The facts in this case, as found by the court and established by the evidence, are:
(1) The school board passed a resolution, requiring successful vaccination as a prerequisite to attendance on school. That if a child had been vaccinated, it should furnish a certificate to that effect.
(2) The appellant, the father of Margaret Abney, on May 6, 1922, presented to the school board the following certificate:
"Austin, Tex., May 5, 1922.
"To Whom It May Concern: This is to certify that Margaret Abney has been successfully vaccinated by me within the last five years.
"[Signed] F. L. Griffith, M. D."
(3) This certificate is in the form of certificates furnished by the board and accepted from other scholastics.
(4) F. L. Griffith is a reputable practicing physician, of the homeopathic school, licensed under the laws of the state.
(5) Dr. Griffith had given Margaret Abney the internal treatment practiced by the homeopathic school of medicine, for immunizing against smallpox, but had not otherwise vaccinated her.
(6) Margaret was refused admittance to the school, for the reason that she had not been vaccinated by scarification, and her father refused to permit her to be thus vaccinated.
(7) The homeopathic treatment administered to Margaret is equally as effective as a preventative of smallpox as is vaccination by scarification.
I concede, as a matter of law, that though there is no statute in this state requiring scholastics to be vaccinated in any manner, as a prerequisite to attending school, the school board, under its general power of control, had the right, under the circumstances then existing in Lampasas, to require scholastics to be vaccinated by scarification,where the same was reasonably necessary in order to protect the publichealth.
I have read not all but most of the numerous cases cited in the majority opinion and in brief of appellee. None of them that I have examined go further as to the implied power of a school board to require vaccination of any character than is conceded in the foregoing statement.
In the cases cited, the resolutions of school boards and of city councils requiring vaccination were attacked upon the grounds: (a) In the absence of an express statute, there was no such implied authority; (b) no epidemic existed or was imminent; (c) such requirement was unconstitutional, in that it amounted to a deprivation of liberty or of property rights, or of both without due process of law; (d) that it was an interference with religious freedom.
I make neither of these contentions. I base my dissent upon this legal proposition:
No school board or city or town council, under its general authority to protect the public health, has the implied authority to require anyone to be vaccinated in any manner, unless the same appears to be reasonably necessary to prevent such person from taking the smallpox, and thereby communicate it to others.
In other words, necessity is the source of the authority to require vaccination, and no such authority exists where it is conceded that no such necessity exists.
This proposition is recognized in the cases cited in the majority opinion, in so far as reference is made therein to this legal principle. Thus:
In Zucht v. King, supra, it was said that the doing of a particular thing could not be enforced, "unless it was such a regulation thereon as to promote the general health, prevent the spread of disease, and for the good of society." 225 S.W. page 271. Again: "The test is: Is it areasonable regulation such as can be enforced as a preventative at all times in advance of an epidemic?" Page 272.
In New Braunfels v. Waldschmidt, supra, the ordinance requiring vaccination was *Page 215 upheld on the ground that the police power could be rightfully exercised "to establish all regulations that are reasonably necessary to securethe health."
In Hanzal v. San Antonio, supra, the court said:
"Health regulations being of such vital importance to any community, must, if reasonable and impartial, be submitted to by individuals forthe public good."
In 12 R.C.L. p. 1288, supra, it is said that —
"The power to require the vaccination of school children may be implied from the discretionary power to take all proper measures to safeguard the public health."
In Auten v. School Board, supra, it was said:
"Courts have no right to interfere and control their discretion,unless it is clearly shown that the regulation was unreasonable andunnecessary."
In Jacobson v. Mass, supra, a statute authorizing vaccination was attacked on the ground that the same was in violation of the Constitution of the United States. It was upheld on the ground that vaccination wasnecessary for the protection of the public health of the citizens of Cambridge, where smallpox was epidemic. The court, however, said:
"An acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what wasreasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons."197 U.S. 28, 25 S. Ct. 362, 49 L. Ed. 650, 3 Ann.Cas. 765.
All of the foregoing excerpts are from authorities cited in the majority opinion. (Italics mine.)
In Rumbo v. Winterrowd (Tex. Civ. App.) 228 S.W. 258, 262, the court, in discussing the police power, quoted with approval from Lochner v. New York, 198 U.S. 56, 25 S. Ct. 539, 49 L. Ed. 941, 3 Ann.Cas. 1133, as follows:
"It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no dispute concerning this general proposition. * * * In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty," etc.
The authorities herein cited establish the proposition hereinbefore set out, upon which I base my dissent I know of no case or text-book which announces a contrary doctrine.
