City of Dallas v. Smith

• Citation: 107 S.W.2d 872
• Decision Date: 21 July 1937
• Docket Number: No. 1691-6928.,1691-6928.
• Parties: CITY OF DALLAS v. SMITH et ux.
• Court: Supreme Court of Texas

107 S.W.2d 872

CITY OF DALLAS v. SMITH et ux.

No. 1691-6928.

Commission of Appeals of Texas, Section B.

July 21, 1937.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Russell E. Smith and wife against the City of Dallas. Judgment sustaining a general demurrer to plaintiff's petition was reversed by the Court of Civil Appeals [78 S.W.(2d) 301], and defendant brings error

Judgment of Court of Civil Appeals reversed and judgment of district court affirmed.

Hugh S. Grady, H. P. Kucera, and Eckford & McMahon, all of Dallas, for plaintiff in error.

Allen & Allen, E. G. Moseley, and George S. Atkinson, all of Dallas, for defendants in error.

J. Hardy Neel and Mac Taylor, Jr., both of Dallas, as amici curiæ.

SMEDLEY, Commissioner.

The district court sustained a general demurrer to the petition of Russell E. Smith and wife, defendants in error, who sued the city of Dallas, plaintiff in error, for damages on account of the death of their daughter alleged to have been caused by the negligence of the superintendent and other employees of the city in Parkland Hospital, owned and operated by the city, to which hospital the child, suffering from gunshot wounds, was taken for examination and treatment. The Court of Civil Appeals reversed the trial court's judgment and remanded the cause. 78 S. W.(2d) 301, 304.

The allegations with respect to the city's ownership and operation of the hospital are that: "The city of Dallas owned and operated, or was interested in the operation of, a certain hospital located within the corporate limits of said city, under the name of Parkland Hospital, which hospital was operated by the city of Dallas for profit; that it made a specific charge to all patients entering the same for the purpose of medical treatment and hospital service. That a specific fee or charge was made for the use of the rooms and wards therein and for the use of every other facility at such place and used in connection with the treatment of patients." In another paragraph it is alleged in the alternative that: "If all patients treated at such hospital during such time and prior thereto were not paying patients, then plaintiffs say that a specific charge was made against each and every patient and, upon a showing of inability to pay by any patient, the charges were not pressed or prosecuted to collection." The decision of the Court of Civil Appeals that the petition sufficiently states a cause of action as against general demurrer is based upon its conclusion that "the duty the representatives of the Parkland Hospital was called upon to perform, as stated in the petition, was not a governmental function, but a service voluntarily assumed by the hospital for the benefit of the locality where situated." With this conclusion we cannot agree. It is our opinion, assuming the truth of all of the facts alleged in the petition and indulging every reasonable intendment arising upon the petition, that the city in the maintenance and operation of the hospital was exercising a governmental power and was not acting in its proprietary capacity.

The petition does not show by what authority or under what law the city established and operated the hospital. By subdivisions 1 to 4, inclusive, of article 1015 of the Revised Civil Statutes, which article is a part of the statutes relating generally to cities and towns, the governing bodies of cities and towns are given the power to do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease, to make regulations to prevent the introduction or spread of contagious diseases, to co-operate with the county in which the municipality is situated in making such improvements as may be deemed necessary to improve the public health and to promote efficient sanitary regulations, and to erect or establish one or more hospitals and control and regulate the same, and to prohibit or permit and regulate the establishment of private hospitals. By subdivision 43 of this article the governing bodies of cities are given the power to appropriate so much of the revenue of the city as may be deemed expedient for the purpose, among others, of erecting and conducting city hospitals.

Article 1175, which enumerates the powers of cities adopting or amending their charters under the so-called Home Rule Amendment to the Constitution (article 11, § 5), in its twenty-eighth subdivision, gives such cities the power to provide for a health department and the establishment of rules and regulations protecting the health of the city and the establishment of quarantine stations, emergency hospitals, and hospitals.

