Zucht v. King

• Citation: 225 S.W. 267
• Decision Date: 20 October 1920
• Docket Number: (No. 6428.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: ZUCHT v. KING et al.
• Court: Texas Court of Appeals

225 S.W. 267

ZUCHT v. KING et al.

(No. 6428.)^*

Court of Civil Appeals of Texas. San Antonio.

October 20, 1920.

On Motion for Rehearing, November 17, 1920.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit by Rosalyn Zucht, by A. D. Zucht, her next friend, against W. A. King and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Don A. Bliss, of San Antonio, for appellant.

R. J. McMillan, J. D. Dodson, B. W. Teagarden, Ball & Seeligson, and C. W. Trueheart, all of San Antonio, for appellees.

COBBS, J.

Rosalyn Zucht, by A. D. Zucht, her next friend, brought this suit in the district court of Bexar county for the Forty-Fifth judicial district of Texas against W. A. King, Ray Lambert, E. O. Evans, Charles Gerlach, Guy S. McFarland, J. K. Beretta, Mrs. E. W. McCamish, Mrs. Henry Guerra, Mrs. Dan Leary, Paul Scholz, and Marshall Johnson, appellees in this cause, seeking to recover damages in the sum of $10,000 on account of their having unlawfully discriminated against her and having unlawfully expelled her from the public schools of the San Antonio independent school district, and for a writ of injunction, restraining and prohibiting the said appellees from discriminating against her, and restraining and prohibiting the appellees, and each of them, from attempting to enforce, or enforcing, a certain ordinance of the city of San Antonio, which she claimed was void; and for a peremptory writ of mandamus, compelling the appellees, and each of them, to admit her to attendance in and upon said public schools; and she also prayed for general relief.

The suit was dismissed as to Ray Lambert, who was never served with process. The other defendants in the cause, appellees herein, answered, presenting a general exception to the petition of the said Rosalyn Zucht, and certain special exceptions, and pleaded general denial and special answers.

The court overruled all the exceptions of appellant, and sustained the general demurrer or exception to the petition, to all of which rulings of the court the appellant duly excepted, and, declining or refusing to further amend, the suit was dismissed, to which appellant excepted and has brought her case to this court for review.

It is set forth in the petition that San Antonio is an incorporated city of more than 100,000 inhabitants, having an independent school district, incorporated by a special act of the Legislature, controlled by a special body of officers known as the San Antonio school board.

It sets out at length the operation of a system of street cars and various modes of transportation, theaters, public shows, churches, and other places of meeting and congregating, and manufacturing industries operated in said city where the various inhabitants thereof congregate and continuously meet and come in contact with each other, besides at the schoolhouses. The petition in minute detail sets out all the public places where people meet, but not necessary to further describe.

It sets out also the various private schools and institutions of learning in the city where great numbers of children under the age of 21 years attend.

It sets out some of the public powers of the city in respect to quarantine to prevent the spread of contagious diseases within its limits, to enforce vaccination, and to establish pesthouses, and to regulate the establishment of private hospitals.

It avers the city has no power over the public free schools, because the management is vested in the San Antonio independent school district and the said San Antonio school board, by the special act of the Legislature incorporating said San Antonio independent school district and San Antonio school board, and that no power is vested in said school district or said board by the Legislature to vaccinate.

It is further averred that all persons between the ages of 7 and 21 years have the right to attend the public free schools in said district and receive instruction therein, and are entitled to all the benefits of the free school fund furnished by the state and the public derived from taxation in said district for free school purposes, and authorized to levy taxes for acquiring land and for the construction of improvement thereupon, maintaining, operating, and carrying on the schools; that the grounds and buildings are well kept and are in a sanitary condition, and the school buildings provided with individual seats, upon which the pupils or other persons are seated separate and apart from each other.

It is alleged the city council has never attempted to enforce vaccination generally among the inhabitants, nor even among the children generally, but undertook to discriminate against pupils who attended the schools and educational institutions in said city and the persons connected with said schools and institutions, including the pupils attending the same and other persons connected therewith, by adopting an ordinance enforcing vaccination.

The ordinance requires any person conducting any place or institution of education in the limits of the city of San Antonio, whenever so required, to furnish the city board of health a list by name of all teachers, pupils, and employees and other persons connected therewith, duly certified by affidavit, showing time and place of vaccination or not of all such above-named persons and pupils; also provides the board of health may require such vaccination within such period of time and under such regulations as said board may require.

A fine of not less than $10 nor more than $100 may be imposed for such offense, and each day, for such offense, is deemed a separate offense, and upon failure to pay such person is subject to imprisonment.

It also requires parents and guardians having custody of minor children to be promptly and effectively vaccinated, with a penalty attached of not less than $5 nor over $100; for failure to pay fine, imprisonment any number of days, not exceeding 30, in the discretion of the recorder.

Further, that there was no other ordinance ever passed by the city to enforce vaccination.

It is alleged the ordinances providing for the infliction of punishment by fine and imprisonment have never been enforced, and are regarded as a "dead letter," though many pupils and others have continually attended schools without presenting certificates of vaccination, as required by the ordinances.

It is further alleged there is more danger of the contagion of smallpox spreading from the close personal contact of persons in the assemblages and in the places other than the schools and educational institutions in said city in the places named in the petition than there is danger from the contact of the pupils, teachers, employees, and other persons in said schools and educational institutions, especially in the case of the small Mexican quarter in the city, where the danger of the breaking out of the disease called smallpox is infinitely greater than in the said schools and educational institutions; that said ordinance is in effect, and can be enforced whether there is an epidemic of smallpox or not; that the school board has not had any rule with reference to vaccination; that appellant was of the age of 15 years, and had been attending the free schools during the months of January and February, 1919, known as the Brackenridge High School in said independent school district; that she had never been vaccinated, nor is she or her parents willing for her to be vaccinated.

It is further alleged:

A large number of other pupils who had furnished no certificates of vaccination were attending said school and other free schools in said district during the time that she was attending school, and were permitted to continue to attend schools without having been vaccinated, and without having furnished certificates of vaccination after she was expelled from said school. She was never exposed to smallpox, and the sanitary conditions in said locality where she resided were excellent; no crowding of houses close together where crowds gather and assemble on the streets, or elsewhere, in said locality.

That there was no epidemic of smallpox in the city at the time and had not been for more than 10 years before, nor in said school that she was attending.

That, notwithstanding the foregoing facts, on March 3, 1919, the defendants conspired to expel her from school, and each of them, acting wantonly and maliciously, refused to permit her to attend school, or any longer attend any other public school in said city, unless she will submit to vaccination, which deprives her of the benefit of an education and her proportionate benefits of the public school fund provided by the Constitution and laws of Texas.

That the defendants pretend to have acted in their official capacities, but the act of the Legislature delegated all legislative power to the city commissioners (city council), and no legislative powers or authority whatever were vested in said board of health, nor did the city council have power to delegate legislative powers or authority to said board of health or any one.

That many pupils and other persons were attending the schools she was attending who were not required to be vaccinated, and so permitted to continue to attend after she was expelled, and no pretense to enforce the ordinance against many others similarly situated, attending before and since, without being vaccinated or certificate of vaccination.

That the defendants and especially W. A. King notified the principal of said private school, if he continued to permit the plaintiff and her brother, Arthur Zucht, to continue to attend said private school, they would close the school, and thereupon they were compelled to cease attending said private school.

That other schools and educational institutions with reference to smallpox were the same as those schools plaintiff was attending. That the defendants, and each of them wantonly and maliciously discriminated against plaintiff...