useful by the board for dissemination among the people with such suggestions as to legislative action as they may deem necessary." Its duty to recommend legislation is repeated more than once in the act, in connection with specifications of the powers and duties of the board; and from no point of view can we regard it as having been within the legislative intent to confer, by the first section, plenary powers upon the board in all matters pertaining to the public health, without regard to other provisions of the statute, or further action by the Legislature.

Section 1 of article 8 of the Constitution provides that "the General Assembly shall provide a thorough and efficient system of free schools, whereby all children of this state may receive a good common school education." And the statute provides that the directors "shall establish and keep in operation for at least one hundred and ten days of actual teaching in each year a sufficient number of free schools for the accommodation of all children in the district over the age of six and under twenty-one years, and shall secure to all such children the right and opportunity to an equal education in such schools." And the statute further provides that they shall adopt and enforce all rules and regulations for the management and government of the schools, and may suspend or expel pupils who may be guilty of gross disobedience or misconduct. The statute also contains provisions of similar import relating to schools in more populous districts and cities. It is therefore seen that the right or privilege of attending the public schools is given by law to every child of proper age in the state, and there is nowhere to be found any provision of law prescribing vaccination as a condition precedent to the exercise of this right.

Whether the Legislature has the power to make such a requirement or not, it is not necessary here to consider; it is sufficient that it has not done so, and it cannot be supposed that the Legislature has undertaken, and not expressly, but by mere implication from the general language used in creating the state board, to confer upon that mere administrative body such vast power over the rights and liberties of the individual citizen as to deprive him of his constitutional and statutory rights, unless he shall submit his body to be inoculated with vaccine virus, as a mere precaution against some possible future contagion of smallpox. It is doubtless true that in a large number

of school districts in interior parts of the state no case of smallpox has ever existed in the history of the state, and yet, by this order of the board, no citizen who has children to educate, although compelled by law to pay taxes to support the public schools, can send his children to such schools without first having such child vaccinated, as a precaution against a disease which had never appeared, and where there was no apparent danger that it would ever appear in the vicinity.

The power to compel vaccination, or to require it as a condition precedent to the exercise of some right or privilege guaranteed to the citizen by public law, can be derived from no other source than the general police power of the state, and can be justified upon no other ground than as a necessary means of preserving the public health. Without the necessity or reasonable grounds upon which to conclude that such necessity exists, the power does not exist. As such the board of health has no more power over the public schools than over private schools or other public assemblages, and its order applying to public schools only, requiring vaccination as a prerequisite to the exercise of the right to attend a public school, could be justified only upon reasonable grounds appearing that the contagion of smallpox would more likely originate in or be disseminated from the public schools than from other assemblages. Whether it might be invested with power in this respect is a question not involved here, and not necessary to consider.

While school directors and boards of education are invested with power to establish, provide for, govern, and regulate public schools, they are in these respects nowise subject to the direction or control of the state board of health, and, as before pointed out, they have no authority to exclude children from the public schools on the ground that they refuse to be vaccinated, unless, indeed, in cases of emergency, in the exercise of the police power, it is necessary, or reasonably appears to be necessary, to prevent the contagion of smallpox. Undoubtedly, also children infected or exposed to smallpox may be temporarily excluded, or the school may be temporarily suspended; but, like the exercise of similar power in other cases, it is justified by the emergency, and, like the necessity which gives rise to it, ceases when the necessity ceases.

No one would contend that a child could be permanently excluded from a public school because it had been exposed to

smallpox, or that the school could be permanently closed, because of the remote fear that the disease of smallpox might appear in the neighborhood, and that, if the school should then be open and children in attendance upon it, the public would be exposed to the contagion. And, upon the same line of reasoning, without a law making vaccination compulsory, or prescribing it, upon grounds deemed sufficient by the Legislature as necessary to the public health, as a condition of admission to or attendance upon the public schools, neither the state board nor any local board has any power to make or enforce a rule or order having the force of a general law in the respects mentioned.

We are not called upon to consider whether or not vaccination is a preventative, or the best known preventative, of smallpox. That it is so seems to be the consensus of opinion of a learned and honorable profession, borne out by the history of its use for a century, and we can only so regard it; but, when compulsorily applied, it must, like all other civil regulations, be applied in conformity to law. However fully satisfied, by learning and experience, a board might be that antitoxine would prevent the spread of diphtheria, no one would contend that a rule enforcing its use as a condition precedent to the admission of a child to the public schools would, as the law now is, be valid. 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, be deprived 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.

The judgment of the Appellate Court affirming the judgment of the circuit court is affirmed.

CHAPTER XI.

CONTROL OF COURTS OVER PUBLIC OFFICERS.

Mandamus to Compel Officers to Levy a Tax.

STATE EX REL. CARPENTER v. THE SUPERVISORS OF THE TOWN OF BELOIT.

21 Wis. 282. 1866.

The plaintiff seeks mandamus to compel the three supervisors to levy a tax. Two of them had not qualified or performed any official acts. The court held that this did not, as contended by the plaintiff, make them de facto officers.

DIXON, C. J. It is of the very essence of this proceeding that there be some officer or officers in being, having the power and whose duty it is to perform the act. If there be no such officers, it is obvious that the writ cannot go, nor the mandate of the court be enforced. It is conceded that the chairman alone cannot levy the taxes; but it is claimed that the other two persons elected, but who neglected to qualify, became supervisors de facto by virtue of such election, and can be compelled to act as such in the performance of the duty enjoined by the writ. To this point the case of Coles County v. Allison, 23 Ill. 437, is cited. The case holds no more than this: that the acts of officers de facto are valid as respects the public and third persons having an interest in them and that they cannot be collaterally impeached. The trustees there elected at the second election, though irregularly perhaps, were held to be officers de facto, inasmuch as they had, in the language of the report, "qualified, and ever since exercised the functions of their office." That was sufficient, in the opinion of the court, to show a valid organization of the town. In this case, however, the other two supervisors elected not only failed to qualify, but it does not appear that they have ever assumed to act as such in any manner whatever. The statute declares that every office shall become vacant

on the refusal or neglect of the incumbent to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law. R. S. ch. 14, sec. 2. The other two persons elected are, therefore, neither supervisors de jure nor de facto; and the offices are vacant.

BY THE COURT.-Peremptory writ refused.

Injunction to Prevent Removal from Office.

IN RE SAWYER ET AL.

124 U. S. 200. 1888.

Federal courts may not enjoin mayor and council from removing a police judge from office. Where they proceed in disregard of an injunction issued by the U. S. Circuit Court and are imprisoned for contempt they are entitled to be released on a writ of habeas corpus, as the Circuit Court acted without jurisdiction.

GRAY, J. The question presented by this petition of the mayor and councilmen of the city of Lincoln for a writ of habeas corpus is whether it was within the jurisdiction and authority of the Circuit Court of the United States, sitting as a court of equity, to make the order under which the petitioners are held by the marshal.

Under the Constitution and laws of the United States, the distinction between common law and equity, as existing in England at the time of the separation of the two countries, has been maintained, although both jurisdictions are vested in the same courts. Fenn v. Holme, 21 How. 481, 484-487, 16 L. Ed. 198; Thompson v. Railroad Co., 6 Wall. 134, 18 L. Ed. 765; Heine v. Levee Com'rs. 19 Wall. 655, 22 L. Ed. 223.

The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the