Kirk v. Board of Health , 83 S.C. 372 ( 1909 )

I feel constrained to dissent from the decision of the Court in this case.

In the main, I concur in the statement of the principles of the law applicable in the consideration by the Courts of municipal ordinances and regulations of boards of health, as laid down by Mr. Justice Woods. There are, however, some expressions contained therein which are susceptible of a construction which would make his statement of the principles applicable in such cases conflict with the previous decisions of this Court, and which, if such construction is proper, may prove subversive of the power and authority conferred upon these bodies by the Constitution and statutes.

In the fourth subdivision of his statement of the law, he says: "In passing upon such regulations and proceedings, the Courts consider, first, whether interference with personal liberty or property was reasonably necessary to the public health, and, second, if the means used and the extent of the interference were reasonably necessary for the accomplishment of the purpose to be attained." In the fifth subdivision, he says: "If the statute or the regulations made or the proceedings taken under it are not reasonably appropriate to the end in view, the necessity for the curtailment of individual liberty, which is essential to the validity of such statutes and regulations and proceedings, is wanting, and the Courts must declare them invalid, as violative of constitutional right."

This Court has held in a number of cases that, within the scope of the power conferred upon them by the Constitution and statutes, these bodies are the exclusive judges of the necessity of police regulations adopted by them, and of the means necessary and proper to enforce them. Within the scope of their powers, their action is legislative, as well as administrative, and the Courts have no power to inquire whether it is necessary, reasonable, or appropriate to the end in view, unless, and only in so far as, such inquiry may be necessary to enable the Courts to determine whether rights guaranteed by the Constitution, State or Federal, have thereby been invaded. The Courts will not be misled by a mere subterfuge; hence, in order that rights guaranteed by the Constitution may not be violated under the form and pretense of police regulations, the Courts will inquire whether there is any real and substantial relation between such regulations and the manner of their administration and the avowed purpose sought to be accomplished. If the language above quoted means no more than that the Courts may inquire into the reasonableness or necessity of such regulations and into the manner of their administration, and consider these, in so far as such inquiry and consideration may serve to enable the Courts to decide whether there is any real and substantial relation between such regulations and the manner of administering them, and the avowed purpose sought to be attained, and hence whether they are bonafide exertions of the police power, or mere pretenses, under cover of which constitutional rights are invaded, then I think the statement correct. But if it is meant that the Courts can go further and, after having discovered the existence of some real and substantial relation between such regulations and the method of enforcing them and the end sought to be attained, set their judgment up against that of the municipal corporation or board of health as to the appropriateness, reasonableness or necessity of such regulations, — when they do not invade any constitutional right, — then I do not think it a correct statement of the law. If there is such an intimate relation between the law and the avowed purpose of it that reasonable men might differ as to the necessity, reasonableness or wisdom of the law, the Courts are bound by the judgment of the law-makers, unless the law conflicts with the Constitution. But of course if no such relation appears to exist between the law and its administration and the end to be attained; or if such relation is so slight that, considering its effect and operation and the manner of its administration, reasonable men could not differ in the opinion that the real purpose and intent of the law is to evade some provision or guaranty of the Constitution, under a mere pretensive exercise of the police power; or if it does, in fact, in its necessary operation and effect, conflict with the Constitution, then the Courts may hold it void, as being in excess of the power granted, or in violation of the Constitution. Upon this view, many apparent conflicts in the decisions may be reconciled; for the Courts are generally agreed that large powers and discretion must be vested in municipal bodies and boards of health in regulating the police, and that every intendment will be indulged in support of their actions, and they will not be declared void, unless they are clearly in excess of the powers conferred, or a palpable invasion of rights guaranteed by the Constitution.

In some States, the Courts have declared municipal ordinances and regulations of boards of health void, because they were unreasonable or unnecessary to the public safety. But upon careful examination of the cases, it will be found that, in the great majority of them, they were said to be unreasonable or unnecessary, because they were in excess of the powers granted, or in conflict with constitutional provisions.

