Kirk v. Board of Health

August 19, 1909. The opinion of the Court was delivered by The board of health of the city of Aiken, after investigation, reached the conclusion that Miss Mary V. Kirk, a resident of the city, was afflicted with leprosy, contagious in its nature, and passed resolutions requiring her to be removed to the city hospital for infectious diseases. Thereupon Miss Kirk brought this action for injunction, alleging in her complaint that, although she is a victim of leprosy, it is of the kind known as anaesthetic and not dangerous to the community; that she is a woman of culture and refinement, and that the place to which the board of health requires her to be removed is the city pest house, coarse and comfortless, used only for the purpose of incarcerating negroes having smallpox and other dangerous and infectious diseases; that the house adjoins the city dumping grounds, where the offal of the city is deposited, from which arise foul and unhealthy odors. Judge Aldrich on the complaint issued a temporary restraining order, and required the board of health to show cause why a temporary injunction should not be granted pending the hearing of the cause. As a return the board of health submitted their answer, alleging: (1) that the leprosy afflicting the plaintiff is contagious and dangerous to the community; (2) that they had resolved on compulsory isolation outside of the city only as a last resort, after Miss Kirk had refused to leave the city; (3) that the city council at their instance have put the city hospital in good condition and repair for Miss Kirk's temporary abode, and have promised to build for her a comfortable cottage, supplied with all modern conveniences, as soon as the work can be done; (4) that while the city dumping grounds are about one hundred yards from the hospital, the foul offal is not deposited there, and foul and unhealthy odors do not arise from it; (5) that they have discharged what they consider to be their duty under the law with humanity and courtesy. After hearing many affidavits from both sides, bearing on the issues thus made, Judge Aldrich granted a temporary injunction, restraining the board of health from removing the plaintiff to the city hospital or pest house. The order contained, however, this condition: "This order is not to be understood as interfering with the board of health in maintaining such quarantine regulations as they may deem necessary for the public safety." The board of health appealed.

The order of injunction rests on the finding by the Circuit Judge that the city hospital or pest house is unfit for the habitation of such a patient, by reason of want of water supply and heating arrangements and the proximity to the city dumping grounds. The appeal being from a mere temporary injunction with the hotly contested issues of fact depending on affidavits only, we shall consider no matters of law or fact, except such as are absolutely necessary to decide whether the temporary injunction should be maintained.

The State Constitution thus provides for the creation of boards of health: "It shall be the duty of the General Assembly to create boards of health wherever they may be necessary, giving to them power and authority to make such regulations as shall protect the health of the community and abate nuisances." Article VIII, section 10. All the statute law relating to boards of health was re-enacted and incorporated in chapter 8, article I, Civil Code of 1902, and, therefore, should be referred to the duty to legislate on the subject, imposed by the Constitution of 1895 on the General Assembly. Municipal boards of health, therefore, are to be considered as deriving their authority to isolate infected persons from the section of the Constitution above referred to, and from section 1099 of Civil Code, which provides: "The said board of health shall have power and it shall be their duty to make and enforce all needful rules and regulations to prevent the introduction and spread of infectious or contagious diseases by the regulation of intercourse with infected places, by the arrest, separation and treatment of infected persons, and persons who shall have been exposed to any contagious or infectious diseases, and by abating and removing all nuisances, which they shall deem prejudicial to the public health, to enforce vaccination, to mark infected houses or places, to prescribe rules for the construction and maintenance of house drains, waste pipes, soil pipes and cesspools, and make all such other regulations as they shall deem necessary for the preservation of the public health. They shall also have power, with the consent of the town or city council, in case of the prevalence of any contagious or infectious diseases within the town or city, to establish one or more hospitals and to make provisions and regulations for the management of the same."