There is no suggestion in either of the articles above referred to, or elsewhere in the statutes relating to the powers of cities and their governing bodies, that cities are authorized to establish or maintain hospitals as business institutions or for revenue raising purposes. In both of the articles the authority is conferred in connection with the giving of other powers relating to the public health.

By articles 4478 to 4494 of the Revised Civil Statutes of 1925 (as amended [Vernon's Ann.Civ.St. art. 4478 et seq.]), being chapter 5 of title 71, "Public Health," elaborate provision is made for the establishing and maintenance of county hospitals, and by article 4492 the county is permitted to co-operate with and join a city having a population of 10,000 persons or more in the establishment, building, equipment, and maintenance of a hospital in the city, the management to be jointly by the county and the city. According to express provision of article 4486, which we construe to apply to hospitals operated jointly by the county and the city as well as to those operated solely by the county, no patient is permitted to pay for his maintenance in the hospital a greater sum than the average per capita cost of maintenance therein, including reasonable allowance for the interest on the cost of the hospital. A hospital established or maintained under this law cannot be operated for profit. It is to be operated, as the chapter and title of which the chapter is a part plainly show, for an important governmental purpose, the preservation and promotion of the health of the public. To that end it is a part of the elaborate plan of the entire title.

The state in its acts for the health of its citizens exercises its police power and this power it may in proper extent delegate to cities. Associate Justice Greenwood, in City of New Braunfels v. Waldschmidt, 109 Tex. 302, 309, 207 S.W. 303, 305, said: "No one would question that the police power of the state may be delegated for appropriate purposes to the various municipalities, and that it may be validly exercised by such municipalities for the protection of the health of their residents."

The power thus delegated to cities remains after its delegation police power, and being such, it is essentially governmental, police power being defined as "a grant of authority from the people to their governmental agents for the protection of the health, the safety, the comfort and the welfare of the public." Spann v. City of Dallas, 111 Tex. 350, 355, 235 S.W. 513, 515, 19 A.L.R. 1387; 9 Tex.Jur. p. 502, § 74. A city in exercising police powers delegated to it is exerting the powers of the government of the state within the limits of the city. Peck v. City of Austin, 22 Tex. 261, 263, 73 Am.Dec. 261. It seems, therefore, necessarily to follow that the state by the enactment of the statutes above cited, giving to cities the power to make rules and regulations to protect public health and to prevent the spread of disease and do all acts necessary for the promotion of health and the suppression of disease, including the establishment and maintenance of hospitals, has delegated to the city part of its police powers and that cities in exerting the power thus delegated act in a governmental capacity and perform functions and duties which cannot be regarded as proprietary or as intended for the private advantage of the municipality and its inhabitants.

That cities in exercising the powers delegated to them to protect and preserve the public health are acting for all the people and not solely or even primarily for the benefit of those residing within the corporate limits is further manifested by the fact that in matters pertaining to the public health cities are not left free to act as their local officers may direct or to make and enforce such regulations as their local officers may deem best for the residents of the municipality. There is no unqualified delegation by the state to the cities of the police power in so far as it pertains to health. The statutes reserve to the state and to the state board of health a large measure of control and direction.

By article 4425 of the Revised Civil Statutes every incorporated city or town is required to elect or appoint a city health officer. According to the provisions of article 4430, the city health officer must perform not only such duties as may be required of him by the city ordinances, but also the duties imposed upon him by general law and such others as may be prescribed for him under the directions, rules, and regulations of the state board of health. He also is required by the same article to aid and assist the state board of health in quarantine, disease prevention, and suppression and sanitation within his jurisdiction, making such reports as the state board of health may prescribe. The city health officer for failure to perform properly the duties of his office is subject to removal at the relation of the state board of health. Article 4431. By articles 4434 and 4437 cities and counties wherein cities are situated are authorized to co-operate in establishing and maintaining hospitals. In matters of quarantine, the medical officers of chartered cities and towns may perform the duties granted or commanded in their several...