1 Dill, Mun. Corp. (4 Ed.), secs. 94, 319, 328. "The judgment of the Court can not be substituted for the judgment of the board of health." Naccari v. Rappelet, 119, La., 272, 13 L.R.A. (N.S.), 640; Ruhstrat v. People,185 Ill., 133, 76 Am. St. Rep., 30, and note; Booth v. People,186 Ill., 43, 78 Am. St. Rep., 229. "If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative power of the State. But if it could, we must presume it did. Of the propriety of legislative interference, within the scope of legislative power, the legislature is the exclusive judge."Munn v. Ill., 94 U.S. 113, 24 L.Ed., 86; Barbier v. Connolly,113 U.S. 27, 28 L.Ed., 924; Soon Hing v. Crowley,113 U.S. 703, 28 L.Ed., 1145; Mugler v. Kansas, 123 U.S. 623,31 L.Ed., 205; Powell v. Pennsylvania, 127 U.S. 678,32 L.Ed., 253. It may be observed also, that with regard to the extent to which the Court will inquire into the reasonableness or necessity of such a law, the Courts place laws regulating lawful business enterprises in a class separate and distinct from those enacted to protect the public health. Compare Dobbins v. Los Angeles, 195 U.S. 223,49 L.Ed., 169, with Jacobson v. Massachusetts, 197 U.S. 11,49 L.Ed., 643. I have cited these decisions of the Supreme Court of the United States, to show that upon this point the decisions of that Court are in accord with the decisions of this Court, because, where Federal questions are involved, the State Court is bound to follow the decisions of the Federal Supreme Court.

This Court has held, time and time again, that it has no power to declare a police regulation void, because it is unreasonable or unnecessary. City Council v. Heisenbottle, 2 McM., 233; City Council v. Goldsmith, 2 Speer, 428; CityCouncil v. Ahrens, 4 Strobh., 291; City Council v. BaptistChurch, 4 Strobh., 306; Town of Summerville v. Pressly, 33 S.C. 56, 11 S.E., 545, 8 L.R.A., 854; Town of Darlington v. Ward, 48 S.C. 570, 48 S.E., 906, 38 L.R.A., 326; Town of Brunson v. Youmans, 76 S.C. 128,56 S.E., 651.

In Town of Summerville v. Pressly, the Court, on page 61, says: "Assuming for the present that the town council had the power to pass the ordinance, no question can be made whether a nuisance had been created, nor whether the restrictions complained of were necessary to accomplish the purposes in view. It was their exclusive right to judge what was `necessary and requisite' to preserve the health of the town." Again, at page 63, "We suppose that the cultivation inhibited, must have been considered dangerous to health in the locality of Summerville. But, be that as it may, it was a question for the law-making body." On page 64, the Court quotes, with approval, the following fromHarrison v. Baltimore, 1 Gill, 264: "Of the degree of necessity for such municipal legislation, the mayor and city council of Baltimore were the exclusive judges. To their sound discretion is committed the selection of the means and manner (contributory to the end) of exercising the power which they might deem requisite to the accomplishment of the objects of which they were made guardians." Similar expressions, as directly in point, will be found in each of the cases above cited.

The principal ground of my dissent, however, is upon the point upon which the decision is mainly rested, to wit: whether "plaintiff has made a prima facie showing that the manner of the isolation was so clearly beyond what was necessary to the public protection, that the Court ought to enjoin it as arbitrary."

While I do not think the circumstances demanded precipitate action by the board, and while they might, perhaps with little danger to the public, have allowed Miss Kirk to remain in her own home until they could have provided a more suitable place for her than the pest house, still of that they were the exclusive judges, unless their action involved an unconstitutional invasion of her liberty. In view of what has been said, perhaps I should say that in my opinion, the board treated Miss Kirk with the greatest kindness and consideration, as, indeed, they should have done, for her unfortunate condition certainly appeals most strongly to the kindest sentiments of humanity.

