Oct. 1909]

Opinion Per FULLERTON, J.

The clause in question, it will be noticed, does not empower the board of directors of the district to provide for compulsory vaccination. The appellant may or may not, as suits his desire, require his son to be vaccinated. The act does no more than provide that the board of directors may make vaccination a necessary condition precedent to attendance upon the public schools. It thus stands on the same plane as the provisions contained in the act for the exclusion of those afflicted with infectious or contagious diseases, or who reside in houses wherein such diseases are prevalent. In other words, it defines the class of persons who may be permitted to attend the schools created by the act. It seems to us, therefore, that when considered in the light of the rule announced by the cases cited, this clause is clearly within the title of the act. One would expect to find in an act establishing a general, uniform system of public schools, a provision defining the class of persons who may be permitted to attend on the schools thus created. It was therefore germane to the general subject, and this is sufficient to sustain its enactment under a title covering the general subject.

The second contention is that the act is repealed by the subsequent statute of March 16, 1907 (Laws 1907, p. 569), providing for the compulsory education of children. But this contention is likewise untenable. There is no express repeal of the one statute by the other, nor is there such a conflict between them as to work a repeal by implication. If the later statute required compulsory attendance on the public schools, the two statutes taken together might require compulsory vaccination, but even in that case there would be no repeal of the former by the latter; the legislature has power to require all minors to attend the public schools and to require them to be vaccinated before so attending. Jacobson v. Massachusetts, 197 U. S. 11, 11 Sup. Ct. 39, 49 L. Ed. 643. Nor is the statute void because it makes no allowance for those physically incapable of vaccination. But, as said by the su

Opinion Per FULLERTON, J.

[55 Wash.

preme court of the United States, in United States v. Kirby, 7 Wall. 482, 19 L. Ed. 278:

"All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter."

So here it is not presumed that the legislature intended to require, as a condition of its right to attend the public schools, the vaccination of a child whose condition of health is such that the operation would endanger its life or injuriously affect it mentally or physically. It is presumed that exceptions were intended in favor of such individuals, and if the officers having in charge the execution of the statute refused to recognize an exception in such a case, the courts can be appealed to to compel such recognition.

Finally, it is said that the statute is too indefinite to be capable of enforcement. This is founded on the fact that it requires "successful vaccination," and no definition of the term is furnished by the statutes. The board of directors, it appears, construed the statute to mean that a person was successfully vaccinated when the customary reaction was obtained by the operation, or when three operations had been performed without obtaining reaction. Here, again, we think the rule of common-sense construction can properly be invoked. Of course, if the customary reaction follows the operation, there is no question concerning the success of the operation. But if no reaction follows three several operations, it is evident that the individual cannot be vaccinated, and such individual can be held to be either successfully vaccinated, or as one not included within the general language used in the statute. To allow individuals to attend the schools, who from their condition of health or other causes cannot be successfully vaccinated, is not a violation of the statute as the appellant supposes. This is but a recognition

of an exception intended by the legislature, but which was not provided for because not foreseen.

We find no objection to the statute itself, nor to the manner in which it is being enforced. The order appealed from will therefore stand affirmed.

RUDKIN, C. J., CHADWICK, and GOSE, JJ., concur.
MORRIS, J., took no part.

[No. 7953. Department Two. October 8, 1909.]

THE STATE OF WASHINGTON, on the Relation of Mary O. Forney et al., Plaintiff, v. THE SUPERIOR COURT FOR SPOKANE COUNTY et al., Respondents.1

APPEAL-REVIEW-PLEADINGS-HARMLESS ERROR. Error in overruling a demurrer to a petition in condemnation, because of failure to allege that all of the capital stock of the condemning railroad company had been subscribed, will be disregarded on appeal where the evidence showed that all its stock had been subscribed.

EMINENT DOMAIN-DEFENSES-ALIENAGE OF STOCKHOLDERS. The objection that the stock of a railroad company seeking to condemn property is held by aliens must be raised by plea in abatement or by proof offered in defense.

