APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Frank H. Dunne, Judge.

The facts are stated in the opinion of the court.

Thomas F. Greeley, for Appellant.

U. S. Webb, Attorney General, and Maxwell McNutt, Assistant District Attorney, for Respondent.

HALL, J.-This is an appeal from a judgment against defendant, and the order denying defendant's motion for a new trial.

Defendant upon a previous trial was convicted, and upon appeal from the judgment and order denying his motion for a new trial this court reversed the judgment, but failed to expressly or in terms dispose of the appeal from the order denying the motion for a new trial. Neither did this court upon the former appeal expressly order a new trial nor direct the discharge from custody of the defendant. (Pen. Code, sec. 1262; People v. Ballard, 1 Cal. App. 222, [81 Pac. 1040].)

Upon the calling of the case for trial after the going down of the remittitur, defendant objected to the trial proceeding, upon the ground that the court had no jurisdiction to proceed, no new trial having been ordered by the appellate court. This objection was overruled and the trial proceeded.

Defendant now contends that because this court failed to order a new trial upon reversing the former judgment, the trial court should have dismissed the action.

We think the point has been disposed of adversely to defendant's contention by the decision of the supreme court, to which he applied for a discharge from custody upon habeas corpus. (Ex parte Ballard, 149 Cal. 114, [84 Pac. 833].) The court pointed out that where, as in this case, the appellate court reverses a judgment without either ordering a new trial or directing the discharge of the defendant, such action is evidently the result of inadvertence and of a temporary forgetfulness of the provisions of section 1262, Penal Code, and that in such case the remedy of the defendant would be

a motion in such court for an order directing such discharge. If such motion had been made this court could have made a proper order disposing of the case. As it appears that the judgment upon the first appeal was reversed for a cause that required the granting of the motion for a new trial, this court could, and doubtless would, if its attention had been called to the fact that it had failed to dispose of the appeal from the order denying the motion for a new trial, have made an order reversing such order. This in effect would have been the ordering of a new trial. 378.)

(People v. Hardisson, 61 Cal.

The judgment of conviction having been reversed, and this court not having ordered the discharge of the defendant or a dismissal of the action, the trial court had jurisdiction to proceed with a new trial.

It is also contended that the court erred in overruling the objection of defendant to the reading in evidence the deposition of an absent witness taken on the preliminary examination of the defendant. It is not claimed upon this appeal, as it was upon the former appeal, that it had not been sufficiently shown that the witness could not be found. The record before us shows that the testimony of the absent witness was read from a transcript of such testimony taken before the police court, and, of course, then present in court. It is now urged that it does not appear that the witness who gave the testimony was sworn. No such objection was made before the trial court. The objection simply was that the testimony was "immaterial, irrelevant, incompetent and hearsay." If, in fact, the transcript from which the district attorney read did not show that the witness gave the testimony under oath, and if the real point of the objection was that the witness was not sworn, it was the duty of counsel to specifically make the objection upon that ground. By the general objection that the evidence was "incompetent and hearsay," the court was not informed of the point now urged in this court. If it had been, doubtless the record would clearly show whether or not such witness was sworn at the preliminary examination. The record does not show that he gave his testimony without objection from defendant, who was there represented by the same counsel who represents him now, and that the witness was cross-examined by such

18 Cal. App.-88

counsel. Under such circumstances we do not think that the objection now urged was presented by the objection actually made to the trial court.

No other point is made for a reversal, and the judgment and order are affirmed.

Cooper, P. J., and Kerrigan, J., concurred.

[Civ. No. 813. First Appellate District.-May 30, 1910.] STATE BOARD OF HEALTH OF THE STATE OF CALIFORNIA, Appellant, v. THE BOARD OF TRUSTEES OF WATSONVILLE SCHOOL DISTRICT OF SANTA CRUZ COUNTY, CALIFORNIA, and JAMES A. HALL, CHARLES H. RODGERS, and EDWARD A. HALL, as Trustees of Said Watsonville School District, etc., Respondents.

