text:
    CHICAGO, R. I. & G. RY. CO. v. CARROLL.
    (No. 2509.)
    (Supreme Court of Texas.
    April 11, 1917.)
    1. Carriers <&wkey;267 — Carriers op Passengers — Contracts op Carriage — Undisclosed Rules.
    Where defendant carrier authorized another carrier to sell tickets over its road, and the other carrier sold a ticket at a reduced rate in accordance with published tariffs, the undisclosed rule of the defendant carrier that a ticket sold at reduced rates would not be honored on a certain extra fare train did not render it the less liable under the contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 994^996.]
    2. Carriers <&wkey;362 — Carriers op Passengers — Contracts op Carriage — Undisclosed Rules.
    Where defendant carrier authorized sale of tickets at published tariffs by a connecting carrier, which sold a valid ticket at reduced rate, in accordance with published tariffs, to plaintiff, whose wife and children boarded the train at A., the next stop being C., but a change in carriers operating the train intervened at B., and the conductor, before reaching B., told the wife that she must leave the train at C., because the ticket was not good on that train, in consequence of which she did leave the train at 0., the defendant company was liable for the ejection, though it did not take place until the wife was on another line.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. § 1411.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by T. W. Carroll against the Ft. Worth & Denver City Kailway Company and the Chicago, Rock Island & Gulf Bailway Company. From a judgment (151 S. W. 1116), affirming judgment for plaintiff, defendant Chicago, Rock Island & Gulf Railway Company brings error.
    Affirmed.
    N. H. Lassiter and Robt. Harrison, both of Ft. Worth, and Gustavus & Jackson, of Amarillo, for plaintiff in error. A. T. Cole, of Cleburne, and D. W. Odell, of Ft. Worth, for defendant in error.
   PHILLIPS, C. J.

The suit was by T. W. Carroll against the Fort Worth & Denver City Railway Company and the Chicago, Rock Island & Gulf Railway Company for damages for the refusal of the conductor of the latter company to honor a ticket held by Carroll’s wife as a passenger upon its train, and causing her, with three small children, to leave the train. The verdict was against the Rock Island Gulf Company, an instructed verdict being returned for the Denver Company.

The ticket was purchased at Clarendon on the Denver Company line, where the plaintiff resided, for his wife’s carriage from Clarendon to San Francisco, California, his purpose being that his wife and children should at Dalhart, the connecting point of the Denver Company line and the Rock Island Gulf Company line, embark upon a through fast train operated by the latter company and other companies called the Rock Island Lines, known as the Golden State Limited. In selling the ticket the Denver Company acted for Itself and as the agent for the Rock Island Gulf Company. The plaintiff made it known to the Denver Company’s agent in purchasing the ticket that he wanted only a ticket which would be good for passage on the Golden State Limited train. He was assured by the agent that the ticket purchased was of that character. The agent sold the ticket as such a ticket, intending and expecting it to be honored for passage on the train referred to, and having no knowledge that the Rock Island Gulf Company would not so honor it. The ticket contained on its face nothing to the contrary. It was a first-class round trip ticket, sold at a reduced rate, but according to a tariff to which the Rock Island Gulf Company was a party.

The conductor refused to recognize the ticket as good upon the Golden State Limited train because of a rule of the Rock Island Gulf Company, or the Rock Island Lines, which declared a “special” or “special rate” ticket not to be good upon that train. The Denver Company had not been notified of this rule, however, and in selling the ticket had no knowledge that it would not be honored upon that train.

Mrs. Carroll, with her children, one an infant, boarded the Golden State Limited train at Dalhart in the night. The conductor of the Rock Island Gulf Company on inspecting her ticket told her that it was not good upon that train. According to Mrs. Carroll, he stated that she and her children would have to get off the train at Tucumcari, which was the next scheduled stop of the train. She further testified that she had ample funds with her; that she begged the conductor to let her stay on the train; and that she offered to pay him not only any required difference in money, but any amount of money, to be permitted to remain on the train, but he refused to accept it, saying the matter could not be adjusted in that way. The result was that at Tucumcari, at about daybreak, Mrs. Carroll, with her children, left the train.

The train was operated between Texhoma and Bravo, a distance of 92 miles, by the Rock Island Gulf Company. Leaving Bravo it was operated by another company of the Rock Island Lines — the Chicago, Rock Island & El Baso. Dalhart, where Mrs. Carroll boarded the train, is between Texhoma and Bravo. Tucumcari, where Mrs. Carroll left the train, was on the Chicago, Rock Island & El Paso line. The transaction between Mrs. Carroll and the conductor in which according to her testimony he told her she must leave the train at Tucumcari, occurred, however, before the train reached Bravo, while, in other words, it was operated by the Rock Island Gulf Company. In what .then occurred the conductor was acting for the Rock Island Gulf Company. • '

The conductor testified that he honored the ticket to Tucumcari. A special charge was requested by the Rock Island Gulf Company to the effect that it was not liable for the acts and conduct Of the conductor except while upon its line, and if he honored the ticket while upon its line, a verdict for it should be returned. The writ of error was granted because of the refusal of the charge.

The case presents a clear contract on the part of the Rock Island Gulf Company through its delegated agent, the Denver Company, for the carriage of Mrs. Carroll under the ticket on the Golden State Limited train. Its undisclosed rule that a ticket of the kind sold was not good upon that train did not render the contract any the less binding upon it.

It is true Mrs. Carroll was not required to leave the train -before it reached Tucumoari. She was permitted to ride that far under the ticket. But after she boarded the train there was no stop short of that place. It is evident that she left the train because of the conversation with the conductor. The conversation occurred while the conductor was acting for the Rock Island Gulf Company. It was responsible for his action at that time and its natural consequences. According to Mrs. Carroll, he then told her she must leave the train at Tueumcari. Under the conductor’s own version of his statement, Mrs. Carroll had no alternative but to obtain at Tueumcari another ticket or else there leave the train. She was under no obligation to do either. Under the contract made in the purchase of the ticket she was entitled to passage on the train until she reached her destination. It was wrongful to require her to leave it at any intervening point, notwithstanding the ticket was honored to such point. It was the conductor’s action as agent of the Rock Island Gulf Company that caused her to leave the train and, in its effect, compelled her to leave it. It was not relieved by his recognizing her right to continue on the train until it reached Tucum-cari. She could not well leave it while in motion, and this amounted only to letting her remain on it until it stopped. It was no answer to the conductor’s action which in its consequence required her to leave it when it did stop. To hold otherwise is to ignore his wrong in requiring her to leave it at all. The special charge was properly refused.

The judgments of the District Court and Court of Civil Appeals are affirmed.

