Abney v. Fox

250 S.W. 210

• Court: Court of Appeals of Texas
• Decided: February 7, 1923
• Docket: No. 6621. [fn*]
• Status: Published

Opinions

KEY, C. J.

The nature and result of this suit are sufficiently indicated by the trial court’s findings of facts and conclusions of law, which are as follows:

“Upon a hearing of a motion to dissolve a temporary injunction heretofore issued out of this court, the following proceedings were had:

“The court adopts the statement of facts filed herein as to its finding of facts in this case; however, a brief statement of the salient facts for the purpose of getting at the points of law involved are briefly stated below.

“Plaintiff was a resident of Lampasas independent school district, and had been for many years prior to the time of his application for writ of injunction. His daughter, Margaret Abney, was a scholastic of the Lampasas independent school district, and was entitled to attend said public school. Some few days before the injunction was prayed for, a case of smallpox within the school district developed: the patient having, up until about the time of the development of smallpox, attended the Lampasas school. There was also another case of smallpox within about two miles of the school, and within the' school district at the time.

“Upon the advice of the county health officer, the school board passed a resolution requiring all scholastics to be vaccinated against smallpox by the means of scarification, and the use of the vaccine virus of the cowpox, that being the only method they knew at that time. At the time appointed for scholastics to present vaccination certificates, plaintiff’s daughter presented a certificate from a homeopathic doctor, stating that he was immunizing the scholastic from the disease of smallpox, which certificate was refused by the school board, on the grounds that it did not comply with the vaccination, certificate required by the state board of health and all state schools. A few days later, the same physician issued a certificate in compliance with the regulations prescribed by the state board of health, and on the form used by the educational institutions of Texas.

“This was refused by the board on the advice of their county health officer as not being a vaccination as shown from the record in the case. There is some testimony as to whether or not the homeopathic internal method of vaccination is effective, but so far as this case is concerned, the court will assume that both the internal homeopathic process of vaccination and the vaccination by scarification are effective; the scarification method being the one most generally used, and being the one relied upon by the great majority of scholastics required to be vaccinated, and being the one most generally known as effective.

“The above being a brief finding of the facts in addition to the statement of facts filed herein, the court is of the opinion that the same presents three questions of law for consideration, which are as follows:

“Ifirst. Is it within the power of a school board of an independent district to require a uniform vaccination of all scholastics of such independent district, assuming that there are more methods of vaccination than tfce one by scarification?

“Second. Is a resolution of the school board, requiring scholastics to be vaccinated against smallpox by the use of the scarification method of inoculation of the vaccine virus beneath the skin, an unjust discrimination against any school of medicine as prohibited by the Constitution and laws of this state?

“Third. Assuming that there are two methods of vaccination against smallpox, one by internal treatment by the use of vaccinium and one by scarification by the use of the vaccine virus of cowpox, inoculated beneath the skin, is it an unjust discrimination against a scholastic of an independent school district, for the school board to require vaccination by the scarification method against the wishes of the parents of the scholastic who prefer the internal method of vaccination?-

“Conclusions of Law.

“1. Under the police power given by the state to school boards in the matters of public health, it is within the police power of the school board of an independent school district to require a uniform vaccination of all scholas-tics having the right to attend said school. An act of tbe school board requiring vaccination by scarificátion, being the method most generally known to the public, and most generally used by the public, is within their power in the effort to protect the health of the scholastic attending school by a uniform and recognized method of prevention.

“2. A resolution by a school board of an independent school district, requiring vaccination by scarification against smallpox is not an unjust discrimination against any school of medicine under the Constitution and laws of this state for the reason that both the homeopathic and allopathic schools of medicine - recognize and practice vaccination by scarification.

“It is not an unjust discrimination on the part of the school board against any school of medicine to require vaccination by scarification where it is shown that all schools of medicine vaccinate by that method.

“3. It is not an unjust discrimination against a scholastic for a school board of an independent school district to require of such scholastic vaccination by. scarification against smallpox, before attending the public schools. Although assuming that there are two methods of vaccination, and that one method is more severe in its administration than the other, it is not unreasonable for a school board to require of a scholastic the method most generally used and accepted by the public as being the proper method of vaccination for the reason that the public generally, having accepted one method, are disturbed if a few scholastics should attend who have not been vaccinated by the most uniform method. Under the above findings of fact, the court based its. conclusions of law and dissolved the temporary injunction heretofore issued out of this, court.”

