merely wrappers, and, in their present shape, taining an absolute, unconditional promise I doubt whether they are anything like a or obligation to pay a sum of money or perdocument or instrument which is the subject sonal property. The same doctrine was reof forgery at common law. To say that they iterated in the late case of Gundling v. Chibelong to that class of instruments seems to cago, 176 Ill. 340, 48 L. R. A. 230, 52 N. E. me to be confounding things which are es- 44. The same rule was declared in Cecil v. sentially different. It might as well be said Green, 161 Ill. 265, 32 L. R. A. 566, 43 N. E. that, if one tradesman used brown paper for 1105; and Wilson v. Sanitary Dist. 133 Ill. wrappers of the same description as another 443, 27 N. E. 203. See also Sandiman v. tradesman, he could be accused of forging the Breach, 7 Barn. & C. 99. Langdon v. People, brown paper." Justice Willes said: "This 133 Ill. 382, 24 N. E. 874, has been cited as is not one of the different kinds of instru- an authority sustaining appellant's position. ments which may be the subject of forgery. There is, however, nothing in that case in It is not made the subject of forgery simply conflict with the authorities above cited. by reason of the assertion of that which is There Langdon was indicted for forging the false. In cases like the present the rem-signature of a county judge, under § 114 of edy is well known. The prosecutor may, if division 1 of the Criminal Code, which prohe pleases, file a bill in equity to restrain vides that "every person who shall the defendant from using the wrapper, and forge or counterfeit the signature of any pubhe may also bring an action at law for dam-lic officer shall be imprisoned in ages, or he may indict him for obtaining the penitentiary," etc.; and it was held that money under false pretenses. But to convert the words "other forged instruments" were this into the offense of forgery would be to broad enough to cover a forged certificate of strain the rule of law." As establishing a a county judge. But there is a wide differcontrary doctrine, we have been referred to ence between an instrument containing the 8 Am. & Eng. Enc. Law, p. 480, where the au- forged signature of a public officer, and tradethor says: "The false writing of any instru- marks and labels. A person found guilty ment calculated to deceive, and which, if gen-of forging the former, under § 114 of division uine, might subject the person signing it 1 of the Criminal Code, shall be imprisoned to damages, is forgery, such as in the penitentiary not less than one year trademark or label, where it can be made the nor more than twenty years; but the falsifibasis of an action for deceit or warranty cation of the latter articles, under §§ 115 and against the alleged issuer." In support of 116, is not forgery, but a mere misdemeanor, the doctrine announced, Reg. v. Smith, 8 Cox, for which a fine not exceeding $200 may be C. C. 32, is cited; but, as has been seen, that imposed. We find no provision of the Crimcase lays down a different rule. Wharton, inal Code that the simulation of trademarks Crim, Law, 10th ed. § 690, is also cited, where and labels or names and signatures is forgthe author, in substance, says that, when a ery. They are not of the same class or kind trademark or label can be made a basis for a as counterfeit or spurious coin and forged suit against the alleged issuer in an action bank notes, and hence they cannot be regardfor deceit or warranty, then to falsely appro-ed as forged instruments, within the meaning priate such trademark or label is forgery. But here, whether the trademarks or labels are of the character named by the author, so as to bring them within the rule indicated by him, does not appear from the proceedings before the justice. As we understand it, forgery, at common law, is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or a foundation of legal liability. 2 Bishop, Crim. Law, 523. The trademarks and labels in question do not, as we understand it, fall within the definition indicated.

of the statute. In the Langdon Case the public document had been seized and taken from the possession of the defendant under a search warrant, and the vital question was whether it should be admitted in evidence; and in the decision of the case we held that, although papers may be illegally taken from the possession of a party against whom they are offered, it is no objection to their admissibility, if they are pertinent to the issue. The court will not take notice of how they were obtained. If, therefore, the statute did not authorize a search warrant for bogus trademarks, labels, names, and signatures, as we are satisfied it did not, the justice of the peace had no jurisdiction to issue a search warrant, and his action was void.

But it is argued that the articles mentioned in the complaint upon which the search warrant was issued may be and are included within the words of the statute There is another fatal defect in the pro"other forged instruments," and, hence, if the ceeding. The search warrant issued by the warrant is not authorized at common law, justice directed the officer to diligently it is by statute. In Shirk v. People, 121 Ill. search for the goods and chattels, and, if the 61, 11 N. E. 888, following a well-established same or any part thereof be found, to bring rule of the construction of statutes, it was the same before the justice of the peace; but held that under a statute making it criminal the warrant nowhere contains a direction to make or pass a fictitious bill, note, or that he shall also bring with him the person check, or other instrument in writing for the in whose possession the goods are found. Secpayment of money, the words "other instru- tion 3 of division 8 of the Criminal Code ments in writing" will only include such in- (Hurd's Rev. Stat. 1897) expressly provides struments as are of the same class or kind as that the warrant shall direct the officer "to those enumerated, such as money, bonds, due- | bring such stolen property or other things, bills, and other instruments in writing con- when found, and the person in whose pos

