It is certainly evident that the health board of the city of Terre Haute, regardless of the rule of the State board, had, under the law, ample power to protect the public health, and to prevent the spread of contagious and infectious diseases, and for such purposes had the right to adopt such appropriate and reasonable means or methods as its judgment dictated. This being true, and an emergency on account of the danger from smallpox having arisen, and the board believing, as we may assume, that the disease would spread through the public schools, and further believing that it could be prevented, or its bad effects lessened, by the means of vaccination, and thereby afford protection to the pupils of such schools and the community in general, it would certainly have the right, under the authority with which it was invested by the State, to require, during the continuance of such danger, that no unvaccinated child be allowed to attend the public school; or the board might, under the circumstances, in its discretion, direct that the schools be temporarily closed during such emergency, regardless of whether or not the pupils thereof refused to be vaccinated.

In the case of Potts v. Breen, 167 Ill. 67, 47 N. E. 81, 39 L. R. A. 152, it is held, in the absence of an express authority from the legislature, that a rule of the State board of health, requiring the vaccination of children as a prerequisite to their attending the public schools, is unreasonable when smallpox does not exist in the community and there is no reasonable ground to apprehend its appearance. The same doctrine in reaffirmed in the case of Lawbaugh v. Board of Education, 177 Ill. 572, 52 N. E. 850.

In the appeal of the State v. Burdge, 95 Wis. 390, 70 N. W. 347, 37 L. R. A. 157, it is also affirmed that, in the absence of a statute authorizing compulsory vaccination, or making it a condition to the privilege of attending the public schools, a rule of the State board of health which excludes from the public and other schools all children who do not present a certificate of vaccination is unreasonable, if, at the time of its adoption, there was no smallpox epidemic in the city, and no sufficient cause for the school authorities to believe that the disease would become prevalent in the city where the rule was sought to be enforced. The court in that case, speaking in respect to the powers of health boards, said: "It can not be doubted but that, under appropriate general provisions of law in relation to the prevention and suppression of dangerous and contagious diseases, authority may be conferred

by the legislature upon the State board of health or local boards. to make reasonable rules and regulation for carrying into effect such general provisions, which will be valid, and may be enforced accordingly. The making of such rules and regulations is an administrative function, and not a legislative power, but there must first be some substantive provision of law to be administered and carried into effect. The true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, 'is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.' The first can not be done. To the latter no valid objection can be made.”

Neither the holding of the supreme court of Illinois or Wisconsin, in the cases mentioned, can, under the facts, be said to militate against the conclusion which we reach in the case at bar. In fact, there is much asserted in both cases which may be said to be in harmony with our holding herein. The order was the offspring, as we have seen, of an emergency arising from a reasonable apprehension upon the board's part that smallpox would become epidemic or prevalent in the city of Terre Haute. The rule or order could not be considered as having any force or effect beyond the existence of that emergency, and Kleo Blue, by virtue of its operation, could only be excluded from school, upon his refusal to be vaccinated, until after the danger of an epidemic of smallpox had disappeared. Any other construction than this would render the rule or order absurd, and place the board in the attitude of attempting to usurp authority. Such an interpretation is not authorized when a more reasonable one can be applied.

It is said in appellant's brief that there was no investigation upon the part of the health authorities to ascertain whether his son had been exposed to smallpox. It appears, however, that there had been an exposure upon the part of the community, and it would be an absurdity, under such circumstances, to require the health officials, before taking action to prevent the spread of the disease, to investigate in order to determine the degree of exposure to which every person in the community had been subjected. The question as to what is an exposure to smallpox, so

as to be affected thereby, is certainly one which in the main must be left to the sound discretion or judgment of the health officers.

Owing to the public importance of the questions involved in this case, we have given them much consideration, and perhaps have unnecessarily extended this opinion, but, under the facts, when tested by the firmly settled legal principles, we are constrained to uphold the order of the local board of health of the city of Terre Haute as a valid exercise of power upon its part; and we therefore conclude that appellees were justified in excluding appellant's son from the public school during the continuance of the emergency, or danger from smallpox. It follows, therefore, that the court did not err in overruling the demurrer to each paragraph of the answer, nor in sustaining appellee's demurrer to the second, fourth and sixth paragraphs of the reply. The judgment is

Affirmed.

IN RE KOLLOCK, PETITIONER.

Supreme Court of the United States. October, 1896.
165 United States, 526.

Mr. Chief Justice FULLER, after stating the case, delivered the opinion of the court.

