Waldschmit v. City of New Braunfels

• Decision Date: 07 February 1917
• Docket Number: (No. 5829.)
• Citation: 193 S.W. 1077
• Parties: WALDSCHMIT et al. v. CITY OF NEW BRAUNFELS et al.
• Court: Texas Court of Appeals

Page 1077

193 S.W. 1077

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

(No. 5829.)

Court of Civil Appeals of Texas. Austin.

February 7, 1917.

Rehearing Denied March 14, 1917.

Appeal from District Court, Comal County; Frank S. Roberts, Judge.

Proceedings between Fritz Waldschmit and others and the City of New Braunfels and others. From a judgment for the latter, the former appeals. Reversed and rendered.

Adolph Seidemann, of New Braunfels, for appellants. Henne & Fuchs and J. R. Fuchs, all of New Braunfels, for appellees.

Findings of Fact.

JENKINS, J.

1. The city of New Braunfels is a municipal corporation, incorporated under the general laws of this state, title 22, chapter 1, of the Revised Statutes.

2. It is also an independent school district, with a board of school trustees, who have general management and control of its schools under the laws of this state.

3. The individual appellees herein are respectively the mayor, the city attorney, the city marshal of said city, and the superintendent of said schools.

4. The appellant Fritz Waldschmit is and for many years has been a resident citizen and taxpayer of New Braunfels; appellants Sido, aged 14, and Else, aged 11, are the children of Fritz Waldschmit, and live with their father.

5. The city of New Braunfels levies and collects annually a special school tax of 40 cents on the hundred dollars on all property in that city subject to taxation.

6. On September 18, 1916, and for a short time prior and subsequent thereto, smallpox prevailed in epidemic form in New Braunfels, there being in all 32 cases.

7. On September 18, 1916, the city council of New Braunfels adopted the following ordinance:

"An ordinance requiring vaccination certificate for admittance to schools.

"Be it ordained by the city council of the city of New Braunfels:

"Section 1. No child or other person shall be permitted to attend any of the public schools or any place of education within this city, unless such child or other person shall first present a certificate from some duly qualified physician to the city physician that such child or other person has been successfully vaccinated within six years preceding the time at which such child or other person desired to attend school; such certificate shall give a description of such child or person, age and nationality and kind of virus used, and such other information as the city physician may require, for which purpose the city physician shall furnish blanks to all persons requiring the same.

"Sec. 2. The city physician or his assistant shall give a certificate of such vaccination, or certify to the correctness of such certificate, such certified certificate, shall be presented to the superintendent, principal or teacher of the school at which such child or person seeks to be admitted, before admission.

"Sec. 3. Any person sending or attempting to send a child to any school or place of education within the city without having it vaccinated in accordance with the provisions of this ordinance, and any physician giving a false certificate, and all persons admitting any child or other person to attendance in any such school or place of education without such certificate of vaccination, shall be guilty of a misdemeanor, and upon conviction therefor before the recorder shall be fined in any sum not less than ten dollars ($10.00) nor more than one hundred ($100.00) dollars for such offense, and each day such offense continues shall be deemed a separate offense.

"Sec. 4. Public health demands the immediate passage of this ordinance and an emergency is hereby declared, and this ordinance is placed upon its first and final reading, and it shall be in force and effect from and after its passage and publication for the required time."

8. On September 5, 1916, the school trustees of New Braunfels, in order to prevent the spread of smallpox, closed the public schools of that city, and kept them closed until October 20, 1916, at which time they were reopened, and have since been kept open.

9. On September 5, 1916, the said school board passed a resolution that school children should not be required to be vaccinated before being permitted to attend the public schools; and on October 17, 1916, refused to rescind said order.

10. There has been no case of smallpox in any of the schools of New Braunfels; that is to say, no one has had the smallpox while attending any of said schools.

11. The city of New Braunfels and the superintendent of its public schools have enforced the ordinance herein set out since its passage to the date of the trial hereof, and will continue to do so, unless restrained by an order of a court of competent jurisdiction.

12. On October 20, 1916, Fritz Waldschmit sent his daughter Else to a public school in New Braunfels, with a written request that she be permitted to attend same, which request the superintendent of said school, acting under the direction of the city health officer, refused in writing to grant.

