Dissenting Opinion.
In the opinion of the majority of the court it is correctly stated that “the single question for determination is, whether the statute confers authority upon the board of health to prescribe and enforce the rule excluding unvac-cinated pupils from school during the prevalence of smallpox, and so long as the emergency continues.”
It is conceded by counsel, that if the local board of health possessed the authority to pass and enforce the resolution- ordering the schools to be closed, then it was the duty of the board of education to obey the same.
Whether the local board of health of Salt Lake City had such authority, depends upon the provisions of the constitution and the acts of the Legislature relating to the subject.
Sec. 5, Art. 11, Const., provides that, “ The Legislature, by general laws shall provide for the incorporation, organization, and classification of cities.”
There is no provision of the constitution defining the powers and duties of incorporated or organized cities. It was evidently the intention of the framers of that instru*420ment to leave the Legislature free to prescribe the powers and duties of cities in the general laws referred to in said section.
At the date of tli9 formation of the constitution such a general law of the territory was in force, and by Section 2, Art. 24, Const., it was provided that, “All laws of the Territory of Utah now in force, not repugnant to the constitution shall remain in force until they expire by their own limitation, or are altered or repealed by the Legislature. ’ ’
Sec. 64, Ch. 9, Art. 4 of the general' act (Comp. Laws, 1888, p. 628) provides, the city council shall have the following powers: “To make regulations to secure the general health of the city, to prevent the introduction of contagious, infectious, or malignant diseases into the city, and to make quarantine laws and enforce the same within the corporate limits, and within twelve miles thereof. To create a board of health, and prescribe the powers and duties of the same. ’ ’
This general law has not been repealed, but has been altered by the addition of subsequent provisions, hereinafter referred to.
Salt Lake City was re-organized and re-incorporated under this general law, and possesses by virtue of said provisions of the constitution, all the powers granted by that general law, and such as have been subsequently added thereto by the State Legislature.
Sec. 1105, Rev. Stat., provides that “ It shall be the duty of the board of trustees or city council of any incorporated town or city of the State to establish by ordinance aboard of health for such town or city;” and Section 1109 provides that “It shall be the duty of the board of trustees of every incorporated town, and of the city council of every incorporated city, and of the board of county *421commissioners of each county in the State, to establish by ordinance such sanitary rules and regulations as may be necessary to promote the general health, and to prevent the outbreak or spread of infectious or contagious diseases; and to provide penalties for the infraction of any of such ordinances.” The majority opinion makes no reference whatever to this section. By this section it is made the mandatory duty of Salt Lake City, first by ordinance, to establish a board of health, and second, by ordina/uce to establish such scmitary ■rules as may be necessary, etc., and by Sec. 9, Chap. 45 of the session laws of 1899 (which evidently has reference to such necessary rules and regulations as may be established under the requirements of Section 1109, and was evidently passed to make it the mandatory and ministerial duty of the local boards of health to enforce such rules), it is provided that “The necessary rules and regulations concerning cholera, smallpox, yellow fever, diphtheria, scarlet fever, typhoid fever, whooping cough, measles, and other contagious and infectious diseases, shall be enforced by the local boards of health, .under the supervision of the health officer; and all public officers of the town, city, or county, in their proper capacities, are hereby commanded and enjoined to assist the said board of health in the enforcement of sffid rules and regulations.”
Certainly this section does not authorize the board to make sanitary rules and regulations. The only authority therein conferred is to execute the sanitary rules and regulations established by the city council.
It does not appear from the record whether Salt Lake City has made any sanitary rules or regulations.
The only sections of the statutes quoted or referred to in the majority opinion, in support of the authority of the board of health, are Sections 1105 and 1110 of the *422revised statutes; Sec. 9, Cb. 45, laws of 1899, p. 67, and Section 24, Oh. 46, laws of 1899, p. 70.
Sec. 1105 requires the city council to establish a board of health. Sec. 9 (which I have before .quoted) requires the board of health to enforce the necessary rules and regulations concerning cholera, smallpox, etc. The necessary rules and regulations referred to in that section are only those which are or may be established in pursuance of the mandatory duty imposed upon the board of trustees or city council of any incorporated town or city, by Sec. 1109 of the revised statutes.
Sec. 24 confers the following authority: ‘ ‘ The local • boards of health shall have jurisdiction in all matters pertaining to the preservation of the health of those in attendance upon the public and private schools in the State, to which end it is hereby made the duty of each of the local boards of health, (1) >to exclude from said schools mvy person, mobtdmg teachers, suffering with cmy contagious or infectious disease, whether acute or chronic, or liable to convey such disease to those vn attendance. ’ ’
This section is the only one among those quoted by my associates which in the slightest degree tends to establish the authority of the board of health to require the exclusion from the schools of all pupils who have not been vaccinated.
The act containing this section is entitled 1 ‘ An act ■ providing for the suppression of nuisances and contagious diseases, prescribing quarantine rules and regulations therefor, and relating to burial permits and health of schools.”
When said section is viewed in the light of others contained in this act, and of Sec. 1110 of the Kev. Stat., it is clear that it does not authorize the exclusion from the schools of unvaccinated children, but that it was *423intended to apply to individuals affected with the diseases mentioned, and to such other persons who by reason of having been, in some way, directly exposed to the contagion or infection mentioned, were rendered liable to immediately infect others by associating with them. It certainly was not intended to apply to the whole of a class, composed of thousands of children, no one of whom could be shown to have been exposed to contagion in a way that rendered him or her liable to communicate an infectious disease.
In Sec. 10 of said act it is provided that “ No person or thing liable to propagate any of the contagious diseases enumerated in the above section, shall be brought within the limits of the State without the special permit and direction of the State board of health, and whenever it shall come to the knowledge of any person that such person or thing has been brought within such limits, he shall immediately give notice thereof to a member of the said board, together with the location thereof. No person shall, within the limits of the State, without a permit from the local board of health, carry or remove from one building to another any person afflicted with such contagious disease. Nor shall cmy person afflicted with such contagious disease, or liable to communicate or spread the contagion thereof \ be shipped or removed from one town or place to any other town or place, except under the charge and direction of the board of health, and with proper precautions against the spread of the contagion.” The diseases embraced in this section include smallpox.
In Sec. 1110, Eev. Stat. it is provided that, “Any local board of health may declare quarantine in the county, city, or town, or any part thereof, against a contagious or infectious'disease prevailing there or elsewhere, and against *424all persons and things Week/ to spread contagion or imfection.'n
By comparing the language italicized in the sections just quoted, with the language italicized in Section 24, it will be readily seen that they are in substance exactly the same.
If the prevalence of smallpox in a city renders the school children who are not vaccinated liable to convey this disease to the attendants at the school, it follows that every person in the city who is not vaccinated is equally liable to communicate this disease to those with whom they habitually associate.
Under the construction given, in the majority opinion, to the provisions of the statute quoted, the board of health of the city, as Sec. 1110 provides, “ may declare quarantine against all persons and things likely to spread contagion or infection,” has authority during the prevalence of smallpox, to quarantine all persons who are not vaccinated, and prevent them from attending church, Sunday school, or any other gathering; prevent them from appearing on the crowded streets, or entering crowded cars, and as Sec. 10, Ch. 45, Laws of 1890, provides that no person afflicted with a contagious disease, or liable to comrmmicate or spread the contagion thereof shall not be shipped or removed from one town or place to another, except under the charge and direction of the board of health, it has authority to prevent any person not vaccinated from being so shipped or removed, and as said' section also provides that no person, or thmg liable to propagate any of the' contagions mentioned, among which is smallpox, shall be brought within the State, without the special permit and direction of the State board of health, that board has authority to exclude any person who is not vaccinated, from entering the State, during the prevalence of small*425pox, because any such person upon entering the State and going to a locality where smallpox prevails, is as liable to propagate the disease as any other person. No such results as those mentioned, and which are permissible under the construction of said provisions by my associates, was intended by the Legislature. The intention of these provisions are just as plain as the provisions of Section 24 regarding the schools, and neither was intended to apply to classes of persons, but all were intended to apply, only, to individual cases of persons afflicted with the disease mentioned, and to such other individuals, who, by reason of having, in some way, been so exposed to the contagion of such diseases, as to render them directly liable to immediately (not remotely) infect others with whom they associate.
There is nothing in the record of this case indicating that the respondent’s daughter was afflicted with any such disease, or that she had been exposed to any contagion or infection which rendered her liable to directly communicate any disease to others. She was not excluded on the ground that she had been so exposed, but only because she belonged to a class of several thousand pupils who had not been vaccinated.
It is stated in the majority opinion that “vaccination is shown to be the only safe preventive recognized and approved by medical science. ’ ’
It has neither been shown nor recognized by medical science that vaccination is a sure preventive, and while a large majority of the medical profession recognize its utility as a preventive, and recommend its use, but few, if any members of that profession claim that it is a certain protection against the contagion of smallpox. That vaccination is frequently inefficient, experience has shown, for the instances of vaccinated persons having been infected *426with smallpox are numerous. Therefore many of the six thousand, or more children who were permitted to attend the schools, were liable to be infected with that disease and just as liable to convey the disease to others attending the schools, as the children who were excluded, so that the danger sought to be avoided was not remedied.
The paz-ents of the excluded pupils, by the payment of taxes, contributed equally to the school fund with the parents of the children who were admitted, and were lawfully entitled to have their children share in the benefits of the public schools. Therefore in the absence of e'xpress provisions of the statute clearly and explicitly authorizing it, the board had no authority to pass any resolution depriving any of the pupils, unless they yielded to the unauthorized requirement of vaccination, of the benefits of the public-school fund. Such a discrimination and violation of personal rights is unwarranted under the statutes of this State. The danger which existed on account of the prevalence in the city of smallpox might have justified the closing of the schools, but was no justification for such discrimination.
In support of the authority of the board, the majority opinion quotes an ordinance of the city, which authorizes the board to adopt such rules and regulations necessary to prevent the introduction or spread of malignant, contagious, or infectious diseases within the city, or within five miles thereof.
As the constitution contains no provisions regarding sanitary rules and regulations, it is clear that the power to establish such rules and regulations is vested in the State Legislature by virtue of the general sovereignty of the State. In the exercise of this power, the provisions of the constitution must not be violated or individual liberty be unnecessarily restricted. As stated in the majority .opinion, “This power is not without limitation, *427and can not be invoked so as to invade the fundamental rights of a citizen.” (See cases cited in that opinion.)
This power, as a general rule, can not be delegated, yet under tbe provisions of the constitution before mentioned, tbe Legislature may delegate this power to incorporated towns or cities, but when so delegated, it can not be re-delegated by such town or city to any other body. To do so, as has been attempted by Salt Lake City, in the ordinance referred to, would be the disregard by said city of a duty, the discharge of which the Legislature has peremptorily enjoined upon and delegated to it. Dillon Mun. Corp., Sec. 96.
The duties of the respective boards of health of tbe State prescribed by the statutes, are simply ministerial, and in no sense legislative in their character. Their duties pertain exclusively to the enforcement of the sanitary rules and regulations established by the bodies legally authorized to enact sanitary rules and regulations. These boards, may, however, establish proper rules and regula, tions to aid them in the discharge of their ministerial duties, but beyond this, their duties to make rules and regulations do not extend. They have no authority to determine what shall be accomplished by sanitary measures. No bodies, except those which have been authorized by. statute to establish sanitary rules and regulations, have authority to determine that matter. This view is sustained by many of the authorities cited by my associates.
Among those cited is the case of Blue v. Beach, 56 N. E., 87. In that case the court says: “It is true, beyond controversy, that the legislative department of the State, wherein the constitution had lodged all legislative power, will not be permitted to relieve itself of this power by the delegation thereof. It can not confer upon any body or person the power to determine what the law shall be, *428as that power is one which only the Legislature, under our constitution, is authorized to exercise, but this constitutional inhibition can not properly be extended so as to prevent the grant of legislative authority to some administrative board or other tribunal to adopt rules, by-laws, or ordinances for its government, or to carry out a particular purpose.”
The cases cited in the majority opinion do not support the same because the facts in each of said cases were radically different from the facts in the case at bar. In none of these cases had the board of health exercised, as was done in this case, powers which the Legislature had delegated to another body to exercise; nor had such body, as in the case at bar, re-delegated these powers to the board of health.
I most heartily concur with all that is said in the opinion of the majority regarding the utility and necessity of proper sanitary measures, and I have no doubt but that vaccination is very beneficial both in diminishing the chances of infection by smallpox and rendering the disease less virulent and dangerous, but these considerations are irrelevant. The sole question involved is whether the board of health possessed the authority which they exercised.
The action of the board was an attempt, indirectly, to make vaccination compulsory. This can not be done, either directly or indirectly, in the absence of plain and explicit authority of the Legislature. If indirect measures can be resorted to, to compel school children to submit to vaccination, the board of health, under the decision in question, also has power to resort to quarantine and other indirect means to enforce compulsory vaccination, generally.
For the reasons stated I can not conbur in the reversal of the judgment.