O. O. Abney, the plaintiff in the case, has appealed, and the majority of this court has reached the conclusion that the judgment should be affirmed; Mr. Justice JENKINS dissenting. Mr. Justice BLAIR, the other member of the court, pursuing the practice which has heretofore prevailed in this court, has refrained from participation in the decision by this court of any case which was tried by him while district judge; but, as a matter of fact, -all the members of this court are of the opinion that when a judge of a district or county court becomes a member of a Court of Civil Appeals, he is not disqualified from participating in the decision of a case, by reason of the fact that he was the judge who tried it in the court below. We think that question is settled by the decision of our Supreme Court in the case of Investment Co. v. Grymes, 94 Tex. 609, 63 S. W. 860, 64 S. W. 778. With this explanation, we now proceed with the case.

Opinion.

Counsel for appellant present the case in this court upon the following propositions of law:

“(1) It appearing from the evidence and the findings of fact by the court that there are two effective processes of vaccination as a preventive of smallpox, it is not within the power of a school board to require all pupils to be vaccinated by one process only, as a prerequisite to admission in said school.

“ (2) It appearing from the evidence and findings of fact by the court that physicians of the homeopathic school of medicine generally give an internal treatment as a vaccination to protect against smallpox, and that the allopathic school of medicine vaccinate by scarification of some part of the body and applying the virus to the scarified portion of the body, and that each of said processes is effective, it would be an unjust discrimination by the school board against the' homeopathic school of medicine to recognize only the scarification or allopathic process as sufficient to admit pupils into the sehool.

“(3) It is an unreasonable arbitrary regulation and an unjust discrimination against the plaintiff for the school board to require a vaccination by scarification as a prerequisite to admitting plaintiff’s daughter into the school where it appears from the evidence and findings of fact by the court that the plaintiff’s daughter had been vaccinated by the internal homeopathic process which was found to be an effective process and the one selected by plaintiff.

“ (4) The action of the defendants in refusing to admit plaintiff’s daughter into school, except she be vaccinated by scarification of her body and applying cowpox virus to the scarified portion of her body, was in violation of article 1, § 3, of the Constitution of Texas, guaranteeing equal rights to all men, and in violation of article 1, § 26, against monopolies, because it appears from- the evidence and facts found by the court that there was another and different process of vaccination generally used by the homeopathic school of medicine, which had been administered to plaintiff’s daughter by a duly licensed physician of the homeopathic school.”

In response to appellant’s contentions, counsel for appellees submit the following counter propositions:

“(1) The evidence and finding of fact by the court showing that there was smallpox in the city of Lampasas and in the Lampasas school district, and danger of an epidemic of smallpox in said school district, and the school board of said district having by proper resolution provided that all children entering the public schools in said district should be successfully vaccinated, the term ‘vaccination’ having a well-defined meaning in law and in the minds of the public in general, to wit, the inoculation or applying of the virus of cowpox to a scarified portion of the body, appellant’s daughter having failed to comply with said ruling or order of the school board and furnish a certificate showing that she had been successfully vaccinated as that term implies, the school board was acting within the scope of its authority in refusing-to admit her to said school, and the court did not err in dissolving the temporary injunction.

“(2) It appearing from the evidence and finding of the court that there was danger of an epidemic of smallpox in said school district; said board having by proper resolution provided for all school children to be successfully vaccinated; the evidence and findings of the court further establishing the fact that vaccination by scarification was the only method known to the school board, and the-method most generally known and used and accepted by the public, and accepted and practiced by all schools of medicine—the school board was .acting within the scope of its authority in requiring all children to be vaccinated by scarification, thereby adopting a uniform method; and appellant having failed to comply with said uniform regulation, the board was justified in excluding the daughter of appellant from the schools, the court did not err in dissolving said temporary injunction.

“(3) It appearing from the evidence and findings of the court that all schools, especially the homeopathic and allopathic schools of medicine, recognize and practice vaccination by scarification, the school board was acting within the scope of its authority and was not discriminating against any school of medicine.in adopting a uniform means of vaccination that was recognized by all schools, and the court did not err in dissolving said temporary injunction.