13. The said children of Fritz Waldschmit have never been exposed to smallpox, but have at all times since the reopening of said school been in good health, and no reason exists for excluding them from school, except that they have never been vaccinated.

14. The father of said children has not permitted them to be vaccinated for the reason he is a Christian Scientist, and does not believe in vaccination as a preventive of smallpox, but, on the contrary, conscientiously believes that it would be morally wrong to permit his children to be vaccinated. Said children are also Christian Scientists, and entertain the same belief.

15. Smallpox did not exist in epidemic form at the time of the trial hereof, and there were no reasonable grounds for fearing that such an epidemic was then threatened in New Braunfels.

Opinion.

That the state, through its Legislature, may, in the exercise of its police power, enact all reasonable legislation for the promotion of the public welfare, including the preservation of health, is too well settled to require the citation of authorities. Also that the reasonableness of such measures is primarily a question for the Legislature, and will be reviewed by the courts only in clear cases of abuse of such power, is equally well settled. In reference to this rule, as applied to vaccination, courts have frequently said that they were not called upon to decide whether or not vaccination was a preventive of smallpox, but only whether the Legislature which enacted such legislation had reason to so believe.

But the rule is quite different where local authorities have undertaken to pass rules or ordinances with reference to vaccination, without being expressly authorized so to do. Municipal corporations are the creatures of statute, and have no powers, except those expressly or impliedly granted by the statute creating them. Pye v. Peterson, 45 Tex. 314, 23 Am. Rep. 608; Davis v. Burney, 58 Tex. 367; Railway Co. v. Galveston, 90 Tex. 411, 39 S. W. 96, 36 L. R. A. 33; Vosburg v. McCrary, 77 Tex. 572, 14 S. W. 195.

The powers granted to municipal corporations are strictly construed. Bayha v. Carter, 26 S. W. 138; Cleburne v. Railway Co., 66 Tex. 461, 1 S. W. 342; Brenham v. Waterworks Co., 67 Tex. 553-564, 4 S. W. 143; Pye v. Peterson, supra. It is true that the final title of our Revised Statutes, section 3, says that they are to be liberally construed "with a view to effect their objects." But that object ought never to be presumed to be to deprive a citizen of his constitutional right of "life, liberty, property, privileges or immunities," unless it be expressly or by necessary implication so declared. In Re Smith, 146 N. Y. 77, 40 N. E. 499, 28 L. R. A. 824, 48 Am. St. Rep. 769, the court in denying right to quarantine one who had not been vaccinated said:

"Like all enactments which may affect the liberty of the person, this one must be construed strictly."

The ordinance involved in the instant case affects the liberty of Fritz Waldschmit, inasmuch as if he did not pay the fines assessed against him for its violation the city could imprison him.

The Legislature of Texas has never enacted a law to exclude any one from school who has not been vaccinated, nor has it expressly authorized any city council, board of school trustees, or even the state board of health, composed as it is of eminent physicians, to do so. If the city of New Braunfels had the power to pass the ordinance set out in our findings of fact, such power is to be implied from article 838 R. S., which reads as follows:

"To do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease."

In Cleburne v. Railway Co., supra, the court said:

"A power will be implied only when without its exercise an express duty or authority would be nugatory."

Certainly, in view of the many things that city councils are expressly authorized to do for "the promotion of health and the suppression of disease," their power in this regard would not be nugatory, and they would not to be wholly unable to discharge such duty by being denied the right to enforce vaccination as to school children. Among the powers expressly conferred upon city councils to enable them to protect the public health may be mentioned to make and enforce quarantine regulations; to isolate those who have contagious diseases, or have been exposed thereto; to established hospitals and pesthouses; to inspect provisions; to regulate butchers; to abate nuisances; to require all premises to be kept clean, and privies, sinks, and drains to be kept in a sanitary condition; to locate slaughterhouses, tanneries, etc.; to prevent dead animals from being left in the city, and many other things. In Morris v. Columbus, 102 Ga. 802, 30 S. E. 854, 42 L. R. A. 180, 66 Am. St. Rep. 243, the court said:

"Municipal corporations must have express authority (to require vaccinations) from the Legislature, as no such power...