        <&zai'or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    MICHAEL v. CRAWFORD et al.
    (No. 2493.)
    (Supreme Court of Texas.
    April 11, 1917.)
    1. Moktgages <&wkey;333 — Trust Deeds — Power of Sale.
    The maker of a trust deed containing power of sale may impose on its exercise any limitations he desires, and they must be strictly followed, and the power admits of no substitution and of no equivalent.
    [Ed. Note. — For other eases, see Mortgages, Cent. Dig. § 1013.].
    2. Mortgages &wkey;>342 — Trust Deeds — Power oe Sale.
    The power to appoint a substitute trustee for the execution of a power of sale in a trust deed can be exerted only through express authority of the instrument.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1041.]
    3. Mortgages <&wkey;342 — Trust Deeds — Power of Sale.
    A trust deed giving the payee or holder of the note secured authority to make a substitution of trustees without other formality than an appointment in writing requires the appointment to be made by the holder of the note, and not his agent.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1041.]
    4. Powers i&wkey;28 — Assignment.
    A power whose exercise involves discretion is not delegable.
    [Ed. Note. — For other cases, see Powers, Cent. Dig. § 79.]
    5. Mortgages &wkey;>342 — Trust Deeds — Power of Sale.
    Where a trust deed granted to the holder of the note secured power to sell the property, with power to substitute a trustee in case of death or failure of one trustee to act, the mere fact that the note might come into the hands of a holder unknown to the grantor would not imply authority to appoint a substitute trustee through an agent of the holder.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1041.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by Charles L. Michael against Geo. W. Crawford and another. Judgment of the Court of Civil Appeals (150 S. W. 465) affirming a judgment for defendants, and plaintiff brings error.
    Reversed and remanded.
    Guynes & Colgin and Chas. L. Michael, all of Houston, for plaintiff in error. W. J. Howard, of Houston, for defendants in error.
   PHILLIPS, C. J.

The case involves the validity of an appointment of a substitute trustee for the execution of the power of sale conferred in a deed of trust upon real estate and the sale thereof under the power by'such trustee.

The deed of trust was given by C. W. Hahl to secure a purchase money note for land in favor of the administrator of the estate of Susan Spofford. It provided that in case of the death of the trustees named in the instrument or their refusal or failure to act, a successor might be appointed by the beneficiary, or the holder of the note, without other formality than an appointment and designation in writing. J. A. Rose became the holder of the note. Of the two trustees named in the deed of trust, one died, and the other declined to execute the power of sale after default in the payment of the note. A substitute trustee was then appointed by J. T. Glaze, who acted in the matter as attorney in fact for Rose under a general power of attorney granting him authority to buy and sell real estate and vendors’ lien notes, execute and release liens and to make leases, etc. The land was advertised and sold by the substitute trustee so appointed. Some months after the sale, Rose attempted to ratify Glaze’s appointment of the trustee by a recorded instrument in writing in which he recited that the appointment was- made with his consent and approval.

The power of sale in a deed of trust is an important power. It is a method provided for the transferring of one man’s property to another. The maker of the instrument has the right to impose upon its exercise such conditions as he deems necessary, and such limitations as he does impose must be strictly followed. It is a power which admits of no substitution and of no equivalent. Crosby v. Huston, 1 Tex. 203; Boone v. Miller, 86 Tex. 74, 23 S. W. 574; Perry on Trusts (3d Ed.) § 602p.

It was declared by Lord Mansfield;

“That the intent of the parties who gave the power ought to govern every construction. He to whom it is given has a right to enjoy the full exercise of it. They over whose estate it is given have a right to say it shall not be exceeded. The conditions shall not be evaded; it shall be strictly pursued in form. and substance ; and all acts done under a special authority not agreeable thereto nor warranted thereby must be void.” 1 Burrow’s Reports, 120.

In Perry on Trusts, supra, it is said:

“It must be constantly borne in mind that the power of sale given in the deed or mortgage must be strictly followed in all its details. The power of transferring the property of one man to another must be followed strictly, literally, and precisely. Such a power admits of no substitution and of no equivalent, even in unimportant detail. If the power' contains the details, the parties have made them important; and no change can be made even if the mortgagor would be benefited thereby, nor if a statute provides a different manner. If the power is not executed as it is given in all particulars, it is not executed at all, and the mortgagor still has his equity of redemption.”

The power to appoint a substitute trustee for the execution of the power of sale is not inherent'in the cestui que trust. It is only through the express authority of the instrument that the power can be exerted. Jones on Mortgages, § 1774; Clark v. Wilson, 53 Miss. 119. It can be exercised only by those persons to whom it is expressly given, declares a recognized authority upon the subject. Hill on Trustees, p. 183*.

The question was ruled upon by the Court of Civil Appeals for the Second District in Wilder v. Moren, 40 Tex. Civ. App. 393, 89 S. W. 1087. There, the deed of trust provided, as does this one, that the payee or holder of the note should have the power of appointment. An attorney in fact for a subsequent holder made the appointment. It was declared .to be unauthorized and void. It is urged that the decision is to be distinguished in that the deed of trust there in terms required that the appointment be evidenced by an instrument “signed and acknowledged by the payee or the holder of the note,” showing, it is said, that no one but the payee or a'holder was authorized to make the appointment. We regard the present deed of trust as no less plain or emphatic. It gives the payee or holder of the note authority to make the substitution “without other formality than an appointment or designation in writing.” This means that the written designation was to be executed by the persons to whom the power of the appointment was given. It was expressly given only to the payee of the note or a holder of it.

The Supreme Court of Mississippi has also determined the question. Watson v. Perkins, 88 Miss. 64, 40 South. 643. It was held that the power of appointing a substitute trustee in such an instrument is personal and cannot be delegated to an agent or attorney in fact.

In Crosby v. Huston, 1 Tex. 203, the beneficiaries of the deed of trust were Lacoste, Herman and Briggs, who composed a partnership. It appears from the decision that the instrument provided that the power of appointing a substitute trustee should be exercised by the three partners jointly. A substitute appointment was made by two distinct instruments, one signed by Lacoste for himself and as attorney of Herman and Briggs, and the other being later executed by Herman and Briggs but not by Lacoste. It was held in an opinion by Chief Justice Hemphill that while the two instruments taken together constituted a sufficient execution of the power of appointment, the act of La-coste alone, where he attempted to make the appointment for himself and as agent for the other two beneficiaries, conferred no authority.

It is argued that the maker of the deed of trust could not have intended to repose any confidence or trust in an unknown holder of the note, and therefore no reason exists for denying to such a holder the delegation of the power. True, the maker could not foresee who would come to be a holder of the note, and it cannot be strictly said that the power was granted on account of personal conndenee in the donee. But sufficient reasons can be advanced for the provision of the instrument that only a holder of the note should exert the power. He has an interest in the security and in the due exercise of the power of sale not possessed by an agent. The selection of a substitute trustee always involves choice and discretion. It requires good faith, and the designation of only such a person as will conduct the sale with entire fairness. A power whose exercise involves discretion is not delegable. The trustee, it is to be remembered, is the agent both of the maker of the deed of trust and the cestui que trust. Jones on Mortgages, § 1771. Because of these considerations the maker might well be willing to allow a holder of the note to make the appointment in the event the original trustee failed to act, but for the same reasons be wholly unwilling that a mere agent should have the authority. It is to be supposed that the maker, in granting the power of appointment, has determined who shall exercise it. It is his right to restrict its exercise to certain persons or to a certain class of persons. It is a strict power, and the exact conditions imposed in the granting of it should therefore be respected.