By the terms of the act, manufacturers of oleomargarine are required to pack it in wooden packages "marked, stamped and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe"; and all sales by manufacturers and wholesale dealers must be in "original stamped packages.

Retail dealers are required to "pack the oleomargarine sold by them in suitable wooden or paper packages, which shall be marked and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe."

And fine and imprisonment are denounced on "every person who knowingly sells or offers for sale, or delivers or offers to deliver, any oleomargarine in any other form than in new wooden or paper packages as above described, or who packs in any package any oleomargarine in any manner contrary to law, or who

falsely brands any package or affixes a stamp on any package denoting a less amount of tax than that required by law."

Kollock was convicted as a retail dealer in oleomargarine of knowingly selling and delivering one half pound of that commodity, which was not packed in a wooden or paper package bearing thereon any or either of the marks or characters provided for by the regulations and set forth in the indictment. It is conceded that the stamps, marks and brands were prescribed by the regulations, and it is not denied that Kollock had the knowledge, or the means of knowledge, of such stamps, marks and brands. But it is argued that the statute is invalid because it "does not define what act done or omitted to be done shall constitute a criminal offence," and delegates the power "to determine what acts shall be criminal" by leaving the stamps, marks and brands to be defined by the Commissioner.

We agree that the courts of the United States, in determining what constitutes an offence against the United States, must resort to the statutes of the United States, enacted in pursuance of the Constitution. But here the law required the packages to be marked and branded; prohibited the sale of packages that were not; and prescribed the punishment for sales in violation of its provisions; while the regulations simply described the particular marks, stamps and brands to be used. The criminal offence is fully and completely defined by the act and the designation by the Commissioner of the particular marks and brands to be used was a mere matter of detail. The regulation was in execution of, or supplementary to, but not in conflict with, the law itself, and was specifically authorized thereby in effectuation of the legislation which created the offence. We think the act not open to the objection urged, and that it is disposed of by previous decisions. United States v. Bailey, 9 Pet. 238; United States v. Eaton, 144 U. S. 677; Caha v. United States, 152 U. S. 211.

In the last case Caha had been convicted of perjury, under section 5392 of the Revised Statutes, in a contest in a local land office in respect of the validity of a homestead entry, the oath having been administered by one of the land officers before whom the contest had been carried on. It was contended that the indictment alleged no offence, because the statute made no provision for such a contest before those officers, and, therefore, it could not be said that the oath was taken in a 'case in which a law of the United States authorized an oath to be administered."

But it was held by this court, in view of the general grant of

authority to the land department to prescribe appropriate regulations for the disposition of the public lands; the rules and regulations prescribed by that department for contests in all cases of such disposition, including homestead entries; and the frequent recognition by acts of Congress of contests in respect to that class of entries, that the local land officers in hearing and deciding upon a contest as to a homestead entry constituted a competent tribunal, and the contest so pending before them was a case in which the laws of the United States authorized an oath to be administered.

As bearing on the case in hand, we cannot do better than to quote at length from Mr. Justice Brewer, delivering the opinion (p. 218), as follows:

"This is not a case in which the violation of a mere regulation of a department is adjudged a crime. United States v. Bailey, 9 Pet. 328, is in point. There was an act of Congress making false testimony in support of a claim against the United States perjury, and the defendant in that case was indicted for making a false affidavit before a justice of the peace of the Commonwealth of Kentucky in support of a claim against the United States. It was contended that the justice of the peace, an officer of the State, had no authority under the acts of Congress to administer oaths, and that, therefore, perjury could not be laid in respect to a false affidavit before such officer. It appeared, however, that the Secretary of the Treasury had established, as a regulation for the government of his department and its officers in their action upon claims, that affidavits taken before any justice of the peace of any of the States should be received and considered in support of such claims. And upon this the conviction of perjury was sustained, Mr. Justice McLean alone dissenting. It was held that the Secretary had power to establish the regulation, and that the effect of it was to make the false affidavit before the justice of the peace. perjury within the scope of the statute, and this notwithstanding the fact that such justice of the peace was not an officer of the United States. Much stronger is the case at bar, for the tribunal was composed of officers of the government of the United States; it was created by the land department in pursuance of express authority from the acts of Congress. This perjury was not merely a wrong against that tribunal or a violation of its rules or requirements; the tribunal and the contest only furnished the opportunity and the occasion for the crime, which was a crime defined in and denounced by the statute.