McSween v. Board of School Trustees

• Citation: 129 S.W. 206
• Parties: McSWEEN v. BOARD OF SCHOOL TRUSTEES OF CITY OF FT. WORTH.
• Decision Date: 09 April 1910
• Court: Texas Court of Appeals

129 S.W. 206

McSWEEN v. BOARD OF SCHOOL TRUSTEES OF CITY OF FT. WORTH.

Court of Civil Appeals of Texas.

April 9, 1910.

Rehearing Denied May 14, 1910.

Appeal from District Court, Tarrant County; Mike E. Smith, Judge.

Action by Mrs. M. H. McSween against the Board of School Trustees of the City of Ft. Worth. From a judgment denying relief, plaintiff appeals. Affirmed.

Theodore Mack and C. E. Farmer, for appellant. W. H. Slay and A. B. Curtis, for appellee.

DUNKLIN, J.

Mrs. M. H. McSween sought a writ of injunction to restrain the board of school trustees of the city of Ft. Worth from excluding plaintiff's minor child, Olive McSween, from attendance in the public high school of said city. A judgment was rendered denying plaintiff the relief prayed for, and she has appealed.

The suit was tried upon the merits of the petition without a jury, and the trial judge filed the following findings:

"(1) The plaintiff is a resident and citizen of Ft. Worth and the mother of Olive McSween, a 14 year old girl; the latter being entitled to enjoy the advantages, rights, and privileges of public education in the city of Ft. Worth and to attend the high school therein.

"(2) On February 4, 1909, Olive McSween, being of the scholastic age, was a pupil in the high school of the city of Ft. Worth, and was a healthy child and not afflicted with any contagious or infectious disease.

"(3) By section 144 of the city charter enacted by the Thirtieth Legislature, Ft. Worth is made an independent school district and given the exclusive control of the public schools therein; the power of control being vested in the defendant, the board of school trustees of the city of Ft. Worth.

"(4) By section 150 of the aforesaid city charter, the public free schools of the city are placed under the control and supervision of the defendant board, and they are given power to manage, control, and govern them in all things, and matters, and to adopt such rules and regulations as they may deem proper. They are also given the power and authority, when not in conflict with said charter, of independent school districts, which power is substantially the same as in the city charter on this subject.

"(5) On February 4, 1909, the defendant enacted or adopted the following: `Whereas a pupil of the high school was taken home sick from school and such sickness developed into a case of smallpox and whereas the board is of the opinion that the necessity exists for the vaccination of all the children attending the public schools: Be it resolved that all the pupils in the public schools be vaccinated, unless the same has heretofore been successfully done, and that such children as do not comply with this order be excluded from the schools until the necessity for the enforcement hereof shall cease to exist.'

"(6) The facts upon which the foregoing order or rule was based were briefly these: A pupil of the high school was taken home sick, and it was reported to the board that such sickness developed into a case of smallpox. The board was of opinion that the pupils had probably been exposed, and therefore, to prevent disorganization of the schools, enacted the order in question. The board acted upon the representations of one of its members, a reputable physician, who was also a former health officer of the county, who examined the pupil and diagnosed the case as smallpox. The board determined she did have smallpox and acted upon what they deemed an emergency requiring the enactment and enforcement of the order in question until the necessity therefor ceased. As to whether the sick pupil really had the smallpox the evidence conflicted, it being shown on the one hand that she had the chickenpox, while two witnesses for the defendant, who had actually been in attendance on her, were equally certain that she had the smallpox; and therefore the court does not deem it material, in view of the legal conclusion deduced, to determine that issue of the fact.

"(7) The court finds as a fact, however, that the board acted in the utmost of good faith, and in the exercise of a sound discretion enacted the order above recited.

"(8) Acting on the order, the principal of the high school on February 5, 1909, in view of the fact that Olive McSween acting for herself and under the advice and direction of her mother had refused to submit to vaccination, suspended Olive McSween from the high school temporarily, and she now stands temporarily suspended at the date of the judgment herein.

"(9) Plaintiff has brought herself within the terms of the law in seeking from this court the relief prayed for and has exhausted all the remedies provided by law, and it was conceded that this court had jurisdiction to act in the premises and if the law permitted to grant the relief prayed for.

"From the foregoing findings of fact, without passing on the question of the efficacy of vaccination, which, under the rule announced by the Supreme Court of the United States in Jacobson v. Massachusetts, 197 U. S. 11 , 49 L. Ed. 643, is neither a matter for court nor jury, the court concludes as a matter of law:

"(1) That under the circumstances the order in question was not void, and the authority to determine whether an emergency existed for said order was for the defendant, even though the court might be of the opinion that the board erred in adopting the order, which was merely temporary in its character, and which will in all probability be revoked as soon as the danger feared by the board has passed away, is vested in the board. Therefore the court declines to grant the relief prayed for or in any wise to interfere with the exercise of the discretion vested by law in the...