The judgments of the Court of Civil Appeals and District Court are reversed because of the invalidity of the appointment of the substitute trustee and the sale by him of the land, and the cause is remanded to the District Court for further trial.
      <3=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    TEXAS GLASS & PAINT CO. et al. v. CROWDUS et al.
    (No. 2472.)
    (Supreme Court of Texas.
    April 11, 1917.)
    1. Mechanics’ Liens <&wkey;118 — Notice — Necessity.
    Where materialmen failed to serve the owner of a building for which the material was furnished with a written notice of their claims against the contractor as required by statute, they did not acquire a lien on the property.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 161.]
    2. Mechanics’ Liens <@=>315 — Contractob’s
    Bond — Liability oe Surety.
    Where provision of a contractor’s bond was that the surety would duly and promptly pay and discharge all indebtedness incurred by the contractor and complete the same free of all mechanics’ liens and perform all the covenants, etc., in the contract, and the bond further provided that it is made for the use and benefit of all persons “who may become entitled to liens under the said contract,” etc., the surety was obligated to pay the claims of materialmen who were entitled to fix a lien on the property, but failed to do so because of default in giving the statutory notice, since by such provisions the bond was substituted for the lien, leaving the property unincumbered.
    [Ed. Note. — For other eases, see Mechanics’ Liens, Cent. Dig. § 658.]
    Error to Court of Civil Appeals, Sixth Supreme Judicial District.
    Suit by the Southwestern Iron Company against J. C. Crowdus and others, in which the Texas Glass & Paint Company intervened. From a judgment of the circuit court, defendant the Adams-Simpson Lumber Company and the intervener and the plaintiff appealed, and from a judgment of the Court of Civil Appeals (147 S. W. 620) reforming and affirming the judgment of the district court, the intervener and the plaintiff separately bring error.
    Judgment of the Court of Civil Appeals reversed and rendered in part and affirmed in part.
    Dedmon & Potter and Bryan & Spoonts, all of Ft. Worth, and Townes & Vinson and W. O. Huggins, all of Houston, for plaintiffs in error. F, H. Haddix, of Los Angeles, Cal., and W. R. Booth and C. B. Ambrose, both of Ft. Worth, for defendant in error Adams-Simpson Lumber Co.
   YANTIS, J.

On December 10, 1909, J. C. Crowdus contracted in writing with J. D. Turner, a contractor, to build for him a two-story brick building in the city of Ft. Worth, Tarrant county, Tex., for the sum of $8,905. .Turner was to furnish all material. He gave a bond binding himself and his surety, the Adams-Simpson Lumber Company, unto J. C. Crowdus, as well as to all persons who might become entitled to liens under the builder’s contract, which was executed at the same time between said Turner and said Crowdus in the sum of $4,452.50, to be paid to said J. C. Crowdus and to said im'ties who may be entitled to liens, their executors, administrators, or assigns. The bond which Turner gave was as follows :

“Know all men by these presents: That we, J. D. Turner and Adams-Simpson Lumber Company, of the city of Ft. Worth, county of Tar-rant, and state of Texas, are held and firmly bound unto J. C. Crowdus, of said county and state, as well as to all persons who may become entitled to liens under the contract hereinbe-fore mentioned, in the sum of $4,452.50, lawful money of the United States of America, to be paid to the said J. 0. Crowdus, and to said parties who may be entitled to liens, their executors and administrators, or assigns, for which payment, well and truly to be made, we bind ourselves, one and each of our heirs, executors, and administrators, jointly and severally firmly by these presents.
“Sealed with our seals. Dated this 10th day of December, 1909.
“The condition of this obligation is such that, if the above-bounden J. D. Turner, his executors, administrators, or assigns, shall in all things stand to and abide by, and well and truly keep and perform, ’the covenants, conditions, and agreements in the above-mentioned contract entered into by and between the said J. D. Turner and the said J. C. Crowdus, dated on the 10th of December, 1909, for the construction of work or works on the lot mentioned in the foregoing contract, and shall duly and promptly pay and discharge all indebtedness that may be incurred by the said J. D. Turner in carrying out the said contract, and complete the same free of all mechanics’ liens, and shall truly keep and perform the covenants and agreements in said contract and in the within instrument contained, on his part to be kept and performed, at the time and in the manner and form therein specified, as well as all costs, including attorney’s fees, in enforcing the payment and collection of any and all indebtedness incurred by the said J. D. Turner in carrying out the said contract, then the above obligation shall be void, else to remain in full force and effect.
“This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract, according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper person.”

The Southwestern Iron Company, one of the plaintiffs in error, sold to Turner a quantity of material aggregating in value the sum of $536. This material was delivered to Turner about the 1st of February, 1910, construction of the building having been begun on January 4,1910. The sale of this material was evidenced by a written contract which mentioned no date of payment, but by parol evidence it was shown to have been agreed that payment was to be made within 30 and 60 days after delivery. The Southwestern Iron Company filed with the county clerk of Tarrant county, with the view of fixing a lien upon the building, its written contract, with an itemized statement of the material sold to Turner. While the building was being constructed, and prior to March, 1910, the Adams-Simpson Lumber Company also furnished Turner material to be used in the construction of the building. On March 12,1910, Turner made a written assignment to the Adams-Simpson Lumber Company of all that might be or become due to him- from Crowd-us under the contract for the construction of the building. On that day Turner owed the Adams-Simpson Lumber Company a sum exceeding $1,100. The said assignment was presented to and accepted by the agent of Crowdus. On February 2, 1910, Turner purchased from the Texas Glass & Paint Company, one of the plaintiffs in error, for use in the construction of the building, material aggregating in value $308.76, to be paid for on delivery. The Texas Glass. & Paint Company did not attempt to fix any lien by filing its account with the county clerk. When Turner completed the building there was due him by Crowdus $1,086.15, but the claims of these three creditors were unpaid.

The Southwestern Iron Company, one of the plaintiffs in error, instituted this suit in the district court of Tarrant county, Tex., against J. D. Turner, the Adams-Simpson Lumber Company, and J. C. Crowdus, in July, 1910. By amended petition it sought a judgment for the full amount of its debt and $100 as attorney’s fees, the foreclosure of its lion against the building and lot upon which it was situated, and a personal judgment against the Adams-Simpson Lumber Company. Later the Texas Glass & Paint Company, one of the plaintiffs in error, intervened a.nd sued upon its said claim for the value of the material which it had furnished Turner, and prayed for similar relief to the extent of its debt. The Adams-Simpson Lumber Company answered by exceptions and denials, and in addition filed a cross-bill containing two counts. In the first count it set up the assignment from Turner by which the balance due on the contract was transferred to it and asked judgment against Crowdus for that sum. In the second count it set up the contract by which it furnished material in the value of $1,841.25 used in the construction of the building, and alleged compliance with the statute in fixing its lien. It also set up an account which had been assigned to it, amounting to $294.77, for material furnished by other parties, and this, too, it alleged, was secured by lien on the building. It asked for judgment against Turner, and for a foreclosure of its lien against the building and lot.