The purpose of vaccination is to render the subject immune from the smallpox. Smallpox is a contagious disease. Therefore, for the protection of the public health, school boards may require those in attendance on public schools to be immunized by vaccination, if such person is notalready immune from the disease. Suppose a student had had the smallpox in virulent form within a few months previous, would it be contended that a school board could require such person to be vaccinated, or otherwise be excluded from school? Certainly not. And why not? Because the requirement would not, for the protection of the public health, be necessary. In the instant case, the school board required Margaret Abney to be vaccinated by scarification. This it might have done if the same was necessary to render her immune from smallpox. The court found that she was already immune, and hence no such necessity existed. This is true whether the homeopathic practice of administering vaccinium through the mouth is or is not vaccination.
The school board did not think that the internal method practiced by homeopathic physicians is vaccination. The homeopathic physicians who testified in this case call such treatment vaccination. It appears from the evidence herein that the Texas University and the public schools in Austin recognize such treatment as a compliance with the law requiring vaccination.
The majority opinion herein states that in Lee v. Marsh, 230 Pa. 351,79 A. 564, the Supreme Court of Pennsylvania "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." It is but fair to that court to call attention to the fact that it was construing the meaning of the word "vaccination" as used in a statute of that state, and which, under the method prescribed by the state board of health by virtue of a statute which authorized them so to do, could mean nothing but inoculation by scarification. The construction of the statute by the court in that case was doubtless correct. In that case the Legislature had exercised its police power to require a certain thing to be done in a certain manner. The rules of the state board of health required a certificate in a certain form. The complainant did not furnish such certificate, claiming that the authority given by the act of 1905 to the health department to fix forms of certificates "is a delegation of legislative power." The court said: *Page 216
"The requiring of that form [of certificate] is really what is complained of in this case." 230 Pa. 358, 79 A. 566.
However, if it be conceded that the effect of that decision is to hold that the Legislature may, in the exercise of its inherent police power, have the power to prescribe a certain form of vaccination, to the exclusion of another form equally as effective, that is quite a different question of the right of a school board or municipal council to do so under its implied power to protect the public. Such a body has no authority other than that expressly granted by the Legislature, or implied as reasonably necessary to the proper exercise of such granted power. See authorities cited in Waldschmidt v. New Braunfels (Tex. Civ. App.) 193 S.W. 1078, 1079.
The resolution of the school board divided the scholastics into two classes; one of which had been recently vaccinated by scarification, the other had not. The former class was permitted to attend school; the latter was not. This, in so far as it pertained to Margaret Abney, was an arbitrary and unnecessary classification, and was void. In classifying the scholastics with reference to their privilege to attend school, the sole purpose of such classification being to avoid the spread of smallpox, the only reasonable classification that could have been made was as to those who were immune from smallpox and those who were not, regardless of how they became immune. Margaret Abney being immune should have been placed in the class permitted to attend school.
Regardless of what was in the minds of the members of the school board when they passed the resolution here under discussion, it ought to be construed as not excluding any one from school who was immune from smallpox, on the principle that where an act or ordinance will admit of two constructions, one of which will render it legal and the other illegal, the former should be adopted. If we construe the resolution as not intending to include with those who were not permitted to attend school such as were immune from smallpox, the resolution was legal, and as so construed did not exclude Margaret Abney.
The Supreme Court of the United States, in Jacobson v. Mass, was very careful to place proper limitations on the police power, though it was there construing an act of the Legislature, and not the implied power of a school board. After stating a case in which vaccination "would be cruel and inhuman," the court said:
The first conclusion of law, filed by the trial court and adopted by the majority opinion herein, seems to lay stress on the fact that enforcing vaccination by scarification is the adoption of a "uniform" method. I fail to see what uniformity has to do with the matter, unless it, in some way, renders more effective the effort to protect the public health. On the contrary, the apparent uniformity under the doctrine announced by the Supreme Court of the United States, in Jacobson v. Mass, supra, might require the court to presume exceptions to its apparent scope. The board might have rendered vaccination more uniform by requiring that it be upon the left arm, but the law would imply an exception as to boys who were left handed, or as to females, whose mothers preferred that they be vaccinated upon the leg, to avoid a scar upon the arm.
As to the statement in the third conclusion of law 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," there is nothing in the statement of facts upon which to base such a surmise. I think the people of Lampasas would have generally been content with any method shown to have been efficacious, if the school board had recognized the same.
In my opinion, the law applicable to the facts of this case requires that the judgment of the trial court should be reversed, and that judgment be here rendered in favor of appellant. *Page 217