(concurring). The nonvaceination of children — is it a cause for excluding them from the public schools in a state where smallpox does not prevail, and where the sickness and death resulting from vaccination would far exceed that now resulting from smallpox —that is the question. We must consider not only the statutes, but also the origin and nature of smallpox. It is a disease which originates in filth, the crowding of people together, the lack of pure air, good food, and good sanitary conditions. It prevails and becomes epidemic only in countries where the population is dense and the sanitary conditions are bad. It was in such countries, and in days when sanitation was unknown, that the doctrine of vaccination was promulgated and adopted as a religious creed. Gradually it spread to other countries where conditions are so different that vaccination is justly regarded as a menace and a curse; and where, as it appears, the primary purpose of vaccination is to give a living to the vaccinators. In this great *458Northwest the disease has never prevailed to any considerable extent, and it has never become epidemic. Hence, were vaccination to become general, it would be certain to cause sickness or death of a thousand children where one child now sickens and dies from smallpox. Of course a different story is told by the class that reap a golden harvest from vaccination and the diseases caused by it. Yet, because of their self-interest, their doctrine must be received with the greatest care and scrutiny. Every person of common sense and observation must know that it is not the welfare of the children that causes the vac-cinators to preach their doctrines and to incur the expense of lobbying for vaccination statutes. Certain it is that in this sparsely settled prairie country, vaccination is not necessary to prevent the spread of smallpox or pig cholera. And if anyone says to the contrary, he either does not know the facts, or he has no regard for truth.
England, with its dense population and unsanitary conditions, was the first country to adopt compulsory vaccination, but there it has been denounced and abandoned. In the city of Leicester vaccination has long since been tabooed, and there, because of special regard for cleanliness and good sanitation, the people fear no smallpox. But in Prussia, Germany, and other such countries, the light shineth in darkness and the darkness comprehendeth it not.
In the book of Dr. Peebles on vaccination there are statistics to the effect that 25,000 children are annually slaughtered by diseases in-noculated into the system by compulsory vaccination. It is shown beyond doubt that vaccination is not infrequently the cause of death, syphilis, cancer, consumption, eczema, leprosy, and other diseases. It is shown that if vaccination has any tendency to prevent an attack of smallpox, the remedy is worse than the disease.
Smallpox is the least dangerous of the infectious diseases. With proper care no person dies of smallpox, and the disease gives the patient and his descendants more or less immunity from other diseases. It commences with a fever and takes the patient to bed several days before the disease becomes infectious. Its infectious character commences (as the fever subsides) with the formation of small, peculiar cutaneous eruptions or pustules all over the body, and these emit the offensive smelling infection. At the close of three or four weeks, with proper care, the patient recovers and becomes hale and hearty, with an im*459•munity from tbe disease. It is true that smallpox and other infectious diseases do not prevail as much as formerly, but that is not due to vaccination. As time passes sanitary conditions improve; men and animals become more and more immune. Nature is everywhere working and learning by slow degrees to protect both the animal and the vegetable. The pig that has survived an attack of cholera is immune, and for several generations its breed is partly immune. In some southern countries where pigs are kept in a filthy condition or live on droppings from cattle, they are very subject to cholera, and there pig vaccination and inoculation may be a proper sanitary measure; but in a northern state, where the pig has a good pasture, a good wallow, and is well fed and housed, there is no pig cholera and hence pig vaccination would be a barbarism. Indeed, the pig growers would rebel against it; and so of child vaccination in a state where smallpox does not prevail, it has no excuse; it is a barbarism. It is the duty of child .growers to rebel against it. Surely the child should have as much protection as the pig.
The question is to be decided on the fundamental law, the statutes, common knowledge, and pure reason.
By the Constitution the public schools must be open to the children of the state. § 147. But when a child has an infectious disease or resides in an infected house, then it may not attend the schools. § 426. By an obsolete statute every minor person must be vaccinated, not excepting those who have had the smallpox. § 425. And by a general order the state board of health has tried to amend the Constitution and the statute so as to exclude from the schools a child that is not vaccinated. Its power is only “to make needful rules to prevent the spread of infectious diseases among persons and domestic animals.” § 400. It has no power to amend either the Constitution or the statute, or to add to or take from the same, one jot or tittle.
In Egypt, Palestine, and other semitropical countries, under conditions which prevailed three thousand years ago, circumcision was accounted a sanitary measure, and not merely a religious rite. But now there is no such reason for circumcision, for pig or child vaccination, under the conditions here prevailing in this twentieth century. We live in a- sparsely settled northern country under a Constitution which guarantees personal liberty, and the right of every per*460son to pursue and obtain safety and happiness, and the right of every child to attend the public schools. If it be conceded that vaccination is a safe preventive of a bad disease (and it is not), still children do not cry for it, and it has not yet become a religious rite. Vaccination has never prevented any child from carrying to school the infection of smallpox. The disease at once takes a child to bed and prevents it from going to school.
In writing a judicial opinion it is customary to fortify it by a reference to authorities, that is, to decisions in similar cases, but here it is not possible because all the judicial decisions have been given under different statutes and conditions. In Europe, Asia, Africa, and in the Atlantic and Pacific states the conditions are so different that there vaccination may be good thing, while in this great Northwest it might prove a veritable curse.
In Com. v. Jacobsen (1903) 183 Mass. 242, 67 L.R.A. 935, 66 N. E. 719, it was held by the supreme court of Massachusetts, and by a majority of the United States Supreme Court, that vaccination may be required of all the inhabitants of a state where smallpox is prevalent and increasing. 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765.
The New York court of appeals has sustained a statute excluding from schools all children not vaccinated. Re Viemeister, 179 N. Y. 235, 70 L.R.A. 796, 103 Am. St. Rep. 859, 72 N. E. 97, 1 Ann. Gas. 334. And so it has been held in Pennsylvania and in several other densely populated states. It is quite remarkable that judicial decisions do commonly run in the ruts of ages, regardless of changing conditions. Thus some two hundred years ago, in Massachusetts, because of custom and because it is written: Thou shalt not suffer a wizard to live, judges were found ready to convict and sentence the poor women, who were burned for witchcraft. In every age and country some judges have been too ready to follow the example of Pontius Pilate, — to wash their hands, — and to blame a supposed law or a precedent for their unjust decisions.
In Illinois it is held that the legal right of a child to attend the public school may not be denied unless in localities where smallpox prevails. Potts v. Breen, 167 Ill. 67, 39 L.R.A. 152, 59 Am. St. Rep. 262, 47 N. E. 81.
*461In 1908, under a statute giving tbe city of Chicago power to make all regulations and pass all ordinances necessary and expedient for the promotion of the public health or the suppression of disease, the city passed an ordinance excluding children from the public schools unless vaccinated, and it was held null and void. People ex rel. Jenkins v. Board of Education, 234 Ill. 422, 17 L.R.A. (N.S.) 709, 84 N. E. 1046, 14 Ann. Cas. 943.
Finally the proper safeguard is by sanitation. The chances are that within a generation vaccination will cease to exist. It will go the way of inoculation, bleeding, purging, and salivation. The vaccinators must learn to live without sowing the seeds of death and disease.
Order reversed. Mandamus awarded.