During the progress of the trial Crowdus was permitted, by agreement among the parties, to pay into court, and be discharged from any further liability, the balance due by him to Turner on the contract price of $1,0S6.15. The ease was tried before the court without a jury. The trial court rendered judgment dismissing C. D. Simpson and T. J. Adams, two of the defendants who had not been cited to appear, giving judgment in favor of the Texas Glass & Paint Company against the defendant J. D. Turner in the sum of $308.73, with 6 per cent, interest from the date of the judgment, and denied a lien against the property of said J. C. Crowdus, or a foreclosure thereof. It rendered judgment in favor of the Southwestern Iron Corn-pany against the defendant J. D. Turner in the sum of $536, with 6 per cent, interest from March 28, 1910, and the further sum of $50 attorney’s fees, and further ordered that it recover one-half of the amount of judgment rendered in its favor against Turner, to wit, the sum of $268 with 6 per cent, interest from March 28,1910, and $50 attorney’s fees, out of said $1,086.15 which had been deposited in the registry of the court by Crowdus as the amount still owing by him to Turner, and directed the clerk of the court to pay said two sums out of said fund, and also judgment in its favor against the Adams-Simpson Lumber Company for the sum of $268, with 6 per cent, interest from March 28, 1910, and $50 attorney’s fees. It was further ordered by the judgment of the court that the Adams-Simpson Lumber Company have and recover the balance of said sum of $1,086.15, to wit, $757.03, and directed the clerk of the court to pay the latter amount to the Adams-Simpson Lumber Company. The judgment of the court further ordered that all liens claimed by the parties to the suit against the property of the defendant Crowdus be cleared and removed, denying to all the parties a foreclosure or any judgment of any kind against Crowdus.

Appeal was taken from this judgment by the Adams-Simpson Lumber Company, the Texas Glass & Paint Company, and the Southwestern Iron Company to the honorable Court of Civil Appeals for the Sixth District. In that court the judgment of the district court was affirmed as to the Texas Glass & Paint Company, and reformed in other respects so that the Adams-Simpson Lumber Company should have judgment for the full amount of the balance which Crowdus owed to Turner, $1,-086.15, which had been paid into court. It gave the Southwestern Iron Company its judgment against Turner for the full amount of its debt, but denied to it any judgment on the bond against the Adams-Simpson Lumber Company, and any right to participate in the distribution of the fund which had been paid into court by Crowdus. (Civ. App.) 147 S. W. 620.

Both the Southwestern Iron Company and the Texas Glass & Paint Company came here on petitions separately filed for writ of error. The writ was granted in each instance. The question therefore presented to us is as to the correctness of the judgment of the trial court and of the Court of Civil Appeals in relation to their claims.

The undisputed evidence shows that neither the Southwestern Iron Company, one of the plaintiffs in error, nor the Texas Glass & Paint Company served Crowdus with any written notice of their claims against Turner. This was an essential thing for them to do as fixed by the statute in order for them to secure a lien upon the building and lot. Having defaulted in the service of said written -notice of their claims, they did not acquire a lien on said property. Berry v. McAdams, 93 Tex. 435, 55 S. W. 1112; Johnson v. Amarillo Improvement Company, 88 Tex. 511, 31 S. W. 503; Horan v. Frank, 51 Tex. 404; Fullenwider v. Longmoor, 73 Tex. 480, 11 S. W. 500.

We think, however, that the Southwestern Iron Company and the Texas Glass & Paint Company are each entitled to a judgment in the amount of their respective claims sued upon against J. D. Turner, and against the Adams-Simpson Lumber Company as surety on his bond. As will be seen, the bond is made payable to all parties who may be entitled to liens, and provides:

“ * * * And shall duly and promptly pay and discharge all indebtedness that may be incurred by the said J. D. Turner in carrying out the said contract, and complete the same free of all mechanics’ liens and shall truly keep and perform the covenants and agreements in said contract and in the within instrument contained, on his part to be kept and performed, at the time and in the manner and form therein specified. * * ”

This provision of the bond, when construed in connection with that provision of the bond contained in the last paragraph thereof, to the effect that the bond is made for the use and benefit of all persons who “may become entitled to liens under the said contract according to. the provisions of law in such cases made and provided and may be sued upon by them as if executed to them in proper person” evidences the intention of the makers of the bond to secure the payment and the discharge of all indebtedness incurred by Turner in carrying out the building contract, whether or not the parties in whose favor the debts were due did the things necessary to fix their liens upon the property. Under this bond the surety became liable for the debts of the plaintiffs in error which were incurred by Turner in the construction of the building. The facts show that the plaintiffs in error each were entitled to fix a lien upon the property. The bond plainly provides to secure the discharge of such debts, regardless of whether the liens were in fact fixed. The bond was thus substituted for the liens, leaving the property of Crowd-us unincumbered by such liens. The identical same question was passed upon by this court in the case of Bullard et al. v. Norton et al., 182 S. W. 668. A discussion of the question will be found in that case, for which reason an extended discussion seems unnecessary here. This case is controlled by our holding in that case.

The judgment of the Court of Civil Appeals should be reversed and rendered in favor of the Southwestern Iron Company and of the Texas Glass & Paint Company against the Adams-Simpson Lumber Company, to the extent that they each have judgment against the Adams-Simpson Lumber Company, as surety on the bond of J. D. Turner for then-debts in the same sums for which they recovered against said Turner. In other respects the judgment of the Court of Civil Appeals is in all things affirmed.

Reversed and rendered in part, and affirmed in part, as indicated.
      ©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    JOHNSON et al. v. KIRBY.
    (No. 5757.)
    (Court of Civil Appeals of Texas.
    March 14, 1917.
    On Motion for Rehearing, April 18, 1917.)
    1. Wills &wkey;>693(3) — Estates Cheated — CONSTRUCTION — Power to Convex.
    Will granting wife all property for her sole and exclusive use and benefit, with full power to sell at any time, and in such manner and upon such terms as she might elect, providing that, if on her death any property remained undispos-ed of, it should-go to a charitable trust, granted the wife the full estate, and she could transfer the property and notes to another, and even consume the entire estate.
    [Ed. Note. — Por other cases, see Wills, Cent. Dig. § 1655.]
    On Motion for Rehearing.
    2. Powers i&wkey;34(l) — Execution — Estates Conveyed — Construction.
    Where the grantor took under her husband’s will, authorizing her to convey a fee-simple title, her deed, conveying whatever interest she had, conveyed the fee, including both her own and her husband’s interest in community property, although the deed did not refer to the will.
    [Ed. Note. — For other casos, see Powers, Cent. Dig. § 121.]
    Appeal from District Court, Hays County; Prank S. Roberts, Judge.
    Suit by G. G. Johnson and others against Miss Cannie Kirby. Decree for defendant, and plaintiffs appeal. Affirmed. On motion for rehearing.
    Motion overruled.
    O. T. Brown (now dead) and G. W. Barcus, of Waco (on motion for rehearing), for appellants. E. M. Cape and R. E. McKie, both of San Marcos, for appellee.
   JENKINS, J.

Appellee objects to the consideration of appellant’s brief, for the reason that the same is not in accordance with the rules. Should we strictly construe the rules, perhaps this objection would be sustained, but we prefer to decide the case upon its merits.