SAME CONDITIONS PRECEDENT-CITY FRANCHISE. The obtaining of a city franchise to cross streets is not a prerequisite for the condemnation of a railroad right of way.

SAME PROCEEDINGS-REVIEW-SCOPE. On certiorari to review an adjudication of public use and necessity, objection cannot be made to the setting of the case for trial on the subject of damages.

Certiorari to review a judgment of the superior court for Spokane county, Huneke, J., entered February 18, 1909, adjudging a public use and necessity, in condemnation proceedings to acquire property for railroad purposes, after a trial before the court and a jury. Affirmed.

'Reported in 104 Pac. 200.

John M. Bunn and P. W. Kimball, for relators.
Danson & Williams and Hamblen & Gilbert, for respond-

ents.

PER CURIAM. This is a proceeding to review an order or adjudication of public use and public necessity, entered in a condemnation proceeding instituted by the North Coast Railway Company to acquire certain property in the city of Spokane for railroad purposes.

The first error assigned is the overruling of a demurrer to the petition for condemnation. The particular ground of objection to the petition is that it does not allege that the whole amount of the capital stock of the petitioning corporation has been subscribed. The only allegation in the petition bearing upon that question is "that your petitioner is duly authorized to appropriate lands, real estate or premises within the state of Washington for a right of way and for necessary side tracks, depots, water stations, and other corporate purposes." This allegation is in the nature of a conclusion of law and is perhaps insufficient as against a demurrer, but the proof shows that all the corporate stock was in fact subscribed, and the error, if any, is a technical one which we are required to disregard on appeal. State ex rel. Merriam v. Superior Court, ante p. 64, 104 Pac. 148.

It is next contended that the proof fails to show that a majority of the capital stock of the petitioning corporation is not held by aliens. The defense of alienage, or that a majority of the capital stock of the corporation is held by aliens, should be raised by plea in abatement, or at least by proof offered by the defense. This was the practice followed in the case of State ex rel. Morrell v. Superior Court, 38 Wash. 542, 74 Pac. 686, cited by the relator, and such is the general rule in kindred cases. Shivers v. Wilson, 5 Harr & J. (Md.) 130, 9 Am. Dec. 497; Martin v. Woods, 9 Mass. 377; Burnside v. Matthews, 54 N. Y. 78; Lee v. Salinas, 15 Tex. 495; 2 Cyc. 110; 1 Ency. Plead. & Prac., p. 10.

The objection that the proof fails to show that the petitioner has obtained a franchise from the city of Spokane, or that there is a necessity for the taking, is disposed of by the opinion in State ex rel. Merriam v. Superior Court, supra. The objection to setting the cause for trial before a jury on the question of damages is not before us on an application of this kind, but in any event the objection seems to be without substantial merit.

Finding no error in the record the judgment is affirmed.

[No. 8013. Department Two. October 8, 1909.] CHRISTIAN O. ROOD, Respondent, v. SEATTLE ELECTRIC COMPANY, Appellant.1

DAMAGES-PERSONAL INJURIES-EXCESSIVE VERDICT. A verdict for personal injuries for $3,708, reduced by the trial court to $3,008, is not excessive, where it appears that the plaintiff, a carpenter and joiner, twenty-eight years old, earning $3.50 a day, lost the entire little finger of his left hand, the middle finger above the knuckle joint, and the end of the index finger, leaving them very sensitive to the touch and cold and incapable of picking up material or tools.

Appeal from a judgment of the superior court for King county, Albertson, J., entered November 12, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an operator of a planing machine. Affirmed.

James B. Howe and Hugh A. Tait, for appellant.
Henry Gulliksen and Vince H. Faben, for respondent.

PER CURIAM.-This action was instituted to recover damages for personal injuries sustained by the plaintiff while operating a planing machine or joiner in the defendant's shops at Georgetown, in this state. The jury returned a

'Reported in 104 Pac. 249.