"^SWV5> NW* Columbia Umtersitp wtbeCttpoOfoto^ork (Enllwj* of P^gfiiriattfi ano £>ttrg* ona IRrfmnr? IGthranj .4 LEGAL PRINCIPLES OF PUBLIC HEALTH ADMINISTRATION BY HENRY BIXBY HEMENWAY, A.M., M.D. Fellow, American Academy of Medicine; Fellow, American Medical Asso- ciation; Member, American Public Health Association, Member, American Association of Railway Surgeons; Member, American Statistical Association; etc., etc. INTRODUCTION BY JOHN HENRY WIGMORE, L.L.D. Dean, Northwestern University Law School; Illinois Commissioner on Uniform State Laws, etc. CHICAGO T. H. FLOOD & CO., Publishers 1914 Copyright 1914 BY HENRY BIXBY HEMENWAY H?>7 THIS WORK IS DEDICATED TO JOHN HENRY WIGMORE WHO ENCOURAGED THE AUTHOR IN ITS PREPARATION MAY IT SERVE TO UNITE THE MEMBERS OP THE MEDICAL AND LEGAL PROFESSIONS IN THE INTEREST OP GOOD GOVERNMENT 111 Digitized by the Internet Archive in 2010 with funding from Open Knowledge Commons http://www.archive.org/details/legalprinciplesoOOheme INTRODUCTION By John H. Wigmore * This book is a sign and a product of the times. Community health as a public function is a novel in- stitution, scarcely adult. In a time within my memory, the only law that one heard of for public health was the quarantine rule that ships coming up the bay from a plague-rumored Oriental port must lie at anchor for forty days, detaining all their passengers and crew on board. It is modern science that has vastly enlarged the scope of modern law. We have found that the scope of measure necessary for common defence calls for this enlargement of function. The law has become involved in the necessities of applied science. Is it yet equal to the task? Will old and settled principles serve? Do the new measures call merely for new applications of old principles, or for their destruction and the creation of new ones ? Is it merely a changed phase of the conflict between in- dividual liberty and general welfare — between execu- tive discretion and fixed law, — between officialism and laissez fairef This book answers these great ques- tions. The three typical groups of legal principles in- volved take us into the midst of common law, i Professor of Law in North- missioner on Uniform State Laws, western University; Illinois Com- etc. V VI PUBLIC HEALTH ADMINISTRATION statutes, and constitutions alike. One question is the efficient organization of executive and administrative officers and boards; this is a matter of improved statutory framing. Another is the extent of the lia- bility of officers in the use of their powers; this harks back to great common law principles. And another is the legislative power to restrict individual liberty; this involves settled constitutional principles. Around these three groups cohere a host of minor principles and problems. The last generation has seen a slow working out of these new applications of principles. The slowness has been worth while; because science itself during that period has forged ahead so rapidly that the law could not safely have fixed itself at any one stage. Now that the main trend of scientific demands can be plainly seen in a future outline of some permanence, it is pos- sible to analyze the conditions to which the law will be asked to adjust itself. 1 believe that on the whole the existing principles of law will be found adequate for just demands. The main pre-requisite for that adjustment is intelligent mutual understanding. Law and Science must be- come better acquainted. They are becoming better acquainted; witness (as a single example only) the superb opinion of the Chancery Court of New Jersey (by Vice Chancellor Stevens) in the litigation over the Jersey City water supply. 2 But this acquaintance must extend all along the line. Judges, lawyers, and health officers must make it a duty to become familiar with each other's everyday principles and assumptions. 2 Mayor of Jersey City y. Flynn, 74 X. J. Eq. 104. INTRODUCTION Vll This book does that service to both. Its author is a remarkable instance of a medical practitioner versed in the law. His experience early introduced him to the problems of public health in its legal aspects. 3 His published essays have shown that his views are orig- inal, carefully studied, practical, well-balanced, and progressive. 4 His proposals for the reorganization of s Dr. Hemenway 's professional record is thus summarized: Northwestern University, A. B. 1879; M. D. 1881; A. M. 1882. Health Officer, City of Kalama- zoo, Michigan, 1884-5. Secretary Kalamazoo Board of U. S. Exam- ining Surgeons, Jan., 1887, to Sept., 1890. Secretary and Li- brarian, Kalamazoo Academy of Medicine, 1883-90. Vice-President, Michigan State Medical Society, 1886-7; Treasurer Michigan State Medical Society, 1887-90. Member of Finance Committee, Ninth International Medical Congress, 1887. Vice President, American Academy of Medicine, 1910-11. Acting Professor Preventive Medi- cine, College of Physicians and Surgeons, Chicago, 1900. * The following is a partial list of his articles on topics relating to preventive medicine or govern- mental problems : ' ' Diphtheria in Kalamazoo, 1884." (A study of the relation- ship of sewage and water supply to the disease.) (Jour. American Medical Association, Vol. VI., p. 225.) "The Relationship of Atmos- pheric Conditions to Intermittent Fever." (Jour. A. M. A., June 13, 1891, Vol. XVI., p. 848.) ' ' Pharyngo-Mycosis. " (The first recognition of the Leptothryx as cause of this condition.) (Jour, of Laryngology, Rhinology and Otol- ogy, London, Feb., 1892, p. 53.) ' ' The Scarlet Fever Epidemic of 1907." (Jour. A. M. A., April 4, 1908, Vol. L, p. 1115.) "Principles of Therapy under Modern Biology." (International Clinics, Series 23, Vol. II, p. 35.) "The Relationship of Railway Corporations to Public Health. ' ' (Railway Surgical Journal, April, 1912, p. 332.) "The Transportation of Con- sumptives. ' ' (Railway Surgical Journal, Feb., 1914, p. 197.) "Proposed Legislation Relating to the Medical Portion of the Pen- sion Bureau. ' ' (The Medical News, Feb. 1, 1890.) ' ' The Limitations in Public Health Administration. ' ' (Jour. A. M. A., Aug. 28, 1909, Vol. LIII, p. 666.) "Certain Legal Aspects of Do- mestic Quarantine." (Jour. A. M. A., Aug. 27, 1910, Vol. LV, p. 741.) ' ' Executive Methods in Preven- tive Medicine." (Jour. Am. Pub- lic Health Assn., p. 251,- April, 1911, Vol. I, N. S.) ' ' Legal Aspect of Public Health Work in Illinois." (Illinois Law Review, Vol. V, p. 157.) Vlll PUBLIC HEALTH ADMINISTRATION the executive in Illinois, if adopted, would alone en- title him to the gratitude of the community. A gen- eration from now the advanced wisdom of those pro- posals will, let us hope, figure as realized truisms throughout the country. The task, in this book, of stating the law and exhibit- ing its lines of contact with the demands of science, as well as of pointing out the necessary adjustment of medical methods to the fundamental restrictions of law, is a difficult and a delicate one. No doubt, to the legal profession some passages will seem platitudes, and others more than disputable. Possibly the medical profession could find similar points of disagreement. But the task of welding together the two bodies of learning needed to be done. Even in the hands of one uniting rarely the requisite accomplishments of learn- ing in both sciences, it may be that to satisfy in every detail two professions of such vast scope of learning is more than could humanly be expected. The needful thing today is that the two professions should avail themselves of these materials to learn each of the other, — that each should set itself con- scientiously to re-examine its own postulates in the light of the other's. My advice to all lawyers, judges, and health officers is to read and ponder every chapter of this book. Northwestern University, Chicago, March 4, 1914. "The Organization of the State Executive in Illinois." (Illinois Law Keview, Vol. VI, p. 112.) FOREWORD The reception which has been accorded, both by san- itarians and members of the bar, to certain articles upon the legal aspects of public health work has en- couraged the writer to extend his labors in that field. The hunger evidenced for definite information upon the subject, and the absence of any authoritative Amer- ican treatise have emboldened him to attempt to pro- duce such a work. It is very apparent that most health officials have only a very limited comprehension of the principles of law. Orders and ordinances are passed which are totally lacking in constitutionality, and au- thority is frequently usurped without a reasonable ex- cuse. On the other hand, a realization of the personal liability, without a clear idea as to its limits, may deter well meaning men from performing their duty. As an efficient state official once remarked to the writer, "We issue our orders. If they are obeyed, all right. If they are vigorously opposed, we run home like a whipped dog." It must be apparent tq all that, no matter how satisfactory the average result happens to be, such a course does not exemplify good government. In attempting to produce an "authoritative" manual, the writer does not claim that his opinion is authoritative, in the sense that it is always a safe guide. Judge Dillon says in the introduction to his work on municipal corporations: "No writer on our jurisprudence is authorized to speak oracularly, to ix X PUBLIC HEALTH ADMINISTRATION excogitate a system, or to give his views in any au- thoritative sanction. * * * No author can alter this inexorable condition; and any author ought to be content, and certainly will be fortunate, if he can leave on the imperishable structure of our jurispru- dence some visible imprint, some lasting touch, some embodied memorial, however slight, of his labors." With this spirit, conditions have been studied, and de- cisions have been examined, to develop therefrom, if possible, some reasonable basis of action. It shall be the aim in the following pages to show the nature and the limits of legal authority, and thus strengthen the service. We have reached a transition period, when a reor- ganization of the work is demanded. The probabili- ties are that there will be much public health legisla- tion in the near future. It is hoped that these studies as to the principles of public health law in the United States may aid in perfecting proposed statutes. Where- as most commentaries in law aim purely at a state- ment of the law as found in the statutes and court decisions, the writer of these pages craves permission to make suggestions as to the future. In the days of small ships shallow streams might be sufficient for the transportation of commerce. So long as the ships re- mained small, all that was necessary was to chart the streams, showing the shallows and the rocks. With the increase in the size of the boats, it may become necessary to abandon the old water courses, and dig anew. Ship canals are not dug at random. Surveys must be made, and often the first course proposed must be abandoned. Like the plats of the engineers, the suggestions here made may prove to be impracticable FOREWORD XI and inadvisable, but it is hoped that even if so, they may still aid in finding the true solution of the prob- lems. Recognizing the fact that the work is for the use of widely differing classes of readers, it has seemed necessary to rehearse in the earlier chapters certain elementary principles, that sanitarians and members of the bar may meet upon a common ground of under- standing. In the past, laws proposed by sanitarians have often failed through neglect of the principles of law; likewise those drafted by lawyers, have fallen short of their purpose because they have not com- prehended the present advance, and the discovered facts in science. Legislators have neglected to act because they have not realized their responsibilities. The science of public health has advanced far beyond the administration. It needs the co-operation of all to attain the results which by right belong to the nation. Today, much of the work which properly belongs to the public health service, is being done by private enterprise. It could, and should, be better done by the recognized forces of government. Private enterprise has been stirred by the weakness of administration. Witness the hysterical efforts of citizens ' committees in the past in the presence of epidemics ; and the pres- ent crusade against the white plague. These unofficial movements would be unnecessary if the authorized offi- cers of government were doing their duty. The fault may be partly with the officers of health; but more especially it is due to the weakness of the law, and the lack of appreciation of the necessities on the part of the citizens of the land. Ill PUBLIC HEALTH ADMINISTRATION Assistant Surgeon General Rucker has emphasized the need for greater care relative to sanitary legisla- tion. In the United States Health Reports, he says: * ' ' There is in this country a wealth of sanitary legis- lation which is impractical of administration and which lacks uniformity and logical basis. The epidemiologist whose business it is to study disease in the light of prevention has long ago learned that one law in opera- tion is worth ten unenforced laws on the statute books. More than this, an idle law casts discredit upon the legislators who begat it and the officials whose busi- ness it is to enforce it. It encourages a disregard of laws which it is desired to enforce, and therefore acts as a general hinderance. Many of the public health activities in this country would be further advanced today were they not hampered by impractical laws passed by the overzealous. It must be admitted in all justice that the public health authorities have to a certain extent aided and abetted in the passage of these laws. The enthusiasm of which we have been speaking has led to the formation of a large number of societies having for their object the prosecution of some particular form of public health activity. " (The old adage "Too many cooks spoil the broth," applies perfectly here. With the multiplication of these sep- arate activities there results confusion and conflict.) Rucker goes on to say: "Two general sets of faults may be found in the sanitary laws of this country. The most common of these is a scatteration of ideas, and loading down the health officer with more power than he could possibly use. This is just as great a fault as giving him too little power. Frequently a law errs in the opposite direction, and endeavors to be too iBeprint No. 173. FOREWORD Xlll specific, in which event it becomes the victim of legal quibbles which prove its utter undoing. Most of these laws are drawn up by amateurs, and even the very wisest professional is sometimes hard put to it to draft a proper law. In this connection, it may be pointed out that the profession of law is becoming highly spe- cialized. We have corporation lawyers for the mining industry, the banking industry, and for the various other classes of corporations. As a matter of fact, there is a specialty for every kind of law from crime to real estate, excepting sanitary law, and there is great need, indeed, for men who can combine with a knowl- edge of the law a knowledge of the fundamentals of epidemiology. ,, The importance of the technical drafting of acts is better recognized in England than in this country. A great deal of the law enacted there is offered in form by the government ; and for many decades the govern- ment has employed expert drafters, holding office under the Treasury. Mr. Courtenay Ilbert, who formerly held that post, and more recently has been Clerk of the House of Commons, in 1913, October, gave a course of lectures under the Carpentier Foundation, at Co- lumbia University. These lectures, slightly amplified, have been published under the caption ' ' The Mechanics of Law Making." These are the practical suggestions which he makes relative to the preparation for the drafting of a statute. The statute will be desired to supply a deficiency or correct a wrong. The general subject having been given to the draftsman he must first review and compare the various statutes enacted, in that or other jurisdictions, relating to the problem in hand. Next he must review the court decisions XIV PUBLIC HEALTH ADMINISTRATION upon the statutes, and consider the common law prin- ciples applicable. Thirdly he must consider the facts of science applicable. In the case of sanitary laws this third point must include a knowledge of the science of sanitation, with a knowledge of sociology and of commercial life. It may also be considered to include administrative experience. We find practical- ly that when sanitary ordinances are drawn up by law- yers they are liable to be inefficient because the drafts- man misses the main point, in the same way that a drawing, intended to represent a dislocation of a ver- tebra, was once rendered meaningless by the artist. He removed the irregularity of outline which he considered an accident due to the inexperience of the original draftsman. When ordinances are drafted by amateurs they are likely to be greatly overloaded with unessen- tial details, and not seldom they omit some important, but not prominent point. When drafted by sanitary officers they are frequently nullified by some legally technical error. If the health officer be competent, all sanitary legislation should originate with him, and the legal expert should assist him in the drafting. The amateur should aid, but not originate, legislation. The enthusiastic amateur sanitarian should expend his strength in insisting that competent officers be ap- pointed and supported, and that they be given sufficient funds with which to work. If the officer be competent he must know better than the amateur lay citizen as to the needs of legislation, and as to the degree to which it is best to press action. In considering the drafting of statutes and ordi- nances it is well to remember that much that is here done by direct legislation, in England, for example, FOREWORD XV would be left to executive rules and orders. Even here it is wise to so draft a law that the executive is given latitude of action within certain limits. The general terms of the statute are made definite by executive orders and regulations. (§95.) Finally, since wise legislation must be the result of the union of a knowledge of the facts of science and of law, it has been the aim of the writer to set forth the guiding principles as shown by the opinions of those best able to decide upon the application of our governmental ideas in this branch of the police of protection. AUTHORITIES CITED Abbreviations. Title and Author. Adams — The Origin of the English Constitution (1912), George Burton Adams. Adams, F. U. — Conquest of the Tropics (1914), Frederick Upham Adams. American Law Review. Ashley — Local and Central Government (1906), Percy Ashley. Bacon's Ab. — A New Abridgment of the Law (1848), Matthew Bacon. Baker — Bace Improvement (1912), LaBeine Helen Baker. Beard — An Economic Interpretation of the Constitution of the United States (1913), Charles A. Beard. Bentham — Works of Jeremy Bentham, Edinburgh Ed. Bishop — Commentaries on Criminal Law, Joel Prentiss Bishop. Black — Constitutional Law (1910), Henry Campbell Black. Blackstone — Sir "William Blackstone, Commentaries. Boyce — Health Progress and Administration in the West Indies (1910), Sir Rubert W. Boyce. Bryce, S. Am. — South America (1912), Sir James Bryce. Bryce, Am. Com. — American Commonwealth (First Ed.), Sir James Bryce. Campbell — Lives of the Lord Chancellors, 5th Edition (1868), Lord John Lord Campbell. Census — Compendium of the Seventh Census. Chapin — Municipal Sanitation in the United States, Charles V. Chapin. Colquhoun — Greater America (1904), Archibald B. Colquhoun. Columbia Law Beview. Congressional Annals. Cooley, Cons. Lim. — Constitutional Limitations, 3d Ed. (1874), Thomas Cooley. Cooley, Tax — On Taxation, 2nd Ed., Thomas Cooley. Cooley, Torts — On Torts, Thomas Cooley. Cyc. — Cyclopedia of Law and Procedure, William Mack. Davenport — Heredity in Relation to Eugenics (1911), Charles Benedict Davenport. Dawson — Right of the Child to be Wellborn (1912), George E. Dawson. Dicey — The Law of the Constitution, 2d Ed., A. V. Dicey. Dillon — Municipal Corporations (1890), 4th Ed., John F. Dillon. xvii XV111 PUBLIC HEALTH ADMINISTRATION Eaton — Government of Municipalities (1899), Dorman Bridgman Eaton. Eder — Colombia, Phanor James Eder. Elliott — The Principles of the Law of Public Corporations (1898), Charles B. Elliott. Fairlie — Municipal Administration (1901), John A. Fairlie. Federalist. Freund— Police Power (1904), Col. Ed., Ernst Freund. Goldmark — Fatigue and Efficiency (1912), Josephine Goldmark. Goodnow, Ad. Law — The Principles of the Administrative Law of the United States (1905), Frank J. Goodnow. Goodnow, Mun. Gov. — Municipal Government (1909), Frank J. Goodnow. Herrera — Historia General de los hechos de los Castellanos en las islas y tierra firma del mar Oceano, Antonio de Herrera y Tordesillas. High — Extraordinary Legal Eemedies, J. L. High. Hirst— Argentina (1910), W. A. Hirst. Ilbert — The Mechanics of Law Making (1914), Courtenay Ilbert. Ingersoll — Handbook of the Law of Public Corporations (1904), Henry Hulbert Ingersoll. Jefferson — A Manual of Parliamentary Practice (1843), Thomas Jefferson. Journal of Criminal Law and Criminology. Lauber — Indian Slavery (1913), Almon Wheeler Lauber. Lieber — Civil Liberty and Self Government, 3d Ed. (1877), Francis Lieber. Locke— Works of John Locke (1823). Low — Egypt in Transition (1914), Sidney Low. Maine — Popular Government (1886), Sir Henry James Sumner Maine. McGehee — Due Process of Law (1906), Lucius Polk McGehee. Mechem, Pub. Off.— Public Officers (1890), Floyd L. Mechem. Mechem, Agen. — On Agency, Floyd L. Mechem. Miller — Lectures on the Constitution (1891), Samuel Freeman Miller. Montesquieu — Esprit des Loix — The Spirit of Laws, Baron Charles de Seeondat Montesquieu. Moses and Kirkland — History of Chicago, John Moses and Joseph Kirkland. Ogg — Governments of Europe (1913), Frederic Austin Ogg. Opinions of Attorney General, United States. Paley — Moral and Political Philosophy (1850), William Paley. Pennington — The Argentine Kepublic (1910), A. Stuart Pennington. Pomeroy — Constitutional Law, 4th Ed. (1879), John Norton Pomeroy. Prentice and Egan — Commerce Clause of the Federal Constitution (1898), E. P. Prentice and J. G. Egan. Pollock — Law of Torts, Sir Frederick Pollock. Quarterly Journal of Economics. Quarterly of the Federation of State Medical Boards of the United States. Rawle— A View of the Constitution, 2nd Ed. (1829), William Kawle. AUTHORITIES CITED XIX Eeports of the Attorney General, Illinois. Eev. Stat., 111.— Eevised Statutes, Illinois (Hurd) (1912). Eev. Stat., U. S. — Eevised Statutes of The United States (1878 and Sup- plements). Eoss — Prevention of Malaria (1910), Sir Eonald Eoss. Southern Law Eeview. Story, Agen. — Commentary on Agency, 9th Ed. (1882), Joseph Story. Story, Cons. — Commentary on Constitution, 5th Ed., Joseph Story. Story, Cont. — Commentary on Contracts, Joseph Story. Story, Eq. Jur. — Commentary on Equity Jurisprudence, Joseph Story. Taylor — International Public Law (1901), Hannis Taylor. Throop — Public Officers (1892), Montgomery W. Throop. Tuck. Blackstone — Blackstone's Commentaries, St. George Tucker. U. S. Public Health (and Marine Hospital) Service. U. S. P. H. L. Bui. — Hygienic Laboratory Bulletins. U. S. P. H. Bui.— Public Health Bulletins. U. S. P. H. Eep.— U. S. Public Health Eeports. Webster— Works of Daniel Webster (1869). Wharton — International Law Digest (1866), Francis Wharton. White — Autobiography of Andrew D. White (1905). Wigmore — Treatise on Evidence, John Henry Wigmore. Woolsey — Introduction to International Law (1875), Theodore D. Woolsey. Wyman — Administrative Law (1903), Bruce Wyman. CONTENTS PART I GENERAL PRINCIPLES CHAPTER I RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC — SCIENTIFIC BASIS OF PUBLIC HEALTH EFFORTS § 1. Health, the basis of success 2 § 2. Necessity for public health service 2 § 3. Illustrative results of health protection 3 § 4. Governmental or commercial control 5 § 5. Health preservation a motive for municipal organ- ization 5 § 6. Science of public health of recent origin 6 § 7. Local versus state supervision 6 § 8. Economic changes alter problems 7 § 9. Municipal control limited by nature and law 9 § 10. Diversity of municipal methods causes confusion . . 10 § 11. Bacterial problems in commerce 10 § 12. Advancement of science changes legal methods 11 § 13. Legal uncertainties necessary for advancement 13 § 14. Reasonableness of action important. 14 § 15. Reasonableness based on facts 15 § 16. Health administration distinct from medical prac- tice 15 § 17. Scope of health service 18 § 18. Epidemiology 19 § 19. Koch's postulates 20 § 20. Protozoa 20 § 21. Action of bacteria 21 § 22. Antitoxic Sera 22 § 23. Phagocytosis 23 § 24. Changes in virulence 24 § 25. Bacterial antagonisms 26 xxi XX11 CONTENTS § 26. Entrance of bacteria to body 27 § 27. Insect carriers versus hosts 28 § 28. Animal hosts 29 § 29. Means of restricting infectious diseases 30 § 30. Disease carriers — human 31 § 31. Eeasonableness, a problem of probabilities 31 § 32. Reasonableness of requiring reports of infectious diseases 33 CHAPTER II UNDERLYING PRINCIPLES OF GOVERNMENT — COMMON LAW CONSTITUTIONS, INSTITUTIONS AND STATUTES § 33. Governmental ideals 34 § 34. Centralized system 35 § 35. Collective authority 35 § 36. Development of Anglican liberty 36 § 37. Individual liberty necessitates restraint 36 § 38. True liberty is communal 36 § 39. Liberty influenced by density of population 37 § 40. Mistaken ideas of liberty obstacles to progress 37 § 41. Liberty influenced by division of labor 38 § 42. Constitutional liberty 38 § 43. Legal interpretation 39 § 44. Supremacy of law 39 § 45. Common law 40 § 46. Common law basis of liberty 42 § 47. Common versus statutory law 42 § 48. Institutions 43 § 49. Antiquated institutions 43 § 50. English Constitution 44 § 51. American Constitutions 44 § 52. Common law, constitutions and statutes 45 § 53. Interpretation of law by courts 46 § 54. Illegal acts sometimes sanctioned 46 § 55. Doctrine of expediency 47 § 56. Public health has overridden legal restriction 47 § 57. Foresight better than emergent energy 49 § 58. Purity of intention no excuse 50 CONTENTS XX111 § 59. Compliance with law to be preferred 51 § 60. Injurious institutions 52 § 61. Health powers too great 52 § 62. Law should be observed 52 § 63. Institutions and statutory law preserve personal freedom 53 § 64. ''Force of Law" 53 CHAPTER III THE TRIPLE SYSTEM OP GOVERNMENT, AND RELATION OF EACH BRANCH TO PUBLIC HEALTH ADMINISTRATION § 65. The anatomy and physiology of government 56 § 66. Three branches of government 56 § 67. Separation of powers often ignored in public health administration 57 § 68. Importance of Triple System 58 § 69. Union of powers, tool of tyranny 58 § 70. No liberty with powers united 59 § 71. Separation of powers purely Anglican 60 § 72. Separation most perfect in United States 61 § 73. Union of powers in European governments 61 § 74. Abuse of power may not be frequent 62 § 75. Paper constitutions 62 § 76. Basis for comparison of governments 62 § 77. Confederation not a nation 64 § 78. Permanence of nation depends upon individual restriction 64 § 79. Latin- American government 65 § 80. Misjudgment 66 § 81. United States, division of powers 66 § 82. State constitutional provisions 67 § 83. Lack of distributive clause 68 § 84. Danger of congressional usurpation of power 68 § 85. Illegal custom lacks sanction -. 69 § 86. Executive quasi-legislative or quasi-judicial com- bination 69 § 87. Municipal division of powers 70 § 88. Judges acting as executives 70 XXIV CONTENTS § 89. Legislative branch 70 § 90. Municipal legislative power limited 72 § 91. State legislative infringement upon judicial power not prohibited by Federal Constitution 73 § 92. Division of powers in state governed by state con- stitution 73 § 93. Judicial action of legislature prohibited 73 § 94. Legislation by ' ' the people " 74 § 95. Legislative power can not be delegated 75 § 96. Executive assumption of legislative power 76 § 97. Executive emergency 76 § 98. Executive assumption of judicial power. , 78 § 99. Executive duty to give legislature information .... 78 § 100. Executive orders, law ? 78 § 101. Power yielded because claimed is not sanctioned ... 81 §102. Executive orders and regulations, limitation of. .. . 81 § 103. Legislative limitations 87 § 104. Due process of law 87 § 105. Public health protection, police power 88 § 106. Public health activities based upon idea of "nui- sance" 89 § 107. Lack of legislation, a source of executive weakness. 89 § 108. Legislation more needful in decentralized govern- ment 90 § 109. Legislation definite in effect 91 § 110. Agreement of three branches necessary 92 § 111. Executive semi-legislative duties 92 § 112. Illegal statutes 93 § 113. Crazy-quilt legislation 94 § 114. Executive duty to systematize enacted statutes. ... 94 § 115. Limitation and distinction 95 CHAPTER IV THE EXECUTIVE — ORGANIZATION § 116. National executive 96 § 117. State executive 97 § 118. Oneness of executive 98 § 119. Boards of health 100 CONTENTS XXV § 120. Subjection of the trained specialist to the un- trained official 104 § 121. Organization 106 § 122. Individual responsibility 107 § 123. Principles in organization 109 § 124. Appointment by the Governor 109 § 125. Power to appoint not inherent 110 § 126. Restrictions in appointment 112 § 127. Power of removal 114 § 128. One man in charge of each department 115 § 129. Experts, paid by salary 116 § 130. Paid by salary, not by fees 117 § 131. Responsibility must be tangible 119 § 132. Organization of State Department of Health 119 § 133. Excess of power 122 § 134. Appeal in department 122 § 135. Duty of executive to advise legislation 125 § 136. Summary 126 CHAPTER V THE JUDICIARY § 137. Judiciary, a governmental balance-wheel 129 § 138. Individual supremacy of branches 131 § 139. Judicial power over legislation 133 § 140. Judical power over executives 136 § 141. No appellate power over certain executive acts. . . . 