City of New Braunfels v. Waldschmidt

• Decision Date: 11 December 1918
• Docket Number: (No. 3081.)
• Parties: CITY OF NEW BRAUNFELS et al. v. WALDSCHMIDT et al.
• Court: Texas Supreme Court

Page 303

207 S.W. 303

CITY OF NEW BRAUNFELS et al. v. WALDSCHMIDT et al.

(No. 3081.)

Supreme Court of Texas.

December 11, 1918.

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

Suit by Fritz Waldschmidt and others against the City of New Braunfels and another. From a judgment of the Court of Civil Appeals (193 S. W. 1077) reversing a judgment in favor of defendants, the defendants bring error. Reversed.

Henne & Fuchs and J. R. Fuchs, all of New Braunfels, for plaintiffs in error.

Adolph Seideman, of New Braunfels, for defendants in error.

GREENWOOD, J.

By this suit defendants in error attack the validity of an ordinance adopted by the city council of the city of New Braunfels, providing that no person should be permitted to attend the public or private schools within that city, without presenting a physician's certificate to the person's vaccination within six years, and providing for the punishment, by fine, of any one upon conviction of sending a child to any school within the city who had not been vaccinated or upon conviction of admitting a child into such school without a certificate of vaccination.

The ordinance is attacked on three grounds, viz.:

First. That the ordinance deprives defendants in error of liberty and property, without due process or due course of law, and hence violates the Fourteenth amendment to the Constitution of the United States and section 19 of article 1 of the Constitution of Texas.

Second. That the ordinance abridges or interferes with the rights of defendants in error in matters of religion, and hence violates section 6 of article 1 of the Constitution of Texas.

Third. That the ordinance is void because the city of New Braunfels was without lawful authority to enact same.

There is no substantial dispute over the material facts, which may be summarized as follows:

(1) The ordinance was adopted on September 18, 1916, and New Braunfels then and since was a municipal corporation of some 4,500 inhabitants, possessing all the powers conferred by title 22 of chapter 1 of the Revised Statutes of Texas of 1911.

(2) The percentage of Mexicans in the population of New Braunfels is about 30. New Braunfels is directly connected by rail and highway with San Antonio, 28 miles distant, and with San Marcos, 18 miles distant. San Antonio has a large Mexican population, and a number of Mexicans pass from San Antonio to New Braunfels each day.

(3) There are cases of smallpox, chiefly among the Mexicans, in San Antonio, practically throughout the year. In the fall of 1916, smallpox was prevalent in epidemic form in New Braunfels, San Marcos, and San Antonio. Thirty-two cases of smallpox were reported to the city health officer, within New Braunfels, during this epidemic, and there were 6 deaths. The epidemic started in the negro and Mexican quarter of the town and then extended to the white people, until about as many of them were afflicted as of the negroes and Mexicans. The highest number of cases in New Braunfels at one time was 15 or 16. Once during the epidemic the cases were reduced to one single case, and the health officer believed he would be able to prevent the further spread of the disease. However, a Mexican case was concealed, and other cases developed until their number again rose to 15 or more. It is the custom of Mexicans to conceal smallpox among their people, and the lack of sanitation in their surroundings is favorable to its spread. On September 18, 1916, when the ordinance was enacted, the epidemic of smallpox prevailed, and, on account thereof, the public schools were closed from that date until about October 20, 1916. There were several cases of smallpox in San Marcos when the schools were reopened.

(4) Smallpox is a very contagious and dangerous disease. It may be disseminated by those not afflicted as well as by those stricken. Younger people are the most susceptible to the contagion. The medical profession generally recognize vaccination as a preventative of smallpox. There was no case out of the 32 in New Braunfels in 1916 who had been vaccinated within or for a reasonable time. One man had it who had been vaccinated 40 years previously, and hence was no longer protected thereby. Two or three patients were vaccinated, after they had been exposed, but too late to protect them. Physicians and nurses, after proper vaccination, expose themselves to the contagion without contracting smallpox.

(5) When the case was tried, on November 16, 1916, there was one case of smallpox in New Braunfels, and the only physician who testified gave it as his opinion that there was danger at that time of the spread of the disease. In support of the opinion, he stated that in winter the Mexican population in New Braunfels increased, when they gathered together in unventilated little huts, and the disease was most likely to originate among them and spread to all the people. While no public school pupil was stricken during the 1916 epidemic, smallpox appeared in two white families with public school children, who did not then attend school.

(6) On October 20, 1916, defendant in error Fritz Waldschmidt sent his daughter Else to the public schools of the city of New Braunfels, which is an independent school district, having its own trustees, and levying a school tax, and these trustees had resolved, on September 5, 1916, not to require all pupils to be vaccinated. Else Waldschmidt was denied admittance to the schools, on October 20, 1916, because of her failure to present a certificate of vaccination as required by the ordinance.

(7) This suit is brought by Else Waldschmidt and her brother Sido Waldschmidt, both being of scholastic age and in good health, as well as by their father, all residing in New Braunfels, to enjoin the city and its officers from excluding Else and Sido from the public schools. Else and Sido and their father are Christian Scientists and do not believe in vaccination, but conscientiously believe in the Christian Science treatment of smallpox, which is "a denial of the reality of sickness and disease."

On the foregoing facts, the trial court entered judgment refusing the injunction sought by defendants in error.

The Court of Civil Appeals reversed the judgment, made the specific findings, among others, that smallpox did not exist in epidemic form in New Braunfels at the time of the trial, and that there was no reasonable ground for fearing that such an epidemic was threatened, and rendered judgment for defendants in error enjoining plaintiffs in error from excluding the two Waldschmidt children from the public schools. 193 S. W. 1077-1082.

The contention that this ordinance is inconsistent with the liberty guaranteed by the federal and state Constitutions has been too completely repelled by the opinion of the Supreme Court of the United States in Jacobson v. Massachusetts, 197 U. S. 22, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765, to justify further discussion. In upholding an outright compulsory vaccination statute of the state of Massachusetts, the court, through Justice Harlan said:

"The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and therefore hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. * * * In Crowley v. Christensen, 137 U. S. 86, 89 [11 Sup. Ct. 13, 15 (34 L. Ed. 620)], we said: `The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law.' * * * The liberty secured by the fourteenth amendment, this court has said, consists, in part, in the right of a person `to live and work where he will.' Allgeyer v. Louisiana, 165 U. S. 578 [17 Sup. Ct. 427, 41 L. Ed. 832]. And yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one's body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the state, for the purpose of protecting the...