Complaint was made about the 8th of December, 1908, that Miss Kirk was afflicted with leprosy. The board came to the conclusion that the complaint was well founded, that the leprosy was contagious, and that it was necessary to the public health that Miss Kirk should leave the city or be isolated in the city hospital or pest house until a more suitable abode could be provided for her. The first resolution was passed on the 13th of December, 1908, in these terms: "Resolved, That we notify Miss Kirk, her friends and practicing physician, that we will move her out to the city hospital if she is not moved out of the city in ten days from the date of service." Notice of this resolution was given to Miss Kirk, but at the request of Dr. Croft, Miss Kirk's physician, the board reconsidered the matter and entered upon a diligent inquiry as to the nature of the disease and the necessity of isolation, calling to their aid Dr. Croft and all the physicians of the city. The investigation did not change the board's conclusion. On the 28th of December, and again on the 29th, Miss Kirk wrote to the board, submitting to its action and acquiescing therein, on condition that she should have a white caretaker.

The following extracts from the minutes of the board of health indicate their formulated rule, after having had the matter under consideration from the 5th of December 1908, to the 13th of January, 1909:

"The matter of Miss Kirk was taken up and discussed. The secretary reported that the resolution adopted asking council to erect a cottage for Miss Kirk had been placed before the mayor and council, and that body had agreed to erect such cottage as soon as practicable, and the mayor had so informed Miss Kirk.

"The following was then introduced and adopted as a part of the rules and regulations of the board of health: ``Resolved by the board of health for the city of Aiken, That pursuant to the law giving us the power thereto, that we do hereby adopt the following rule and regulation:

"``In order to prevent the introduction and spread of infectious or contagious diseases in the city of Aiken, that wherever any person is known to have any contagious or infectious disease and if they enter the town having such they be commanded immediately to leave the city, and if they do not that they be quarantined until they can be removed, and in case any such person or persons is found within the city of Aiken affected with any such infectious or contagious disease, that they be notified to leave, and if they do not leave within a reasonable time or their relatives and friends do not take them away, then and in such case that an order may be issued by the board of health to the health officers, or any of the policemen of the city, to take such party in charge and remove them to the city hospital for infectious diseases, or such other place as may be designated by the board of health.'"

On the 18th of January, 1909, the board resolved: "That Miss Kirk be removed out to the city hospital today, provided her health permits." Subsequently, on the same day, Dr. Croft gave to the board a certificate: "I have this day visited Miss Kirk, and find that she is very nervous and has been quite sick all night, and think that it is advisable that she be not removed at present."

Three days thereafter, on the 21st of January, 1909, the complaint for injunction and the order to show cause were served on the board of health.

The principles of constitutional law governing health regulations by statute and municipal ordinance may be thus stated: First, statutes and ordinances requiring the removal or destruction of property or the isolation of infected persons, when necessary for the protection of the public health, do not violate the constitutional guarantee of the right of the enjoyment of liberty and property, because neither the right to liberty nor the right of property extends to the use of liberty or property to the injury of others. The maxim, sic utere tuo ut alienum nonleadas applies to the person as well as to the property of the citizen. The individual has no more right to the freedom of spreading disease by carrying contagion on his person than he has to produce disease by maintaining his property in a noisome condition.

Second, the State must of necessity lodge the power somewhere to ascertain in the first instance, and act with promptness when the public health is endangered by the unhealthful condition of the person or the property of the individual; and the creation by legislative authority of boards of health, with the discretion lodged in them of summary inquiry and action, is a reasonable exercise of the police power. From this it follows that the rules and resolutions within the scope of the authority of such boards have the force of legislative enactment. The conferring of such power on boards of health is not, however, a delegation of the State legislative power lodged by the Constitution exclusively in the General Assembly; it is merely the providing of the agency for carrying out the legislative enactment. In this State the exercise of such powers by boards of health has the still higher sanction of a constitutional requirement that "the General Assembly shall create boards of health, and give them power and authority to make such regulations as shall protect the health of the community and abate the nuisance."