C. W. Gregory, of Hays county, Tex., made his last will and testament, from which we quote as follows:

“2. It is my will and desire that my beloved wife, P. E. Gregory, shall have all of my property, real, personal and mixed, wherever the same may be situated, both my separate property, if any, and all my right, title and interest in and to such community property as I may own in common with the said P. E. Gregory, to have and to hold the same and every part thereof to and for her sole and exclusive use and benefit, with full power to sell and convey, and dispose of the same, or any part thereof, as she may desire, and at any time, and in such manner, and upon such terms as she may elect, and with full power in the premises to convey the absolute fee simple title thereto: Provided, however, that if, at the date of her death any of the specific property hereby bequeathed and devised to her shall remain on hand_, unsold and un-disposed of, then, at her death, it is my will and desire that such property so remaining on hand shall be disposed of in accordance with the provisions contained in the fourth paragraph of this instrument.
“3. It is my will and desire that she, the said F. E. Gregory, shall not only have the use of the specific property hereby bequeathed and devised for her own exclusive benefit, using, enjoying, appropriating and, if she shall desire, consuming the same, but it is also my will and desire that she shall in like manner .use, enjoy, appropriate, and, if she shall so desire, consume for her own benefit, the proceeds arising from so much of said property as she shall, under the power hereby conferred, sell and convey, or otherwise dispose of; but if at her death, any of the proceeds arising from any such sale or oth-' er disposal of such property shall remain on hand, it is my will and desire that such remaining proceeds, at her death, be disposed of in accordance with the provisions contained in the fourth paragraph of this instrument.
“4. By the term ‘specific property,’ as used in this instrument, I mean the whole or any part of the property hereby devised and bequeathed unto the said F. E. Gregory, and by the term ‘proceeds,’ as used in this instrument, is meant the money or other thing, if any, received by her as the price of, or in exchange for, any of such property sold or disposed of by her, whether the thing so received be realty or personalty; and it is my will and desire that so much of the property hereby bequeathed and devised to her as may remain on hand at her death undisposed of, and so much of the proceeds of such sales as shall then remain on hand, undisposed of, and so much of the thing or things received in exchange for any of the property hereby bequeathed and devised as shall then remain on hand un-disposed of, shall then go to trustees appointed by the Annual Conference called the West Texas Conference of the Methodist Episcopal Church, South, for the use and benefit of the Orphanage situated in the city of Waco, in the State of Texas, and which Orphanage is the same institution now superintended by the Rev. W. H. Vaughan; and it is my will and desire that the equitable title to such remaining and undisposed property be considered as hereby vested in such trustees for the use and benefit of said Orphanage; and I also request of the said F. E. Gregory that she take the necessary steps to clothe such trustees with the legal title thereto for such uses, but should she fail to do so, it is my will and desire that the equitable title thereto be considered as vested in such trustees for the uses aforesaid, under this will, immediately upon her death.
“5. I request the said F. E. Gregory, during her lifetime, to appropriate so much of the property or its proceeds hereby devised to her as in her discretion she shall deem sufficient and advisable for the object and purpose of providing for the support and maintenance of her sister, Cancadia Kirby.
“6. The sixth and last paragraph of the will appoints F. B. Gregory sole executrix of this will and provides that she shall be exempt from giving any bond as such executrix and exempted from the jurisdiction of the probate court, but shall be wholly an independent executrix.”

Gregory died in 1901, and his will was duly probated. The estate of- said Gregory at the time of his death consisted of a tract of land in the country, and the homestead in the town of San Marcos, all of which was community property of himself and wife. His wife, F. E. Gregory, sold the land in the country for the sum of $9,186.75 in the year 1906. She loaned the proceeds of this sale; taking notes, first in h.er own name, and subsequently in the name of appellee, delivering said notes to appellee; her reason therefor being that she intended said notes as a gift to appellee. On August 30, 1915, F. E. Gregory made, executed, and delivered to appellee a deed, conveying to her the town property, in consideration of $1, love and affection, and other considerations, not named, reserving the right to herself to occupy said property, and to receive the rents and revenues thereof during her lifetime. On September 9, 1915, F. E. Gregory made, executed, and delivered to appellee another deed, conveying to her all of her property, real, personal, and mixed, save and except only her own wearing apparel, the consideration expressed in said deed being love and affection, $1, and other considerations not named.

Appellee is the sister of F. E. Gregory, and is the person referred to in the fifth clause of the will above set out. She had resided with O. W. Gregory and^ wife since she was 6 years old to the death of said G. W. Gregory, and continued to reside with F. E. Gregory during her lifetime. Appellee was partially paralyzed. She had aided Gregory and wife in their household duties, and continued to render assistance to Mrs. Gregory during her lifetime, they being inseparable companions. Appellants herein are the trustees of the Orphanage mentioned in said will, and brought this suit to recover said town lots and the proceeds of the sale of the country land received by appellee, amounting to $6,500, the remainder of the proceeds of said land háving been spent by Mrs. Gregory during her lifetime. ' .

The issue here involved is as to whether or not Mrs. Gregory, under the provisions of said will, had the power to transfer said property and notes to appellee. We think the will conferred such power upon Mrs. Gregory. Hanna v. Ladewig, 73 Tex. 37, 11 S. W. 133; Feegles v. Slaughter, 182 S. W. 10; Young v. Campbell, 175 S. W. 1100; King v. Bock, 80 Tex. 156,15 S. W. 801; Schuyler on Wills (5th Ed.) vol. 1, §§ 558, 565; 40 Cyc. 1610. Appellants cite McMurry v. Stanley, 69 Tex. 229, 6 S. W. 412, Flippen v. Robinson, 144 S. W. 707, and Littler v. Dielmann, 48 Tex. Civ. App. 392, 106 S. W. 1137, as holding the contrary doctrine. These cases, except the latter, are distinguishable from the instant case, in that the property was not conveyed by the beneficiary during his lifetime. In McMurry v. Stanley, supra, the will in question contained the following clauses:

“Third. It is my will and desire that my beloved husband shall have all my property, both real, personal and mixed, whatever the interest may be, whether separate or community interest. And that he have. full power and control over same to use and dispose of as he may desire.
“Fourth. It is my will and desire that at his death, should he have any of said property still remaining in his possession not disposed of or used by him, that the same shall be given by him to my nieces, Jessie McMurray and Flora Brown, daughters of Vina and Taylor Brown.”

The court said:

“We are of the opinion that N. G. Bagley (the beneficiary) took under the will an estate in tee in the entire property, but that this was in trust for the beneficiaries named in the fourth paragraph of the will, except as their right was limited by the right given to him to use and dispose of the property during his lifetime, which was given by the express terms of the will.”

The property in question was not disposed of by Bagley during his lifetime, but he undertook to dispose of the same by will. Had the facts in that case shown that Bagley had disposed of the property during his lifetime, we think the court would have upheld the conveyance.

The same judge (Chief Justice Stayton) who wrote the opinion in McMurry v. Stanley, supra, also wrote the opinion in Hanna v. Ladewig, supra. In the latter case it was shown that Walter Hinkley executed a will, devising all of his property to his wife, with power—

“absolutely to dispose of my said property, real and personal, aforesaid, except as only hereinafter excepted, and all the right, title, and interest in possession, reversion, or remainder which I have or at the time of my death may have of, in, and to any personal or real property, lands, tenements, hereditaments, negroes, or annuities or rents charged upon or arising out of them, and sell and convey or will and bequeath the same according to her pleasure.”