PETITION FOR WRIT OF MANDATE-REFUSAL OF SCHOOL TRUSTEES TO EXCLUDE UNVACCINATED CHILDREN JUDGMENT UPON DEMURRER REVIEW UPON APPEAL.-Upon a petition in the superior court by the state board of health to compel the board of trustees of the school district, defendant, to exclude unvaccinated children therefrom, which they had refused to do as required by the general vaccination act of February 20, 1889 (Stats. 1889, p. 23), where judgment was rendered for defendants upon demurrer to the petition, and directing a dismissal thereof, the petition must be taken as true for the purpose of decision upon appeal, and the judgment must be reversed with direction to overrule the demurrer thereto. ID. CONSTITUTIONALITY OF VACCINATION ACT-POLICE POWER FOR PUBLIC HEALTH-JUDGMENT OF LEGISLATURE.-The general vaccination act of February 20, 1889, is constitutional. The legislature is necessarily the judge as to legislation under the police power for the public health, and to prevent the spread of contagious diseases, and provide the means used to prevent such spread and the diseases regarded as contagious.

ID. LIMITATION UPON POWER OF COURTS.-The discretion vested in the legislature within the scope of its power cannot be controlled by the courts, if not plainly abused. Its acts are the acts of the people, and if an act is oppressive or unjust, the remedy is with the people through the legislature. It is not for the courts to inter

fere, or in any way set up their judgment against that of the legislature as to general police powers of the state.

ID.-VACCINATION ACT MANDATORY.-The general vaccination act is not directory, but mandatory, upon the trustees of all school districts and the boards of common school government in all cities and towns to exclude from the benefits of the common or public schools therein all unvaccinated children.

LD.-VACCINATION ACT NOT REPEALED BY COMPULSORY EDUCATION ACT. The vaccination act of 1889 is not repealed or affected by the compulsory education act of 1905 (Stats. 1905, p. 388). There is no inconsistency between these acts, and repeals by implication are not favored. While parents must send their children to school under the latter act, if they desire to send them to the common schools, they must comply with the former act, which continues to apply to all common or public schools, and is not in any way modified or superseded by the latter act.

APPEAL from a judgment of the Superior Court of Santa Cruz County. Lucas F. Smith, Judge.

The facts are stated in the opinion of the court.

J. E. Gardner, for Appellant.

James A. Hall, for Respondents.

COOPER, P. J.-This case comes here on appeal from a judgment of the superior court of Santa Cruz county, sustaining the demurrer of the defendants to plaintiff's petition for a writ of mandate, and directing the entry of judgment for the defendants, and that the plaintiff's petition herein be dismissed.

The plaintiff is the state board of health, and the defendants are the trustees of Watsonville School District. The petition must be taken as true for the purposes of this decision. It appears therefrom that the petitioner has demanded, and that the defendants as such trustees have at all times refused, and now refuse, to exclude from the benefit of the common schools of said district all unvaccinated children residing therein. It is claimed to be the duty of defendants, as trustees, by virtue of their office, to exclude from said school all school children who have not been vaccinated, under an act of the legislature entitled "An act to encourage

and provide for general vaccination in the State of California," approved February 20, 1889 (Stats. 1889, p. 32).

It is contended by the said school trustees that the said act is unconstitutional and void, for the reason that it is an abuse of the police power of the state.

We have no doubt as to the constitutionality of the act. The legislature must necessarily be the judge as to legislation under the police power for the public health and for the purpose of preventing the spread of contagious diseases, the means used to prevent such spread, and the diseases regarded as contagious. It is invested with a large discretion within the scope of its powers, which discretion cannot be controlled by the courts except in cases where such discretion has been plainly abused. Its acts are the acts of the people; and as the legislature is selected by the people for the purpose of enacting legislation, if an act is oppressive and unjust, the remedy is with the people through the legislature. It is not for the courts to interfere, or in any way to set up their judgment against that of the legislature, as to the general police powers of the state. It is sufficient for the purposes of this decision that the act has been held constitutional in Abbel v. Clark, 84 Cal. 227, [24 Pac. 383], and in French v. Davidson, 143 Cal. 659, [77 Pac. 663].

The statute is not directory but mandatory. It provides: "The trustees of the several common school districts in this state and boards of common school government in the several cities and towns are directed to exclude from the benefits of the common schools therein any child or any person who has not been vaccinated, until such time when such child or person shall be successfully vaccinated. . . ." It is the plain duty of the trustees, and they are directed by the express terms of the statute, to exclude from the public schools any child or person who has not been vaccinated. Until the child has been vaccinated he must be excluded from the schools. If the trustees could use their discretion, and of their own will at times exclude and at other times admit to the schools children who have not been vaccinated, or if the trustees could exclude some children and admit others, the law would be uncertain and of little value. It was never the intention under the terms of the act that the board of trustees should possess such discretion. By its terms all are to be excluded,