But considering the situation from the point of view of the board, as well as from that of Miss Kirk, what could they have done, under the circumstances, more than they did? The Court holds that they were within their rights and duty in ordering her isolation, and that they were not bound to keep up a perpetual quarantine of her house in the heart of the city. Should they have gone forward and built a house for her? That might have been a useless waste of time and money, for they had no way of knowing whether she would occupy it. By the time it was done, she might have decided to leave the city, as she had the right to do, under the ordinance, and as the testimony shows she was contemplating doing. Suppose the board had never suggested the idea of building a more comfortable and convenient house for her, or suppose they had not had the means to do so, and the pest house had been the only place where they could isolate her? Would the Court hold that, because they had no other place, they could not isolate her there? But what of the pest-house? There is much of opinion in the affidavits pro andcon as to its fitness for the isolation of Miss Kirk. Doubtless these opinions are more or less colored by the feelings and prejudices of the witnesses. The undisputed facts, as to its character and conditions, are more to the point. These show that it is composed of four small rooms, measuring about 12x12 feet each, in a row, with a hall about four feet wide along the front. Each room has door opening into the hall, and two windows on the opposite side, which are provided with sash and Venetian blinds. It is built of dressed lumber, weatherboarded and ceiled. The partitions are of dressed ceiling. The ceiling has shrunk and shows some cracks and knot-holes. The rooms are heated by stoves, which are said to be rickety and rusty. The house has no piazzas. There are no trees or shrubbery around it. It has been used for the isolation of negroes with smallpox, but no case had been there within about two years, and after the last case was discharged, the house was fumigated by the best system known to modern science. It was again thoroughly cleansed and fumigated while being prepared for Miss Kirk, and was painted inside and outside. The dump pile, where the trash from the city, consisting of brush, leaves, waste paper, tin cans, etc., but not the offensive offal, was piled and burned, is about one hundred yards from the house, and when this trash is being burned, the smoke sometimes blows over and through the house. The city council proposed and intended to remove the dump-pile, which could have been done in a day or two.

With this detailed description of the house and its surroundings, the Court is as capable as the witnesses of drawing correct conclusions as to whether the confinement there of an elderly lady, cultured and refined, and accustomed to live in a house equipped with all the modern comforts and conveniences, would have caused her any serious injury. I do not think it would; but granting that it might, it does not follow that the board should be enjoined, on a mere possibility, in the exercise of their honest judgment as to what was necessary for the protection of the public health. I dare say there is not a pest-house or hospital in the State, except those in the larger cities, that will afford all, or even many of the comforts and conveniences of a well-equipped modern dwelling house. But that is no reason why one accustomed to live in such a house should have the right to enjoin a board of health from taking him to a less comfortable or convenient place, if he should be afflicted with a contagious disease, and thereby become a menace to the community. Certainly not, unless he can show with reasonable certainty that it would probably — not possibly — seriously endanger his health or life. The maxim, "Salus populi est supremalex," is the foundation of all police law, and to it, even rights of property and of liberty, which are protected by the Constitution must give way. When danger threatens the commonwealth, there arises that overruling "necessity" which "knows no law." It is the principle in which authority is found for compulsory vaccination laws, which have been, without exception, so far as I know, sustained by the Courts, notwithstanding the victim is always made more or less sick, and may even suffer death, as a consequence. 1 Tied. St. and Fed. Control Per. and Prop., secs. 17, 44, 169;Markham v. Brown, 92 Am. Dec., 76, and note; Morris v.Columbus, 102 Ga. 792, 66 Am. St. Rep., 243; People v.Warden City Prison, 144 N.Y., 529; State v. Hay,126 N.C. 999, 78 Am. St. Rep., 691.

"There is an implied assent on the part of every member of society that his own individual welfare shall, in cases of necessity, yield to that of the community, and that his property, liberty and life shall, under certain circumstances, be placed in jeopardy, or even sacrificed, for the public good." Broom's Legal Maxims (4 Ed.), 49.

I do not go to the extent of saying that if it had been made to appear with reasonable certainty that confinement of Miss Kirk in the Aiken pest-house would have probably resulted in serious injury to her health, the board could have lawfully insisted on confining her there; or if they had, that the Court would not, under the circumstances of this case, have enjoined them. But that is not the case made by the record, from which it appears that there was at least as much, if not more danger to the public from Miss Kirk being in the city than there was to her from confinement in the pest-house. It must be remembered that it was only intended for her temporary abode, until a new cottage could be built, and that the city council proposed and intended to supply the house with water and electric lights, and, from the very commendable spirit shown by the board of health and the city council, I have no doubt they would have supplied everything else necessary to make her comfortable.

In dealing with such matters, of necessity and for obvious reasons, a wide range of discretion must be allowed the local authorities, and they should not be interfered with, unless it is clearly made to appear that they have abused that discretion to the probable injury to health or life. The Constitution and statutes have conferred large powers on boards of health, but to what purpose, if they are not allowed to inforce them?

I do not think the plaintiff has made a prima facie showing entitling her to injunctive relief, and I think the precedent a dangerous one and unnecessary to the protection of any right of the plaintiff under the law, and, therefore, the order of the Circuit Judge should be reversed.