“(4) It being within the power of the school board of a school district to require uniform vaccination of all school children of such district before attending said schools^ the school board was not acting in an unreasonable and unwarranted manner or unjustly discriminating against appellant’s daughter, in requiring that she be vaccinated by scarification, such method being the one most generally known and used and the only method accepted by all schools of medicine, the right of providing rules and regulations and the method of exercising them in reference to exercising the privilege of attending the public schools being in the power of the school .board, the court did not err in dissolving said injunction.

“(5) It appearing from the evidence and the findings of the court that the school board adopted the method of vaccination used by all schools of medicine, their action in refusing plaintiff the right to make a choice in the means of" vaccination he would use was not violative of article 16, § 31, Constitution of Texas, or article 5742, R. C. S. of Texas, the board having selected the only method of vaccination known and used by all schools of medicine, the court did not err in dissolving said temporary injunction.

“(6) Under the police- power given by the state to the school board, it is within its power to require a uniform vaccination of all children attending the public schools, and acting under that power the school board having adopted a uniform means of vaccination, the only method accepted and used by all schools of medicine, and requiring all classes to comply with that rule, did not violate article 1, § 3, of the Constitution, or article 1, § 26, of said Constitution, and the court did not err in dissolving said temporary injunction.”

We concur in the contentions urged by counsel for appellees, and copy from their brief the following authorities which tend to support their contentions:

“On the right to require vaccination: Arts. 4553a (28), 2853, 838 and 839, Vernon’s Sayles’ Civil Statutes; Zucht v. King (Tex. Civ. App.) 225 S. W. 267; New Braunfels v. Waldschmidt, 109 Tex. 302, 207 S. W. 303; Auten v. School Board, 83 Ark. 431, 104 S. W. 130; Hutchins v. School Committee, 137 N. C. 68, 49 S. E. 46, 2 Ann. Cas. 340; State v. Board of Education, 76 Ohio St. 297, 81 N. E. 568, 10 Ann. Cas. 879.

“On the meaning of the term vaccination and right to specify or select method: Jacobson v. Mass, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765; Lee v. Marsh, 230 Pa. 351, 79 Atl. 564; Stull v. Reber, 215 Pa. 156, 64 Atl. 419, 7 Ann. Cas. 415; Viemeister v. White, 179 N. Y. 235, 72 N. E. 97, 70 L. R. A. 796, 103 Ann. St. Rep. 859, 1 Ann. Cas. 334; McSween v. School Board, 60 Tex. Civ. App. 270, 129 S. W. 206; Zucht v. San Antonio (Tex. Civ. App.) 170 S. W. 840; Dowdell v. McBride, 92 Tex. 239, 47 S. W. 524; Duffield v. Williamsport, etc., Dist., 162 Pa. 476, 29 Atl. 742, 25 L. R. A. 152; Field v. Robinson, 198 Pa. 638, 48 Atl. 873; Abeel v. Clark, 84 Cal. 226, 24 Pac. 383; French v. Davidson, 143 Cal. 658, 77 Pac. 663; Bissell v. Davison, 65 Conn. 183, 32 Atl. 348, 29 L. R. A. 251; Blue v. Beach, 155 Ind. 121, 56 N. E. 89, 50 L. R. A. 64, 80 Am. St. Rep. 195; State, etc., v. Zimmermann, 86 Minn. 353, 90 N. W. 783, 58 L. R. A. 78, 91 Am. St. Rep. 351; Morris v. Columbus, 102 Ga. 792, 30 S. E. 850, 42 L. R. A. 175, 66 Am. St. Rep. 243; State v. Hay, 126 N. C. 999, 35 S. E. 459, 49 L. R. A. 588, 78 Am. St. Rep. 691; Ruling Case Law, vol. 12, §§ 27 and 28 and notes, p. 1288.”

In Zucht v. King (Tex. Civ. App.) 225 S. W. 267, the court says:

“The appellant has no peculiar right or property right to attend a public school or private school different from others similarly situated, in defiance of the rules so established for the protection of the school children themselves, and for society in general, without meeting the prescribed regulation for vaccination.”