His wife deeded a tract of land owned by said Hinkley at the time of his death to her son Z. N. Hanna, who some years later re-deeded it to his mother, and suit was brought by other children of Mrs. Hinkley to recover this land after her death. We quote from that opinion ás follows (73. Tex. 42, 11 S. W. 135):

“The power conferred on Mrs. Hinkley by the will of her husband was as broad as could well be conceived, and no limitation was placed on its exercise, other than such as her own wish and pleasure might dictate. The will declared that she should have power to ‘absolutely dispose’ of the property, not for some specific purpose pointed out by the testator, but ‘according to her pleasure.’ ”

With the exception of the power to dispose of the property by will, the power conferred upon Mrs. Gregory was as broad as that conferred upon Mrs. Hinkley; and the question of disposing of the property by will is not at issue in this case, as it was not in that case. In Hanna v. Ladewig, supra, the language of the will was to dispose of the property “according to her pleasure.” In the instant case the language is:

“With full power to sell and convey, and dispose of the same, or any part thereof, as she may desire, and at any time, and in such manner, and upon such terms as she may elect, and with full power in the premises to convey the absolute fee simple title thereto.”

It was sought to prove that the deed made by Mrs. Hanna to her son in the case above cited was a voluntary conveyance, and without consideration. The court held this fact was immaterial.

The ground of the decision in Littler v. Dielmann, supra, was that the pretended deed from Mrs. Robinson to Littler was not intended to convey the title of the land to Littler, but was a mere pretense to get title in herself by receiving a deed back from Littler.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

Appellants insist that, inasmuch as Mrs. F. E. Gregory owned in her community right a one-half undivided interest in the property mentioned in her conveyances to appellee, only this interest was conveyed by said instruments.

They purport to convey the entire property, and consequently do convey whatever interest Mrs. Gregory had the right to convey. Inasmuch as the will authorized her to convey a fee-simple title to the community interest of G. W. Gregory, deceased, her deed operated as a conveyance of such interest, as well as her community interest. It was not necessary for her to refer in her deed to the will. It is a link in appellee's chain of title as fully as if it had been expressly referred to in the deed to her.

The motion for rehearing is overruled.

Overruled.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WALDSCHMIT et al. v. CITY OF NEW BRAUNFELS et al.
    (No. 5829.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 7, 1917.
    Rehearing Denied March 14, 1917.)
    1. Health <&wkey;20 — Police Power.
    The state, through its Legislature, may, in the exercise of its police power, enact all reasonable legislation for the promotion of public welfare, including the preservation of health.
    LEd. Note. — For other eases, see Health, Cent. Dig. § 24.]
    2. Constitutional Law &wkey;»70(3) — Separation of Powers — Province of Courts.
    The reasonableness of statutes enacted under the police power is primarily a question for the Legislature, and will be reviewed by the courts only in dear cases of abuse.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. ,§ 131.]
    3. Municipal Corporations &wkey;>57 — Powers of — Ordinance.
    Municipal corporations are creatures of statute, and have no power, excepting those expressly or impliedly granted by the statute creating them.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 144, 148.]
    4. Municipal Corporations <S&wkey;58 — Powers of — Construction.
    Notwithstanding Final Title, § 3, of Rev. St. 1911, declares that the powers of municipalities are to be liberally construed with the view to effect their objects, the power of a municipality to enact an ordinance is to be strictly construed, especially where its object may work a depxivation of the citizens of life, liberty, property, privileges, or immunities.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 145-147.]
    5. Municipal Corporations <&wkey;58 — Powers of — Presumptions.
    In determining whether a power has been granted to a municipality, the presumption is against the grant, but in determining whether it is properly exercising the power the presumption is in favor of propriety, and to enjoin such exercise it must appear that the corporation is abusing its discretion.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 145-147.]
    6. Schools and School Districts <&wkey;168(l) — Health Regulations — Vaccination — “Police Power.”
    Rev. St. 1911, art. 838, declares that municipalities shall have power to do all acts and make all regulations which may be necessary or expedient for the promotion of health and the suppression of disease. A municipal corporation without express authority enacted an ordinance declaring that no child or other person should be permitted to attend any of the public schools or any place of education, unless such child or person present a certificate from a duly qualified physician that such child or person has been successfully vaccinated within six years preceding the time which such child or other person desires to attend school, and that any person sending or attempting to send a child to any school or place of education without having been vaccinated, and any person admitting any child to attend school without a certificate of vaccination, shall be guilty of a misdemeanor. The ordinance further recited that the public health demanded its immediate passage, and an emergency was declared. At the time of the enactment of the ordinance there was quite an epidemic of smallpox in the municipality, but it abated, and thereafter appellant, a Christian Scientist, attempted to send his children to school without having them vaccinated. Acts 34th I.eg. c. 49, providing for compulsory education, makes the failure of parents to send their children to school a misdemeanor. Held, that as the vaccination ordinance was practically compulsory, exposing a parent to prosecution in event of failure, either because he did not send his children to school or because he sent them without vaccination, it cannot be sustained under the police power which is defined as the law of overruling necessity inherent in the people or their government, for the powers of a municipality are strictly circumscribed, and if the Legislature intended to confer such broad police power, on municipalities, it must be presumed that they would have done so expressly; this being particularly true, as there is much controversy over the efficacy of vaccination.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 329.
    For other definitions, see Words and Phrases, First and Second Series, Police Power.]
    7. Schools and School Districts <&wkey;158(l)
    — Health Regulations — Vaccination —
    “Police Power.”
    In such case, the ordinance cannot be sustained after the abatement of the epidemic on the ground that there were Mexicans in the vicinity who were subject to and carriers of smallpox, for such ordinances can be sustained only in case of active epidemics.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 329.]
    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 Braun-fels 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 citizeu 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 Now 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 seaid 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 healt*h, 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, 140 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 t¡een 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 frcfim 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 vaccinatipns) from the Legislature, as no such power will ever arise by implication.”

In People ex rel. Jenkins v. Board of Education, 234 Ill. 422, 84 N. E. 1046, 17 L. R. A. (N. S.) 712, 14 Ann. Cas. 943, which involved the validity of an ordinance excluding from school children who had not been vaccinated, the court said:

“If the city of Chicago has power to pass any ordinance on the subject, the power is derived from the authority conferred upon the city council to appoint a board of health and prescribe its powers and duties to do all acts and make all regulations which may he necessary or expedient for the protection of health or the suppression of disease (italics ours), * * * and to make all regulations proper or necessary to carry into effect such authority. * * * The general police powers above enumerated to pass ordinances and make regulations for the promotion of health or the suppression of disease do not include the passage of such an ordinance as this, which makes vaccination a condition precedent to the right to an education.”

It will be observed that the words italicized in the foregoing excerpt is the exact language of article 838, R. S., supra, except in lieu of the word “promotion” in said article ; the Illinois statute used the stronger word “protection.”

The statute of Wisconsin created a state board of health, conferring upon it general authority in matters of health, among other things, to malee rules “to prevent the introduction of Asiatic cholera, smallpox, and other dangerous contagious diseases into the state, or for the suppression and control of such diseases, if the same shall be found already extant within the state.” Under this authority it was attempted to prevent children from attending school without first being vaccinated. In Adams v. Burdge, 95 Wis. 390, 399, 70 N. W. 347, 349 (37 L. R. A. 157-160, 60 Am. St. Rep. 123), the court said:

“There is no statute in this state authorizing compulsory vaccination, nor any statute which requires vaccination as one of the conditions of the right or privilege of attending the public schools; and, in the absence of any such statute, we think it cannot be maintained that the rule relied upon is a valid exercise of the rightful powers of the state board.”

