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cholera, smallpox, . . . and other epidemic diseases; and to this end may bring the infected population under prompt and proper treatment during premonitory or other stages of diseases." Power of inspection of premises believed to be in an unclean and infectious condition are given them, as well as power to enforce the regulations of the State Board, and failure or refusal to obey their written request is punishable by a fine. By section 2056 they are authorized to establish quarantine against the introduction of contagious or infectious diseases, and may detain boats, trains or coaches believed to contain infected persons or articles. These powers are large, and justifiable only under the police pwer of the State.
It was undoubtedly proper for the fiscal court to take charge of the epidemic during the time there was no local board. But it seems to us undeniable that, under the grant of power to "bring the infected population under prompt and proper treatment during premonitory or other stages of disease," the board had authority to take charge of those suffering from the epidemic or suspected of infection, and this necessarily implies the custody and charge of the pesthouse wherein the patients were confined. In executing this power it was of course necessary to employ physicians, nurses, etc. The board had no power to fix their compensation. That compensation, like the compensation of the members of the board themselves, was left to the discretion of the fiscal court—not to its arbitrary discretion, but to a discretion governed by the value of the services. (Stephens, County Judge, v. Allen, 19 R., 1707; Nelson County v. Town of Bardstown, 7 R., 41.)
While the board is not by statute made a corporation, it is created as an agency of the State. A similar agency has been, in the case of Gross v. Ky. Bd. of Mgrs. World's Columbian Exp'n (49 S. W., 458), held suable as a corporation. And while penalties are imposed for failure to observe the regulations and orders of the board, we do not think the enforcement of such penalties by the criminal courts is their only remedy. The board is a high governmental agency, endowed by law with distinct legal rights, and charged with corresponding important duties. In order to the performance of those duties its rights must be enforced, and the courts of the Commonwealth afford the proper means for their enforcement.
The judgment is reversed and caused remanded, with directions to set aside the judgment and enter a judgment in accordance with this opinion.
Court of Appeals of Kentucky. Filed June 16, 1900—Hengehold v. -City of Covington—Appealed from Kenton Circuit Court.
Opinion of the Court by Judge DuRelle—the whole court sitting. By an agreed case the court is asked to determine these questions: —
1. Under the constitution and laws of the State, and the act for the government for cities of the second cless, has the city of Covington power to pass an ordinance providing for the removal of smallpox patients to a pesthouse?
2. Can such city by ordinance vest such power to remove such persons so afflicted to a pesthouse in its health board, or in any three members thereof, or in the health officer?
3. Can such removal of persons so afflicted be made by the board of health or the health officer, notwithstanding the physician attending the patient shall certify in writing that the patient's life would be -endangered by such removal, or that he has good and careful attention, and his removal would not be advisable as a sanitary measure?
The agreed facts are that appellant's children, aged respectively Hve, eight and thirteen years, were sick with smallpox, and that the mayor of the city chairman ex-officio of the board of health, and the members of the board of health and their officers, desired to remove the patients to the city pesthouse, in Kenton county, which removal was prevented by the father. It also agreed that the disease was very prevalent in the city; that the pesthouse was in good sanitary condition, with competent nurses and physicians in charge, and ample room and accommodation.
It is to be regretted that, owing to the urgency of the questions presented, counsel have not had time to brief the case further than to furnish a copy of the ordinance of the city and a reference to the statutes.
By section 2059 Kentucky Statutes, it is made the duty of the council -of every city of ten thousand or more inhabitants to appoint a board of health of six persons, three of whom are required to be competent physicians, such board to elect a competent physician health officer, "who, as well as the mayor, is to be ex-officio member of the board. It is further provided that "such local boards shall have the same powers within their respective cities and towns as local boards for counties are invested with by this chapter."
Section 2060 provides for the compensation of the health officer, and for a penalty upon physicians or heads of families failing to report cases of certain named diseases.
Section 2055 makes provision for the appointment of county boards, and provides that "such local boards are empowered, and it shall be their duty, to inaugurate and execute, and to require the heads of families and other persons to execute, such sanitary regulations as the local boards may consider expedient to prevent the outbreak and spread of cholera, smallpox, yellow fever, scarlet fever, diphtheria, and other epidemic diseases; and to this end may bring the infected population under prompt and proper treatment during premonity and other stages of the disease. . . . This section gives power to the board to go upon and inspect premises believed to be in an unclean and infectious condition, and to enforce regulations adopted by the State Board, and contains provisions also for reports of the boards of such epidemic diseases.
By section 2056 the local boards of the border counties are empowered to declare quarantine against contagious or infectious diseases prevailing in other States or counties, and large powers are given to fhem to prevent the importation of infected persons or articles.
Section 3058, Kentucky Statutes, being section 1, subdivision 4 of the act for the government of cities of the second class, gives to the council authority "to establish and enforce laws and regulations; to prevent the introduction and spread of contagious disease in the city and within two miles thereof;" to provide for the destruction of diseased food products; to estblish and maintain hospitals in and out of the city; to condem property therefor, "to secure the general health of the inhabitants by any necessary measure," and "to constitute a board of health and elect or appoint necessary health officers."