137 § 142. Executive jurisdiction 142 § 143. Departmental adjudication 143 § 144. State courts 147 § 145. General statement 147 CHAPTER VI POLICE POWER, NATURE OF AND METHODS § 146. Health authority based on Police Power 149 § 147. Police or police power 150 § 148. Police power defined 151 § 149. Characteristics 152 XXVI CONTENTS § 150. Distinguished from criminal punishment 153 § 151. An expression of social, economic, and political conditions 154 § 152. AUenum non laedat 154 § 153. Police power superior to individual rights 156 § 154. Statutes dependent upon police power 156 § 155. Cannot be alienated 157 § 156. Police power of state may be superior to congres- sional supervision of commerce 158 § 157. A dangerous power 158 § 158. Summary executive action 158 § 159. Discretion may not be coerced 160 § 160. Courts feeble to resist acts under discretion 161 § 161. Statutory action 161 § 162. Judicial determination under police power 163 § 163. Efficiency increased by definiteness of enactment. . 166 § 164. Variety of methods 166 § 165. Disadvantages in administration through enact- ment 168 § 166. Legislation should be mandatory only when based on settled facts 170 § 167. Administrative action specific ; legislative, general 170 § 168. Public health portion of police power includes what? 171 § 169. Regulation versus prohibition 174 § 170. Reasonableness 176 § 171. Extreme use of police power 178 § 172. Extreme use must be clearly necessary 182 CHAPTER VII "due process of law" § 173. Historical origin, protection of individual rights. . 184 § 174. Fifth Amendment restricts nation ; Fourteenth, the state 188 § 175. Pomeroy's summary 189 § 176. Legislation, due process by 189 § 177. Laws must be impartial 191 § 178. Protection from state, not from fellow citizens . . . 191 CONTENTS XXV11 § 179. Who are protected ? 193 § 180. Exclusion acts 193 § 181. State exclusion acts 196 § 182. Corporations are protected 196 § 183. Property is protected 197 § 184. Regulation includes continued control; medical licenses 198 § 185. Wild animals are protected 200 § 186. Dogs 201 § 187. Property created contrary to law not protected . . . 202 § 188. Property inherently harmful, not protected 202 § 189. Nuisance per se 203 § 190. Right to a hearing 203 § 191. Property under eminent domain and police power contrasted 205 § 192. Due process by executive 206 § 193. Health administration 207 § 194. Summary action may be legal 214 § 195. Legislative action must be reasonable 215 § 196. Jurisdiction 217 § 197. Executive hearings 218 CHAPTER VIII NUISANCE § 198. Nuisance harmful 220 § 199. Nuisance per se or in esse 221 § 200. Nuisance in posse 221 § 201. Nuisance a question of fact 224 § 202. Common law nuisance — statutory nuisance 227 § 203. Executive determination 230 § 204. Judicial determination 231 § 205. Statutory determination . . 231 § 206. Nuisances prohibited, abated, or regulated 231 § 207. Abatement .232 § 208. Summary Abatement 233 § 209. Hearing after abatement 234 § 210. Destruction not always permissible 235 § 211. Urgency, not intrinsic value, must govern 237 XXV111 CONTENTS § 212. License does not abrogate power 237 § 213. Legislative determination best 240 § 214. Authority for abatement is not for construction . . 241 CHAPTER IX PUBLIC HEALTH POWERS AND LIMITATIONS, NATIONAL, STATE, AND MUNICIPAL Nation § 215. Police power resides in the states 243 § 216. Vital statistics 245 § 217. Treaty making power resides in nation 246 § 218. Treaties classified 248 § 219. Legislative power originating in treaty making authority 249 § 220. Subjects of treaty 249 § 221. Legislation dependent upon treaty making power. 252 § 222. Qualifications for Federal Officers 254 § 223. Qualifications for citizenship 255 § 224. Vital statistics as evidence 255 § 225. Census 256 § 226. Authority to require reports, not authority for prevention 258 § 227. Vital statistics not essentially health measures . . . 258 § 228. Specified and implied powers 260 § 229. Powers of nation, territories 262 § 230. Powers of the nation over public places 264 § 231. Powers of the nation among states 267 § 232. Regulation of commerce 267 § 233. Commerce includes what ? 268 § 234. Pure Foods and Drugs 269 § 235. Determination by executive 274 § 236. Interstate commerce includes persons 275 § 237. White slave traffic 276 § 238. Meaning of interstate 278 § 239. What is an original package 284 § 240. Federal control over manufacture 301 § 241. Authority versus policy 303 CONTENTS XXIX § 242. Federal control over means of transportation 305 § 243. Purity of interstate waters 307 § 244. Enforcement of state acts 313 State § 245. Sanitary authority of the states 314 § 246. State authority in health recognized by federal government „ 316 § 247. Conflict between state health regulation and na- tional law 317 § 248. State stoppage of navigation 317 § 249. State authority in matters of health is exclusive. . 323 § 250. State sanitary authority may override federal authority 324 § 251. State laws not conclusive as to authority 325 § 252. Meat inspection 326 § 253. Authority of state must be evident in the act 327 City § 254. Eelation of municipality to state 328 § 255. City corporation 329 § 256. Legislation 331 § 257. Ordinances must not exceed limits of statutes. . . . 334 § 258. Authority may be general, specific, or implied .... 337 § 259. Ordinance must not contravene common rights. . . 339 § 260. State may do what the city may not 342 § 261. Ordinance not unreasonable if authorized by state 343 § 262. Executive authority depends upon legislative .... 343 CHAPTER X OFFICERS § 263. Importance of the subject 348 § 264. Executive department composed of officers and employees 348 § 265. Office and employment distinguished 350 § 266. Offices not dependent upon statutes 354 § 267. Honorary office 357 § 268. Lucrative office 357 XXX CONTENTS § 269. Classification according to service 358 § 270. Ministerial or discretionary duties 359 § 271. Discretion implies free use of judgment 360 § 272. Discretionary power cannot be delegated 360 § 273. Arbitrary action not discretion 363 § 274. Officers with discretion cannot be coerced 364 § 275. Discretionary decision not subject of purchase. . . . 366 § 276. Public and private officers 367 § 277. State versus municipal officers 369 § 278. State officers proper 371 § 279. Officers de jure and de facto 372 § 280. No office de facto 374 § 281. Determination of title to office 376 § 282. Appointment to office 379 § 283. Appointment by same branch of government 380 § 284. Appointment by non-official body 381 § 285. Power to appoint must be given by law 383 § 286. Municipal or board appointments 384 § 287. Appointment implies written commission 385 § 288. Commission is evidence of appointment 387 § 289. Commission best evidence of appointment 387 § 290. Time for appointment 388 § 291. Appointments requiring confirmation, made dur- ing recess 389 § 292. Recess appointments must be submitted for con- firmation 392 § 293. Time for which appointed 393 § 294. Vote must show approval 393 § 295. Action of majority 394 § 296. Vote need not show quorum 393 § 297. Sufficiency of notice 396 § 298. Appointment by two or more bodies 398 § 299. Appointive power once used is exhausted 399 § 300. Appointment of self 400 § 301. Appointments by outgoing officers 400 § 302. Municipal authority to create offices and make ap- pointments 401 § 303. Appointments of two or more for unspecified class or district 402 CONTENTS XXXI § 304. Officers of health appointed, not elected 403 § 305. Eligibility for apointment, citizenship 403 § 306. Natural qualifications 406 § 307. Educational qualifications 407 § 308. Legislative restrictions 409 § 309. Holding two offices 412 § 310. Civil service 415 § 311. Acceptance of office 416 § 312. Taking office 417 § 313. Taking receipts from successor in office 417 § 314. Term of office 418 § 315. No term, office held at pleasure 418 § 316. Term fixed by constitution 420 § 317. Holding over term 425 § 318. Appointments to fill vacancies 426 § 319. When term begins 426 § 320. Compensation for service — office not a contract . . . 427 § 321. Importance of salary in health service 431 § 322. Inadequate salaries expensive 433 § 323. "Office" of wider significance than "officer" 434 § 324. Officer's compensation determined by legislation. . 435 § 325. Constitutional prohibition of change of salary dur- ing term 439 § 326. When compensation may be fixed after appoint- ment 442 § 327. Effect of increased duties 444 § 328. Payment of substitute for extra services not per- missible 447 § 329. Extra official duties 451 § 330. Compensation for two offices 452 § 331. Compensation depends upon actual service 453 § 332. Second term presupposes old rate 455 § 333. Abolition of office stops compensation 455 § 334. Dissatisfied officer may resign 455 § 335. Original bond covers extra duties 456 § 336. Officer can not pay self 456 § 337. Unearned salary not assignable 462 § 338. Officers' salaries are not subject to garnishee 465 § 339. Termination of official relation 466 XXXU CONTENTS § 340. Death 466 § 341. Abolition of office 468 § 342. Expiration of term 470 § 343. When an officer may not hold over 472 § 344. Abandonment of office. Failure to qualify 473 § 345. Abandonment after qualification 474 § 346. Malfeasance 474 § 347. Nonuser as cause of forfeiture 477 § 348. Refusal to perform the duties of the office 478 § 349. Acceptance of incompatible office 479 § 350. Resignation 480 § 351. Power of removal is incidental to that of appoint- ment 483 § 352. Conditions for removal fixed in the Constitution. . 485 § 353. Statutory requirements for removal 487 § 354. What is not removal 490 § 355. Power to remove does not include power to suspend 491 § 356. Impeachment 491 CHAPTER XI LIABILITIES § 357. State can not be sued 494 § 358. Duplex character of the municipality 495 § 359. Liability of officers judged by duties 495 § 360. Officers are such only when complying with the law 496 § 361. Unconstitutional law no defense 497 § 362. Discretionary or ministerial authority 498 § 363. Officers with discretion not ordinarily responsible. . 499 § 364. Cases showing liability or non-liability of quasi- judicial officers 500 § 365. Officer is liable if he exceed his jurisdiction 503 § 366. Officer is liable for acts not covered by duty 505 § 367. Superior officer not liable for torts of subordinates 506 § 368. When superior officer is liable for subordinate .... 507 § 369. Liability as to contracts 508 § 370. Officer not ordinarily liable on implied authority. 510 § 371. When officer is liable on contract 511 § 372. Application to health officers 511 CONTENTS XXXlil § 373. Liability of employees 514 § 374. Liability of city for performance of public duties . . 515 § 375. Liability for municipal duties 519 § 376. Municipal contracts, liability on 525 § 377. Respondeat superior 528 CHAPTER XII LEGAL REMEDIES § 378. Civil and criminal actions 529 § 379. Quo warranto 532 § 380. Quo warranto not to restrain official excesses 536 § 381. Recovery of books and property, mandamus or replevin 536 § 382. Writ of prohibition or injunction 537 § 383. Certiorari 539 § 384. Mandamus 539 CHAPTER XIII VITAL STATISTICS § 385. An index of healthfulness 542 § 386. National control ? 543 § 387. State organization 544 § 388. Completeness of returns 544 § 389. Records as legal evidence 546 § 390. The physician a witness 550 § 391. Confidential relationships 555 § 392. Morbidity reports 555 § 393 Tentative reports 560 PART II SPECIAL SUBJECTS CHAPTER XIV QUARANTINE AND ALLIED SUBJECTS § 401. Origin of quarantine 570 § 402. Meaning of quarantine 571 XXXIV CONTENTS § 403. Mechanics of quarantine 572 § 404. Quarantine is a defensive procedure 574 § 405. Quarantine does not depend upon statute 576 § 406. "What diseases are quarantinable ? 581 § 407. Diagnosis 583 § 408. Quarantine powers, nation, state, municipality. . . 586 § 409. Quarantine versus commerce 593 § 410. Morbidity reports 597 § 411. Inspection 598 § 412. Removal of cases 601 § 413. Pest houses 604 § 414. Disinfection 610 § 415. Expense of quarantine 618 § 416. Vaccination 632 § 417. Control of insects and other carriers 640 § 418. Personal liability for communicating disease 643 CHAPTER XV LICENSES § 420. License under taxing or police power distinguished 650 § 421. License under police power 651 § 422. Permits 652 § 423. Size of fee 655 § 424. How license is granted 660 § 425. Medical licensure 662 § 426. Medical reciprocity 669 § 427. What is medical practice ? 673 § 428. Revocation of license 676 CHAPTER XVI WATER SUPPLIES. DRAINAGE AND GARBAGE DISPOSAL Water § 430. Natural unity of problems of disposal of waste with water supply 681 § 431. State and municipal relationship contrasted 683 § 432. Duty of city to provide water supply 684 CONTENTS XXXV § 433. Franchise granted to private corporations 686 § 434. Municipal plants 689 § 435. Liability of municipality 690 § 436. State supervision 694 § 437. Water on trains and boats 695 Sewage § 440. Municipal sewage problem 696 § 441. Sewer a nuisance 700 § 442. Jurisdiction 703 § 443. Relation of problems to natural drainage 709 Garbage § 450. Garbage as a municipal problem 710 § 451. City collection 715 § 452. Ankylostomiasis or the hook-worm disease 715 CHAPTER XVII PURE FOOD AND DRUG REGULATION § 460. Two standards of purity 718 § 461. Standard fixed by legislation 720 § 462. Misbranding 721 § 463. Dealer bound to know quality 722 § 464. Serial numbers 723 § 465. Commercial motive in food legislation 727 § 466. Regulation of milk industry 731 § 467. Composition of the product 742 § 468. Inspection 744 § 469. Confiscation 746 § 470. Poisonous substances 748 CHAPTER XVIII INDUSTRIAL REGULATION § 480. Questionable legislation 750 § 481. Necessity for accurate studies 751 § 482. Increased importance 754 § 483. Hours of labor 755 XXXVI CONTENTS § 484. Buildings 761 § 485. Special occupations 763 § 486. Industrial regulation should be definite 766 CHAPTER XIX SCHOOL INSPECTION § 490. Characteristics of medical inspection of schools. . . 767 § 491. Injurious effects in school life 767 § 492. Authority of health department 769 § 493. Medical problems in education 771 § 494. Medical inspection normally educational 773 § 495. School nurse 774 CHAPTER XX EUGENICS § 500. What is eugenics ? 776 § 501. Eugenics positive 777 § 502. Caste universal 777 § 503. Mendel's Law 778 § 504. Like characters in parents and children not neces- sarily hereditary 779 § 505. Disease not hereditary 780 § 506. Ante-nuptial examinations 782 § 507. Sterilization 785 § 508. Court decisions 786 § 509. Reasonable precautions 788 § 510. Galton 's Law of Regression 791 § 511. Eugenics versus low infant mortality 792 § 512. Legislation based on biology 793 Index of cases 795 Index 837 Parti General Principles LEGAL PRINCIPLES OF PUBLIC HEALTH ADMINISTRATION CHAPTER I RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC- TIFIC BASIS OF PUBLIC HEALTH EFFORTS -SCIEN- § 1. Health, the basis of success. § 2. Necessity for public health service. § 3. Illustrative results of health protection. § 4. Governmental or commercial control. § 5. Health preservation a mo- tive for municipal organi- zation. § 6. Science of public health of recent origin. § 7. Local versus state supervi- sion. § 8. Economic changes alter prob- lems. § 9. Municipal control limited by nature and law. § 10. Diversity of municipal meth- ods causes confusion. § 11. Bacterial problems in com- merce. § 12. Advancement of science changes legal methods. § 13. Legal uncertainties necessary for advancement. § 14. Reasonableness of action im- portant. § 15. Reasonableness based on facts. § 16. Health administration dis- tinct from medical prac- tice. § 17. Scope of health service. § 18. Epidemiology. § 19. Koch 's postulates. § 20. Protozoa. § 21. Action of bacteria. § 22. Antitoxic Sera. § 23. Phagocytosis. § 24. Changes in virulence. § 25. Bacterial antagonisms. § 26. Entrance of bacteria to body. § 27. Insect carriers versus hosts. § 28. Animal hosts. § 29. Means of restricting infec- tious diseases. § 30. Disease carriers, human. § 31. Reasonableness, a problem of probabilities. § 32. Reasonableness of requiring reports of infectious dis- eases. 2 PUBLIC HEALTH ADMINISTRATION § 1. Health the basis of success. Good health lies at the foundation of success, either for the individual, or for the community. It matters not how well edu- cated a man may be, nor how amply supplied with the coin of the realm, if his body is tortured with disease, or if his brain is deadened by the toxins of infection, his activities will be restrained, and his usefulness may be paralyzed. We are told that in 1348 and 1349 about one-half of the population of England died of the plague, which was spoken of as the Black Death. The immediate ef- fect of this calamity was to decrease the demand for the products of the land; but what was more marked, and more lasting, since the disease attacked especially the laboring portion of the population, wages were greatly raised, so that the profits to be obtained from the land were decreased. In fact, so independent did the laborers become, and so extortionate were they as to wages, that special laws were passed limitive to the amount of wages to be paid, and requiring laborers to work when offered the stipulated wage. Even that statute was not sufficient, for the workmen refused to work unless they were given such pay as they might demand, and many fertile estates were ruined. So, too, it matters not how rich the soil of a country may be, nor how perfectly the air may be fitted for the growing of crops, if the region is so beset with disease that men can not harvest those crops, the land is valueless. If the inhabitants are so weakened by malaria or tropical anaemia that they can do but par- tial work, the money value of the land is reduced pro- portionally. § 2. Necessity for public health service. The two RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 3 diseases mentioned, — malaria and tropical anaemia, are very good illustrations of the necessity for a public health, service. Whereas an efficient warfare against dyspepsia, for example, may be made by individual hygienic effort, malaria must be met by a cooperative campaign for the greatest success. Measures must be taken to prevent the introduction of the disease into the community, by either excluding patients, or by ef- fectually protecting them from the bites of mosquitos; and the breeding places of the anopheline mosquito must be exterminated, or rendered unfavorable for the larvae. Tropical anaemia, or ankylostomiasis, de- mands concerted action to prevent the pollution of the soil by the offending worm. (§ 452.) §3. Illustrative results of health protection. The Suez Canal Company built a model city, Ismailia, for the residence of its officials, and for the chief port. It soon had a population of 10,000 souls. Then malaria appeared, and the growth of the place was checked. Port Said became the port. Gradually the amount of malaria in Ismailia increased until in 1891, 2,500 patients were there treated for the disease. In 1902 Major Ross of the British Army was called to Ismailia to study the conditions. He devised plans for mos- quito extermination. These were carried out at the expense of the Canal Company. Immediately the num- ber of cases of malaria decreased, and the reports for 1906, 1907 and 1908 were that no new cases had de- veloped in Ismailia. 1 Cuba was ever a hotbed of dis- ease until the American Army eradicated malaria and yellow fever. The construction of the Panama Canal, i Ross, 1910, p. 499 et seq. 4 PUBLIC HEALTH ADMINISTRATION or of the Madeira-Mamore railroad in Brazil were prac- tical impossibilities until science demonstrated how the workmen could be protected from malaria and yellow fever, by the general sanitary precautions of the con- struction force. At Ismailia, and on the Mamore rail- road, the sanitary power was exerted by a commercial corporation. In Panama and in Cuba the authority was governmental. Whether governmental or com- mercial, the action was communal, and like results were only possible by communal action. Another excellent illustration of the commercial importance of communal sanitation is found in the experience of the United Fruit Company, which has plantations in Cuba, Nicaragua, Spanish Honduras, Costa Rica, Columbia, etc. When this company began its work in Panama it had no trained sanitarians, and not less than eighty per cent of its men were on the sick list. About 1900 it secured sanitarians from the far east. The death rate on its Panama plantations now is about 7.5 per 1,0Q0. The company adopted rigid sanitary rules. It assisted in founding a school of tropical medicine at New Orleans in which its sani- tarians could be trained. In 1913 it opened up new fields in a pestilential section of Spanish Honduras. The sanitarians were sent first into the field to prepare the way. As a result the operations during the first year, with the building of 250 miles of railroad, and the planting of 50,000 acres of bananas, showed an amount of sickness and death in this former hotbed of disease comparing favorably with that of an agri- cultural section in the United States. We are told further that during 1913 not a single case of ' ' quaran- tinable" diseases occurred on any of its plantations, at any of its ports, or upon any of its ships, although RELATIONSHIP OP PUBLIC HEALTH TO BODY POLITIC 5 both plague and yellow fever were present at various ports on the Carribean shores. 1 * §4. Governmental or commercial control. Communal action may be secured through the agencies of govern- ment, either national, state, sectional (county),* or municipal. In such cases the action should be in con- formity with established law. Corporations, or large landed proprietors, by virtue of the rights of owner- ship, have authority in the use of their property beyond that which the state might compel. The communal ac- tion might therefore arise through the territorial in- terest, as in the case of the Suez Canal Company, or through its authority over its employees. An illustra- tion of the latter case is where a company requires all its employees to be vaccinated, even though there be no statute demanding such vaccination. Either of these methods has its influence beyond those directly af- fected, by power of example, and thus the way may be paved for enactment. Again, communal action may result through voluntary cooperation, as where the residents of a section unite to drain a swamp. § 5. Health preservation a motive for municipal or- ganization. This necessity for cooperation in the pro- tection of the public health furnishes a motive for or- ganizing municipal corporations. 2 It has been claimed that a desire to protect the citizens from cholera was a prime object in the organization of the township of Chicago, a few months after the epidemic of 1832. The reason for this surmise is that among the earliest ordi- nances passed were those relating to sanitary affairs. 3 i* Adams, Conquest of the Tropics, Chap. XIV. 2 Chicago v. Ice Cream Co., 252 3 Moses and Kirkland, Vol. II, 111. 311; Elliott, 91. p. 232. 6 PUBLIC HEALTH ADMINISTRATION Dillon says of police powers as related to health : 4 "This is indeed one of the chief purposes of local gov- ernment, and reasonable bylaws in relation thereto have always been sustained in England as within the incidental authority of corporations to ordain. " § 6. Science of public health of recent origin. The science of public health is of very recent origin, though public health measures have long been recognized and used. Thus, the primitive Mosaic Code contains many such provisions. With the advance of the science, methods have been altered. Formerly cases of yellow fever were strictly isolated from healthy individuals, and the results were very disappointing. Today the healthy individuals are permitted to associate freely with the sick, but the patient is protected from the stegomyia mosquito, and the breeding places of those insects are destroyed, or rendered deadly for the lar- vae. (§ 400.) Formerly malaria was supposed to be the result of some miasm, and not infectious. Today it is known that the disease is similar to yellow fever in production, and similar means are used for its con- trol. The morbific imps who spread those diseases laughed at fences and military cordons, but they are vanquished when the bushes are cut down, when ponds are drained, and streams are trained, and stocked with " millions " fish; and when, moreover, necessary re- ceptacles for water are screened effectually or treated with petroleum oil. § 7. Local versus state supervision. Formerly the ef- forts at the restriction of disease were essentially local in nature and operation. Local nuisances were abated, * Municipal Corporations, Sec. 369. RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 7 and quarantine was simple, though inefficient. Com- munities were scattered, and the intervening spaces were thinly populated. Travel was slow, and not free- ly undertaken. Today a man may contract small pox in San Francisco, and first show its symptoms in Chi- cago or New York. The country is thickly populated, and an infectious disease may spread through a large area like a prairie fire. The problems are general, not local, and the methods which are successful in one locality are equally useful in others. Even when the actual work is performed by municipal or town officials, the authority therefor may better be derived from the state or nation, and it is essential that the supervision should be by officers with wide jurisdiction. § 8. Economic changes alter problems. Changes in economic conditions have altered the necessity for pub- lic health supervision. Whereas formerly the cities were relatively small, today a large proportion of the population is crowded within urban walls. Formerly dairy herds were small, and the majority of people were close to the cows from which the milk which they consumed was obtained. Today the milk for our large cities is collected from a wide territory, often embracing several states, and it is from twenty-four to sixty hours old before it is used. (§423,466.) This fluid is an excellent culture medium for bacteria, though their growth may be slow at first. Bulletin 41, of the Hygienic Laboratory of the United States Public Health and Marine Hospital Service gives a table 5 showing the multiplication of bacteria in milk kept at ordinary room temperature. This is ordinary milk 5 p. 451. 8 PUBLIC HEALTH ADMINISTRATION from a healthy animal. Starting with 400 bacteria per cubic centimeter, in fourteen hours there were only 500; but in 24 hours the number had reached 5,000. In 36 hours the number had reached 60,000; 48 hours, 366,000; and in 60 hours, 780,000. Since many diseases are the result of bacterial action, it is very apparent that the danger is far greater in the use of old milk than in that which is fresh. As it is well known that typhoid fever, scarlet fever, diphtheria, measles, tuber- culosis, and probably other diseases are often spread through the agency of milk, it is clear that the length- ened time between the cow and the user necessitates greater care and cleanliness in the handling of busi- ness. The change in conditions introduces another element of danger. Formerly a germ dropped in a pail of milk would, even if given time, infect only a few gallons at the most. Infection on a dairy farm would endanger only a few families in a limited area. Today, the large milk companies collect the fluid in bottling establish- ments, and a single infected pailful may easily infect several carloads. The result might endanger a large population, scattered widely through urban territory. This demands a more careful supervision than was re- quired before. The man who buys milk from his next door neighbor, (who thus disposes of the surplus left after supplying his own family from the cow which he keeps in an ad- jacent vacant lot), can without trouble satisfy himself as to the degree of danger which he thus risks. If the children of the owner of the cow be ill with an in- fectious disease, the neighborhood knows it. If the cow be sick, or if she be kept in a filthy condition, that RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 9 is discovered. If the animal be fed unwholesome slop, it is not difficult for the milk buyer to find it out. Even when the dairy farm is outside of the village, the villager may discover for himself what are the condi- tions of milk production. With the increase in the size of the milk company, with the greater territory covered by the collective dairy farm, the individual user can less easily guard himself. He must therefore trust this guardianship to the agent of the community, the health department. § 9. Municipal control limited by nature and law. A municipal officer has authority only within the limits of his own corporation, but he may easily keep posted as to conditions in the immediate neighborhood. Local interests may often serve as efficient aids in upholding the sanitary requirements for dairies even outside of the territorial jurisdiction or the municipality. "When, however, the dairy farm is far removed from the con- sumer, not only does the municipal official have no au- thority over the milk producer, but evidence as to the conduct of the farm is more difficult to secure. The special danger of infection may not be learned by the municipal authority until much of the harm has re- sulted. The commercial interests of the dairy district may combine to keep hidden the evidence of disease. Such a course is not wise, and it may result in much needless suffering and loss of life. It is wicked moral- ly, if not criminal legally, and it may prove expensive in the end for the offending community. Incredible as it may seem, such conditions do sometimes exist, and serve to emphasize the necessity for a general super- vision of sanitary affairs with authority wider than municipal boundaries. (§ 418.) 