A statute of Michigan conferred upon school boards the general management and control of public schools, among other things, “to determine the age and qualifications for admission, therein.” The city of Kaiamazoo adopted an ordinance requiring vaccination as a prerequisite to attendance upon the public schools of that city. In Mathews v. Board of Education, 127 Mich. 538, 86 N. W. 1040, 54 L. R. A. 737, 738, the court said:

“The board of education is a creature of the statute. It possesses only such power as the statute gives it. The Legislature has said who may and should attend the public schools. It has nowhere 'undertaken to confer the power upon the school board to change these conditions by passing a general, continuing rule excluding children from the public schools until they comply with conditions not imposed upon them by the legislative branch of the government.”

The statute of the state of Illinois conferred upon the board of health of that state general powers in reference to health, as broad as those conferred upon cities and towns in this state. In Potts v. Breen, 167 Ill. 67, 47 N. E. 81, 39 L. R. A. 152, 59 Am. St. Rep. 262, the court said:

“It is clear that no such power as claimed by the board of health has been conferred upon it, unless by the broad and general language of the first section of the act creating it. But the general terms there employed must be construed in relation to the more specific duties imposed and powers conferred by the act taken as a whole, and when thus construed these general terms are restricted so as to express the true intent » * * of the Legislature.”

Applying this rule of construction which we think is correct, to article 838, it means only that city councils may “do all acts and make all regulations which may be necessary or expedient” to carry into effect the powers expressly granted them “for, the promotion of health or the ’ suppression of disease.” Anything that they might do in attempting to carry into execution the powers expressly granted would' be sustained by the courts, unless it was clearly shown to be unreasonable. As, for instance, the location of a slaughterhouse or a cemetery, or the length of time one should be isolated who had the smallpox, or other contagious disease.

In determining whether or not a power has been granted to a municipal corporation, the presumption is against such corporation, but in determining whether or not it is properly exercising a granted power, the presumption is in favor of such corporation, and to enjoin it from so doing, it must be made to clearly appear that it is abusing its discretion.

As pertinent to the inquiry as to whether the Legislature intended by article 838, supra, to confer upon city councils the power to exclude from public schools children who had not been vaccinated, we think the following facts should be considered: It knew that for more than 100 years vaccination had been practiced as a preventive of smallpox; that a majority of physicians and a majority of people believe in its efficacy; that, on the other hand, some physicians do not believe in or practice vaccination ; that many people do not believe in it, but, on the contrary, believe that vaccine virus is a poison dangerous to health and even to life. The Legislature, which in this state is always composed in part of learned lawyers, may fairly be presumed to have known that some courts of last resort in this country had held that city councils, in the absence of express authority, had no power to require vaccination as a prerequisite to attendance upon schools. With these facts before them, it does seem that .if the Legislature had intended to confer upon city councils the right to change the qualification which it prescribed for attendance on public schools, it would have said so in plain language, and not left it to doubtful implication.

We think there is another reason, and a cogent one, why it should not be held in this state that city councils have implied authority to exclude from public schools all who have not been vaccinated. It is this: The Thirty-Eourth Legislature (Gen. Laws 1915, pp. 92-98), passed a compulsory education law, applicable to children from 11 to 14 years of age, which provides that any one who fails to send his child to school as therein provided shall be deemed guilty of a misdemeanor, and fined for the first offense $5, for the second offense $10, and for each subsequent offense $25. Each day’s failure constitutes a separate offense. A number of exemptions and excuses are provided for in the act, among which is quarantine, but failure to have been vaccinated is not one of them.

The learned editor of L. R. A. in a note to Jenkins v. Board of Education, supra, says:

“No American case can be found which holds that compulsory vaccination may be required in the sense of compelling one to submit his person thereto.”

But it is apparent that to enforce the fines •and penalties for failure to' comply with the compulsory education law, if vaccination may legally be required as a prerequisite to school attendance, amounts, in effect, to compulsory vaccination. If in the instant case Fritz Waldschmit fails to send his child Else to school, he is subject to a fine of $25 a day. Failure to have his child vaccinated is no defense, if the city council of New Braunfels has the legal right to require such vaccination as a prerequisite to school attendance. On the other hand, if he attempt to comply with the state law by attempting to send his child to school without first having her vaccinated, he will be fined $100 a day for each day that he does so. Thus he would be forced to have his child vaccinated under penalty of being pauperized by fines and being sent to prison for failure to pay them.

The police power of the state has been aptly termed “the law of overruling necessity.” Morris v. Columbus, 102 Ga. 797, 30 S. E. 852, 42 L. R. A. 178, 66 Am. St. Rep. 243. In Blue v. Beach, 155 Ind. 130, 56 N. E. 92, 50 L. R. A. 68, 80 Am. St. Rep. 195, the court said:

“The right to exercise this power is said to be inherent in the people in every free government. It is not a grant * * * from * * * any written,Constitution. It is not, however, without limitation, and it cannot be invoked so as to invade the fundamental rights of the citizen.”

Religious liberty is a fundamental right, not derived from, but protected by, the Constitution. It appears from the record in this case that Christian Science is a religion, with more than 1,000,000 adherents in the United States, and that one of its tenets is that vaccination is morally wrong. That the state may disregard religious opinions when necessary so to do to protect morals is the effect of the decisions in reference to polygamy as taught by the Mormon church. Whether or not this would apply to compulsory vaccination, we are not called upon to decide. The state has not attempted, either directly or indirectly, to compel any one to be vaccinated, nor has it authorized any municipal corporation in this state to do so.

In some cases it has -been held that municipal corporations have the implied power to exclude children from school who h?ive not been vaccinated as an emergency measure for the protection of health, on account of the existence or threatened invasion of smallpox in epidemic form. This doctrine must find its basis, if at all, in the application of the doctrine of “overruling necessity” to municipal corporations. But this distinction should be kept in mind: The state is the people, and their representatives, the Legislature, possess all political power not denied them by the Constitution, while a municipal corporation is the creature of the state, and possesses only such power as is expressly or impliedly granted by the statute creating it. How far the doctrine of necessary self-defense might apply to a municipal corporation, where the statute grants' it no means of protecting the health of its citizens, need not here be considered, for the state has granted to municipal corporations in this state the power to do many things for the protection of health, and presumably all that the Legislature thought necessary to permit them to do.

To say the least of it, there is danger of this doctrine of implied authority arising from the supposed exigencies, being applied when there is no necessity for so doing. By way of illustration, in the Zucht Case, 170 S. W. 840, the court said:

“If the school hoard can keep out children afflicted with contagious diseases, and those who have been exposed to the contagion, without coming in conflict with the Constitution and said statutes, it also has the power to keep out those who fail to comply with other regulations reasonably necessary to protect the health of those attending the schools.”

The charter of the dty of San Antonio expressly authorized it to keep out of its schools “children affected with contagious diseases, and those who had been exposed to contagion,” by quarantining or isolating such children until all danger of infection had passed. It does not follow because a city may adopt and enforce ordinances expressly authorized by statute that it therefore has the implied power to do some other thing which the statute has not expressly authorized it to do.