The city ordinance of Covington organizing and establishing the board of health provides in section 3 for the establishment of a pesthouse, and for the expense of its management, and the payment of the physicians, nurses and others in charge. By section 4 it is provided that "whenever the smallpox, yellow fever, cholera, or other contagious or other infectious diseases, shall exist in city, said board, or any three members thereof, or the health officer, may cause any person afflicted with such disease to be removed to the pesthouse, as they may deem it necessary as a sanitary measure. But if the physician attending the diseased person shall certify in writing that the life of such person would be endangered by such removal, or that he or she has good and careful attention, or that his or her removal should not be advisable as a sanitary measure, then such removal shall or shall not be made, in the discretion of the board. "By section 5 the members of the board and the health officer are invested with police authority in the performance of their duties."
In view of the necessity of a prompt disposition of this case we shall state the conclusions we have reached as briefly as possible, without any attempt at an elaborate review of the authorities.
The statutes and ordinance referred to are intended as an exercise of the police power of the government to> promote the public welfare, even at the expense of private rights. The preservation of the public health has always been held a proper exercise of police power. Said Mr. Justice Bradley, in Boston Beer Co, v. Massachusetts, 97 U. S., 25: '"Whatever "differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens."
There can be no doubt in order to prevent the spread of disease, and to provide healthful conditions for the public, boards of health and like commissions may be created and invested with power necessary and proper for such purposes. And in determining the validity of the acts of such boards and their officers a liberal construction is justified in view of the public good to be accomplished. (Perth Amboy v. Smith, 19 N. J., 52.)
There can be no doubt of the power of the State legislature to create State Beards of Health for the preservation of the general health of the State to confer upon cities and counties authority to make regulations for the health of their communities, and even to create separate corporations, differing from the political subdivisions, with like powers within their limits. (Wilson v. Sanitary Dist., 133 11l., 466; Niconlin v. Lowrey, 49 N. J. L., 391.)
Both in England and the United States such powers have been in almost uniformly delegated to boards of health of municipal corporations to enact rules for the preservation of public health, having the force -of law within their respective communities, and it would seem that, in the absence of express authority, municipalities have an implied power to enact reasonable ordinances to preserve the public health and to prevent and to remove nuisances. (Dillon Mun. Corp., Section 308; Baker v. Boston, 12, 12 Pick. 193, 22 Am. Dec. 421.)
Under its general powers to guard against epidemic diseases a board -of health may control and isolate persons affected with the disease; and this power seems expressly delegated to the local boards by the provision that they are empowered "to inaugurate and execute . . . Buch sanitary regulations as the local board may consider expedient to prevent the outbreak and spread of . . . epidemic disease, and to this -end may bring the infected population under prompt and proper treatment during premonity and other stages of disease. "... It is certainly a reasonable regulation which provides for the removal of such «ases to a pesthouse in good sanitary condition provided with nurses and physicians for the treatment of patients suffering with the disease. We are, therefore, of opinion that the local board, or a quorum thereof, has undoubtedly power to order the removal of an infected patient to the pesthouse."
"It is a narrower question, in view of the fact that the legislature has given this power to the board, whether the municipality can confer such power upon less than a quorum, or upon the health officer appointed by the quorum. But the charter of cities of the second class ;gives power "to establish and enforce quarantine laws and regulations to prevent the introduction and spread of contagious disease in the city and within two miles thereof; ... to establish and maintain publichospitals within or without the city, . . . and to secure the general health of the inhabitants by any necessary measure.
"The general rule upon this subject is that laws establishing Stat& Boards and laws establishing local boards shall be construed together, so as to give effect to both. We think this rule should be applied in this case to the general law as to the powers of local boards, and the city charter expressly authorizing the municipality to enact regulations in their behalf. It follows, therefore, that the city is authorized tomake additional and reasonable regulations to prevent the spread or epidemic diseases.
The only remaining question, therefore, is whether a regulation empowering three members of the board, or the health officer elected by the board, to order the removal of a smallpox patient is a reasonable regulation. We think it is, especially as there is provided an appeal to the board, and a requirement of action by the board itself upon a certificate by the attending physician that the removal would endanger the patient's life. In such cases the necessity for immediate action is imperative, and it is not unreasonable to permit the health officer, or less than a quorum of the board, to order such removal, in a case where it does not appear that the removal would endanger the patient's life. For the reason given the judgment is affirmed.
Court of Appeals of Kentucky, November 15, 1901—W. H. Walker, Appellant, v. County of Henderson, Appellee. Appeal from Henderson. Circuit Court.
Opinion of the Court by Judge Burnam.
This is an appeal from a judgment of the Henderson Circuit Court, The facts out of which the litigation grew are as follows: In April, 1899, smallpox was prevailing as an epidemic in Henderson county, and the Henderson County Board of Health employed W. H. Walker, a regular practicing physician, to take charge of the pest-house and treat persons afflicted with the disease, at the agreed price of $15.00 per day. Appellant acted under the employment from the third day of April, until the 14th day of May. On the 12th day of May, 1899, the entire County Board of Health resigned their offices, because the fiscal court of the county refused to make sufficient appropriation in their judgment for the payment of the bill of the employes of the board. After the resignation of the county board, the fiscal court appointed a committee of its members to take charge of the smallpox patients until' the vacancies in the Board of Health should be filled; and this commit