Third, Arbitrary power over persons and property could not be conferred on a board of health, and no attempt is made in the Constitution or Statutes to confer such power. On the contrary, it is implied in all such legislation that the board shall exercise the police power conferred in view of the constitutional guaranty that no person shall be deprived of life, liberty or property without due process of law, or be denied the equal protection of the laws. It is always implied that the power conferred to interfere with these personal rights is limited by public necessity. From this it follows that boards of health may not deprive any person of his property or his liberty, unless the deprivation is made to appear, by due inquiry, to be reasonably necessary to the public health; and such inquiry must include notice to the person whose property or liberty is involved, and the opportunity to him to be heard, unless the emergency appears to be so great that such notice and hearing could be had only at the peril of the public safety.

Fourth, To the end that personal liberty and property may be protected against invasion not essential to the public health, — not required by public necessity, — the regulations and proceedings of boards of health are subject to judicial review, by an action for damages or for injunction or other appropriate proceedings, according to the circumstances. 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.

Fifth, In exercising the jurisdiction to review the regulations and actions of such boards by injunction or other proceedings, the Courts cannot invade the province of the legislative branch of the government. Inasmuch as it is the province of the legislative branch to determine what laws and regulations are necessary to the public health, statutes and regulations made, and measures taken under such statutes, and intended and adapted to that end, are not subject to judicial review. But the Courts must determine whether there is any real relation between the preservation of the public health and the legislative enactment, or the regulations and proceedings of boards of health under authority of the statute. 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 curtailment of individual liberty, which is essential to the validity of such statute and regulations and proceedings, is wanting, and the Courts must declare them invalid, as violative of constitutional right.

Sixth, In all judicial inquiry, with respect to health, laws and regulations, every intendment is to be allowed in favor of the validity of the statute and the lawfulness of the measures taken under it.

Citation is unnecessary of all the cases in which is discussed the police power, as related to the powers exercised by the various kinds of administrative boards created by constitutional and statutory authority. With respect to the extent to which the action of such boards is subject to judicial review, and the manner in which judicial review may be obtained, the Courts are not in entire agreement. The principles we have stated seem to us to be in accord with the adjudications of our own Court, and of the Supreme Court of the United States, and with well considered decisions in other States. The following authorities have special application to the points involved in this case: Port Royal v.Hagood, 30 S.C. 526, 9 S.E., 686; State v. Morehead, 42 S.C. 217,20 S.E., 544, 26 L.R.A., 585; Darlington v.Ward, 48 S.C. 582, 26 S.E., 956, 38 L.R.A., 326; State v. Earle, 66 S.C. 194; Brunson v. Youmans, 76 S.C. 128,56 S.E., 651; Chy Lung v. Freeman, 92 U.S. 275,23 L.Ed., 550; Minnesota v. Barber, 136 U.S. 313,34 L.Ed., 453; Dobbins v. Los Angeles, 195 U.S. 223,49 L.Ed., 169; Jacobson v. Mass., 197 U.S. 11, 49 L.Ed., 643; People v. Board, 140 N.Y., 1, 37 Am. St., 523; Belmont v.New England Brick Co. (Mass.), 77 N.E., 504; Blue v.Beach (Ind.), 56 N.E., 89, 80 Am. St., 195, and note; JewHo v. Williamson, 103 Fed., 10, 92 Am. Dec., 76, note; 21 Cyc., 404.

In applying these principles, it is to be borne in mind that the case under consideration is unusual, imposing upon the Aiken board of health a delicate and unpleasant duty. Miss Kirk is not only a lady of refinement, highly esteemed in the community, but she is quite advanced in years. The proceedings of the board show clearly their solicitude to treat Miss Kirk with courtesy and consideration. There is no foundation for the charge that they did not give her notice, and an opportunity to be heard, for in response to the notice of the board, she sent communications to them, and her physician, Dr. Croft, appeared and presented her view of the matter. It was not to be expected that the board should assume the peril from the contagion to themselves and others, which a personal hearing would have entailed.