session they are found, to the judge or justice | the judgment of the justice, and, as the right of the peace who issued the warrant." In of appeal existed, the writ of certiorari canBishop, New Crim. Proc. § 243, the rule is not issue. As no judgment was rendered laid down that a search warrant must con- against appellee, his right to appeal might tain every statutory requirement. In Cool- well be doubted. But we shall not stop to ey, Const. Lim. 6th ed. 369, it is said: consider that question, as this court has held "The warrant must also command that the in numerous cases that the common-law writ goods or other articles to be searched for, if of certiorari may be awarded to all inferior found, together with the party in whose cus- tribunals and jurisdictions, where it appears tody they are found, be brought before the that they have exceeded the limits of their magistrate, to the end that, upon further ex- jurisdiction, or in cases where they have proamination into the facts, the goods, and the ceeded illegally, and no appeal is allowed or party in whose custody they were, may be other mode provided for reviewing their prodisposed of according to law." In State v. ceedings. People ex rel. Loomis v. WilkinLeach, 38 Me. 433, under a statute similar to son, 13 Ill. 660; Doolittle v. Galena & C. U. ours, the supreme court of that state held R. Co. 14 Ill. 381; Smith v. Highway Comrs. that, where the warrant failed to require the 150 Ill. 385, 36 N. E. 967; Hyslop v. Finch, officer to bring before the justice the person 99 Ill. 171. In the last case named it is said in possession of the goods seized, the proceed- (p. 184): "There are two classes of cases in ing was illegal and void. The fact that the which, according to the previous decisions of person in possession of the articles did ap- this court, a common-law certiorari will lie: pear will not cure the difficulty. In a pro- First, whenever it is shown that the inferior ceeding of this character, before the premises court or jurisdiction has exceeded its jurisof the citizen may be invaded and searched, diction; second, whenever it is shown that a strict observance of the requirements of the the inferior court or jurisdiction has prostatute must appear from the proceeding it- ceeded illegally, and no appeal or writ of erself; otherwise the proceeding will be void. ror will lie." State v. Whalen, 85 Me. 469, 27 Atl. 349.

It is, however, claimed in the argument that appellee had the right to appeal from

The judgment of the Appellate Court will be affirmed.

INDIANA SUPREME COURT.

1. It is not necessary for the courts to decide that vaccination is a preventive of smallpox. in order to sustain an order of a board of health, made in the exercise of powers conferred upon it, by which vaccination is made a condition of attending school, when there is danger of an epidemic of smallpox. 2. The exclusion of unvaccinated pupils from the public schools, in the absence of any express statute making vaccination compulsory, or imposing it as a condition upon the privilege of attending school, can be justified only as a public emergency, under rules and orders of the boards of health in the exercise of the general powers conferred upon them by statute, and cannot continue after the emergency ceases.

3. The power granted to administra

tive boards of the nature of boards of health, etc., to adopt rules, by-laws, and regulations reasonably adapted to carry out the purpose or object for which they are created, is not an improper delegation of legislative authority in violation of Const. art. 4, § 1.

4. The statutory power of a board of health to adopt and enforce rules and regulations necessary to preserve the public

NOTE. AS to right to require compulsory | vaccination, see Duffield v. Williamsport School Dist. (Pa.) 25 L. R. A. 152, and note; Re Smith (N. Y.) 28 L. R. A. 820; Bissell v. Davison (Conn.) 29 L. R. A. 251; State ex rel.

health, and to prevent the spread of con-
tagious and infectious diseases, includes the
power to exclude unvaccinated children from
the public schools, when there is an emer-
gency on account of the danger from small-
pox.

5. The exposure of a pupil to smallpox
is not a necessary condition of the right to
exclude him from school until he is vacci-
pated, where the people in the community
have been exposed to the disease.
6. An unvaccinated pupil is not sub-
jected to a penalty by being excluded
from public schools during danger of an epi-
demic of smallpox, under an order of the
board of health.

A

(February 1, 1900.)

PPEAL by plaintiff from a judgment of the Circuit Court for Vigo County in favor of defendants in a proceeding to enjoin defendants from excluding plaintiff's son from the public schools. Affirmed.

The facts are stated in the opinion. Messrs. Stimson, Stimson, & Condit and A. M. Higgins for appellant.

Mr. Merrill Moores, with Messrs. W. A. Ketcham and William L. Taylor, for appellees:

The merit of vaccination is one with which this court has nothing to do.

