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section 27 been imposed upon the Guardians) to follow the
parent responsible for the vaccination so long as the child
remained unvaccinated, and by penalties to compel the parent to
do what, according to the law, was his duty. Nevertheless, no
conviction could take place under this section without a previous
order of a magistrate, and the first step in the transaction was to
inform the magistrate and obtain a summons to the parent to
appear with the Ghild before him. Thereupon, when the parent
appeared absolute discretion was left to the magistrate before
whom the case was brought. He might or might not make the
necessary order. If he did not, no further penalty could be
inflicted. If he did, and it was obeyed, no penalty could follow.
But if he did, and it was disobeyed, one penalty alone could be
inflicted for the disobedience. A further order must be made,
and that order disobeyed before another penalty—not for disobedience
to the first—but to the second order, could be inflicted.
This is evident from the words of the section. The magistrate
' may, if he thinks fit'—words of absolute discretion—make an
order for vaccination ; and there is nothing in the section to bind
the magistrate's discretion to refrain from making an order should
he for any reason come to the conclusion that it was expedient to
do so. The words of the section seem purposely framed to leave
the discretion to the magistrate. It is true that if the order was
once made and disobeyed, without the justification of one or other
of the two matters of excuse mentioned in the section, the
disobedience must be punished and the parent prosecuted (the
words are ' shall' be proceeded against), but the discretion was
to be exercised before the order was made, and this discretion is
left to the magistrate.
Accordingly it was held in the case of Allen and Worthy,
reported L.R. 5, Q.B. 163, that, notwithstanding the principle
laid down in Pilcher v. Stafford a second conviction could follow
disobedience to a second order under the section just referred to.
Lord Chief Justice Cockburn said, ' I think that the intention of
the Legislature was not simply that a penalty should be imposed