In Hanzal v. San Antonio (Tex. Civ. App.) 221 S. W. 237, the court uses this language;

“Health regulations being of such vital importance to any community, must, if reasonable and impartial, be submitted to by individuals for the public good and general welfare. * * * ‘Persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the state.’ ”

In Jacobson v. Mass, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765, which is approved in the case of City of New Braunfels v. Waldschmidt, 109 Tex. 302, 207 S. W. 303, the Supreme Court of the United States had before it a case which involved substantially the same fundamental question involved in this case, and the court said:

“There are manifold restraints to which every person is necessarily subject for the common good. * * * This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state.’ * * * If we are to attach any value whatever to the knowledge which, it is safe to affirm, is common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the board of health was not necessary to protect the public health. * * * It is no part of the function of a court or jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. * * * The state Legislature proceeded upon the theory which recognized vaccination as at least an effective if not the best known way in which to meet and suppress the evils of a smallpox epidemic. * * * Since then vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the Legislature simply because in its or their opinion that particular method was — perhaps or possibly — not the best either for children or adults.”

In discussing the general principles of health laws, Ruling Case Law, recognized as very high authority, says:

“The question whether the vaccination of children may be required as a condition precedent to their right to attend schools, has been much discussed by the courts. The authorities are not entirely uniform on the subject, but as a rule such requirements have been sustained. Again, statutes authorizing boards of education, or the health authorities, to require vaccination as a prerequisite to attendance upon the public schools, have been almost uniformly upheld and sustained by the courts, as a reasonable and proper exercise of the police power. Furthermore, the power of local boards of health or education to refuse admission of unvaccinated children to public schools during an existing or apprehended epidemic of smallpox seems to be settled; though where not so authorized by statute their power in the premises has been denied in the absence of the actual existence of smallpox in the community or its reasonable probability, and the occasional recurrence of smallpox in a city has been held not to present an emergency for which the health authorities may make and enforce rules not prescribed or approved by the legislative authority of the city. Generally express power to require the vaccination of school children is not necessary, but may be implied from discretionary power to take all proper measures to safeguard the public health.” 12 Ruling Case Law, 1288.

That an order requiring vaccination is not in violation of the Constitution is settled by our Supreme Court in Dowdell v. McBride, 92 Tex. 239, 47 S. W. 524. We also desire to call special attention to the case of Lee v. Marsh, 230 Pa. 351, 79 Atl. 564, which was quite similar to the instant case, and in which it was said:

“As a fact of which judicial notice is taken, since the discovery of vaccination by Dr. Jenner, the method as generally recognized hy a great majority of definitions, descriptions, and medical authorities of all the dominating schools of medicine is by applying the virus to a scarified portion of the body.”

That court specifically held that the term “vaccination” means an inoculation with the virus of cowpox, and that the homeopathic treatment was not a vaccination, as that term is meant and generally understood by the public.

The majority of this court are of the opinion that the doctrine announced in the authorities quoted from and others cited justifies the holding that in the case at bar the school trustees had the right which they exercised, to prescribe vaccination as a prerequisite to attendance upon the school; and that the term “vaccination,” as used and intended by that body, meant scarification and the injection of cowpox into the human system, and did not include the taking of medicine internally, or any other mode of prevention of smallpox. Taking medicine internally, whatever may be the result, is not vaccination as prescribed by the school board; and therefore, if it be conceded (a question upon which the testimony was in conflict) that medicine may be given internally which will render the person immune from smallpox as effectively as vaccination by scarification, still we hold that the school board had the authority to prescribe the latter method for the prevention of smallpox; and that its action in so doing was neither arbitrary nor unreasonable. In fact, the undisputed proof, coming from both sides and given by physicians belonging to both the regular and homeopathic schools of medicine, shows that vaccination by scarification is used by all the schools of medicine. This being true, and it appearing from the testimony that in this case the school board in rejecting the certificate of vaccination presented on behalf of appellant’s child acted upon the advice of the county health officer, it is difficult to see why their action was either arbitrary or unreasonable.

All the questions presented in appellant’s brief have been considered, and are decided against him; and as no error is shown, the judgment is affirmed.

Affirmed.