Adams v. Burdge (Wis.) 37 L. R. A. 157; Potts v. Breen (Ill.) 39 L. R. A. 152; Morris v. Columbus (Ga.) 42 L. R. A. 175; and Wyatt v. Rome (Ga.) 42 L. R. A. 180.

The right of appellant's son, under the facts shown by the complaint, to attend the public school in question, is guaranteed by the Constitution, and the qualifications necessary to the exercise of this privilege are prescribed by statute; and, as there is no statute pro

come a condition precedent to this privilege, hence it is contended that the order made by the local board of health was without authority of law. Third. It is further insisted that rules or by-laws adopted by the state board and local boards of health do not have the force of laws within their respective jurisdictions, and that the power of the state board to adopt a by-law or rule of the nature of rule 11 is legislative. Therefore, under article 4, § 1, of the state Constitution, whereby all legislative authority is lodged in the general assembly, the power to make such rules cannot be delegated by it to boards of health.

previously stated, was made a part of the third paragraph of the answer, among other things, provides as follows: "The board of health, hereby established, shall have general supervision of the sanitary condition of the city, and is hereby invested with power to establish and enforce such rules and regula-viding that vaccination of a pupil shall betions as they may deem necessary to promote, preserve, and secure the health of the city and to prevent the introduction and spreading of contagious, infectious, or pestilential diseases." A demurrer was overruled to each paragraph of the answer, and plaintiff replied in seven paragraphs, the first of which is a general denial. The second paragraph of the reply set out several rules adopted by the state board of health. The fourth alleged that the local board of health, in addition to the order mentioned in the answer, had by another rule excepted all children from said order who presented a certificate from a physician to the effect that they were in feeble health, or were subject to scrofulous or other blood diseases. The sixth paragraph merely averred that a local board of health had been organized under an ordinance adopted by the city of Terre Haute by virtue of the provisions of the general law of the state of Indiana. By the third paragraph of reply it was sought to show that, at the time plaintiff's son was excluded from the school in question, the danger of an epidemic of smallpox in the city of Terre Haute had passed away. By the fifth paragraph it is averred that there had been no exposure to smallpox in the city of Terre Haute, and that but one case had been reported as existing in the state, which was at the city of Muncie. By the seventh paragraph plaintiff alleged and sought to show that vaccination in all cases produced a loathsome constitutional disease, which poisoned the blood of the patient, and frequently resulted in death, and that vaccination was not a preventive of smallpox. A demurrer was sustained to the second, fourth, and sixth paragraphs of the reply, and overruled as to the third, fifth, and seventh. Upon the issues joined, there was a trial by the court, which resulted in a judgment in favor of appellees.

The evidence is not in the record, and appellant seeks a reversal of the judgment below upon the ruling of the court in holding the answer sufficient upon demurrer, and in sustaining the demurrer to the second, fourth, and sixth paragraphs of reply. The contention of appellant's learned counsel is that each paragraph of the answer is bad, and that the facts and matters therein disclosed will not justify the appellees in excluding appellant's son from the public schools. Their insistence may be said to embrace the following propositions: First. The exclusion of a pupil from the public schools of this state, who is "well and healthy," as the complaint discloses was the condition of Kleo Blue, and where there has been no exposure to the infection of smallpox, cannot be sustained merely because such pupil refuses to be vaccinated. Second.

Appellant, in the course of his argument, strenuously insists that vaccination is in no manner a preventive of smallpox, and that its failure in this respect is, as he contends, now conceded by many eminent medical authorities. In the objections which he urges against vaccination, he, to an extent, at least, proceeds upon the assumption that the person who is subjected thereto will thereby have his system so poisoned by the vaccine virus as to result in his permanent injury. It is true that bad results may, and possibly do, follow from the use of impure virus, or when the system of the patient is itself in a diseased condition; but that such is the result in all cases where pure virus is used, and proper care and skill are exercised, is certainly nothing more than mere assumption. With equal force it might be asserted that in all cases of the amputation of a limb, by a skilful and experienced surgeon, the death of the patient will necessarily follow as a result of the operation. We may say. however, in answer to the contention of appellant upon this feature of the case, that our decision herein does not in any manner. under the circumstances, depend upon the proposition that vaccination is a preventive of smallpox. In addition to the argument advanced by appellant, we have been fully supplied, during the pendency of this appeal, with many circulars and other documents denying the efficacy of vaccination. With the wisdom or policy of vaccination, or as to whether it is or is not a preventive of the disease of smallpox, courts, in the decision of cases like the one at bar, have no concern. It is a question, it is true, about which eminent medical men differ,--a large majority of whom, however, affirm that it serves as a preventive of, or a protection against, this dread scourge, which Macaulay denominated "the most terrible of all ministers of death." The question is one which the legislature or boards of health, in the exercise of the powers conferred upon them. must in the first instance determine, as the law affords no means for the question to be subjected to a judicial inquiry or determina