10 PUBLIC HEALTH ADMINISTRATION § 10. Diversity of municipal methods causes con- fusion. The same dairy district may supply different municipalities, and each may by ordinance require a different method of handling the milk, To guard against tuberculosis one corporation may require that all of the cattle be tested regularly with tuberculin. Another may require the pasteurization of the milk. The resulting confusion may be avoided when the entire territory is administerd by one authority, and under a single code. On account of the presence of an infectious disease in a dairy district, it is sometimes necessary to obtain the supply from another territory. Under the system of municipal control such a shift of trade opens the door to new dangers, for the conditions in the new district can hardly be determined before the change is made, and the new district may not be prepared to comply with the local ordinances of the purchasing municipality. § 11. Bacterial problems in commerce. Formerly the standards as to milk were chemical, and they were such that any intelligent customer might easily learn to apply them within his own home. The value of coal for fuel depends upon its purity. The value of milk as food depends upon the proportion of butter fat and other solids contained, and this value is decreased if the supply be watered. If the coal contains gunpow- der it may prove not only useless, but dangerous as well. Milk containing the germs of disease is danger- ous to the community where it is consumed. The bacilli which cause diphtheria are known, and may be recognized when met. The same is true as to those of typhoid fever. It is manifestly impossible to examine all of the milk consumed, and a thousand samples RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 11 might be tested without happening to discover the germs in a dangerously contaminated supply. More- over, the germ which causes scarlet fever, for example, is not as yet identified, and therefore it cannot be recog- nized in milk. For this reason it is necessary to keep a strict watch of the territory, especially to discover cases of infection which might contaminate the milk supply. It takes several days after infection of a per- son for disease germs to multiply sufficiently to pro- duce symptoms of illness. A pollution which produces one case is likely to continue for some time, and pro- duce more. Any method chosen by a municipality, therefore, to discover and control such infections with- in its own boundaries must result in a large number of cases which become infected before the first case shows symptoms. It is therefore a practical neces- sity that the infection be prevented by excluding the dangerous milk before it does harm. This can only be done by keeping representatives in the dairy district as detectives. These detectives must have a technical education for the work. If they are armed also with authority over the local sanitary district in which they work, they may thus prevent harm being done by mis- guided or dishonest persons. "When a supply of milk has been refused admission on account of infection, it has sometimes entered a city surreptitiously by some other route. With authority upon the farm, the offi- cial could order the destruction of the milk until the source of danger could be removed. (§ 466.) § 12. Advancement of science changes legal methods. The advancement made in the science of public health has in another way necessitated changes in administra- tion. Small-pox has long been recognized in the com- 12 PUBLIC HEALTH ADMINISTRATION moil law as a nuisance. (§ 202.) Reasonable measures pertaining to the restriction of that disease have al- ways been supported in the courts, even though private property were invaded, and property rights were in- volved. Malaria was formerly supposed to be a mis- fortune, and it is not therefore recognized as a com- mon law nuisance. Now science has demonstrated that malaria may be even a more dangerous nuisance than small-pox, for the reason that it is more easily spread through a community. Unfortunately there are many members of the medi- cal profession who have not kept pace with the ad- vances made in science. In the absence of specific leg- islation, if a health administrator entered private premises and there destroyed the breeding places of the mosquitos, he might be brought to trial for tres- pass, or for injury to property. Because it would not be difficult to find medical men with large practices, who would question or ridicule the mosquito theory of causation, it is not unlikely that a lay jury might find for the plaintiff, and that the health official would be punished for doing his duty. It is therefore more necessary than formerly that the operations of health departments be definitely prescribed and defined by statutory enactment. Manifestly, because of the intimate sanitary relation- ship between adjoining municipalities, it is quite es- sential that these statutes should be uniform. Such uniformity is impossible if the enactment be left to the different municipalities themselves. Recognizing that the problems of a metropolis differ from those of a small country community, statutes should be passed by the state, making the administration uniform for places RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 13 of like character. The relationship of the nation, state and municipality to sanitary matters will be con- sidered from a legal standpoint in a subsequent chap- ter.* From a scientific point of view it seems that many matters can only be satisfactorily handled by the na- tional government. At present the government has taken control of the standardization of antitoxins ; that is, as a commercial proposition, but in the interest of health, the government has assumed to regulate the manufacture of antitoxins by private firms, so that the user may know the exact strength, as far as is possible, of the article which he uses. An initial dose of 1,000 units of antitoxin (§22) is useless in a case of diph- theria, but until the government took charge of the matter a package labeled 5,000 units might in reality be only one-fifth of its apparent strength. Adjacent states may be unequally interested in the purity of the waters of a river forming a boundary, or flowing from one into the other. Many of the problems of health are involved in interstate commerce of food stuffs. From the standpoint of science, therefore, the nation should have supreme authority in matters of health. The state should act in a subordinate capacity, and the munici- pality should be limited to dealing with questions of a purely local character. § 13. Legal uncertainties necessary for advancement. We sometimes hear of "the uncertainties of the law." The expression is used almost with contempt, and the implication is clearly that, in the opinion of the speaker, the courts are influenced in their judgments by personal interests, either social or financial. It must be recognized, however, that the very strength * Chapter IX. 14 PUBLIC HEALTH ADMINISTRATION and safety of the law is coupled with these uncertain- ties. If it were inalterably fixed, the only possibility of advancement would be in revolution, and a new beginning. Law must be interpreted, whether com- mon, constitutional, or statutory, not alone in accord- ance with the state of knowledge prevalent when the law was created, but in the light of the present degree of advancement in civilization. Just as a word, or sentence, is changed in meaning by a change in its context, so the meaning of facts or conditions is changed by the state of intellectual advancement. An act committed by a mentally responsible person may be a crime; though the same act committed by a child, or by an individual rendered irresponsible by disease, would be no crime. § 14. Reasonableness of action important. In con- struing statutes, ordinances, and administrative orders, the courts must consider the reasonableness of the act contemplated. (§31.) Measures which would have been perfectly reasonable in the light of the knowledge, or lack of knowledge, of a score of years ago, for the control of yellow fever, would today be deemed unrea- sonable. It is no longer necessary, as it was formerly thought needful, to destroy an infected house to check the disease. Today it is only required to kill the infected mosquitoes by fumigation, and to destroy, or render unfavorable, the breeding places for stegomyia mosquitoes in the vicinity. On the other hand, when it was supposed that malaria was due to a miasm exhaled from the soil, an order requiring the confining of patients within mosquito proof structures, especially at night, would have been regarded as so very impracticable and RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 15 unreasonable, that it is doubtful if any court would have sustained the legality of the act. It therefore follows that the fundamental law must be flexible in its application, and it must be changed in form accord- ing to conditions. § 15. Reasonableness based on facts. The reason- ableness of a statute must not rest upon the wish of any one man, or class of men. Neither can it depend upon the degree of education, or of mental develop- ment of the person to be coerced. (§§31, 170.) The insane man is confined in an institution, though he can not realize the necessity therefor. The dairy man, who opposes the modern methods of sanitary milk produc- tion, may through ignorance affirm that what was good enough for his father is good enough for himself, but his idea of reasonableness would have little influence with an intelligent court. Neither is the degree of reasonableness to be decided by the state of the average knowledge of the community. In a mill village com- posed almost entirely of uneducated operatives, it might easily be possible that an overwhelming majority would consider a sanitary regulation unreasonable, though the court would uphold its reasonableness. In forming its judgment, the court is guided, not by the general consensus of opinion, but by the sentiment of those whom it considers best qualified to form a deci- sion upon that specific question. So in sanitary matters the court should be guided by the authority of those especially versed in this particular branch of learning. § 16. Health administration distinct from medical practice. In a question relative to the construction of a bridge, the opinion of a structural engineer would be sought, not that of a mining engineer. Public health 16 PUBLIC HEALTH ADMINISTRATION is a function of what is now called preventive medi- cine, not of medical treatment. The practitioner of medicine only gets his opportunity when preventive medicine has failed to obtain full results. The public health administration has nothing to do with the treat- ment of cases, further than is necessary for the restric- tion of infectious diseases. This distinction is often overlooked. It is true that in some places it is necessary incidentally for the health department to establish hospitals, in order that the people may have intelligent medical treatment. Such instances are relatively rare, and are limited largely to frontier or colonial localities. The habit of thought, and the methods of action, as well as the basal principles of preventive medicine are very different, and often directly opposed to the ordinary practice of medicine. Preventive medicine is often more closely associated with certain engineering problems than with medical practice; and in America engineering schools are devoting attention to the subject of public health to a degree equal to, or exceeding that given by medical colleges. The course of study proposed by the Council on Medical Education of the American Medical Associa- tion practically ignores preventive medicine. The result is that the average medical practitioner knows very little of the science of public health, and his opinion on the problems is often very far from correct. A question of public health administration was lately submitted to two medical advisers of a university cor- poration. One was a prominent authority on the prac- tice of medicine, and the dean of one of the leading medical schools. The other was a professor of chem- RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 17 istry, also with a wide reputation. They united in an opinion, which was based upon premises, every one of which was wrong. They supposed that the law was different from what it was. They presumed the facts would follow the supposed law — widely varient from the actual conditions; and they underestimated the dangers, as was shown by the results. Though the preliminary training of medical prac- titioners fits them for acquiring proficiency in pre- ventive medicine, very few take the trouble. The reason is commercial. It is necessary for most men to devote attention to that which will support their fami- lies. In the United States today people are perfectly willing to pay, and pay liberally, for the treatment and cure of disease when it has fastened itself upon the individual. They pay, not in proportion to the service rendered, but largely according to the time consumed by the practitioner. The real service ren- dered is to be estimated by the saving in time and usefulness for the patient. If a sickness of a month could be cut down to one day the saving would really be the value to the patient of twenty-nine days; but the pay to the practitioner for the saving twenty-nine days is only one thirtieth of what he would receive for a month's service. In private practice it does not pay to study preventive medicine. There is no incentive. Men are not willing to pay anything, as a rule, to be kept well. To a great extent the same is true as to communities, and health administrators are poorly compensated. Far too frequently the result is that the service is in proportion to the amount contributed. It follows, therefore, that questions of health administra- tion, questions relative to the reasonableness of pro- 18 PUBLIC HEALTH ADMINISTRATION posed action, should be determined by those skilled in the study of health administration, and not by laymen, nor by the general practitioner of medicine, unedu- cated in this special branch. § 17. Scope of health service. The sphere of public health service is to so protect the lives and health of the citizens that their usefulness may be increased and the value of the property may be raised. It has to do with vital statistics, by which the profit and loss of the business can be gauged. It deals with law, in that the rights of property and persons must be guarded. It must depend largely upon engineering for the safe solution of many of its problems. It presupposes a wide acquaintance with industrial and economic con- ditions, that harm may be anticipated and prevented. It must give much of its attention to epidemiology which teaches how infectious diseases are spread through communities. It must determine, and remove the cause of disease. Suppose that a patient be ill as the result of some poisonous article of diet. Whereas the medical prac- titioner need consider little outside of the patient's room, it is incumbent upon the ideal health depart- ment to determine what was the particular article which wrought harm. Secondly, was the poison inherent in the article, or was it the result of some change which had taken place after it had been pro- duced? If due to change, what caused the change? In a small epidemic of typhoid fever it was found that each of the patients had recently eaten celery pur- chased in a certain store. There was no other factor which could be found common to all of the patients. That celery was traced through the wholesaler to the marsh on which it was grown, in another state. Then RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 19 it was discovered accidentally that there were cases of typhoid fever among the residents of that marsh. § 18. Epidemiology. Epidemiology has to do chiefly, or wholly, with two classes of infectious diseases, which have much in common. Such diseases are the result either of the action of microscopic plants, called bacteria, or of minute forms of animal life known as protozoa. While admitting the possibility that a com- munity may sometimes be made ill by some change in the chemical composition of the common water supply, which might produce an epidemic of intestinal dis- order, such occurrences are rare, and unimportant, unless associated with biologic infection. The specific forms of the organisms which produce many diseases are well known, and their life history has been care- fully studied. In other cases, though we may know much about them, as yet they have escaped identifica- tion. The forms which cause poliomyelitis, sometimes called infantile paralysis, are so small that they are enabled to pass through a stone filter. They are too small to be seen by the most powerful microscope, though by means of the ultramicroscope they have recently been discovered and described. Evidence seems to show that they may gain admission to the body through dust, or by food, and certain flies have served as carriers. The germ of small-pox is probably protozoal, though it has not been absolutely identified; that for scarlet fever is evidently bacterial, though it has not been surely differentiated. The terms bacillus, coccus, and spirilla are used to describe the forms of the different families of bacteria. A bacillus is a short rod; the coccus is round or eliptical; and the spirilla is a corkscrew, thread-like form. Many, and perhaps 20 PUBLIC HEALTH ADMINISTRATION all disease producing bacteria grow in nature outside of the animal body, and they gain admission to the body by inhalation, by direct contact, or in food. §19. Koch's postulates. Professor Koch, the dis- tinguished German pathologist, who has done very much towards the solution of the question as to the causation of infectious diseases, formulated four postu- lates, as demonstrable proof that a certain disease is the product of a certain germ. These postulates are in their full form applicable at present to bacteria only, because of the inability of growing most protozoa in pure culture. First, the bacterium must be found in the body or discharges of a person ill, or dead of the disease. Secondly, this germ must be grown in pure culture, that is unmixed with other germs. Thirdly, that bacterium, grown in pure culture, when introduced into a perfectly healthy individual, whose blood and discharges showed no previous trace of the particular form of germ, must be followed by a typical case of the illness. Fourthly, the particular germ must thereafter be recovered from the body or discharges of the person thus made ill. Such observations, many times repeated with the same results in each disease, form a demonstration which cannot be questioned, especially when other germs fail to produce the typical symptoms. § 20. Protozoa. In the case of protozoal diseases the proof is slightly different. Take the case of malaria, for example. There are three principal forms of malarial fever. It is found that there are three dis- tinct kinds of protozoal bodies in the blood of malarial RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 21 patients. Each form of the fever has its peculiar form of the Plasmodium; and each form of Plasmodium has its peculiarities of development. The plasmodia free in the blood serum enter the red blood corpuscles, and there grow until they are ready for division into many cells. Each form has its peculiar number of days for this multiplication. When the division occurs the red blood corpuscle is ruptured, permitting the escape of the newly formed plasmodia. Since all of the generations resulting from a single infection are timed alike, when one Plasmodium divides, all in the body are likely to divide at the same time. It is found that this division corresponds exactly with the time of the chill of the disease, followed by the fever. It is found further, that a man weighing 142 pounds will not show the fever until he has about 150,000,000 plas- tids (the newly formed protoza) free in his blood at one time. When the plasmodia are numerous in the blood of a man he will be found to show symptoms of the disease. When the plasmodia are few there is no evi- dence of the disease. Then too these plasmodia have been traced through their development in the bodies of the mosquitoes, and the mosquitoes have been experi- mented with. It has been found that patients living in malarious countries, do not get the malaria when pro- tected from the mosquitoes. On the contrary, infected mosquitoes sent to non-malarious countries, and there permitted to bite healthy men, have thus produced the disease where it had never before been known. Such are some of the cumulative evidences as to the causa- tion of diseases. § 21. Action of bacteria. When pathogenic, or disease producing bacteria are introduced into the body 22 PUBLIC HEALTH ADMINISTRATION of a susceptible animal, they there multiply. As a con- sequence of their growth certain poisons are developed. These poisons are specific to the peculiar germ, and are called toxins. The toxin of the diphtheria bacillus is excreted by the germ; that of typhoid is secreted, and only set free by the destruction of the germ, apparently. The symptoms of the disease, with few exceptions, are not produced directly by the germ, but indirectly, from the action of the poison. The presence of the toxin in the system of the animal stimulates the formation of another chemical substance which neutralizes the toxin. This neutralizing chemical substance is called an antitoxin, and it is specific for each particular germ. That for diphtheria is active to neutralize the effect of the toxin of diphtheria, but practically powerless against the toxin of lockjaw; and vice versa. As ordinarily used the antitoxin is suspended in the serum of a horse 's blood. Under strict antiseptic precautions, and with great care to prevent other infections, the horse is treated with repeated injections of the toxin, until he has developed an enormous degree of protec- tion against that particular toxin. Then his blood is drawn, and the serum separated, containing the anti- toxin. § 22. Antitoxic sera. When serum thus prepared is introduced into the body of a patient sick with the disease it tends to neutralize the poison and thus to cure the patient. When introduced in sufficient quan- tities before the introduction of the germ, the symptoms of the disease do not show themselves. It has, there- fore, been a well recognized practice in preventive medicine to use these protective injections of the anti- toxin. It is found, however, that the antitoxin has RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 23 little or no bacterocidal power. It does not directly kill the germs. It only neutralizes the poison, and thus gives nature time in which to destroy the germs. As a public health measure this use of the antitoxin must therefore be condemned. As a personal protection it may be advisable. (See § 25.) § 23. Phagocytosis. Nature also fights the disease by direct destruction of the bacteria. This is accomplished through the agency of cells called ''phagocytes," and the process is technically termed "phagocytosis." The phagocytic cells, which include certain cells found in the glands of the body and in the deeper portions of the skin, as well as the white blood corpuscles, engulf and digest various proteid bodies including the bacteria, as a normal portion of their nutrition. They are the real curative agencies of the body, for they destroy the causes of the diseases. It is found that this phagocytic power varies greatly between two individuals, and between different diseases in the same person at a given time, and between dif- ferent times in the same person, with reference to a given disease. For example, in a given individual at a certain time this power may be weak for the typhoid germ, but strong for diphtheria or tuberculosis. The strength of the power is found by estimating the number of bacteria which are engulfed by the white blood corpuscles in a given time, and this proportion is called the "opsonic index." The power may be stimulated, often very greatly, by injections of killed bacterial cultures into the body. This process, some- times inappropriately called "bacterial vaccination," is therefore used as a curative measure, and it is also a well recognized method of prevention. In typhoid 24 PUBLIC HEALTH ADMINISTRATION fever, for example, by giving three injections, under proper conditions, the average individual is rendered practically immune to the disease for a period of three years, and perhaps more. The treatment is not at all dangerous, either to the health or life of the person, and is a well recognized method for the restriction of certain diseases. This "bacterin" treatment is specific; that is, the injection of the typhoid bacilli, killed, is a protective measure only against typhoid fever. This treatment is not as yet a well recognized protective against all bacterial diseases, and it is of doubtful value with reference to protozoal diseases. § 24. Changes in virulence. The virulence of strains of bacterial cultures may be raised or lowered in laboratory work. So too, the virulence may be altered by passage through animals of different species. Thus, the bacillus of tuberculosis differs in character, and in effect in different species. That found in birds differs from that in cattle, and both differ from the human type. Apparently the bovine type is much more dan- gerous for cattle than for man, and to a degree an infection with the bovine type may assist in rendering the human being immune to the human form of the germ; but as yet this protection by inoculation with attenuated living bacteria is of very doubtful value, and it may well be exceedingly dangerous. It is not, therefore, as yet a justifiable process for preventive medicine. In protozoal diseases, on the contrary, this method of protection is well recognized, though not as yet of universal application. It is probable that the germ of small-pox is essentially identical with that of cow-pox. Vaccination with the cow-pox genu tends to protect RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 25 the human being from the small-pox. This is an acknowledged scientific fact, which is not disputed by scientific men, and is amply proven by statistics, though sometimes disputed by unscientific objectors from superficial examinations. The virus for use in vaccination is now prepared in this country under a general supervision of the national government. Selected animals are carefully examined; and after isolation and under strict aseptic conditions they are vaccinated. When the blisters have developed the serum is withdrawn and prepared for use. It is then tested, to make sure that it has not been contaminated by other disease germs. Often the calf from which it was taken is killed, and examined post mortem, for evi- dence of other disease. If evidence of other infection be discovered, the virus must be destroyed. Under such precautions, vaccination properly performed, is without danger, and is a well recognized method of protection. Similarly, dourine is a disease which is very fatal to horses, usually killing them within a year at most. Experiments made on the Canal Zone by officers of the government, indicate that this disease, which is also protozoal, may be controlled hj a species of vaccina- tion. Two mules were inoculated with disease germs which had been attenuated by passing the strain through guinea pigs. The mules went through the disease, and the trypanosomes of the disease disap- peared from their blood. Inoculations with virulent cultures of the germ later failed to infect the animals. So, too, hydrophobia, which is also protozoal in origin probably, is cured and prevented by injections of cul- tures of the germ which have had their virulence 26 PUBLIC HEALTH ADMINISTRATION reduced by drying. This is also a well recognized pro- tective measure. § 25. Bacterial antagonisms. Nature has everywhere arranged for antagonistic agents. It is well known that milk when left to itself sometimes sours and remains sour for a long time without becoming rancid. At other times the rancidity develops early. At still other times it becomes putrid without having soured perceptibly. The acidity is due to the action of yeasts or bacteria. The putrefaction is also due to the action of the bacteria. It is found that if the milk be arti- ficially inoculated with a pure culture of the lactic acid bacillus, the putrefactive bacteria are unable to thrive. This bacterial antagonism is applicable in public health work. The lactic acid germ is harmless for the human being, and it is antagonistic to the bacillus of diphtheria, and to the meningococcus which produces the epidemic meningitis. As a protective measure all persons exposed to either of these diseases should have their throats and noses sprayed with a culture of the lactic germ. It has been customary to use injections of the diphtheria antitoxin as a pro- tective against the diphtheria. Sanitary advances indicate that such injections are no longer reasonable or best. It is true that they are curative, in that the evidences of the disease so far as symptoms are con- cerned are removed ; but they do not kill the germ, and therefore they may serve to hide the source of trouble. By retarding or suppressing the disease symptoms they may permit nature to destroy the germs, but in the case of those exposed to the disease, but not actually sick, they may simply neutralize the poison, while the germs may grow in their throats with impunity; and RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 27 because they are not showing by symptoms any danger, such persons may be very active in the spread of the disease. The nse of the antitoxin is not entirely devoid of danger. There is a peculiar susceptibility in animals of one species relative to the blood of another. This susceptibility is not so evident with one injection as it may be with another made a long time afterward. Since most antitoxins are supplied in the serum derived from a horse, it is quite possible that when it has been used for protection from disease, at a subsequent time antitoxin may be needed for treatment of another disease, and if that also chances to have been prepared with the horse serum, serious harm or possibly death may result. Though this outcome is now rare and likely to be guarded against by competent physicians, it is a danger which must be remembered. On the con- trary, the lactic spray is very active in its antagonism to the diphtheria germ, and is absolutely devoid of danger. It is therefore a proper measure for the health service. §26. Entrance of bacteria to body. Since bacteria cannot of their own power force themselves into healthy tissue, to gain entrance they must attach them-, selves to some friendly agent. Many enter the body with food. They are carried from one patient to another, or to the food, on the hands of attendants. Sometimes they take advantage of entering the body through some injury to the skin or mucous membrane. Not infrequently they are carried from one patient to a healthy individual, who is thus infected, by insects, and perhaps inserted by the hypodermic needle of a mosquito. In all these cases the insect is a simple. 28 PUBLIC HEALTH ADMINISTRATION carrier of the infection, and the danger of infection decreases with the passage of time since the insect has come in contact with the diseased body or culture. The species of carrier is not important, for the methods of propagation for bacteria are practically uniform. Some protozoal diseases are thus transported, as was shown on the Canal Zone, where it was found that the common house fly carried the trypanosome of dourine from horse to horse, thus producing the infection. §27. Insect carriers versus hosts. In the case of many protozoa, on the other hand, the insect may be more than a simple carrier. (§417.) Take the sleep- ing sickness of Africa, for example. This is due to a trypanosome which propagates itself asexually in the body of a patient to whom it has been communicated through the bite of a tsetse-fly. If such a fly bites a patient suffering with the disease, it may be able to communicate the disease to a healthy individual by biting him within from twenty-four to forty-eight hours. During this period the fly is a simple carrier, just as is the flea a carrier of the bacillus pestis. After forty-eight hours the fly is incapable of communicating the disease for a period of about seventeen days, dur- ing which the protozoon is undergoing sexual repro- duction in the body of the fly. Thereafter, for a period of two months the insect is again an infective agent. It has not been shown that any other insect, aside from the different species of Glossina, can thus serve for the sexual development of that particular proto- zoon. In like manner the stegomyia mosquito is the only known intermediary host, as it is called, for the yellow fever; the culex mosquito harbors thus the nlaria; and the various species of anopheline mos- RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 29 quitoes alone permit the sexual cycle of development for malarial parasites. Any insect possessing an instrument like a hypodermic needle, by extracting blood laden with these protozoa, and carrying it to a healthy person may be a disease carrier. Only special varieties may be intermediary hosts. Only thus are these diseases spread. In the case of these intermediary hosts the danger of infection is based upon the mathematical calculation of probabilities. The factors entering into the compu- tation are many, but they are readily demonstrable. In the case of the malarial mosquito, for example, the distance from the breeding ground to the patient is a factor. The proportion of insects to persons is another. The chance that a person will be bitten, not simply by a mosquito, but by one which has chanced to have bitten a patient is another factor. Then the chance that a mosquito shall live long enough after infection to permit the Plasmodium of the disease to pass through its sexual cycle is another factor. The doc- trine of probabilities, though often ignored, must be at the base of scientific warfare against disease. § 28. Animal hosts. It must be remembered that the human family are not the only animals which may furnish food for disease germs. The flea bites a person afflicted with the bubonic plague, and carries the bacilli to the rat, where they develop and multiply. From the rat other fleas carry the disease to ground squirrels, and other animals, whence the disease may again be transferred to man. The study of these means for the spread of disease is an important part of public health science, and the restriction of the operation of this method involves the destruction of the vermin. Not 30 PUBLIC HEALTH ADMINISTRATION only must infected rats be destroyed, but a portion of the legitimate work of the service must be the pre- vention of propagation of the insect carriers, and of the vermin which aid in the spread of diseases dan- gerous to mankind. Herein is the very marked dif- ference between the old methods and those now used for the restriction of infectious diseases, and it is quite possible, and some of us believe that it is probable, that almost the only value of fumigation, as a preventive of the spread of disease, is found in the destruction of insects and other carriers. Formerly patients with yellow fever were strictly isolated from their friends, but the disease spread nevertheless. Today the patient is not isolated, but he is kept in a mosquito proof room, the mosquitoes are all killed in the house, and the breeding of the stegomyia species is carefully pre- vented. The result is that the disease is quickly eradi- cated. Th0 "yellow jack" has completely lost its power to produce fear, though in times past it was able to depopulate towns, and many ships, in Santos or Rio, which reached the port with full crews of healthy men, were left to rot at the docks, because not enough men were left to manage the ship. The old method was cruel, and inefficient. The new is humane and effective. § 29. Means of restricting infectious diseases. The means for the restriction of infectious diseases must include : 1. The treatment of first patients, to prevent other infections. Quinine as a cure for malaria, is the chief dependence in some countries for the restriction. 2. Treatment of exposed persons. Quinine is pro- tective against malaria. Vaccination is protective RELATIONSHIP OP PUBLIC HEALTH TO BODY POLITIC 31 against small-pox. Lactic spray is protective against diphtheria and meningitis. 3. Eestriction of patients to prevent exposure. Sometimes the old quarantine is still required. Some- times, as in yellow fever and malaria, patients are sur- rounded by mosquito proof cages. 4. Destruction of insect carriers, and vermin. 5. Discovery and treatment of human carriers. 6. Education, as in the case of tuberculosis. §30. Disease carriers — human. It is found that many healthy individuals are a constant source of danger to the community, by reason of the fact that they are producing, and throwing off disease germs. This is especially true of typhoid fever. After an attack of the fever, perhaps so mild that it was not at the time recognized, many persons continue to develop, and discharge the bacilli of the fever, and they are thus causing frequent infections, especially because owing to their apparent good health neither the carrier nor his friends are on their guard against the ever present danger. The legal rights of such individuals, and of the community as against them, may be a matter of some considerable question and perplexity. This must be recognized, however, that a typhoid fever patient is not properly quarantined so long as his infectious discharges are permitted to escape complete sterilization, and a typhoid carrier is entitled to no consideration if he so conducts himself that others receive infection from him. In other words, it is as necessary for the discharges of a carrier to be sterilized, as it is for those of a patient. §31. Reasonableness, a problem of probabilities. The question of reasonableness is not always a simple 32 PUBLIC HEALTH ADMINISTRATION one of abstract statement. (§§14, 15, 170.) A district infected with anopheline mosquitoes is potentially malarial, but in the absence of the disease, or of danger that the disease may be imported, it is not necessarily reasonable to exterminate the breeding places by com- pulsion. (§§ 199, 200, 201.) It may be advisable, but it is not necessary. Neither is it reasonable to force the antimalarial measures when one^ patient is imported. It is far more reasonable to care for, and treat the patient, and prevent the contact of the insects, than to spend large sums in draining, and training the watery breeding places of the mosquito. It might be reasonable to attempt these engineering problems to raise the value of the property, and to recover waste land, but from the standpoint of health alone it would not be reasonable in the face of a single case or two, which might be otherwise cared for. Especially is it true when we consider that the engineering task would take perhaps years to accomplish, and would likely be uncompleted long after that danger had passed. From another point of view, even the draining plan would be reasonable. If the location were one which might at any time be invaded by carriers of the Plasmodium, prudence would demand that the community be defended by removing the local partnership in the threatened danger. It was the malarial mosquito which conquered Greece, and caused the downfall of Rome. Today the Italian and Grecian laborers who come to assist in our railroad and other constructions, frequently have the Plasmodium in their blood, though to a degree they have become immune to its active manifestations. Before beginning such constructive work therefore, it is wise to consider the advisibility RELATIONSHIP OF PUBLIC HEALTH TO BODY POLITIC 33 of destroying the breeding places of the insects. It would be perfectly reasonable to require that laborers coming from a malarial district should pass such a physical examination as would prove whether or not they be affected by the malarial Plasmodium; and that all individuals showing such infection might reason- ably be prohibited from remaining in the district. A case originating in the state of California turned upon the reasonableness of certain quarantine regulations. The Court said that where less than nine persons of the population of the city had died from the bubonic plague though it was shown that living human beings had been infected, the prohibition of persons either entering or leaving a territory of twelve blocks with a population of more than 10,000 was an unreasonable interference with their lives and business. 6 § 32. Reasonableness of requiring- reports of infec- tious diseases. It is reasonable, and necessary for efficient public health operations, that the laws requir- ing the reporting of infectious diseases should be strict and complete. (§§392, 393, 410.) Without such reports the efforts of the service must be uncertain and unsatisfactory. Such requirements should be com- plete, in that every possible source of omission should be excluded. This means that every infectious disease should be mentioned, and that there should be a per- sonal responsibility therefor upon physicians and householders. It is reasonable that the penalty should be severe for hiding, or attempting to hide such cases. • Jew Ho v. Williamson, 103 Fed. 10. CHAPTER II UNDERLYING PRINCIPLES OF GOVERNMENT — COMMON LAW CONSTITUTIONS, INSTITUTIONS AND STATUTES § 33. Governmental ideals. § 34. Centralized system. § 35. Collective authority. § 36. Development of Anglican lib- erty. § 37. Individual liberty necessi- tates restraint. § 38. True liberty is communal. § 39. Liberty influenced by density of population. § 40. Mistaken ideas of liberty ob- stacles to progress. § 41. Liberty influenced by divi- sion of labor. § 42. Constitutional liberty. § 43. Legal interpretation. § 44. Supremacy of law. § 45. Common law. § 46. Common law basis of liberty. § 47. Common versus statutory law. § 48. Institutions. § 49. Antiquated institutions. § 50. English Constitution. § 51. American constitutions. § 52. Common law, constitutions, and statutes. § 53. Interpretation of law by courts. § 54. Illegal acts sometimes sanc- tioned. § 55. Doctrine of expediency. § 56. Public health has overridden legal restriction. § 57. Foresight better than emer- gent energy. § 58. Purity of intention no ex- cuse. § 59. Compliance with law to be preferred. § 60. Injurious institutions. § 61. Health powers too great. § 62. Law should be observed. § 63. Institutions and statutory law preserve personal free- dom. §64. "Force of Law." § 33. Governmental ideals. In order to appreciate the full import of legal decisions, it is necessary to have a clear idea of the fundamental principles of govern- ment. A method which may be advisable in one country, may be impossible in another. Since science is universal, its disciples are prone to overlook dis- tinctions in systems of administration which are important; but, just as from a scientific standpoint the 34 UNDERLYING PRINCIPLES OF GOVERNMENT 35 prevention of malaria in one place must be very dif- ferent from that which will prove efficient in another, so the legal steps must vary. At Cairo, in Egypt, drainage is practically impossible in antimalarial work and recourse must be had to the free petrolization of cesspools. Similarly, administrative orders in a cen- tralized government are all that need be required in many instances ; but such orders would be illegal in the United States under precisely the same physical con- ditions. § 34. Centralized system. There are two widely dif- ferent theories of government. The centralized system is well illustrated in the Roman Church. The Pope is regarded as the representative of God upon earth. Power and authority is delegated down from him through the cardinals, archbishops, and bishops to the priests, over the individual persons. The distinctively catholic idea of a government must therefore be an absolute monarchy; and even when applied to such a democratic government as that of the United States, the teaching is that the government is representative of divine authority. This slightly differs from the old Roman theory, carrying the practice further than did the Caesars. Rome was the head of the Roman Empire, though the importance of the individual citizen of the city was greater than under the rule of the Pope. § 35. Collective authority. The theory of the framers of the Government of the United States is quite the reverse. Sovereignty resides in the indi- vidual citizens, who unite to delegate authority to officers of different grades and jurisdictions. The officers act for, and in the name of the people collec- tively. They are not supposed to represent any class, 36 PUBLIC HEALTH ADMINISTRATION nor to give special liberty, or license to any individuals. They have authority only as it is distinctly granted. Neither officer nor citizen has a right of arbitrary action. They do not rule the people, but govern for the people. §36. Development of Anglican liberty. A distin- guishing feature of Anglican liberty is found in the relative importance and dignity of the individual. The Magna Charta was forced from King John by the Barons in England, a recognition from the monarch of the fact that the individual subjects have rights which even kings are obliged to respect. Gradually the power of the citizen in Great Britain has increased, and, pari passu, the authority of the sovereign has diminished. In the American law the liberty of the individual has always been theoretically recognized. §37. Individual liberty necessitates restraint. An elastic sphere may be perfect when alone; but if it be among a number of such spheres, crowded together in a box, each loses a portion of its perfect form. The province of government is to see that each sphere loses as little as possible of its perfection of form; that is, that each citizen preserves as much as possible of his individual freedom of action. § 38. True liberty is communal. Eousseau's idea of liberty centers in the individual; that of Montesquieu centers in the community. Restraint is needful for the most perfect liberty. That restraint must be found in the law to protect each from injury by others. The democracy of Rousseau is impossible. The logical result of unrestrained personal freedom is the suprem- acy of the strong. The most perfect form of this supremacy of the strong is an absolute monarchy. As UNDERLYING PRINCIPLES OF GOVERNMENT 37 Dr. Lieber aptly says : * ' ' Limitation of self-determi- nation is one of the necessary characteristics of civil liberty. ' ' §39. Liberty influenced by density of population. Returning to the illustration of the elastic spheres, one readily recognizes that the greater crowding of the spheres renders each less perfect. The more humanity becomes condensed in populous communities, the less individual freedom can each possess. If any one retains an undue proportion, it must be at the expense of the weaker neighbors, just as a more firm sphere may preserve its form at the expense of adjoining balls with thinner walls. § 40. Mistaken ideas of liberty obstacles to progress. Failure to realize this necessary subordination of indi- vidual rights to those of the community, especially among the misguided citizens of foreign birth, has been an obstacle in health administration. Nor is this oppo- sition confined to uneducated foreigners. The needful invasion of property rights, and the violation of indi- vidual liberty are the causes for which public health measures have been impeded. It cannot here be too strongly emphasized that liberty does not imply the unrestrained right to do as one pleases. Neither does it imply the right to use one 's property in any manner detrimental to the community. "But it may be here observed that every citizen holds his property subject to the perplexities of this (police) power, either by the state legislature directly or by public or municipal cor- porations, to which the legislature may delegate it." 2 i Civil Liberty, Chap. II, p. 28. Textor v. Baltimore & Ohio B. E., 2 Dillon, Sec. 141, citing Mc- 59 Md. 63. Kibben v. Ft. Smith, 35 Ark. 325; 38 PUBLIC HEALTH ADMINISTRATION "Still he owns it (property) subject to this restriction, namely, that it must be so used as not unreasonably to injure others, and the sovereign authority may by police regulations so direct the use of it that it shall not prove pernicious to his neighbors or the citizens generally. ' ' 3 § 41. Liberty influenced by division of labor. It is not only the physical condensation of the population which restrains personal liberty. "With advancing civilization and division of labor, each individual citizen is more dependent upon the many, and the injury of one may affect all. The great aggregations of capital, called corporations, are natural results of commercial and industrial development. They act as more powerful oppressors of individual freedom, and the observation of legal safe-guards is therefore even more important than when the republic was formed, and before these soulless bodies became a menace. § 42. Constitutional liberty. It is well to consider the remarks which Mr. Webster made before the United States Senate, May 7, 1834. The spirit of liberty 4 "demands checks; it seeks for guards; it insists on securities; it entrenches itself behind strong defenses, and fortifies itself with all possible care against the assaults of ambition and passion. It does not trust the amiable weakness of human nature, and therefore will not permit power to overstep its pre- scribed limits, though benevolence, good intent, and patriotic purpose come along with it. * * * This is the nature of constitutional liberty, and this is our 3 Dillon, See. 141. IV, p. 122. « Works of Daniel Webster, Vol. UNDERLYING PRINCIPLES OF GOVERNMENT 39 liberty if we will rightly understand and preserve it." He further said: ''The simplest government and the most direct is pure despotism. ' ' This statement is true, whether it be said with reference to the city, the state, or the nation, and whether we consider the broader scope of governmental activity, or a limited portion like that of the health department. § 43. Legal interpretation. Some of the fundamental differences between the Anglo American systems of government, and those of other peoples, are the direct result of the relative protection afforded to the indi- vidual. The Justinian Code, for example, was the product of enactment. Any question of interpretation was answered by a new enactment. So too in the temporal government of many other peoples, the enact- ing power, whether of king or senate, has been the only judge of interpretation, and as Dr. Lieber says : 5 "Authentic (i. e., official) interpretation is not inter- pretation, but rather additional legislation. " Ques- tions were discouraged, and the law had no inherent life. Thus we find that the Papal Bull of Pius IV, January 20, 1564, "sanctioning and proclaiming the canons and decrees of the Council of Trent, contains also the prohibition to publish interpretations and dis- sertations on the canons and decrees." 6 With such a system there could be neither philosophy of law, nor growth. §44. Supremacy of law. The predominance, or supremacy of law, as opposed to personal absolutism, is the distinguishing characteristic of English institu- tions. 7 In England at an early period courts began to s Chapter 18, p. 208. » See Dicey, 2nd Ed., p. 173. • Lieber, Note, p. 206. 40 PUBLIC HEALTH ADMINISTRATION strive for some philosophy of government, and every decree of the king, or enactment of parliament was interpreted by judges. Gradually these judges became more and more independent of both the legis- lative and the executive powers, and the usages of procedure were determined by the courts themselves. Changes in methods were slowly made, as necessity became apparent, and they were intended to preserve justice, as between man and man, and to defend the rights of the individual from encroachments. Each case decided became a precedent — a custom. This custom was not binding absolutely, like the Justinian Code, but it might be modified, limited, or overruled for due cause, according to the opinion of the court. "A prec- edent in law is an ascertained principle applied to a new class of cases, which in the variety of practical life has offered itself. It rests on law and reason, which is law itself. It is not absolute. It does not possess binding power merely as a fact or as an occur- rence. ' ' 8 This system is the natural development of a reasoning people, for it is the nature of a thinking man to analyze and systematize facts and ideas. § 45. Common law. Precedents having accumulated, an idea became customary, or common, and the funda- mental principles of law thus became recognized, though unwritten. This lex non scripta is called therefore the common law. "A living common law is, as has been indicated, like a living common language, like a living common architecture, like a living com- mon literature. It has the principle of its own organic vitality, and of primitive, as well as assimilative expansion, within itself. It consists in the customs sLieber, Chapter 18, p. 208. UNDERLYING PRINCIPLES OP GOVERNMENT 41 and usages of the people, the decisions which have been made accordingly in the course of administering justice itself, the principles which reason demands and practice applies to ever varying circumstances, and the administration of justice which has developed itself gradually and steadily. ' ' 9 From time to time por- tions of this lex non scripta became written in the enactments of parliament, and so more fixed and inflexible. Although the expression "common law" is with us ordinarily applied to the English common law, it must not be forgotten that every country has its own com- mon law, and that the courts do not make common law — they but recognize officially what is common law. Common law of a given section may cause an excep- tion to be made in the working of statutory law. Such exceptions we find, for example, relative to Moham- medans in East India sometimes. Again, starting with the same common law two peoples may develop a very different common law according to circumstances. Common law in England today is not binding upon the peoples of the United States. "As long as a nation continues to live and grow, nothing can stop the growth of its law. The rules of law are simply those rules of conduct which are enforced by the state, and they have to be applied with reference to the political, social, and economic conditions of the time. Absence of power to legislate, or failure to exercise it, may impede, cramp, or distort the growth, but cannot destroy it. The stream will either burst through, or, more often, find its way by tortuous and unexpected channels. The human mind displays marvellous » Lieber, Chapter 18, p. 205. 42 PUBLIC HEALTH ADMINISTRATION ingenuity in adapting old forms to new conditions, whether those forms are embodied in codes or in creeds. The principle of development has been applied, not only to theological formularies, but to documents like the Constitution of the United States, and, under the pressure of inexorable necessity, is somehow applied in apparent defiance of the rules of logic and of language. ' ' 10 § 46. Common law basis of liberty. The common law is essentially the same among all English speaking peoples. It was brought to America by the colonists, and it forms the bulwarks of our institutions. It may be changed, but it cannot be ignored, or trampled under foot, without injury to the people. Herein lies the great difference between American Democracy and the old Roman type. This old Roman idea is seen in the earlier French republic; an absolute equality con- centrated in the absolute dominion of the majority; or, in the French empire, where the power of the majority is transferred to, and centered in the Emperor. The same theory is found in a weakened form in the present French republic. Such seems, too, to be the theory of some at least of the later day socialists in America, who show a tendency to overthrow or anni- hilate the bulwarks of personal liberty found in the common law. § 47. Common versus statutory law. From time to time, according to the exigencies of the case, the legis- lative authorities enact statutes; but here again, as Dillon remarks, 11 the common law is the basis of the io Ilbert, p. 173. n Municipal Corporations, Sec. 8. UNDERLYING PRINCIPLES OP GOVERNMENT 43 laws of every state. The distinction between common and statutory law dates back to 1216. ' ' National coun- cils had met from the most remote times; but to the end of this reign, their acts not being preserved on record are supposed to form a part of the lex non scripta, or common law. Now begins the distinction between common and statute law." 12 § 48. Institutions. Growth in any community leads to the establishment of institutions. One of our most ancient institutions is trial by jury. Another example is the institution of quarantine. Though institutions have grown with the common law, and though our constitutions are based upon the common law, constitu- tions may sometimes conflict with institutions. This conflict may result in modifying, or restricting the institution; or, depending upon the sanction of usage, the institution may persist in spite of constitutional restrictions for a time. § 49. Antiquated institutions. An institution may become antiquated by reason of social, or scientific, progress. The provision that members of a jury shall be disqualified for service if they have heard or read of the case on trial, is a relic of the days before the art of printing, the modern newspaper, the telegraph, and the telephone. Ignorance of a case often indicates an untrained mind, slow of comprehension, and unable to reason clearly. Such a man is a creature of impulse and of feeling. He may be easily swayed by the ora- torical efforts of the barrister, and is not an ideal agent for the preservation of right and justice. Again, such quarantine as was the result of former theories, we know today is utterly useless against yellow fever. 12 Lord Campbell, Vol. I, p. 113. 44 PUBLIC HEALTH ADMINISTRATION The mere fact that common practice has used such quarantine for hundreds of years is no satisfactory evidence of its value. (See Chapter XIV). Old institutions should be preserved only so long as, or to the degree that, they tend to preserve and pro- tect individual liberty. On the other hand, these old institutions have a most powerful influence even among the educated in preventing the substitution of new methods. "No es costumbre" is a chain which retards progress even outside of the Spanish peninsula. Unfor- tunately it often happens that well meaning practi- tioners of medicine, who have not kept abreast of scientific advancement, make the same objection to changes in methods of quarantine. "It is no part of modern quarantine to make commercial intercourse difficult; it is designed to protect commerce by lessen- ing the risk of disease," wrote Sir Rubert Boyce. 13 Institutions must be used and preserved only so far as they make for the preservation of liberty in its best sense. § 50. English Constitution. ' ' What is called the English Constitution consists of the fundamentals of the British polity, laid down in custom, precedent, de- cisions, and statutes; and the common law is a far greater portion than the statute law. 14 In England, therefore, the distinction between constitution and statute is not as clearly defined as in the United States. §51. American Constitutions. When the United States was formed into a nation, its founders agreed upon certain clear portions of the common law, and recorded them in a Constitution, together with matters is Boyce, p. 114. n Lieber, Chap. 18, p. 210. UNDERLYING PRINCIPLES OF GOVERNMENT 45 of executive detail. Each state in the Union, like- wise, has a written constitution, and no act either of a court, legislative body, or executive, can be lawful, or legal, if it violates the principles thus recorded. Every statute must be measured according to the constitutions under which it is enacted. A state statute must not conflict with either the constitution of that state, nor with that of the Nation. These constitutions are in- terpreted by the courts according to the principles of the common law, and we have therefore a collection of precedents known collectively as Constitutional Law. It must also be remembered that no state constitution may violate that of the United States; and where an apparent conflict might exist, it is the duty of the court if possible to interpret the state document under the limitations of the Constitution of the Nation. § 52. Common law, constitutions, and statutes. We find, therefore, that the more fixed facts of law are em- bodied in the written constitutions. Those less sure, and more variable are enacted into statutes, which may be readily altered. Yet even common law is not easily changed. It takes much time to alter legal custom. But if, with the changes due to civilization, or science, some custom of the common law has become antiquated, it may be modified or abolished by statutory enactment. Constitutional provisions are therefore more perma- nent than those of statutes, and statutory enactments conflicting with the constitutions governing the same territory are not law. Institutions, or the acts of either officials or private individuals, conflicting with either statutory or constitutional law are not lawful, even though with the sanction of custom they may be per- mitted, or ignored. Such today are certain public health operations. 46 PUBLIC HEALTH ADMINISTRATION § 53. Interpretation of law by courts. In the in- terpretation of statutes the courts are guided by the common, as well as by the written law. A decision by a lower court has little value as a precedent, though the same argument may be applicable in the case at bar. The same is true as to the opinions rendered by the Attorneys General, either of the state or nation. In certain states there is a provision for the rendering of an opinion by the members of the supreme court, upon the request of the Governor, or other proper offi- cer, but even such an opinion is not authoritative, and may be overruled by the same court, when a case is presented. The decision of a case by a supreme court is practically binding upon subordinate courts, until it shall have been overruled by the same, or a higher court. It therefore has the force of law, though it does not thereby repeal a statute which it pronounces unconstitutional. Since state constitutions vary, identically the same statute may be law in one state but not in another. Decisions in other states, or in the British empire, are valuable aids in the critical examination of a question, but they have no binding force. Decisions of the Su- preme Court of the United States are authoritative as to questions pertaining to the Federal Constitution, and the statutes of the United States. It is the usage of that court to uphold the decisions of the state su- preme courts as to the constitutions of their respective states, and therefore the same question, reaching the United States Supreme Court from different states may be decided differently. § 54. Illegal acts sometimes sanctioned. ' ' Self pres- ervation is the first law of nature," and "Salus populi UNDERLYING PRINCIPLES OF GOVERNMENT 47 est suprema lex," are dicta which are well recognized by the common law. Though contrary to both the moral and the statutory law to kill a man, such an act may be legally excused if it is necessary for the preser- vation of other lives. It is excused if, for example, it is done in the line of duty; as when a policeman shoots a dangerous criminal who is trying to escape. In such cases, however, it is required that the killer must have used every reasonable means to avoid taking hu- man life. In other words, neither self-preservation nor the safety of the people may be used as an excuse except in extreme emergency. In the presence of great epidemics the safety of the people has been the warrant which was taken to authorize frequent violation of property rights, and the deprivation of innocent citi- zens of personal liberty. § 55. Doctrine of expediency. Herrera y Tordesil- las, the Spanish historian who wrote three centuries ago, said: "Those who are governed by reasons of state are apt to shut their eyes against everything else. ' ' 15 and what was true at that time is equally true at present. There is always a constant tendency on the part of governmental officers to overstep the limits of their power; not because of wilfulness, nor of desire to oppress; but rather through such an excess of enthu- siasm, perhaps, for their own special work, that they are blinded to the rights and duties of others. They do not recognize the bounds which are set to their law- ful operations. § 56. Public health has overridden legal restriction. There are several closely associated reasons why pub- is Hist. General, Dee. 5, Lib. 6, Cap. 3. 48 PUBLIC HEALTH ADMINISTRATION lie health operations have sometimes overridden con- stitutional, and statutory limitations. First, Makeshifts. Owing to the former ignorance as to the science of preventive medicine, many expe- dients have been used as makeshifts, and by long usage they have become unquestioned habits. Secondly, Ignorance. Public health administration has been largely in the care of physicians. Physicians as a rule are ignorant of the theory of law, and as health officers they have unconsciously ignored its re- strictions. Thirdly, Public Health an Avocation. Heretofore public health service has been an avocation, rather than a vocation. Few members of the profession have devoted their whole time to it, and the remuneration for such public service as has been rendered has been very small. There has been no other inducement than pure altruism for studying the problems of health ad- ministration. The methods and interests involved in the practice of medicine, are antagonistic to preven- tive medicine. The life of the practitioner depends upon his practice, and public health has been neglected. Fourthly, Emergency Produces Precedents. Prece- dents in public health work have been chiefly estab- lished in times of special danger. The people have been willing to pay a great price to be rid of the pestilence. Action has been forced by necessity, and the methods chosen have not been closely scrutinized. Lastly, Slight Deviations Result in Perversion. Variations from legal methods have developed so slow- ly, and each step has been so insignificant, that they have not even been noticed. Just as a wayfarer going through a wood may step aside from the path to gather UNDERLYING PRINCIPLES OF GOVERNMENT 49 berries, and supposing that he is still paralleling the road he may proceed until he suddenly discovers him- self far out of his way; so a health officer may advance with assurance in his work, emboldened by custom, until at a critical point he may be checked by quo war- ranto or other legal action. Too often, under such conditions, he resents the interference of the courts, and chafes under the technicalities of the law. The fault is not with the law, nor is it in the courts. The check is the penalty of the administrator for failing to use the methods ordained, and for overlooking or disre- garding the provisions for the protection of the peo- ple. It is well to consider the words of Mr. Justice Miller: "I but repeat the language of the Supreme Court of the United States when I say that in this country the law is supreme. No man is so high as to be above the law. No officer of the Government may disregard it with impunity. " 16 § 57. Foresight better than emergent energy. The ideal public health executive does not show his strength in spectacular performances, nor in the handling of a great epidemic, but in the making of such preparations that the pestilence can gain no foothold. "In time of peace prepare for war," should be his motto. The na- tion which is prepared is less likely to have a war, and the state or city which is prepared in advance is not likely to have an epidemic. The very appearance of an epidemic is evidence of primary weakness and in- efficiency. It is vain for the health official to plead necessity as an excuse for autocratic methods in the face of an epidemic. Legal measures should have been is Miller, on the Constitution, p. 33. 50 PUBLIC HEALTH ADMINISTRATION taken before the danger showed its head. Mr. Justice Story says: 17 "It has been often said that necessity is the plea of tyrants; but it is equally true that it is the plea of all public bodies invested with power, where no check exists upon its exercise. The guarantees of individual liberty in the Constitution were intended for a state of war as well as a state of peace, and were equally binding upon rulers and people at all times, and under all circumstances." Public health work has been aptly compared with warfare, and therefore the above quotation from the distinguished jurist is the more appropriate in the present connection. In Ex parte Milligan, we read : 18 ' ' Neither the President, nor Congress, nor the Judiciary can disturb any one of the safeguards of civil liberty, incorporated into the Constitution, except so far as the right is given in cer- tain cases to suspend the privilege of habeas corpus/ 9 and "No doctrine involving more pernicious conse- quences was ever invented by the wits of man, than that any of its provisions can be suspended during any of the great exigencies of government. Such a doc- trine leads to anarchy or despotism; but the theory of necessity on which it is based is false ; for the Govern- ment within the Constitution has all the powers granted to it which are necessary to preserve its ex- istence." § 58. Purity of intention no excuse. Unfortunately it too frequently happens that honest and competent men, realizing only the purity of their own intentions, fail to recognize that in their zeal they are seeking to establish precedents which may be potent for evil in it Commentary on the Constitu- i 8 4 Wall., 120. tion, Sec. 551. UNDERLYING PRINCIPLES OF GOVERNMENT 51 the hands of unscrupulous officials. Judge Davis was speaking of the exigencies of war when he said 19 that the theory of necessity was false, but the statement is equally true in public health service. The plea is only evidence of previous inefficiency. In Jenkins v. Board of Education, 20 the supreme court of Illinois 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 pre- scribed by the legislative authority of the city." "The securities of individual rights, it has often been ob- served, cannot be too frequently declared, nor in too many forms of words; nor is it possible to guard too vigilantly against the encroachments of power, nor to watch with too lively a suspicion the propensity of persons in authority to break through the 'cobweb chains of paper constitutions.' " 2l § 59. Compliance with law to be preferred. When- ever two courses are open for action, the one constitu- tional, and the other unconstitutional, it is our duty to choose the former. It matters not how desirable an object may be of attainment, if the method used is even slightly illegal it should be abandoned, and a more just way should be found. In Boyd v. United States 22 Mr. Justice Bradley says that ' ' Illigitimate and uncon- stitutional practices get their first footing in that way, namely, by silent approaches, and slight deviations from legal modes of procedure.' ' So in Potts v. Breen, 23 the court, while admiting the advisability of vaceina- 19 Ex parte Milligan, loc. cit. 22 H6 U. S. 616, 635. 20 234 111., 427. 23 167 111., 67. 21 Story, On the Constitution, Book III, Sec. 1938. 52 PUBLIC HEALTH ADMINISTRATION tion, decided that the path chosen was not constitution- al, and pointed out the legal method of its attainment. § 60. Injurious institutions. Lieber calls attention 24 to the fact that institutions, though not viciously con- ceived, may become injurious. They may become hol- low, and like the empty boxes in an ill managed house, become catchalls for rubbish, and thus nuisances. Thus the institution of quarantine, though designed for the common good, has been used for the purposes of op- pression, and to gain advantage over opponents. Health office inspectors, under the old Tweed regime in New York City, were used systematically for the collection of blackmail. 25 Other illustrations might be found of a like perversion of health administration, for private gain. § 61. Health powers too great. Under these condi- tions it is not to be wondered that Professor Goodnow says : 26 "It may well be doubted whether the powers possessed by these (health) authorities in the United States, in those cases in which their powers are the greatest, are not too great. Their discretion is so wide and so uncontrolled that it offers large opportunities for official oppression, and if current rumor may be credited, this discretion has in the past been made use of in many cases, not so much to protect the public safety and health, as to enrich the officers of the health and building departments through the levy of black- mail, or to obtain political support for the party in control of the city government." § 62. Law should be observed. Even a pernicious a* Civil Liberty, Chapter 26, p. 26 Municipal Government, p. 317. 286. 25 Autobiography of Andrew D. White, Vol. I, p. 107. UNDERLYING PRINCIPLES OF GOVERNMENT 53 statute should be observed. If it is vicious it should be repealed, or the sting should be removed to make it harmless. The responsibility for the law is with the legislative body, not with the executive. The repeal cannot be attained by violating its provisions. Then the people will not see its harmfulness. Ignore it, and a bad example is set, and respect for law has been decreased. Observe it, and the evils perceived will cause its repeal, and respect for law will be deepened. On the other hand, as Mr. Justice Miller says: 27 " History teaches us in no mistaken language, how often customs and practices which were originated without lawful warrant, and opposed to sound con- struction of the law, have come to overload and per- vert it. ' ' § 63. Institutions and statutory law preserve per- sonal freedom. Institutions and constitutions, common law and statutory enactment are all for the preserva- tion of personal freedom, and not for oppression, nor for injury. Their object is to aid, not to hinder prog- ress in civilization. No apparent harm may result when an individual in a hurry "cuts across" a private lawn, rather than go around the corner on the side- walk. If he repeat the act frequently he wears a path which injures the lawn, and sets a bad example. The act is lawless, and opens the way for more lawless deeds by others. Just so, to make up for previous negligence public officers may do some minor act of illegality, but that makes it more possible to wander further from the lawful path. The object sought is no excuse ; it is simply an explanation. §64. "Force of Law." It is necessary that we 2T On the Constitution, p. 21. 54 PUBLIC HEALTH ADMINISTRATION should make a clear distinction between that which is genuine law, that is, which has the full force and au- thority of law, and that which simply has the appear- ance and external form of law. A statute, though passed in due form, is not really law if it conflicts with constitutional provision; though until passed upon by the court it may have the effect of law. So the order of an executive, the ordinances of a municipality, or the regulations of a board of health, are law only when within the powers granted by the constitution and the statutes. The standing of any enactment, order, rule, regulation, or ordinance, as law, is not sure until it has been passed upon by the highest court having juris- diction. (§ 112.) Either may be law if properly is- sued; neither is law if it violate constitutional provi- sions or superior statutes. Unfortunately, health ex- ecutives not seldom lose sight of this distinction, and in consequence, unduly emphasize the value of special ordinances. The English writer upon Sanitary Law, Dr. Charles Porter, devotes his entire discussion to the form of statutes as passed ; and in his excellent work on Municipal Hygiene Dr. Charles V. Chapin devotes most of his space to the forms of municipal ordinances, rather than to the underlying principles. A desirable law, from a scientific point of view, may not be good law in the legal sense ; and vice versa. Municipal ordi- nances or executive orders have the full force of law, when issued with statutory authority; 28 and a statute is law only when within the permission of the constitu- tion. The decision as to the validity of statute or or- dinance is the prerogative of the court. 28 Buffalo v. H. L. & E. W. 496; People v. N. Y. Edison Co., R. K. Co., 152 N. Y. 276; 46 N. E. 144 N. Y. Supp. 707. CHAPTER III THE TRIPLE SYSTEM OF GOVERNMENT, AND RELATION OF EACH BRANCH TO PUBLIC HEALTH ADMINISTRATION 65. The Anatomy and physiol- § 83. ogy of government. § 84, 66. Three branches of govern- ment. § 85. 67. Separation of powers often ignored in public health § 86, administration. 68. Importance of Triple Sys- tem. § 87. 69. Union of powers, tool of tyranny. § 88. 70. No liberty with powers § 89. united. § 90. 71. Separation of powers purely Anglican. § 91. 72. Separation most perfect in United States. 73. Union of powers in Euro- pean governments. § 92. 74. Abuse of power may not be frequent. 75. Paper constitutions. § 93. 76. Basis for comparison of governments. § 94. 77. Confederation not a nation. 78. Permanence' of nation de- pends upon individual § 95. restriction. § 96. 79. Latin American govern- ment. § 97. 80. Misjudgment. § 98. 81. United States, division of powers. § 99. 82. State constitutional provi- sions. § 100. Lack of distributive clause. Danger of congressional usurpation of power. Illegal custom lacks sanc- tion. Executive quasi-legislative or quasi-judicial combina- tion. Municipal division of pow- ers. Judges acting as executives. Legislative branch. Municipal legislative power limited. State legislative infringe- ment upon judicial power not prohibited by Federal Constitution. Division of powers in state governed by state consti- tution. Judicial action of legisla- ture prohibited. Legislation by "the peo- ple. ' ' Legislative power can not be delegated. Executive assumption of legislative power. Executive emergency. Executive assumption of judicial power. Executive duty to give leg- islature information. Executive orders, law? 55 56 PUBLIC HEALTH ADMINISTRATION § 101. Power yielded because § 108. Legislation more -needful claimed is not sanctioned. in decentralized govern- § 102. Executive orders and regu- ment. lations, limitations of. $ 109 - Legislation definite in ef- § 103. Legislative limitations. ect ' . ,„. -p. » , § 110. Agreement of three § 104. Due process of law. * ° §105. Public health protection, ^ c nece 7- § 111. Executive semi-legislative police power. , . | 106. Public health activities § m IUegal ; tatutes> based upon idea of "nui- § 113> Crazy-quilt legislation, sance. § H4 # Executive duty to systema- § 107. Lack of legislation, a source tize enacted statutes. of executive weakness. § 115. Limitation and distinction. § 65. The anatomy and physiology of government. The study of the structure of government properly be- longs to that branch of legal science known as con- stitutional law. This "deals with the anatomy of government; administrative law and administration have to do with the functions, the physiology of govern- ment, so to speak." 1 While we are especially inter- ested in the operation, rather than in the structure, it will be necessary, first of all, to examine into the or- ganization, and motive influences which may be found in the different divisions. § 66. Three branches of government. In all systems of government there are three agencies, namely, Legis- lative, Executive, and Judicial. These agencies may be united in one person, as in an absolute monarchy; or, they may be united in the mass of the populace, as in the French commune. They may be partially divided, as in Great Britain, and in Belgium; or they may be absolutely separated as in the United States. To the degree that they are united we have despotism, either of the individual, or of the majority. When they are 1 Goodnow, Ad. Law, p. 3. THE TRIPLE SYSTEM OF GOVERNMENT 57 separated each power acts as a check upon the other, thus preserving the balance of power. With this separation the individual citizen secures the greatest possible liberty. Mr. Daniel Webster says: 2 "The first object of a free people is the preservation of their liberty, and liberty is only to be preserved by maintaining con- stitutional restraints and just divisions of power. Nothing is more deceptive, or more dangerous, than the pretence of a desire to simplify government. The sim- plest governments are despotisms; the next simplest, limited monarchies; but all republics, all governments of the law, must impose numerous limitations and qual- ifications of authority, and give many positive and many qualified rights. In other words they must be subject to rule and regulation. This is the very es- sence of free political institutions. * * * We may easily bring it to the simplest of all possible forms, a pure despotism. But a separation of departments so far as practicable, and the preservation of clear lines of division between them, is the fundamental idea in the creation of all our constitutions ; and doubtless the continuance of regulated liberty depends upon main- taining these boundaries.' ' § 67. Separation of powers often ignored in public health administration. The importance of this separa- tion of powers is frequently forgotten in zeal for pub- lic health work. The executive has sometimes sought to exert legislative power, or he has failed to appre- ciate the fact that he has not been entrusted with judi- cial prerogatives. One reason for this condition is that until very recently the science of preventive medicine 2 Webster, Vol. IV, p. 122. 58 PUBLIC HEALTH ADMINISTRATION was so indefinite that general rules could not well be formulated. The facts were uncertain. Under the police power (Chap. VI), the health administration was of necessity specific, and applied to one case at a time. It was essentially local, and had little refer- ence or bearing upon the affairs of state or nation. The science has developed, and there is no longer ex- cuse for unconstitutional practices in health preserva- tion. Unfortunately, the present condition has been so long tolerated that the necessity for a change has not been generally recognized. "The time has come when the Constitution and laws of the United States are not the mere theoretical object of the thoughts of the statesman, the lawyer, or the man of affairs; for the operations of its government now reach the re- cesses of every man's business, and force themselves upon every man 's thoughts. ' ' 3 § 68. Importance of triple system. It seems there- fore necessary to devote some space to the funda- mental principles involved in the separation of powers, as prescribed by the Constitution of the United States, and by those of most of the individual states. In look- ing over the numerous decisions referring to health measures, and in reading the discussions of medical men, one can hardly avoid being impressed with the fact that the very ignoring of this extremely important idea is the greatest obstacle, and source of weakness in the service. § 69. Union of powers, tool of tyranny. Paley in his Moral and Political Philosophy has thus expressed himself upon this point. 4 "The first maxim of a free 3 Miller, On the Constitution, p. 4 Book VI, Chap. VIII. 107. THE TRIPLE SYSTEM OP GOVERNMENT 59 state is that the laws be made by one set of men and administered by another. In other words, that the legislative and judicial characters be kept separate." Jefferson called the union of powers an "elective despotism," and the Federalist speaks of such union as "the very definition of tyranny." "In all tyran- nical governments," says Blackstone, 5 "the same magistracy, or the right both of making and of en- forcing laws, is vested in the same man, or one and the same body of men, and whenever these powers are united together there can be no public liberty. ' ' Again, he says 6 that public liberty "cannot long subsist in any state unless the administration of common justice be in some degree separated from the legislative and also the executive power. Were it joined with the leg- islative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose de- cisions would then be regulated only by their opinions, and not by any fundamental principles of law; which though legislators may depart from, yet judges are bound to observe. Were it joined with the legislative, this union might soon be an. overbalance for the leg- islative. ' ' § 70. No liberty with powers united. This same idea is thus expressed by Montesquieu; 7 "When the legis- lative and executive powers are united in one person, or in the same body of magistrates, there can be no liberty ; because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, or execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from 5 Commentaries, I, 146. " B. II, Chap. 6. s Commentaries, I, 269. 60 PUBLIC HEALTH ADMINISTRATION the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. ' ' Once more we must remember the dictum of Lieber : 8 ''Authentic interpretation is no interpretation, but rather additional legislation. ' ' How this division has worked for the safeguarding of personal liberty may be estimated by considering the statement of Pome- roy: 9 "No other check has proved so effectual as the division of functions into legislative, executive, and judicial, and their assignment to classes of officials physically separate." §71. Separation of powers purely Anglican. This separation of powers is essentially Anglican, and has been of slow growth. It was unknown in the earlier civilizations, and is not yet complete in any European nation. It was five and a half centuries after the Magna Charta that the American colonies revolted from the British rule, and in their separation from the mother country they very naturally separated still further the three powers. They did this to insure as much as possible of individual liberty, and they were free to make use of every known advantage in govern- ment, unhampered by existing systems. For a time they attempted to work as a confederation, but realiz- ing the weakness and the danger in such a loose organ- ization they formed the nation, and bound themselves by a Constitution, which is today perhaps the most perfect document of its kind in existence. The indi- vidual states have also adopted constitutions modeled after that of the nation. s Chap. 18, p. 208. o Constitutional Law, Sec. 170. THE TRIPLE SYSTEM OP GOVERNMENT 61 § 72. Separation most perfect in United States. Neither in England, nor in the British colonies, is the separation of powers as distinct and perfect as it is in the United States. In England the interpretation of the laws is partially in the hands of the members of the House of Lords, and the executive branch is much more closely intertwined with the legislative. In Canada, by the British North American Act of 1867, 10 the initiative for certain kinds of legislation is re- served to the Governor General. §73. Union of Powers in European governments. The right of the chief executive to initiative in legis- lation is common in European constitutions. This is found in the German Empire, 11 in Italy, 12 and in France. 13 In Belgium 14 the king holds a third of the legislative power, and has the initiative upon legisla- tive matters. Also we find : 15 " The interpretation of laws by authority belongs only to the legislative power." Such interpretation is in reality new legis- lation. It gives an uncurbed power for oppression, which would not be tolerated in Anglican communities. So too if the executive and judicial powers are united, either in one person, or in a body of men, tyranny becomes easy. Every citizen has rights, and one of them is the assurance that the strong arm of the law will protect, and not oppress him. This union of powers as found in Belgium gives a supremacy with- out check. In its operation it may easily result in what we call ex post facto legislation, clearly hostile io Sections 53 and 54. is Cons. 1875, Art. 3. ii Constitution 1871, Articles i* Constitution 1893, Art. 26 15, 16. and 27. 12 Cons. 1848, Art. 6. is Art. 28. 62 PUBLIC HEALTH ADMINISTRATION to individual liberty, and repugnant to Anglican spirit. It enables the legislative body in the interpretation of a law to make criminal, and therefore punishable, that which when committed was no crime, unless by extreme stretching of existing statutes. Mr. Justice Miller says : 16 ' i Under the boasted constitution of Great Britain there are many instances in which a man has been condemned to death by its Parliament without any reference to any statute or law existing at the time authorizing such proceeding." § 74. Abuse of power may not be frequent. It is true that in wise hands abuse of power is not frequent, but the possibility shows the necessity for safeguard- ing individual rights as much as possible. §75. Paper constitutions. A " paper constitution," as Governeur Morris called it, may be weak, and it might give a false sense of security. The real consti- tution must be engrafted upon the hearts of the peo- ple. It must find its life coincident with the lives of the citizens. The importance of the individual is an idea peculiar to the Anglo-Saxon, and it is foreign to the nature of the Latin races. § 76. Basis for comparison of governments. In com- paring different systems of government, one must con- sider the character of the peoples, geographical con- ditions, and especially the history of the population. As Sir James Bryce has said, 17 "A nation is the child of its own past. ' ' Perhaps Governeur Morris was too severe in calling certain documents " paper constitu- tions. ' ' Much depends upon the point of view. To us the Constitution of Brazil, modeled upon that of the United States, seems but paper. To the Brazilian it i« Constitution, p. 105. 1T South America, 418. THE TRIPLE SYSTEM OF GOVERNMENT 63 is real, though he cannot see as much in it as we do. He studies our court decisions as we do, and then of necessity he violates the precepts. The great trouble was that the Latin Americans translated the words of our Constitution, but they were unable to translate its spirit. What Mr. Eder says, relative to Colombia, is equally true relative to all Latin America: "The United States Constitution was the result of a natural evolution, a product of the brains of men steeped in the common law, learned in their Coke and their Black- stone, jealous of their hereditary rights and liberties ; while adopting new external forms, its inner spirit was essentially a common law spirit: almost every phrase was pregnant with historical meaning, engen- dered by an ancestry of ancient statutes and decisions. It was obviously a mistake to attempt to graft such an alien institution on a people bred in the Spanish civil law, instead of revitalizing the existing Spanish institutions and breathing into them — no easy, yet no impossible task — the modern spirit of liberty. The consequence has been that the Colombians, a few ex- ceptions apart, have never really understood, do not today understand, their own Constitution, which is a translation wherein words and phrases have lost much of their historic significance, and in which the precious safeguards of individual right and the admirable sys- tem of checks and balances seem to have been entirely lost." 18 We must not be misled by mere names. It is quite possible that Great Britain, though a limited mon- archy, may be more truly democratic than any South American republic. Nominally the states of Java are is Eder, Colombia (1913). p. 57. 64 PUBLIC HEALTH ADMINISTRATION governed by native regents. Practically the ruling powers are the Dutch regents, officially recognized as the "elder brothers." Even with the same general basic ideas, the real government of a closely settled, homogenous people like that of Rhode Island, must differ widely from that of a country like Bolivia, inhabited by two races having little in common, and very widely separated. § 77. Confederation not a nation. A confederation is not really a nation. The Achaean League lasted from 281 to 146, B. C. The Swiss confederation began in 1291 as a union of three cantons, and has spread and endured to the present. The seven United Pro- vinces of the Netherlands endured from 1579 to 1795. The United States of (North) America is the first enduring grand republic. It must be remembered that the Swiss confederation has been preserved, not so much by its inherent strength, as by circumstances. Composed of numerous (twenty- two) small states, or cantons, with common interests, enclosed in a moun- tainous country, and surrounded by France, Italy, Austria, and Germany, each jealous of the other, there is little to threaten its existence. In framing the con- stitution of 1848 the committee of fourteen carefully studied the American Constitution; but the present constitution, bearing the date of May 29, 1874, with amendments since adopted, in some particulars differs widely from the American ideal. §78. Permanence of Nation depends upon individ- ual restriction. It must be well recognized that, es- pecially in a republic, the permanency of the govern- ment must depend upon the restrictions placed upon the assumption of undue authority by ambitious indi- THE TRIPLE SYSTEM OP GOVERNMENT 65 viduals. The permanence of the United States there- fore is due in no small degree to the wisdom shown by the framers of our constitution, and its provisions should not be violated carelessly. § 79. Latin American government. Considering the success of the United States, it is not strange that other nations have taken its constitution as a model. This is especially true of the republics of Latin Amer- ica. Thus we find in the constitution of Mexico : 19 "The supreme power of the Federation is divided for its exercise into legislative, executive, and judicial. Two or more of these powers shall never be united in one person or corporation, nor that legislative power be deposited in one individual." So also the consti- tution of Brazil 20 provides that they shall be sepa- rate, but in Argentina there is a provision 21 for leg- islative initiative by the executive. Professor Pen- nington, in speaking of this constitution says : 22 " Un- fortunately, as is the case with all human documents, there are ways and means of driving the traditional coach and four through the constitution of Argentina as through a British Act of Parliament ; but, taken as it stands, it is a notable foundation for the life of a nation." But W. A. Hirst has hit the nail on the head for all of Latin America when he said 23 in speaking of this same country: "The hotblooded Creole, who for centuries had been subject to a pater- nal government, was altogether unfitted for Parlia- mentary institutions. ' ' In speaking of all Latin Amer- ica except Chile and Argentina, Sir James Bryce is Article 50. 22 The Argentine Republic 20 Article 15. (1910), p. 59. 2i Chap. V, Art. 68. 23 Argentina (1910), p. 122. 66 PUBLIC HEALTH AD-MINISTRATION says 24 that these states never have been democracies in any real sense of the word. They could not have been democracies. "To expect peoples so racially composed, very small peoples, spread over a vast area, peoples with no practice in self-government, to be able to create and work democratic institutions was absurd, though the experience which their history has fur- nished to the world was needed to demonstrate the absurdity," and injustice is done to Spanish Amer- icans by censures and criticisms which ignore these fundamental facts. §80. Misjudgment. This difference in the natures of the people, and the relationship thereof to the re- publican form of government, is frequently misunder- stood, and may be misleading in considering methods of administration. Thus we find Mr. Justice Miller saying: 25 "It is with sorrow and regret that we see their descendants on this side of the Atlantic, Spanish republics they call themselves, evince scarcely more respect for written constitutions than the country from which they came." Nominally Mexico is a re- public, but in reality it is of necessity an empire. For these countries a constitution is as a point ahead, to guide the progress of the nation, and to attain. For the Anglican, a constitution is a limit beyond which neither ruler nor individual citizen may pass. §81. United States, division of powers. In the United States the Federal Constitution defines the agencies of the three powers, giving to the President, the supreme executive, no judicial power, and only the negative legislative power of the veto, which may be overruled. The legislative power resides in Con- 24 South America, p. 539. 25 Constitution, p. 70. THE TRIPLE SYSTEM OF GOVERNMENT 67 gress, which has no executive power, further than the approval of certain executive acts such as appoint- ments, and the making of treaties. Congress has judi- cial power only as to its own membership, and for impeachment trials. Authoritative interpretation of the laws resides only in the courts, which have abso- lutely no executive nor legislative power further than is necessary for their own guidance. It is true that the President may in his message suggest legislation, but, unlike the French or English systems, the American President has no power of initiative in legislation. §82. State constitutional provisions. In many of the state constitutions we find a section defining still further this separation of powers. Thus, that adopted by Virginia in 1902 says: 26 " Except as hereinafter provided, the legislative, executive, and judiciary de- partments, shall be separate and distinct, so that neither exercise the powers properly belonging to either of the others, nor any person exercise the power of more than one of them at the same time." Sim- ilarly the constitution of California provides : 2T " The powers of the government of the state of California shall be divided into three separate departments, the legislative, executive, and judicial; and no person charged with the powers properly belonging to the one of these departments shall exercise any functions appertaining to either of the others, except as in the constitution expressly directed or permitted.' ' The Illinois constitution of 1870 provides : 28 " The powers of the government of this state are divided into three distinct departments — the legislative, executive, and 26 Sec. 39. 28 Article III. 27 Article IV, Sec. 1. 68 PUBLIC HEALTH ADMINISTRATION judicial : and no person or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted." § 83. Lack of distributive clause. In all the states we find the same division of powers as in the Federal Constitution, though in some the distributive clause, such as is found in the constitutions of Virginia, Cali- fornia, Illinois, Oklahoma, Alabama, Arkansas, etc., may be omitted, as it is in the Federal Constitution. Practical experience has demonstrated the necessity for this clear statement of the law. In the absence of the distributive clause there might be a little liberty of interpretation as to the extent of this division of powers. The interpretation as to the Federal Consti- tution is not absolutely binding upon the state courts in interpreting the constitutions of their respective states, and a slight degree of divergence has thus been introduced. Especially when the distributive clause is present, any legislation which passes the limits thus prescribed is unconstitutional, and therefore no law. § 84. Danger of congressional usurpation of power. In speaking of the Federal Constitution, though equal- ly applying to interpretation of state constitutions, Pomeroy says : 29 "I am strongly of the opinion that the people of the United States are not in so much dan- ger from an undue stretch of authority by President or by judges, as from unlawful assumptions by Congress. The Constitution is well as far as it goes; the design was good; the checks and balances were carefully and skillfully arranged ; but no mere organic law can place a lasting barrier to the advance of a popular legisla- 29 Constitutional Law, Sec. 186. THE TRIPLE SYSTEM OF GOVERNMENT 69 ture. Step by step their powers are exceeded; the nation acquiesces ; the precedent becomes established ; and a system of construction is finally elaborated which takes the place of the written constitution as a practical guide to the government in its official du- ties." While it may be that the executive branch is more likely to assume legislative powers, than is the legislative branch to attempt to use power not prop- erly its own, still it must be admitted that the courts act as efficient checks upon the executive, even when they might be restrained from similar action upon minor errors of the legislature. § 85. Illegal custom lacks sanction. Any practice or usage, no matter of how long duration, which permits or contemplates a union of powers is forbidden and illegal. " Abuses of power, and violations of right, derive no sanction from time or custom." 30 This applies equally to affairs of the nation, state, or muni- cipality. §86. Executive quasi-legislative or quasi-judicial combination. It is frequently necessary for executive departments to formulate rules, or orders, which is a quasi-legislative action, or to act in a quasi-judicial manner. Though the letter of the constitution might not prohibit such action by one person, or board, and at the same time that the person or board is employed in a purely executive manner, the spirit of the prohi- bition would dictate that as far as is possible, even in executive departments, quasi- judicial, or quasi-legisla- tive duties be divorced from the purely executive. For example : If the same body decides what shall be the so Hood v. Lynn, 1 Allen (Mass.) 103. 70 PUBLIC HEALTH ADMINISTRATION requirements as to medical education to entitle an ap- plicant to a license, (quasi-legislative action) and ex- amines applicants for license, (quasi- judicial action), and determines whether the law has been violated, (also quasi- judicial action), and in an executive pro- cedure either prosecutes for practice without license, or begins action for the annulment of a license, it is easy to suspect an improper bias in some one of these operations. Such power is too great to be entrusted to one body, and in the past it has given rise to charges of corruption. Similarly, under the old Tweed regime in New York, the union of the quasi- judicial duties of an inspector in the health department, with purely executive responsibilities, opened the door for fraud and oppression. § 87. Municipal division of powers. The same divi- sion of powers should be observed in municipal ad- ministration for the best results, but the courts have not always been strict in this interpretation. § 88. Judges acting as executives. Readers of his- tory may note that sometimes members of the Supreme Court of the United States have at the same time held executive positions. John Jay, Chief Justice from 1789 to 1795, was during a portion of that time, Minister to England. John Marshall, that great authority upon Constitutional Law, retained his position as Secretary of State for two or three months after his appointment to the position of Chief Justice. More recently, Mr. Charles Hughes continued to hold the office of Governor of New York, after he was appointed to the Supreme Bench. In no instance, however, did these men sit upon the bench while holding the executive position. §89. Legislative branch. The legislative power of THE TRIPLE SYSTEM OF GOVERNMENT 71 the nation rests solely in Congress. That of states is confined to the legislatures, or general assemblies. The legislative power of municipalities is found in the city councils, or, under the commission form of govern- ment, in the entire commission. As to municipalities it must be remembered that they have only such powers as are distinctly granted to them by the state. The state is the political entity. It is true that, as Mr. Justice Allen has said in People v. Albertson : 31 " The right of (local) self government lies at the foundation of our institutions," but that remark applies to the purely internal matters of a community. Since the city must depend upon the state for its authority, and because the legislature is unrestricted 32 in its prescrib- ing the powers and duties in cities, (except of course by the Federal and state constitutions), the work of a city council, or of a city commission, is largely of an executory nature, and its legislation has not the dig- nity of law, or statutory enactment. In England the enactments of these public corporations are called by- laws, and in the United States we designate them as ordinances. They partake more of the nature of reg- ulations. This general rule is thus stated by Professor Freund : 33 " Under the principle of local self-govern- ment local authorities cannot be vested with powers necessarily exceeding their territorial jurisdiction; those matters therefore which equally affect the people of the state at large, and cannot be confined locally, must be reserved to the state legislature. Moreover, the inauguration of a novel policy in matters of safety and health, the prohibition of articles of consumption si 55 N. Y., 50. 33 Police Power, Sec. 142. 32 Jameson v. People, 16 111. 257. 72 PUBLIC HEALTH ADMINISTRATION possibly but not undoubtedly injurious to health, the establishment of monopolies, the restriction of the right to pursue established avocations, may under circum- stances be conceded to the legislature of the state, but cannot be introduced by local authorities under mere general grants of power." Judge Dillon thus defines the general authority of municipalities. 34 " It is a gen- eral and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: first, those granted in express words ; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corpora- tion and the power is denied. " 35 (See Chapter IX.) §90. Municipal legislative power limited. The power of the municipality to legislate is therefore ab- solutely dependent upon the permission of the state; and an ordinance passed by a city not only has a lim- ited territorial authority, but it is limited as to sub- stance, and may at any time be rendered illegal by the action of the state legislature, as representing the su- preme will of the people. In other words, municipal ordinances are simply regulations providing for the transaction of such business as may be entrusted to the corporation by the state. Moreover, the division of powers as prescribed in the state constitutions is with regard to the operations of the state, and does not necessarily restrict municipal corporations in a like manner. 34 Municipal Corporations, I, 35 See also Fairlie, p. 387. 145. THE TRIPLE SYSTEM OF GOVERNMENT 73 §91. State legislative infringement upon judicial power not prohibited by Federal Constitution. It sometimes happens that legislation has partaken of the nature of judicial procedure. The division of powers in the Federal Constitution does not prevent such union in the operations of the individual states. "There is nothing in the Constitution of the United States which forbids the legislature of a state to exer- cise judicial functions." 36 "A legislature cannot, however, declare what the law was, but what it shall be. ' ' 37 This distinction is important. § 92. Division of powers in state governed by state constitution. The prohibition against the assumption of judicial powers by a state legislature must be found in the constitution of that particular state. It is true that often the legislature may not recognize the fact that it has been assuming powers not its own; and the courts will not act to prevent such action until a case is brought before them. In the earlier days in Ohio the legislature got into the habit of granting divorces by statutory enactment. Finally it was realized that great harm had been done. The acts were unconstitu- tional. To declare such divorces illegal, however, would injure many innocent persons, by the making of subsequent remarriages illegal, and hence the children thus born, illegitimate. Not only so, but the title to much of the property in the state might be invalidated. This illustration again shows the necessity of observ- ing the restrictions found in the constitution. § 93. Judicial action of legislature prohibited. The legislature of Tennessee passed a resolution directing 36 Saterlee v. Matthewson, 2 37 Ogden v. Blackledge, 2 Peters, 413. Cranch. 272. 74 PUBLIC HEALTH ADMINISTRATION the discharge of a criminal by a court. The resolution was declared an unconstitutional assumption of power by the legislature, and an invasion of the power of the judicial department, and therefore void. 38 A legis- lature cannot grant a new trial, nor direct a court to do so. 39 § 94. Legislation by ' 'the people. ' ' There is at pres- ent a tendency to take from the legislature a portion of its legislative power, by means of the initiative and referendum. Since the real source of power is in the people, they have the undoubted right by constitution- al amendment to make such a reservation. In some in- stances it may work very satisfactorily. Whether it be advisable or not may be questioned, for it reduces the responsibility of the members of the legislature. It is also a very grave question whether or not, with the large proportion of foreign born, uneducated, and ir- responsible citizens, a popular vote is a safe guide in matters of legislation. It takes from the enacting- power the opportunity for wise consideration. It makes it a matter of comparative ease for a corrupt and designing corporation to secure legislation which no responsible body of men, intelligent enough to rep- resent the people in the general assembly, would dare to pass. On the other hand it may make it more difficult to secure new and advisable legislation. It is more than possible that such a principle may be safe in municipal affairs, though it may be unsafe in state government. Particularly in state government the initiative and referendum is still on probation, though it is more easy to secure, than to get rid of when once established. as State v. Fleming, 7 Hum- so DeChastellux v. Falrchild, 15 phreys, 152. Pa. St. 18. THE TRIPLE SYSTEM OF GOVERNMENT 75 § 95. Legislative power can not be delegated. Legis- lative powers cannot be delegated from the state legis- lature, without express constitutional provision to that effect. ''It is a principle not questioned, that except where authorized by the constitution, as in respect to municipalities, the legislature cannot delegate legis- lative power — cannot confer on any body or person the power to determine what shall be law. The legislature only must determine this. " 40 So we find in Dowling v. Insurance Co., 41 that it was an unconstitutional act for the legislature to leave to the Insurance Com- missioner the decision as to what form of a policy must be used. So also the supreme court of California held 42 that it was illegal to leave to an executive offi- cer the power to determine the particular form of ap- pliance which should be used in factories to limit the dangers therein, making it compulsory upon the own- ers of factories to comply with his orders. The same court in Ex parte Cox 43 ordered the discharge of the petitioner who had been convicted of violation of a cer- tain rule and regulation in the nature of quarantine, as established by the Board of State Agricultural Com- missioners. The act establishing the commission de- clared it had power to enforce rules and regulations. The court said: "For the purpose of local legislation legislative function may be delegated, but the legisla- ture had not authority to confer upon the board the power of declaring what acts should constitute a mis- demeanor. The legislative power is vested in the legis- *o State v. Young, 29 Minn. 551. *- Schaezlein v. Cabaniss, 135 *i 92 Wis. 63. Cal. 466. 43 63 Cal. 21. 76 PUBLIC HEALTH ADMINISTRATION lature; it cannot be attempted to confer that power upon any officers of the executive department. ' ' 44 §96. Executive assumption of legislative power. (See Chap. IV.) The State Board of Health in Illinois passed a regulation requiring vaccination as a prelim- inary requisite for attending school, but the supreme court held the order void, as being legislation. 45 "It had, and could have, no legislative power. Its duties were purely ministerial, and the provisions of a statute authorizing the board to make such rules and regula- tions as it should from time to time deem necessary for the preservation or improvement of the public health, cannot be held to confer that broad discretion- ary power contended for." And: "We are of the opinion that the powers of the Board are limited to the proper enforcement of the statutes, or provisions there- of, having reference to emergencies of government to preserve the public health, and prevent the spread of contagious, or infectious diseases." The court fur- ther said: "Its duty to recommend legislation is re- peated more than once in the act in connection with specifications of the powers and duties of the Board. ' ' From a legal point of view the above case covers the entire field of health work of the state, and on the broad basis of reasoning which must appeal to all. The supreme court of Wisconsin gave a very similar state- ment of the matter in State v. Burdge. 46 § 97. Executive emergency. What then is the emer- gency contemplated? In Jenkins v. Board of Educa- tion, 47 speaking of an order of the Chicago Commission- *■* See also State v. Hansen, 63 *5 Potts v. Breen, 167 HI. 67. Ind. 155; State v. Ball, 34 Ohio, *« 70 N. W. E. 347; 95 Wis. 194; East St. Louis v. Wehrung, 50 390; 37 L. E. A. 157. HI. 28. 47 234 111. 427. THE TRIPLE SYSTEM OF GOVERNMENT 77 er of Health, the court held : ' ' There is nothing in the nature of an emergency in the occasional recurrence of the well known disease of small-pox in a city like Chicago, which may not be provided for by general rules and regulations prescribed by the legislative au- thority of the city." Webster defines an emergency as "a sudden or unexpected occurrence, or combination of occurrences, demanding prompt action." But the idea also presupposes an attempt at foreseeing, and of preparing against, possible unfavorable conditions. Sanitarians would agree that typhoid fever and ma- larial fever are infectious, and that they are dangerous to the community, and legitimate objects for some form of quarantine. They recognize that malaria is spread by the anopheles mosquito, and that the extermination of those insects would eliminate that disease. They recognize that typhoid fever is sometimes spread through the agency of the common household fly, which breeds in stable manure, wet straw, and garbage. The typhoid infection is often transported, and the germ is propagated to a dangerous degree in milk. Public sanitarians know that the bubonic plague is now upon the Pacific coast in this country. It is in Mexico, and along the Gulf of Mexico. It may at any time attack any of the eastern cities of the United States. They know that the disease is spread through the agency of rat fleas, and the extermination of those rodents is our chief, and rational protection. They know that the rats live upon garbage, and breed in manure pits, and to exterminate the vermin we must protect garbage and manure from the rats, and so construct barns and other buildings that the vermin will find no place for hiding. These things are well known, and there can 78 PUBLIC HEALTH ADMINISTRATION hardly be an emergency which would warrant a board of health, or a health official in issuing mandatory or- ders for the abatement of these nuisances, except in ac- cordance with definite statutes. Such orders would be an unconstitutional assumption of legislative power by executive officers. §98. Executive assumption of judicial power. It is not the province of the executive officer to determine what is a nuisance. That is a judicial act. The officer may in each case go into court and prove a nuisance, and secure an order for abatement. That is a tedious, and expensive, as well as uncertain method of action. The more simple method is to secure beforehand the enactment of a statute, which will specify that certain conditions are nuisances. Then as an executive officer it will be his duty to see that the statute is obeyed. §99. Executive duty to give legislature informa- tion. (§ 135.) It is the duty of the executive officer to so lay the facts properly before the legislative bodies as to secure needed enactments. 48 If he neglects to do so, the responsibility rests upon his shoulders. If the facts are properly presented to the legislative body, the responsibility will then be transferred from the execu- tive, to the legislative authority, if disease and death occur as the result of their negligence. Freund thus summarizes : 49 ' 'It cannot be left to an administrative officer to determine conclusively the existence of a danger, and the choice of measures to be taken against it, since that would involve an unconstitutional delega- tion of legislative power." § 100. Executive orders, law? It is often claimed that the orders of a board of health, or of a health offi- «s Potts v. Breen. 167 111. 67. *» Police Power. See. 34. THE TRIPLE SYSTEM OF GOVERNMENT 79 cer, have the force and effect of law. This is an unfor- tunate statement, which is only partially true. A Fed- eral statute provided for the free entry of animals to be used for breeding purposes. The Secretary of the Treasury ruled that the collector must be satisfied that the animals were of superior quality. The court held that this was additional legislation, not a regulation. 50 So, too, when the Postmaster General ruled that second class matter should only include such publications as consisted of the current news, or miscellaneous litera- ture, and excluded a collection of railroad time tables, the court held that this was legislation, not regula- tion, and therefore void. 51 In United States v. Eaton, regulations as to manufacture were considered to have gone beyond the statute, and therefore void. 52 On the other hand, regulations as to branding and marking were considered proper administrative regulations, and not legislation. 53 "What is allowed to be done is any- thing within the law, that is, in execution of it; what is forbidden to be done is anything without the law, that is, in extension of it. In execution anything may be done that is administration, nothing may be done that is legislation — is the principal distinction. ' ' 54 "As regulations depend upon a statute, they can never go to the extent of being independent of the statute. A regulation which is in effect legislation is in a just sense a regulation no longer. That is, as a regulation is derivative, it must keep within the scope of the statute under which it is framed. ' ' 55 so Morrill v. .Tones, 106 U. S. >3 / n re Kixilock, 165 U. S.- 535. 466. 54 Wyman, Administrative Law, si Pub. Co. v. Payne, 30 Was. See. 99. L. E. 339. 5r, Wyman, Administrative Law, 52 144 U. S. 677. See also Mer- Sec. 133. ritt v. Welsh, 104 U. S. 694. 80 PUBLIC HEALTH ADMINISTRATION The New Jersey court distinctly says : ' ' The func- tions of a board of health are executive and advisory, and not legislative or judicial in character, and hence a resolution passed by it declaring a certain tannery to be a nuisance is void." 56 "The regulations re- quired to be passed by ordinance are such as prescribe general rules with respect to the several matters in- trusted to local boards, and a particular permit au- thorizing the doing of that previously authorized by ordinance may be granted by resolution. ' ' 57 The Illi- nois statute which conferred upon the State Board of Health the authority to license, or refuse to license, itinerant venders of drugs was attacked on the ground that it conferred upon the board both legislative and judicial duties, because it permitted the board to make the rules upon which it would pass upon the applicants. The court held that the board had under the statute no true legislative authority, and that it simply had quasi-judicial discretion as to the granting of license ; and that the rights of applicants was safeguarded in so far that if the board acted in an arbitrary manner the action would be subject to review in the courts. 58 When an incorporated town or city has been invested by the legislature with power to pass an ordinance for the government or welfare of the municipality, an ordinance enacted by the legislative branch of the cor- poration in pursuance of the act creating the corpora- tion has the force and effect of a law passed by the legislature, and cannot be regarded otherwise than as a law, and within the corporation. 59 The constitution Be Marshall v. Caldwalder, 36 N. ss People v. Wilson, 249 111. 195. J. L. 283. 59 Mason v. Shawneetown, 77 111. 57 Courter v. Newark, 25 Vr. 325. 533. THE TRIPLE SYSTEM OP GOVERNMENT 81 of Louisiana authorizes the legislature to "prescribe the powers" of the board of health. The court held that this can only mean to delegate the powers neces- sary for efficiently carrying out the purposes for which the board was created, and to give its regulations the force of law. 60 § 101. Power yielded because claimed is not sanc- tioned. Mr. Cooley says: 61 "A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period in violation of the consti- tutional prohibition, without the mischief which the constitution was designed to guard against appearing, or without any one being sufficiently interested in the subject to raise the question; but these circumstances cannot be allowed to sanction a clear infraction of the constitution. " 62 " There is always some plausible reason for latitudinarian constructions which are re- sorted to for the purpose of acquiring power; some evil to be avoided, or some good to be attained by pushing the powers of government beyond their legit- imate boundary. It is by yielding to such influences that constitutions are gradually undermined and fin- ally overthrown. * * * If the law does not work well, the people can amend it ; and inconveniences can be borne long enough to await that process. ' ' 63 § 102. Executive orders, and regulations, limitation of. Mr. Justice Daniel has given us a very clear state- ment of the province of the " regulation ' ' in XL S. v. Eliason : 64 " The whole of administration is governed go State v. Snyder, No. 19, 418 Y. 384; Greencastle Township v. Sup. Ct. La. 1912. Black, 51 Ind. 565. «i Constitutional Limitations, 71. G3 Bronson, C. J., in Oakley v. 62 Citing Sadler v. Langhan, 34 Aspinwall, 3 N. Y. 568. Ala. 311; People v. Allen, 42 N. et 16 Peters, 291. 82 PUBLIC HEALTH ADMINISTRATION to a greater or less extent by fixed rules. These rules are made by the executive itself in the course of ad- ministration to facilitate the enforcement of the law. In part these rules are written, then they are called regulations ; in part they are unwritten, then they are called usages. The general result is a definiteness in usual administration. The situation that is found is this : When the law is put upon the statute book it is not specific enough for administration. It requires further elucidation. This is the office of legislation which is done by the administration. That is, the ad- ministration first puts the law in shape for convenient administration. The force of these regulations that thus accompany the statute is the problem. The gen- eral conception is that these regulations have the force which any governmental action has. This is usually summed up in the ordinary decision that these reg- ulations have the force of law." But it must be re- membered that "A regulation has the force of law [only] within the sphere of its legal action." 65 In other words, orders or regulations have the effect of law only so far as they remain within the clear pro- visions of the constitution and the statutes under which they are framed. Relying upon a mistaken con- fidence, it has often happened that health officials have issued as orders, or regulations, acts really of legis- lation. In the presence of real danger under such conditions, the efficiency of the health department has been paralyzed by the decisions of the courts. The time for legislation is before the danger approaches, and the authority of legislation does not reside in the w Wyman, Administrative Law, 96. THE TRIPLE SYSTEM OF GOVERNMENT 83 health officials. General rules and regulations have not the same standing as statutes. 66 " A health officer who is expected to accomplish re- sults must possess large powers and be endowed with the right to take summary action, which at times must trench closely on despotic rule. The public health can- not wait on the slow process of a legislative body, or on the leisurely deliberation of a court. Executive boards or officers who can deal at once with the emer- gency under general principles laid down by the law making body must exist if the public health is to be preserved in cities. " 67 " Perhaps some of these stat- utes may be justified constitutionally on the ground that the work of the board of health is only a deter- mination of details in the nature of administration, which may be by a board appointed for that purpose ; and that the substantive legislation is that part of the statute which prescribes a penalty for the disobedience of the rules which they make as agents performing executive and administrative duties. ' ' 6S Clearly, when a penalty is attached to a violation of the rules or regulations of a board of health such rules must be published, and due notice given, before they can be made effective. 69 Even here, the regulations must not be broader than the statute under which they are passed. Thus, under the general power to inspect bag- gage to guard against the introduction of infectious disease, the Michigan board passed a rule requiring all baggage inspected, without making it a prerequi- «e Health Dept. v. Knoll, 70 es Brodbine v. Revere, 182 Mass. N. Y. 530; Keed v. People, 1 Park 598. Cr. 481. so Reed v. People, 1 Parker Cr. e? Nowotny v. Milwaukee, 121 481 ; Pierce v. Doolittle, 130 la. N. W. 658. 333. 84 PUBLIC HEALTH ADMINISTRATION site that the baggage so treated must be from an in- fected district, and the court declared the regulation void as being in excess of authority. 70 It is true that in some cases in different states cer- tain legislative power has been conceded to the health departments. Thus in Vermont, 71 it was held that police powers may lawfully be delegated to state boards of health, and when so delegated the agency employed is clothed with power to act as fully and efficiently as the legislature itself. The same decision also recognizes a similar power for local boards. Sim- ilarly in New York state the court has admitted that the state may confer upon boards of health the power to enact sanitary ordinances having the force of law within the localities for which they act. 72 These de- cisions do not seem, however, to have the breadth of meaning which some enthusiasts would desire. They may be considered in the light of other decisions by the same courts rather to recognize the necessary force which must be given for the general welfare to such legal orders as are issued under the general pro- visions. Thus the Vermont court also said 73 that the state may invest state and local boards of health, created for administrative purposes, with authority in proper way to safeguard the public health and the public safety. The way in which these results are to be accomplished is within the discretion of the state, provided the powers and functions of the general gov- ernment are not thereby infringed, nor any constitu- 70 Hurst v. Warner, 102 Mich. Y. 631; Polinsky v. People, 73 N. 238. Y. 65. 7i State v. Morse, 80 Atl. 189. 73 state Board of Health v. St. ' 72Cartwright v. Cohoes, 165 N. Johnsbury, 73 Atl. 581. THE TRIPLE SYSTEM OF GOVERNMENT 85 tional provision of the state or the United States. "If the mode adopted by the state for the protection of the public health and safety of its local communi- ties proves objectionable, inconvenient, or even dis- tressing to some, if nothing more can reasonably be affirmed against the statutes, the answer is that it is the duty of the constituted authorities primarily to keep in view the welfare and safety of the many, and not to permit their interests to be subordinated to the wishes or the convenience of the few." Since this case was heard not long before the Morse case, the last men- tioned must be read in the light of the former, which distinctly recognizes that neither the constitution, nor the authority of the central government are to be infringed upon. Even were it possible under our sys- tem to thus delegate legislative authority to health departments, it would be inadvisable for the reason that it would necessarily bring confusion. There must be one governmental body in control. The possible conflict between the ordinary legislative authority and that of a health department is shown in a case originating in South Carolina. Sections 1451 and 1463 of the Civil Code of 1912 confer ample au- thority on boards of health to make and enforce all needful rules and regulations to prevent the introduc- tion and spread of infectious or contagious diseases, and generally to make all such regulations as they shall deem necessary for the preservation of the public health, and to define, declare, and abate nuisances in- jurious to the public health. Acting under these pro- visions the board of health of the city of Charleston passed a resolution requiring the closing of all dairies in the city on or before July 1, 1912. The city council 86 PUBLIC HEALTH ADMINISTRATION regularly passed a resolution antagonistic to the action of the board of health, and practically nullifying the resolution of the board of health. The question was therefore directly raised as to the relative powers of the two bodies. In Alston v. Ball 74 the supreme court passed upon the matter, holding that as these powers are conferred upon the boards of health to control sanitary matters by rules, regulations, and resolutions, the said board of health had full authority in the matter. It is not to be presumed that they act arbi- trarily or capriciously, and so long as they are reason- able in the discharge of their discretionary duties, the court is without power to interfere. "Within the limits of their power they are exclusive judges of the propriety and wisdom of their actions, and so long as they act strictly within those limits and not arbi- trarily or capriciously, they are not subject to the control of the court. In other words, the court can- not set its judgment against theirs, for that would be to usurp their power. Under the showing made it could not have been said that the action of the board in this case was arbitrary or capricious, or that it had no substantial or reasonable relation to the purpose for which it was intended, namely, the pro- tection and preservation of the public health. On the contrary, the overwhelming weight of the evidence was that it was not only desirable but necessary to that purpose. ' ' Inasmuch as the board of health derived its authority directly from the legislature and not from any municipal action, the board of health was not sub- ject to the council. Each derived its authority from the same source. Apparently, therefore, in every place 74 77 S. E. R. 727. THE TRIPLE SYSTEM OF GOVERNMENT 87 where there is a conflict between the ordinary legisla- tive body for the city and the board of health, it will be necessary to take the question to the supreme court to decide how much may be a matter of sanitation, and how far questions other than those relative to health may be involved. Such conflict in authority is entirely obviated by holding strictly to the rule that legislative authority may not be delegated; and, fur- ther, insisting that there shall be but one legislative body for each prescribed territory. §103. Legislative limitations. Even legislatures have no unlimited power of legislation, within con- stitutional limitations as to substance. Legislation must be reasonable, and not arbitrary. The Fifth Amendment to the Federal Constitution provides that no person shall "be deprived of life, liberty, or prop- erty, without due process of law; nor shall private property be taken for public use, without just com- pensation. ' ' The Fourteenth Amendment says : 75 ' ' No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law. ' ' § 104. Due process of law. It will be noticed that these two provisions of the Federal Constitution sim- ilarly protect property. In the judicial interpretations the Fifth Amendment is understood as restraining the Federal Government, not the individual states, whereas the Fourteenth Amendment is clearly a restraint upon the individual states. The fuller discussion of the meaning of the phrase "Due process of law" will be found in a subsequent chapter. (Chap. VII.) It is 75 Section 1. 88 PUBLIC HEALTH ADMINISTRATION sufficient to state here that the expression does not necessarily refer to judicial decisions in court, but a person may be deprived of liberty or property by legis- lative action, or by the act of the executive, and such deprivation may still, within the intent of the constitu- tional amendment, be due process of law. The most vital point in due process is that the individual shall have an opportunity to be heard formally. This oppor- tunity may be through his legislator. If the law tends to act unjustly he may then get his hearing in court. He may have his opportunity for objection before the executive charged with the enforcement of the statute. Even summary action by the executive may be held as within due process under certain conditions, and then the aggrieved person may have the act reviewed in court. § 105. Public health protection, police power. The foundation for all of the protective operations of gov- ernment is in that peculiar and wide reaching power called Police. (See Chapter VI.) Its maxim is "Solus populi est supremo lex/' Its object is to prevent, not to punish, crimes and misfortunes. It is not a power granted to any governmental body. It is an inherent function of government, without which no government could endure. Upon this power the government de- pends for its very life. The extreme strength of the power renders its abuse the more dangerous, and be- cause every act of a health department must be finally justified under this power, it is the more needful that its limitations be strictly observed by the adminis- trator. On the other hand, because of the strength of this power actions of governmental officers under it are especially liable to restrictive investigations. In THE TRIPLE SYSTEM OF GOVERNMENT 89 other words, if the officer is disposed to go to the limit of his power, basing his efforts upon that which he may consider his duty and privilege, the individual citizens are very likely to rebel, and take the questions into court. For these reasons the subject of Police Power will be more fully treated in a subsequent chap- ter. § 106. Public health activities based upon idea of "nuisance." The protection of the life and health of the individual citizen is a most important portion of police power. Protection does not mean the cure of illness, unless the cure of one case may have a restrain- ing action upon the spread of the malady; or possibly if it be necessary for the state to step in and prevent the continuance of the illness. Prevention presup- poses a cause which is to be removed or controlled, and that cause must be some thing or condition which has an injurious effect upon the health (or morals) of the individual citizen. Such a thing or condition is called a nuisance. (Chap. VIII.) Thus we find that "In the United States also the police of public health and safety starts from the idea of nuisance. It is further based upon the principle that there is to be a legislative determination in great detail as to what are nuisances. There is not in this country any elaborate statute on the subject, and in those states where special legislation is permitted by the constitution, much of the legislation is contained in statutes which affect only one city. ' ' 76 § 107. Lack of legislation, a source of executive weakness. The difficulty of determining what are ™ Goodnow, Municipal Govern- ment, p. 271. 90 PUBLIC HEALTH ADMINISTRATION nuisances and what are not is very greatly increased by the lack of systematic compilations of approved facts or opinions in our statute books. The question of jurisdiction between municipality, state, and nation, together with the multitude of enactments which may often conflict, the lack of clearness and definiteness in statutes enacted, all conspire to make the subject like a promiscuous pile from which the desired article may be sometimes taken easily, and at others it is most difficult to find, and its extraction is hindered by other articles. Without definiteness of statutory enactment, the health official must "feel" his way. (§ 163.) He is on uncertain ground. Even long established custom does not ensure his safety. The custom may never have been questioned, but it may only need to be brought into court to be condemned. The officer may at any time be blocked, and the block may come when it is most unfortunate and crippling. In legislation every citizen finds abundant opportunity for objection. If he does not have this opportunity in this manner, he is more likely to oppose an executive order. Oppo- sition to the executive order may cause expensive delay — expensive both in time and money. § 108. Legislation more needful in decentralized gov- ernment. Because of the right of eveiy citizen to be heard, and because the primary authority here rests with the individual citizen, exactness and definiteness of legislative determination by statutory enactment is far more necessary in a decentralized government like ours, than it could possibly be in a centralized system like those of Europe. In England the super- vision of all public health activities is under the one Local Government Board. Such a body has far more THE TRIPLE SYSTEM OF GOVERNMENT 91 authority than any similar body in this country. It could give definiteness to efforts which would be blocked by uncertainty here. § 109. Legislation definite in effect. We hear much of the uncertainty of the law, and the delays of the law. So far as public health work is concerned it is probable that very much of the basis of such com- plaints is to be found in the absence of legislation. Every man has his right to his day in court. An executive order may be opposed by the citizen. The case is of minor importance, apparently, and it is not carried to the higher courts. Consequently the same questions may be repeatedly tried, and settled for individual cases. Were the question one based upon the intent of a statute it could not be settled until it reached the higher court, and practically the one case would cover all. Lack of legislation then increases the work of the courts, and cumbers their dockets with useless and time-taking cases. Because of the multi- tude of such cases the courts do often of necessity occupy much time. With the absence of legislation upon which to base conclusions, when each case is brought into court it must go through every phase of investigation, be viewed from every angle. Each case must be settled by itself, and the ground previously traversed must be retraced as if it had never been trod. Much depends upon the way in which the case may be presented to the court by each side. Under such circumstances no wonder that the officer who seeks to do his work with executive regulations and orders chafes under' the uncertainties and delays of the law. All of this could be prevented by convincing the legislative body of the 92 PUBLIC HEALTH ADMINISTRATION need for legislation, and then by judiciously guiding the enactment. §110. Agreement of three branches necessary. Even after the legislature has passed a statute its terms may be questioned in the court. It must there appear that the statute is reasonable for the accomplishment of the object intended. It must not be an arbitrary use of power. "Practically the present system of judicial control over legislation has meant in many cases that unless all three departments of govern- ment are convinced of the justice and reasonableness of a radical change in social or economic policy it cannot become embodied in principles of law." 77 Executive irritation often springs from a misunder- standing, or a lack of appreciation of these funda- mental principles of our governmental system. Exec- utives have tried to ignore the necessity for the aid of other branches, and finding themselves thwarted in their efforts, they have mistaken law for obstruction. All things should be done decently and in order, and this means in accordance with the fundamental plans of our system of government. § 111. Executive semi-legislative duties. Although the legislative branch is, and must be distinct from the executive, there are important semi-legislative duties which naturally devolve upon such a technical executive as a public health official. Not only must he call attention to the need for legislation, but because the subject dealt with is highly technical, and because the legislators as a class are not educated in these technicalities, it becomes a most important duty to wisely guide the form of legislation. This guidance " Fremiti, Police Power, Sec. 21. THE TRIPLE SYSTEM OF GOVERNMENT 93 must be through publications, and especially by the concise and patient work with committees. This duty is perhaps the most difficult, and the most important which may devolve upon the head of a state depart- ment of health. It requires a broad acquaintance with the science, a clear appreciation of the legal points involved, combined with the ability to use logic and diplomacy effectively. § 112. Illegal statutes. The fact that a statute may be found upon the pages of the statute book is not conclusive evidence that it is law. (§64.) Presumably a statute is sound law after it has passed, until such time as it may be tested and nullified by the court. Unfortunately the adverse decision of the court does not remove the law from the statute books, and in the compiled statutes of the state the nullified act may remain until someone takes the trouble to have it repealed. The repeal of an act takes it from the book. An act may be practically nullified by the court in a collateral case. Thus, the state of Missouri enacted a statute intended to prevent the importation of the Texas cattle fever into the state. This statute was declared unconsitutional by the Supreme Court of the United States. 78 In Illinois a similar statute was enacted, approved in 1867. 79 Since the two statutes were "on all fours" as to the specific points discussed in the Missouri case, practically that decision nullified the Illinois act, even though the Illinois act be not mentioned. This latter act should have been repealed, but it has remained all these years dead wood to choke the vital growth of the legal administration. Simi- 78 H. & St. J. R. R. Co. v. Husen, 10 Revised Statutes, Illinois, 5 Otto, 465. Chap. 8, Sec. 29-40. 94 PUBLIC HEALTH ADMINISTRATION larly, there are statutes which are nullified by the advances of science, and this same Illinois statute mentioned is an illustration. Generally speaking, there is no state officer whose duty it is to see that such dead material is pruned from the living law. A dead statute is simply disregarded. Every such dead statute tends to beget a general disrespect for law, and thus to make "a dead letter" of other statutes. Not only so, but the fact that the statute books are cumbered with this dead material tends to hide important acts from public knowledge. § 113. Crazy-quilt legislation. Another very great fault in our present system of enactments, and one which is intensified by our popular form of govern- ment, is that enactments are made piecemeal, and without any organic plan. The dignity and import- ance of our legislatures have been lowered until they have lost much of their former position, and acts are passed during the closing hours of a prolonged ses- sion, in which months have perhaps been spent in dick- erings and jockeyings, which could be of no public benefit. Each act has been considered by itself, with- out reference to cognate subjects. The result has been that statutes may seriously conflict. Added to this fact, and partially resulting from it, in broadening the work of a special department the tendency has been, not to systematize the organization, but to add more independent offices. Multiplicity of offices, divid- ing responsibility, necessitates inefficiency and extrava- gance of administration. §114. Executive duty to systematize enacted stat- utes. No one should be better able than the executive to clearly see and appreciate these facts. He should THE TRIPLE SYSTEM OF GOVERNMENT 95 constantly keep the legislative body informed as to dead statutes, that they may be repealed. Every act should be carefully studied with reference to other statutes, and for possible legal objections. The legis- lative responsibility rests with the legislature, but the executive must bear the blame if legislation is based upon misinformation. This guidance of legislation according to some definite plan, is the most important and helpful work possible to the chief administrator of a state department of health, by whatever title he may be called. § 115. Limitation and distinction. This duty of the executive just mentioned has very definite limitations. The executive has no legislative power nor authority. He must not attempt to coerce, for that is a use of power over legislation. One man may lead a horse to water, but ten cannot make him drink. The duty of the executive ends with giving the information. If he cannot convince the legislators as to the need for certain legislation he may properly appeal to the peo- ple, but he has no moral nor legal right otherwise to attempt to force legislation. CHAPTEB IV THE EXECUTIVE — OEGANIZATION §116. §117. §118. §119. § 120. §121. §122. §123. §124. §125. §126. National executive. State executive. Oneness of executive. Boards of health. Subjection of the trained specialist to the untrained official. Organization. Individual responsibility. Principles in organization. Appointment by the Gov- ernor. Power to appoint not in- herent. Eestrictions in appointment. § 127. Power of removal. § 128. One man in charge of each department. § 129. Experts paid by salary. § 130. Paid by salary, not by fees. § 131. Responsibility must be tan- gible. § 132. Organization of State De- partment of Health. § 133. Excess of power. § 134. Appeal in department. § 135. Duty of executive to advise legislation. § 136. Summary. § 116. National executive. The second branch of governmental action is the Executive. In the national system, the head of the executive department is the President, and under the general term there are also included the members of the Cabinet, and all those officers and employees who are engaged in the admin- istration of governmental affairs of the nation. The ramifications of the executive are to be found even on the country roads where the rural mail carrier may be seen making his occasional trips ; in the forests of the west, where the forest reserve employees are pro- tecting the trees from the ravages of fire and insects; in the dark mines of the land, where the mineral experts are making their investigations; in foreign 96 THE EXECUTIVE ORGANIZATION 97 countries, where the consular agents collect commercial data, and protect American interests; as well as in those hives of administration which are housed in the great buildings of the national capitol. For reasons which will appear in a subsequent chapter, attention will not here be given to national executive administra- tion, further than as illustrating the application of the law. § 117. State executive. From a public health stand- point the state executive is the centre of interest. The very great importance of the subject justifies a some- what critical consideration, not only of the existing conditions, but of what we should have. Business ability and acumen are the pride and boast of Americans generally. That there is a legitimate basis for such pride may be seen by a glance at the great commercial and engineering undertakings which have been carried through, not only in the United States, but also in far distant lands. We have also the direct testimony of foreign writers. The eminent English statesman, Sir James Bryce, in the first edi- tion of his ' ' American Commonwealth ' ' wrote : * " The Americans are, to use their favorite expression, a highly executive people, with a greater ingenuity in inventing means, and a greater promptitude in adapt- ing means to an end, than any European race. Nowhere are large undertakings organized so skill- fully; nowhere is there so much order with so little complexity; nowhere such quickness in correcting a suddenly discovered defect, in supplying a suddenly arisen demand.' ' On the other hand, and in marked contrast with the * Vol. II, p. 44. 98 PUBLIC HEALTH ADMINISTRATION author just quoted, though not in the least contradict- ing his assertion, another English writer, Mr. Percy Ashley, says of the American state governmental system : 2 " The state executives are ill organized and weak." This is not the statement of a hypercritical faultfinder. It is simply an epitome of the conclu- sions of every student of American administrational machinery. No one can successfully controvert Pro- fessor Goodnow when he says: 3 "The experience of the world is against the administrative arrangements of the states of the American Union." § 118. Oneness of executive. A prime essential for executive efficiency is found in the idea of oneness. It is true that for over six hundred years the executive powers of Switzerland have been reposed in a council; but there is no such separation of powers in Switzer- land as in this country, and that federation is not a nation in the same sense as is the United States. At the founding of this country there were those who feared to trust the executive power of the nation to one man, and at first several states voted against the prop- osition. ' ' The Federalist ' ' 4 contains a full discussion of this point, and Chief Justice Story has given the subject a somewhat lengthy discussion in his com- mentary on the Constitution. What is there said applies with equal force to the government of the indi- vidual states, and also to the portion of the state administration which pertains to the care of the public health. "That unity is conducive to energy will scarcely 2 Local and Central Government, 4 Number 70. p. 327. a Principles of Administrative Law, p. 133. THE EXECUTIVE — ORGANIZATION 99 be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of a greater number; and in proportion as the number is increased, these qualities will be diminished. ' ' 5 Mr. Cushing 6 feared that this unity might result in des- potism, but with our division of powers and conse- quent restraints upon the executive, this is hardly pos- sible. To result in despotism, the executive must be united with either the legislative, or the judicial branch. Because responsibility is more easily fixed with one executive, than with a board, he is more easily restrained from abuse of power, as Delolme has pointed out. "This unity may be destroyed in two ways: First, by vesting the power in two or more magistrates of equal dignity; secondly, by vesting it ostensibly in one man, subject however, in whole or in part, to the control and advice of the council. ' ' 7 Either of these methods is fatal to individual responsibility. They shield the incompetent or shrewdly unscrupulous officer, and hinder the trained and competent man. Although discussions are beneficial in legislation, after a law has been enacted there is no longer occasion for discussion. It is only the duty of the executive to administer the law as enacted. "No favorable cir- cumstances paliate or atone for the disadvantages of dissension in the executive department. The evils here are pure and unmixed. They embarrass and weaken every plan to which they relate, from the first step to the final conclusion. They constantly counteract the s Story, On the Constitution, i Story, On the Constitution, Sec. 1420. 1421. • 7 Opin. Attorneys General 453, 470; also 2 Opin. Attys. Gen. 482. 100 PUBLIC HEALTH ADMINISTRATION most important ingredients in the executive character — vigor, expedition, and certainty of action." 