That Miss Kirk is afflicted with anaesthetic leprosy contracted while engaged in missionary work in Brazil is admitted. While there is a strong showing that the anaesthetic form of the disease is only slightly contagious, when the distressing nature of the malady is regarded, it seems manifest that the board were well within their duty in requiring the victim of it to be isolated. The case then turns on whether, under the principles above stated, 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. The evidence furnished of the opinions of both specialists and general practitioners of medicine was quite full, and leads to the conclusion that there is hardly any danger of contagion from Miss Kirk, except by touch or at least close personal association. What is more important than these opinions is the uncontroverted fact that Miss Kirk has for many years lived in the city of Aiken attended church services, taught in the Sunday school, mingled freely with the people, in social life, relying on the opinion of Dr. Hutchinson, a distinguished London specialist, that her disease was not contagious; and in all that time there has been nothing to indicate that she has imparted the disease to any other person. Was there any necessity to send such a patient to the pest house? The board of health had established a strict quarantine of her dwelling, and there was no evidence that Miss Kirk had made any effort to violate it. The maintenance of this quarantine, we can not doubt, afforded complete protection to the public. It is true the board could not be expected to maintain a permanent quarantine of a house in the heart of the city of Aiken; but the city council had agreed to build for the purpose of isolation a comfortable cottage outside of the city limits, which could have been completed in a short time.

There is some conflict in the affidavits as to the condition of the pest house, but it is not denied that it is a structure of four small rooms in a row, with no piazzas, used heretofore for the isolation of negroes with smallpox, situated within a hundred yards of the place where the trash of the city, except its offensive offal, is collected and burned. The smoke from this pile is blown through the house. The board of health, it is true, have made it less uncomfortable by painting and some other work. But with this improvement, we are forced to the conclusion that even temporary isolation in such a place would be a serious affliction and peril to an elderly lady, enfeebled by disease and accustomed to the comforts of life. Nothing but necessity would justify the board of health in requiring it, and we think there is a strongprima facie showing that there was no good reason to conclude that such necessity existed.

We agree with the Circuit Judge also on the point that an action for damages against the members of the board of health as individuals would not afford the plaintiff an adequate remedy. In some jurisdictions it has been held that the members of a board of health incur personal liability for a mistake in destroying property on the ground that it is dangerous, when in fact it is not. Miller v. Horton (Mass.), 10 L.R.A., 116, 23 Am. St., 850, 26 N.E., 100; Lowe v. Conroy (Wis.), 66 L.R.A., 907, 102 Am. St., 983, 97 N.W., 942; Pearson v. Zehr (Ill.), 32 Am. St., 113, 29 N.E., 854; People, ex rel. Copcutt v. Board ofHealth (N.Y.), 23 L.R.A., 481, 37 Am. St., 523,35 N.E., 320. The contrary is held in Raymond v. Fish,51 Conn., 80, 50 Am. Rep., 3; Whidden v. Cheever (N.H.), 76 Am. St., 154, 44 Atl., 908; Compagnie Francaise de Nav. v. StateBd. of Health, La., 56 L.R.A., 795, 72 Am. St., 458, 25 So., 591; Forbes v. Bd. of Health (Fla.), 13 L.R.A. 549, 9 So., 862. In this State it must be held on the authority ofWhite v. City of Charleston, 2 Hill, 576, that the members of a board of health are not personally liable for errors in their official conduct, when they exercise their honest judgment. Personal liability depends on proof of bad faith. True, bad faith may be shown by evidence that the official action was so arbitrary and unreasonable that it could not have been taken in good faith, but there is no such showing in this case. Even if there were such showing, the remedy by action for damages would not be adequate where the health or life of the citizen is by force unnecessarily imperilled. Protection from the loss of health or life is the only adequate relief in such case.

We can not too strongly emphasize the caution which Courts should exercise in entertaining applications for injunction against boards of health, yet careful consideration of the record leads us to the conclusion that this is an exceptional case, and that the order for the temporary injunction, carefully guarded as it was in its terms, was not improvidently made.

The judgment of this Court is, that the judgment of the Circuit Court should be affirmed.