If, however, it be conceded that the city of New Braunfels had implied authority to pass and enforce the ordinance in question at the time of its passage, such authority arose from the prevalence of smallpox in that city in epidemic form, or its threatened invasion at that time. Courts so holding limit such authority to the continuance of the emergency. Zucht v. San Antonio; Blue v. Beach; Potts v. Breen; People v. Jenkins, supra; Cox v. Board of Education, 21 Utah, 401, 60 Pap. 1017; Lawbaugh v. Board of Education, 177 Ill. 572, 52 N. E. 850; Adams v. Burdge, 95 Wis. 390, 70 N. W. 347, 37 L. R. A. 162, 60 Am. St. Rep. 123. In the Zucht Case, supra, the court said:

“Ordinances and regulations which are valid when measured by existing conditions become unenforceable when such conditions cease.”

That this is the practical construction given to this decision by the authorities in San Antonio is indicated by the fact that appellant Fritz Waldsehmit testified without objection that Dr. Zucht had recently told him that his children had been readmitted to the public schools of San Antonio without being vaccinated. “The order made has no effect beyond the existence of the emergency.” Cox v. Board of Education, supra.

So the question here is: What was the condition in regard to smallpox in New Braunfels when this case was tried? The undisputed testimony showed that there was then but one case of smallpox in that city, and that it was isolated and practically convalescent That conditions had improved, and the extent of such improvement since the passage of the ordinance (September 18, 1916), is shown by the following testimony adduced on the trial of this case: On October 6, 1916, there was published in a local paper in New Braunfels the following:

“To the Public.
“In view of the numerous, erroneous, false and exaggerated reports circulated with reference to the smallpox situation in New Braun-fels, a meeting of citizens was held at the courthouse on Monday, October 2d; at this meeting this committee was appointed to investigate and report upon the true condition of affairs as now exists here. This committee begs herewith to submit the following report of the mayor, health officer and practicing physicians of the city of New Braunfels:
“ ‘To the Public: We, the undersigned mayor, health officer and practicing physicians of the city of New Braunfels, hereby certify that at the present time there are only fifteen cases of smallpox within the city limits of New Braun-fels; all of these cases are under proper medical supervision and strict quarantine, and consequently cannot and do not endanger the public. Chas. Alves, Mayor; A. Garwood, M. D., City Health Officer; L. G. Wille, M. D.; W. M. Barron, M. D.; A. J. Hinman, M. D.; M. C. Hagler, M. D.; A. D. Noster, M. D.; R. Wright, M. D.’
“The undersigned committee regrets the spreading of so many exaggerated and unjust reports, and while we are unwilling to believe that they were made for any selfish or malicious purpose, yet in view of the fact that such statements are entirely unwarranted, we feel it our duty to correct them and state the real facts, and therefore indorse the above report as be--ing true and correct in every particular, and assure the public that it shall have the truth from this committee at all times. H. G. Henne, S. V. Pfeuffer, R. H. Wagenfuehr, Committee.”

On.October 12, 1916, there was published in a local paper in said city the following:

“City Health Officer, Dr. A. Garwood, hands us the following communication: There are only three cases of smallpox in the city, and three in Comal Town; in a few days, if due precautions are taken in behalf of the recovered patients, the quarantine of the disinfected homes will be raised.
“[Signed] Mayor and City Health Officer.
“The city health officer says that the schools can be opened without any danger, but as there are so many children recently vaccinated and show scabs on their arms, due to vaccination, the school board has decided to wait a little and to discuss next Tuesday evening the reopening of the schools. The motion picture shows which had been closed as precautionary measures against spreading of smallpox are now again open and in full swing.”

There was also published on October 13, 1916, in a newspaper in said city, the following:

“There are three remaining cases of smallpox in town and three in Comal Town. After a few days of precautionary after-treatment of the recovered cases, all quarantine, restrictions will be removed from the formerly infected homes.
“[Signed] Mayor and City Health Officer.”

It was further shown the picture shows in New Braunfels which had been temporarily closed had been reopened and were “in full swing,” and that no restrictions were being imposed upon people attending Sunday school, church, and social gatherings. The mayor and the city health officer authorized these publications, and the facts therein stated were not controverted.

We do not regard the testimony as to a portion of the population of New Braunfels being Mexican, and the frequent occurrence of smallpox in San Antonio, 28 miles distant, as entitled to any weight upon the issue as to the right to enforce the ordinance in question at the time of the trial hereof. If these things would have justified such action at the time of this trial, they would justify it for all future time, though there may never have been another case of smallpox in New Braunfels. The city of New Braunfels had ample authority to enforce sanitary measures among the Mexicans, to isolate any .of them who might have the smallpox, to send them to the pest camp, if necessary, and to quarantine against San Antonio, should occasion for doing so arise. In Jenkins v. Board of Education, supra, the court said:

“There is nothing in the nature of an emergency in the occasional recurrence of the well-known disease of smallpox in a city like Chicago which may not be provided for by general rules and regulations prescribed by the legislative authority of the city.”

We do not think that there is anything in the fact that Mexicans live in San Marcos, nor in conditions that may arise in San Antonio that cannot be dealt with .under the legislative authority expressly granted to the city of New Braunfels, without practically enforcing compulsory vaccination as to school children.

For the reasons stated, we hold that the trial court erred in not granting the appellants the relief sought, and the judgment of said court is reversed and here rendered that the appellees be enjoined from excluding the children of Eritz Waldschmit from the public schools of New Braunfels, and that the superintendent of said school be required to admit said children to said school.

Reversed and rendered.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    ROBINSON v. HILL.
    (No. 678.)
    (Court of Civil Appeals of Texas. El Paso.
    March 22, 1917.)
    Appeal and Error &wkey;W73(4) — Briefs—Af-firmance ON FAILURE TO FILE.
    Where appellant files no briefs but appellee does, the judgment will be affirmed when the record discloses no fundamental error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3109.]
    Appeal from District Court, Midland County ; 8. J. Tsaacks, Judge.
    Action by J. W. Robinson against J. E. Hill. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Jno. B. Howard, of Pecos, and M. D. Brown, of Quanah, for appellant. Chas. Gibbs, of Midland, and Earl Anderson, of El Paso, for appellee.
   HARPER, C. J.

Appellant bought 100 mares from appellee, and gave his note, in the sum of $6,400, as purchase money therefor. He also borrowed $100 in cash, and gave his note therefor. These notes were secured by a chattel mortgage upon the said mares and upon three jacks, as additional security. The $100 note fell due on November 1, 1914, and the $6,400 note fell due on December 1, 1915. The chattel mortgage provided that failure to pay the $100 note when due should mature the $6,400 note. Appellant defaulted in the payment of said $100 note, and the other note was declared due, and the property was sold under the mortgage, on June 1, 1915. This suit was brought by appeliant against appellee for damages alleged to have accrued to appellant by reason of said sale, appellant alleging that said sale was unauthorized and void, and that appellee had converted said mares and two of said jacks to his own use, and sued for the value thereof. Appellee answered by general denial, and, in the alternative, sued for the principal, interest, and attorney’s fees on the notes, and also for certain items of expense alleged to have .accrued to appellee in taking care of the mares and jacks prior to the date of the sale in question. Appellee prayed that these items be offset against any judgment that might be rendered in favor of appellant. Tried with jury. Verdict and judgment for appellee, from which this appeal is prosecuted.

The appellant has filed no briefs, and, the appellee having filed his brief asking that the judgment be affirmed, we have examined the record for fundamental error, and, none being apparent, the judgment of the lower court is affirmed.
      ©n»For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes