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On the 13th day of October, 1870, the defendants were members of the board of education of Senaca township, in said county, and on that day they entered into an agreement in writing with one J. S. Wachob, of which the following is a copy:

"Mr. J. S. Wachob is hereby requested to forward to Herman Suabidissen, township clerk, the following list of articles, viz. : Seven excelsior globes, seven inches in diameter, mounted as per cut herewith, provided a majority of the members of the board of education of Seneca township, Noble county, Ohio, sign this order; and we hereby agree to pay for the same on or before the first day of September, 1871, with interest, at the price hereto annexed.

"The township clerk is hereby directed to issue an order on the township in the payment for the same in favor of said Wachob, payable as above specified, and he is further requested to call a special meeting of said board within days, at which meeting we agree with each other that we will ratify this contract.

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Then followed a long list of school apparatus with prices annexed, the price annexed to the globes contracted for being $15 each. The globes were delivered to the township clerk, who drew an order on the treasury of the township, as directed, for $105, in favor of Wachob, payable September 1, 1871. This order and Wachob's interest in the above-recited agreement were assigned by him to the plaintiff, after which the board of education, acting in its corporate capacity, repudiated the contract, and the treasurer refused to pay the order; whereupon the plaintiff brought his action against the members of the board signing his contract to recover upon their alleged individual promise to pay for the globes. The defendants demurred to a petition stating the foregoing facts, upon the ground that the facts stated were insufficient to constitute a cause of action. The demurrer was sustained and the petition dismissed. On error, the district court affirmed the judgment of the common pleas. Leave is here asked to file a petition to reverse both judgments.

BOYNTON, J. The contract sued upon having none of the attributes or immunities of commercial paper, the plaintiff, by the as

signment by Wachob of his claim against the defendants, secured and succeeded to them such rights, and such only, as Wachob possessed at the time of the transfer.

Such defenses as would have been allowed had he retained the claim and brought suit upon it himself, are now admissible against the plaintiff. Assuming, without deciding, that by the understanding of the parties to the agreement the defendants incurred a personal liability, it is quite clear that there was no error in the action of the common pleas in sustaining the demurrer and dismissing the petition.

The request to Wachob to forward the globes, provided a majority of the board signed the order: the agreement to pay for them on or before September 1, 1871; the direction to the township clerk to "issue" an order on the township in favor of Wachob for the amount agreed upon; the request to the clerk to call a special meeting of the board for action upon the matter, and the agreements among the members signing the contract to ratify the same at such meeting, were all elements of the same transaction. The paper upon which they were written contained the price-list of school apparatus belonging to Wachob, and it was delivered to him after it was signed by the defendants. He was not only cognizant of its contents, but a party to its stipulations. The promise or agreement of the members of the board inter sese, to ratify the contract at the meeting to be called, was to the knowledge of Wachob a material inducement to the agreement to purchase, and made for his benefit. He accepted an order drawn on the treasurer in anticipation of such ratification. It was an agreement to avoid or evade personal liability, if any was incurred, by shifting it to the township. It is not unlike, in its legal aspect, a promise or agreement by a legislator, or member of a city or town council, to act and vote upon a pending measure, in a certain way, for a consideration paid. Such promise or agreement was clearly contrary to public policy, and therefore illegal and void. Its effect is to vitiate the whole instrument.

The board is constituted, by statute, a body politic and corporate in law, and as such is invested with certain corporate powers, and charged with the performance of certain public duties. These powers are to be exercised, and these duties discharged, in the mode prescribed by law. The members composing the board have no power to act as a board except when together in session. They then act as a body or unit. The statute requires the clerk to record, in a book to be provided for that purpose, all their official proceed

ings. They have, in their corporate capacity, the title, care and custody of all school property whatever within their jurisdiction and are invested with full power to control the same in such manner as they think will best subserve the interest of the common schools and the cause of education. They are required to prescribe rules and regulations for the government of all the common schools within the township. Clothed with such powers and charged with such duties and such responsibilities, it will not be permitted to them to make any agreement among themselves, or with others, by which their public action is to be, or may be restrained or embarrassed, or its freedom in any wise affected or impaired. The public, for whom they act, have the right to their best judgment after free and full discussion and consultation among themselves of, and upon, the public matters intrusted to them, in the session provided by the statute. This cannot be, when the members by pre-engagement, are under contract to pursue a certain line of argument or action, whether the same will be conducive to the public good or not. It is one of the oldest rules of the common law, that contracts contrary to sound morals, or against public policy, will not be enforced by courts of justice-ex facto illicito non oritur actio; and the court will not enter on the inquiry whether such contract would, or would not, in a given case, be injurious in its consequences if enforced. It being against the public interest to enforce it, the law refuses to recognize its claim to validity.

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All of the plaintiffs in error attack the constitutionality of the act of the General Assembly conferring authority upon the city council of Columbus to require vaccination in certain cases.

The General Assembly conferred this authority upon the city of

Columbus in the exercise of its police power.

We

cannot see what there is in the present case to differentiate it in principle from a number of other cases in which private rights have been subordinated to the health and comfort of the public. Danger to the public health has always been regarded as a sufficient ground for the exercise of police power in restraint of a person's liberty. So far as we are aware no court

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has ever been called upon to pass on this exact question, but there are a few decisions in which the subject of vaccination is discussed and these show the trend of the judicial mind on the subject. In the Matter of Smith, 40 N. E. 497, was a case in which Smith and another were detained in quarantine under a resolution of the municipal authorities of the city of Brooklyn, declaring that "whenever any person in said city shall refuse to be vaccinated, such person shall immediately be quarantined, and detained in quarantine until he consents to such vaccination." The Court of Appeals of New York reversed the Supreme Court, General Term, for refusing to order the release of the persons detained. But the decision was put upon the ground that the power conferred upon the local legislature of Brooklyn was not sufficiently broad to cover the case of the appellants. In discussing the case, Gray, J., says: "I think no one will dispute the right of the legislature to enact such measures as will protect all persons from the impending calamity of a pestilence, and to vest in local authorities such comprehensive powers as will enable them to act competently and effectively. The question here is not whether the legislature had the power to enact the provisions of section 24 of the health law, but whether the respondent has shown that a state of facts existed warranting the exercise of the extraordinary authority conferred upon him." In Potts v. Breen, 47 N. E. Rep. 81, it was held that a school board could not make vaccination a condition precedent to admission to the public schools, when smallpox did not exist in the community, and when there was no reason for apprehending an epidemic of that disease, in the absence of express authority from the legislature. An examination of the opinion of the court shows, that while the question was not presented, they were clearly of the opinion that compulsory vaccination would be allowable in certain cases when express legislative authority was given. The court uses this language: "It is a matter of common knowledge that the number of those who seriously object to vaccination is by no means small, and they cannot, except when necessary for the public health and in conformity to law (italics ours), be deprived

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of their right to protect themselves and those under their control from an invasion of their liberties by a practically compulsory inoculation of their bodies with a virus of any description, however meritorious it might be." There are several cases holding that acts of the legislature authorizing school boards to require vaccination as a condition precedent to admission to the public schools is not an invasion of any constitutional right of the pupil. Duffield v. Williamsport, 162 Pa. 476, 25 L. R. A. 152; Bissell v. Davidson, 32 Atl. (Conn.) 348; Abeel v. Clark, 24 Pac. (Cal.) 383; In re Rebnack, 62 Mo. App. 8; In re Walters, 32 N. Y. Supp. 322. Pupils of schools constitute a general class of persons. If the legislature can authorize the imposition of this condition upon one class, why not upon another? It seems to us, therefore, to be a necessary conclusion from the cases cited supra, holding a regulation requiring a vaccination of pupils as a condition precedent to admission in the public schools reasonable and constitutional, that the act now under consideration is a valid exercise of the police power. Under this view the decision in the present case is supported by direct authority. But however this may be, we hold that the legislature has power to pass an act compelling vaccination, and that it may delegate this authority to a municipal corporation. But while this is true, municipal corporations must have express authority from the legislature, as no such power will ever arise by implication. State v. Burdge, 70 N. W. Rep. 347; Potts v. Breen, supra. In no proper sense can the act of the General Assembly attacked in this case be said to deprive the plaintiffs in error of any right without due process of law, or to deny to them the equal protection of the laws. It follows, therefore, that the superior court did not err in refusing to sustain the petitions for certiorari.

Judgment affirmed. All the Justices concurring.

See also Boske v. Comingore, 177 U. S. 459; Blue v. Beach, 155 Ind. 121, In re Kollock, 165 U. S. 526; Dunlap v. United States, 173 U. S. 65, for power of regulation of heads of departments.

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