exercise of the police power. This is defined by the Court of Appeals in People v. King (110 N. Y. 418, 423), as the power by means of which "the Legislature exercises a supervision over matters involving the common weal and enforces the observance, by each individual member of society, of the duties which he owes to others and to the community at large. It may be exerted whenever necessary to secure the peace, good order, health, morals and general welfare of the community, and the propriety of its exercise within constitutional limits is purely a matter of legislative discretion with which the courts cannot interfere.”
It has never been questioned that measures which are obviously designed in good faith to guard and protect the public health are within this power. “ The Legislature has power to pass laws for the protection of the health and safety of its citizens.” (7 Lawson Rights Rem. & Pr. § 3913.) “ Without attempting to define what are the peculiar subjects or limits of this power it may safely be affirmed that every law for the restraint and punishment of crime, for the preservation of the public peace, health and morals must come within this category.” (Mr. Justice Grier, in Thurlow v. Massachusetts, 5 How. [U. S.] 631.) “ The police power of a State extends to all matters which concern its internal regulation. It -embraces those which affect the lives, limbs, health, comfort and welfare of all in their persons and their property. It subjects both persons and property to those restraints and burdens which are neces.sary in order that the general comfort and welfare may be secured.” Commonwealth v. Bearse, 132 Mass. 542, 546.) “Neither the ¿amendment (the 14th), broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people.” (Barbier v. Connolly, 113 U. S. 29, 31.) “The police power,” said Judge Peckham in People v. Budd (117 N. Y. 1, 38), “ it is acknowledged, may be rightfully exercised, among others, in cases involving the public health or the public morals. No one questions it in regard to either of those two important branches of government.”
No court in this State, so far as I have been able to learn, has *50ever declared an act unconstitutional which was simply designed to protect the public health. It is only in cases where, under the guise of health regulations, enactments have been passed, having other ulterior objects in view that the courts have declared the acts unconstitutional. These cases in no degree weaken the broad doctrine that the State in the exercise of its sovereign power may-control and restrain the individual citizen by fair and reasonable laws designed to promote the public health and hy which all are treated alike. They only establish, said the court in People v. Ewer (141 N. Y. 129, 135), that “the Legislature has no right, under the guise of protecting health, or morals, to enact laws which, bearing but remotely, if at all, upon these matters of public concern, deprive the citizen of the right to pursue a lawful occupation.”
The provision of the act in question in reference to vaccination has no object beyond the maintenance and preservation of the public-health and invades no rights of the citizen. It relates solely to the children attending the public schools, and aims to protect the great mass of the people who have adopted a generally recognized preventive- of the spread of smallpox from dangerous and enforced association with the few who refuse to join in the protection. It has long been on our statute books. As originally passed in 1860 (Chap. 438, § 1) it directed boards of education “ to exclude from the benefits of the common schools therein any child or any person who has not been vaccinated ; ” and as re-enacted by section 2Q0 of' chapter 661 of the Laws of 1893 it expressly provides that “no child or person not vaccinated shall be admitted or received into any of-the public schools of the State.” Assuming that the State has aright to determine whether or not the practice of vaccination tends to prevent disease, and assuming that the State has a right to determine that the general and intimate association for long periods of unvaccinated persons, and especially of unvaccinated, susceptible . children, is a menace to the public health, no reasonable doubt can exist as to the propriety and legality of this exercise of its sovereign , power. The legitimacy of its exercise is recognized by text writers. (See Prent. Pol. Pow. 132; Tied. Lim. Pol. Pow. § 15; and Park. &. W. Pub. H. & S. § 123.) It is not in conflict with the-assumed duty of the State to furnish education. Cooley in his work on Torts says (p 287): “ To furnish to its citizens the means of an *51education is a duty which the State, at its option, will assume or decline; and when the duty is assumed, the State, in the provision it makes, will go so far as its law makers shall think proper, and no further.” This principle was recognized by the Court of Appeals in the case of People ex rel. King v. Gallagher (93 N. Y. 438), and Chief Judge Ruger, referring to a well-known case, viz., the Slaughter House Cases (16 Wall. 36) then recently decided by the United States Supreme Court, said (p. 447): “ It would seem to be a plain deduction from the rule in that case that the privilege of receiving an education at the expense of the State, being created and conferred solely by the laws of the State, and always subject to its discretionary regulation, might be granted or refused to any individual or class at the pleasure of the State. This view of the question is also taken in State ex rel. Garnes v. McCann (21 Ohio St. 210) and Cory v. Carter (48 Ind. 337; 17 Am. Rep. 738).” It is unnecessary to go as far as Judge Ruger did. It is sufficient that on principle and authority .the duty to educate is not so far absolute as to exclude the right to enforce reasonable prohibitory regulations.
In many of the States vaccination laws in relation to school children have been held to be constitutional and within the legitimate exercise of the police power, provided they are enforced only when an epidemic of smallpox threatens the community, but in many other States besides our own it has been expressly held that independently of any specific menace of disease, a regulation excluding unvaccinated children from the public schools is reasonable, valid and constitutional. Among the latter cases may be cited Abeel v. Clark (84 Cal. 226); Duffield v. School District (162 Penn. St. 476); Field v. Robinson (198 id. 638); Bissell v. Davison (65 Conn. 183); Blue v. Beach (155 Ind. 121) and Matter of Rebenach (62 Mo. App. 8). In some of these jurisdictions there existed at the time of the respective decisions a constitutional guaranty of education similar in character to that embraced in our present fundamental law. (Const, art. 9, § 1.) Thus, in Indiana, by article 8, section 1, the Constitution provided in substance that tuition should be free and the schools open to all; in California, by article 9, section 5, of the Constitution, it is provided that “ the Legislature shall provide for a system of common schools, by which a free school shall be kept up and supported in each district at least six months in *52every year, after the first year in which a school lias been established ; ” and by article 10, section 1, of the Constitution of Pennsylvania, the Legislature is required to maintain a “ system of public schools wherein all the children of this Commonwealth above the age of six years may be educated.” Nevertheless the Vaccination Law was upheld by the court of last resort in each of the three States referred to, in the cases (supra) respectively of Blue v. Beach, Abeel v. Clark and Duffield v. School District.
For the reasons herein expressed, and those contained in the opinion of Mr. Justice Woodward, I vote for an affirmance of the order.
Goodrich, P. J., Bartlett and Hooker, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.