8 "But the multiplication of voices in the business of the executive renders it difficult to fix the responsibility of either kind ; for it is perpetually shifted from one to another. It often becomes impossible, amidst mutual accusations, to determine upon whom the blame ought to rest." 9 The magistrate sinks into comparative insignificance — compelled to follow when he should lead — blamed for acts over which he has no control. § 119. Boards of health. Mr. Justice Miller tells us that : 10 ' * The nearer we approach to individual respon- sibility in the executive, the nearer will it come to per- fection, ' ' and Professor Goodnow assures us that : u "the desirability of singleheaded departments has come to be regarded as unquestionable, and it is almost heretical at the present time to express the conviction that the board form is preferable." In spite of this it is the rule in the various states to entrust the man- agement of the health administration to boards of health, often unpaid. Pennsylvania has a department of health headed by a commissioner, and though less perfectly organized, New York has a similar depart- ment. Mr. Eaton, in his Government of Municipali- ties, 12 gives a somewhat lengthy argument to show that health administration should be in the hands of a board of health. He argues that where the work is done by one man there is too great an opportunity for oppres- sion and partiality in administration, and that there is need for multiplicity of council to obtain the best s Story, Cons. 1424. u Municipal Government, p. 225. » Story, Cons. 1425. 12 p. 407. i° Constitution, p. 94. THE EXECUTIVE — ORGANIZATION 101 result in formulating regulations and ordinances. On the contrary, to get the advantage of numbers in a board it must have some- degree of legislative power. True it can have no true legislative authority, but it must have authority to enact ordinances. The rules, regulations, and ordinances passed by the board do not of themselves set any bar against the abuse of power in the executive work. On the other hand, the more boards are allowed legislative authority, in either state or city government, the less prominent will the delib- erations of each become. In another portion of his work, Mr. Eaton says: 13 "In most American cities the ordinance making power is distributed between limited councils, boards, and single officers. Much con- flict, confusion, and needless litigation are the inevit- able result, as there would be concerning the laws if there were several law-making bodies in the same state." This is sufficient to condemn the suggestion that an administrative body should be a "board" in order to get the advantage of multiplicity of ideas, and division of responsibility. Since boards of health are purely the creatures of enactment, when they exist their composition and operations must be controlled by the law which pro- vides for their existence. Thus, a provision of law authorizing a board of health to employ such persons as shall be necessary to enable it to carry into effect its orders and regulations does not authorize a village board of health to employ regularly an attorney and counselor. 14 States have attorneys general, whose is p. 262. i* Reynolds v. Ossining, 92 N. Y. Supp. 954. 102 PUBLIC HEALTH ADMINISTRATION duty it is to represent the state, or state officers, in all cases. State boards of health are state officers, so that it is the duty of attorneys general (as well as the assist- ants which are called by various names in different com- monwealths, such as state's attorneys, county attorneys, prosecuting attorneys, etc.), to represent the board, and to give it counsel and advice. 15 Likewise in cities and villages there are ordinarily local attorneys for the corporations who are supposed to look after the affairs of the corporation. Unless there may be a distinct pro- vision in the statute, therefore, permitting or direct- ing such employment of a special attorney the employ- ment would not be justified in law. Because such a special attorney would not be under the control of the legal department of the city or state, there might very easily arise conflicts as to authority which would com- plicate administration. As a general proposition, then, such special employment of attorneys by boards of health would be contrary to policy, as well as contrary to law. By the constitutions of some states it is illegal to appropriate money, or fix a salary, in a general act embracing other matters. Such a provision in an act creating a state board of health would therefore be void, but making that item void does not render void the entire statute. 16 A board of health will be con- sidered legally organized if there be a substantial com- pliance with the requirements of the law. 17 General laws relating to boards of health apply to all boards of health in existence, with the exception only is Reports, Attorney General, v. Walker, 106 N. W. 427. 111. 1902, p. 391, and 1910, p. 305. " Trenton v. Hutchinson, 39 N. i«Munk v. Frink, 106 N. W. J. Eq. 218. 425; Walker v. McMahn, and State THE EXECUTIVE — ORGANIZATION 103 of such boards as may be specifically exempted; 18 but it was held that the provisions of the Washington State Code creating city boards of health do not apply to any city in which a board of health is organized, and a health officer appointed, under a special charter. 19 The fact that constitutional provisions confer upon a state board of health supervision of matters pertain- ing to public health has no application when the board declines, or neglects, to interfere with municipal ordi- nances. 20 Actions by the board should be formal. The record should show that rules, regulations, or orders are form- ally passed. The record should show who were pres- ent at the meeting, and by what vote a matter was passed or rejected. All rules and regulations should be published. 21 The conditions imposed as to manner of making rules must be observed. When the charter of a borough does not confer the veto power upon the chief burgess, and he is not a member of the council, his concurrence in the rules and regulations of a board of health is not necessary. 22 The records of boards of health are not to be used as evidence between private parties in all cases. Within its legitimate objects and purposes the record in question is proper evidence. In the absence of positive declaration on the part of the legislature, it will not be presumed that the rights of private citizens are to be foreclosed by the opinion of a public health officer contrary to the general rule of is People v. Monroe County, 18 21 Reed v. People, 1 Parker Cr. Barb. 567. 481. if State ex rel. Rose v. Hindley, -- Board of Health rules in Bor- 121 Pae. 447. oughs, 14 Pae. C. C. 116; s. c. 3 20 Logan v. Child, 41 So. 197. D. R, 225. 104 PUBLIC HEALTH ADMINISTRATION evidence, however learned or conscientious that officer may be. 23 It is quite possible that for preventive pur- poses it might be necessary to legally regard a certain case as one of infectious disease, yet after the case is all over, and the patient has recovered, all doubt may be dispelled, and the case prove to be noninfec- tious. During the period of doubt the safety of the community demands, perhaps, that the case be isolated as infectious. During that time it should be regarded legally as infectious. Scientifically it may not be infec- tious. We may therefore say that for administrative purposes it should be regarded as legally infectious, but in a suit for damages for causation it must be con- sidered as legally not infectious. § 120. Subjection of the trained specialist to the untrained official. There is another very strong objec- tion to the board idea, which is specially forceful rela- tive to health administration. The board necessitates the subjection of the trained professional administrator to the non-professional advisor. A chain is only as strong as its weakest link. Admittedly, today there are very few competent health administrators. The position requires a special education and training such as finds practically no field for employment outside of the public service. The importance of this department demands the very best qualifications possible in its officers. It is practically impossible to appoint a board of sanitarians of equal value. Every member of a board below the best man for this special work, no matter how competent he may be in other lines of professional activity, is so much dead weight upon the administra- 23 Brotherhood of Painters v. Barton, 92 N. E. 64. THE EXECUTIVE ORGANIZATION 105 tion. His presence may be positively antagonistic to good work, on account of his lack of special education and experience. He may even help to force the board into some ultra vires tort, for which the competent man, who has been overruled, will be held equally liable legally. Whereas, in Prussia and in France the professional administrator is only subject to a general and financial supervision and control, in England "the unprofes- sional administrators are supreme; they are the authorities, and the salaried experts are merely their agents and servants. ' ' 24 This is not indicative of good business sense. It is neither productive of efficiency nor of economy, yet the United States has adopted the English policy; and by our system of separation of powers the evils of the plan must be intensified in America. In England the boards have some power of legislation. In America they have none. The legis- lation must be by the legislature. We find then that generally in the United States the trained sanitarian is (if employed at all) subject to, and hampered by a board of health composed of men who know relatively little of the science of public health. The professional health administrator should be the real head of the department. Boards are generally unpaid, or paid a nominal com- pensation. In Illinois, for example, the statutes pro- vide that aside from the Secretary, no member of the State Board of Health shall receive any compensation for his services. 25 Especially, in an office requiring a special technical education like that of health adminis- 2* Percy Ashley, Local and Cent. 25 Rev. Stat., Chap. 126a, 8ec. Gov., p. 13. 11. 106 PUBLIC HEALTH ADMINISTRATION tration, there is no better reason for expecting a physi- cian to give his service to the community, than there would be for requiring a judge to serve without com- pensation, or demanding that bankers give the use of the needed funds for public improvements. Such a provision, therefore, as to prohibit compensation opens the door to fraud and inefficiency; to fraud, because the tendency is for the officer to get his compensation indirectly; to inefficiency, because competent men can- not afford to accept the responsibility, and the office becomes a political asset for the control of elections. In the same state of Illinois some time ago there was appointed a commission on industrial diseases, and it was provided that the members should not receive compensation, though an appropriation was made for the necessary investigation. In order to be able to do the work required, a competent person was obliged to resign from the commission. In other words, the com- petent person must be subordinate to those who were not competent, or who did not devote their best thought and time to the public duties. Clearly, this is not in accord with business experience and usage. § 121. Organization. In the states of the American Union the executive chief is the Governor. This is provided in each of the state constitutions. The organi- zation of the remainder of the executive departments is determined by the constitutions and the statutes. In general it may be said that the authority of the Gov- ernor over the other executive officers is often very slight. The tendency in legislation has been to mul- tiply governmental factors, and to entrust purely administrative matters to boards composed of non- expert politicians, who hold office for a limited period, THE EXECUTIVE ORGANIZATION 107 and too often use their positions, through the control of patronage, to influence elections. According to the constitutional provisions, or statutory enactment, these executive officers obtain their positions either by gen- eral election, or by appointment. When by appoint- ment, it is customary for the appointment to be made by the Governor, with the advice and consent of the senate; or by the Governor alone, or by one of his sub- ordinates. § 122. Individual responsibility. The key to effi- ciency — and that includes economy — in administration is individual responsibility. This is true whether we consider manufacturing, mercantile, or governmental administration. This element is of importance in exact ratio with the increase in the magnitude of the concern, and the amplitude of its operations. It is quite pos- sible for a country store, for example, to be conducted fairly well, where each clerk sells ginghams, oats, nails, and mowing machines, and also takes his turn in distributing the mails and billing express packages. The proprietor is at the same time close to his stock, his employees, and his customers. So few persons are involved in the transactions that an item may be easily traced. The supply of any line of goods presents few varieties and all are easily accessible. Even a stranger might readily determine for himself whether or not a particular pattern of dress-goods were in stock. On the other hand, in an establishment like that of Marshall Field and Company, economy and efficiency demand that the book-keeper do nothing else; the lace salesman must know where to find any one of a thousand pat- terns; and each department must be accurately super- vised. In such an establishment it would be manifestly 108 PUBLIC HEALTH ADMINISTRATION impossible for each employee to be directly subordi- nate to one general manager. Neither can the manager know personally each of the customers. The manager must deal with generalities; the submanagers, with lesser generalities ; the heads of departments, with par- ticularities only in emergencies; and the individual clerks must watch the details. Throughout all there must be a perfect system, with definite subordination leading to one responsible head. This idea of specialization, and non-duplication, is still better illustrated in manufacturing concerns. In the small shop one workman may do any one of the acts necessary in the manufacture of a given machine ; he may work with the saw, the plane, the chisel, and the sandpaper upon the wood; he may shape the iron with forge or lathe; he may nickel the bright metal, and paint or varnish the wood. In the large shop one man may spend a lifetime doing only a single act of the many required. Each group of workmen is under a foreman; the foremen are under department heads, and all are under one general manager. There may be a board of directors who may be said to be the legisla- tive body of the concern, but when this board has decided upon a plan it is never left to a board to execute it. A commission might be given to several workers to investigate a proposition, or to devise a plan of action, but such experiment or test is distinct from executive administration, though the administration may be guided by the results thus obtained. A manu- facturing concern like the Harvester Company, or the Illinois Steel Company would not entrust the responsi- bility for the management of a shop or an office to a board of equal authority among its members. THE EXECUTIVE ORGANIZATION 109 § 123. Principles in organization. According to this fundamental principle of individual responsibility, organized into a system, our state executive business should be readjusted in several radical features. In many states this reorganization would require constitu- tional amendment in order to make the change com- plete. Fortunately, so far as relates to health depart- ments, the reorganization would be dependent largely upon the internal arrangement of the departments, and aided by statutory enactment. The requirements for efficient organization in state government are: 1. The Governor must appoint, and be responsible for all executive subordinates. 2. Each separate office, or department, must be man- aged by one man. 3. Each responsible officer should be an expert in the line of his official duty, hold a permanent position during efficiency, and should be paid an adequate salary, not by fees. 4. Each department should be organized systematic- ally, so that the responsibility of each officer or employee is made definite, exclusive, and tangible. The above statements are general, and will be con- sidered generally, though each has its direct applica- tion to public health administration. § 124. Appointment by the governor. It is very evi- dent that a man may not be properly held responsible for the acts of a subordinate over whom he has no control. (§ 282 et seq.) He may order, he may criti- cise, and he may prefer charges ; but without the power for enforcing his demands he may not justly be deemed responsible for the methods or misdeeds of his subor- dinates. Charges would fall, unless there were posi- 110 PUBLIC HEALTH ADMINISTRATION tive evidence of malfeasance in office, but a difference in methods, without malfeasance, might be equally dis- astrous to the efficient administration. He who is expected to supervise a large factory or mercantile concern would demand the right to select his own workmen. Thus we find the statement in regard to governmental administration, that the primary rule is that the executive must have the right to appoint to office. 26 This statement is true relative to every grade of officer, though it is to be presumed that the superior may reasonably have a certain supervision over all inferior grades. § 125. Power to appoint not inherent. The power to appoint subordinates is not an inherent executive func- tion. 27 In point of fact, both in the national executive and in state administration, this power of appointment is frequently taken from the superior, either directly or indirectly. (§285.) Thus, though the President may nominate subordinates, we have seen a hostile senate refuse to confirm, and thus block appointments for political reasons. So in state governments also, according to the constitutions or statutes of many states, presumably subordinate officers may be elected. Thus according to the constitution of Illinois, 28 for example, the Secretary of State, Treasurer, Super- intendent of Public Instruction, Attorney General, and Auditor of Public Accounts are all elected. In no sense are such officers really subordinate to the Gov- ernor. They are nominated and elected by the same powers as is the Governor himself. They cannot then 26 Wyman, Administrative Law, Boucher, 3 N. Dak. 389 ; People v. 48. Freeman, 80 Cal. 233. 27 Elliott, 259 ; citing Fox v. Mc- 28 Art. V, Sec. 1. Donald, 101 Ala. 46; State v. THE EXECUTIVE — ORGANIZATION 111 be responsible to him. They are responsible only to the people of the state. " Every officer who is elected by the people is upon equal terms with every other (elected) officer." 29 The result is that the Governor, nominally the chief executive of the state, has only responsibility over a portion of the administrative business. He is neither a "Governor," nor a "Chief Executive," except in name only. He really ranks with his Secretary of State, Superintendent of Instruc- tion, and Auditor. It is quite possible that one or all may be completely out of harmony with the Governor. Though all belong to the one branch of government, the executive, their ideas and methods may be so at variance as to effectually block most of the operations of government. It may easily happen that men who are thoroughly incompetent may be elected to these offices, especially under the direct primary system of election, by which a small minority is empowered to effect an election. This incompetence also tends toward inefficiency. Clearly, efficiency in administra- tion demands that there be harmony of action in the department. A house divided against itself cannot stand, and to reach the same goal the different mem- bers of the department must not attempt to travel different roads. For such reasons Mr. Justice Miller viewed 30 with some alarm the growing tendency to remove the appointing power from the President, through the operation of the patronage system. Admitting that there may be a possibility of harm when carried to 29 Wyman, Admin. Law, 46. 30 Miller, On the Constitution, p. 158. 112 PUBLIC HEALTH ADMINISTRATION an extreme, the patronage system practically amounts only to this, that there shall be harmony between the legislative and executive branches of the government. The framers of our constitutions very wisely provided for a degree of this harmonizing influence by requiring that certain appointments should have the approval of the senate before they became effective. Perhaps the best illustration of the weakness of an executive, through deprivation of power, may be found in the republic of France. Though the French Consti- tution invests the President with great nominal power, his every act is so hampered that he is little more than a figurehead. By the constitutional law of February 25, 1875, it is stipulated that "every act of the Presi- dent of the Republic shall be countersigned by a min- ister." 31 The same act further provides 32 that "The Ministers are jointly and severally responsible to'the Chambers for the general policy of the govern- ment, and individually for their personal acts." .In consequence of such restrictions Sir Henry Maine says : 33 " There is no living functionary who occupies a more pitiable position than a French President. The old kings of France reigned and governed. The Con- stitutional King, according to M. Thiers, reigns but does not govern. The President of the United States governs, but he does not reign. It has been reserved for the President of the French Republic neither to reign nor yet to govern. ' ' §126. Restrictions in appointment. Though the responsibility relative to appointments should rest with the superior officer, his freedom of action may be 3i Art. 3. 33 Popular Government, 250. 32 Art. 6. THE EXECUTIVE — ORGANIZATION 113 limited by legislative enactment as to the qualifications of appointees. (§§ 305-308.) Thus it is quite customary that it be required as a qualification for office that the appointee be a citizen, and of lawful age. Time of residence in the district may be a qualification. Special qualifications may be demanded for special offices, such as that the person appointed, (or elected), shall be a lawyer, or a physician, or otherwise skilled in some particular branch of knowledge demanded by the office. 34 A man was appointed interpreter in a district court in New York though he knew no foreign language. He sued the city for his salary. The court held that "By accepting the position of interpreter, when, if he understood no foreign language, he could not interpret at all, he stands convicted of fraud, either upon the officer who appointed him, and upon the public from whom he was to receive compensation, or upon the latter alone. " 35 It will be noted that this case was not based upon a statutory requirement, but it rests wholly upon inherent qualifications. It is sel- dom possible so easily to demonstrate unfitness aris- ing from lack of knowledge, but appointment in the public health service demands certain technical train- ing, even though the statute may not prescribe it. Requirement that boards of officers shall be taken from different political parties, has been sustained in Massachusetts, 3 ''' and in New York. 37 In Michigan such a requirement was deemed unconstitutional as a violation of the doctrine that political opinions cannot 34 People v. May, 3 Mich. 508. - Rogers v. Buffalo, 123 N. Y. 35 Conroy v. Mayor, 6 Daly, 490; 173. affirmed, 67 N. Y. 610. 3« Commonwealth v. Plaisted, 148 Mass. 375. 114 PUBLIC HEALTH ADMINISTRATION be made a test of the right to hold office. 38 It is now a well recognized principle that certain civil service tests may be demanded of appointees, unless some special constitutional provision be thus violated. 39 (§310.) It is sometimes held that civil service requirements violate constitutional provisions. 40 The statutes may stipulate certain disqualifications for office, such as conviction of crime. 41 . § 127. Power of removal. It is not enough that the superior officer shall have the power to appoint to office. The power to appoint implies also the power of removal from office. (§351.) Unless the term of office be definitely fixed by statutory enactment the power of removal is incidental to that of appointment. 42 One of the earliest Illinois decisions was to the effect that the Governor has not the power of removal unless it be expressly given. 43 This power of removal is given by the state constitution of 1870. 44 The same argu- ment which Mr. Madison used relative to the Presi- dent, applies also to all appointing officers. He said : 45 "It is absolutely necessary that the President should have the power of removing from office. It will make him in a peculiar manner responsible for their con- duct, and subject him to impeachment himself if he suffers them to perpetrate with impunity high crimes ss Attorney General v. Detroit, « People v. Thornton, 25 Hun 58 Mich. 213. Also Evansville v. 456; People v. Goddard, 8 Col. State, 118 Ind. 426; Brown v. 432; State v. Pritchard, 36 N. J. Haywood, 4 Heisk. 357; Baltimore L. 101. v. State, 15 Md. 376. 42 Goodnow, Princip. of Ad. 39Eogers v. Buffalo, 123 N. Y. Law, 135, citing Ex parte Hen- 173. nen, 13 Peters, 230. 40 People v. Durston, 3 N. Y. « Field v. People, 3 111. 79. Supp. 522; People v. Angle, 109 44 Art. V, Sec. 12. N. Y. 564. 45 1 Annals Cong. (1789) 350. THE EXECUTIVE — ORGANIZATION 115 and misdemeanors against the United States, or neglects to superintend their conduct so as to check their excesses." To prevent delinquencies is often as important as to check their excesses — perhaps more so. The officer is responsible only to the, appointing power by whose favor he holds his position. If the appoint- ing officer has no power of removal the officer is inde- pendent, and so long as he commits no crime he is free from possible discipline. Evidently such an arrangement does not foster efficiency in administra- tion. Conditions relative to appointment and removal from office will be more fully treated in a subsequent chapter. (Chap. X.) §128. One man in charge of each department. Executive efficiency necessitates the idea of oneness. When the responsibility is divided among the members of a board whose members are equal in power, human nature causes each to shirk the disagreeable duty, and to claim the credit for successes in administration. It often happens that a necessary act may be resented by certain individuals. The law must, however, be enforced. Administrative vigor, expedition, and cer- tainty of action are only possible with one executive. 46 The name executive indicates action; not thinking, nor judging. The executive department is not charged with the making of laws nor with weighing evidence. Its duty is to put into operation the laws that have been enacted. An absolute separation of powers according to the three branches is not possible, and there are times when council is advisable. Thus we 4« Federalist, No. 70; Story, Constitution, Sec. 1420 et seq.; Miller, Constitution, 94. 116 PUBLIC HEALTH ADMINISTRATION find that the President has his Cabinet. He is respon- sible, but they are his advisers. The same idea is applicable in any executive department in which the duties are discretionary, rather than mandatory. The responsibility must rest with the one man, and one man only. That justice may be done to all, our governmental system provides for trial by jury. So there are cer- tain administrative processes which resemble trial by jury. To prevent, or minimize, the possibility that per- sonal prejudice, either as to persons or ideas, may bias judgment, it is very right and proper that examina- tions for license to practice certain professions should be conducted by boards composed of several members, differing as to personal view. Such boards are in fact juries whose finding must be collective. This act, though it be in an executive department, is not execu- tive in nature, but preliminary to the executive act of issuing the license. This fact should be borne clearly in mind when considering a state board of health, for example, which is also charged with such duties. Logi- cally, the application for the license should be made to the head of the health department in such a case, who, after satisfying himself that the specified preliminary requirements have been complied with, orders the appli- cant before this special jury for trial. The finding of the jury should be returned to the executive, and he should then issue the license if it be deemed proper. §129. Experts, paid by salary. There is another fundamental business principle which is well illus- trated in all large commercial establishments. Other things being equal, a man can do more and better work in a line in which he is an expert. In most govern- THE EXECUTIVE — ORGANIZATION 117 mental executive positions, the duties require a special training and education. For this special training there may be little demand outside of the governmental work. As an incentive to acquire special fitness the officer should be led to expect permanency of tenure with pay commensurate with the character of the duties. In commercial business it is found to be economical to pay sufficiently large salaries to the higher employees to make it an object for them to study constantly how their particular branches of the work may be improved, either as to quality of work performed or as to amount of output. Such employees are retained so long as they can ' ' make good, ' ' to use the business expression, and the pay is made sufficiently high so that they will not be looking for other positions. The state must com- pete with commercial establishments for men. Cer- tainly the business of the entire commonwealth is as important as that of any portion, as represented by a single commercial establishment. In spite of this fact, the salaries paid to governmental officers and em- ployees in the United States are almost universally insignificant ; and as previously stated, it is sometimes specially stipulated that the officer shall receive neither salary nor fee. Such a provision is contrary to all busi- ness principles. It necesitates that the trained expert must be a mere employee, and subject to the orders of those who are incompetent to give proper direction. Commercial failure would overtake any mercantile or manufacturing establishment which would attempt to operate upon a similar plan. ( § 321. ) §130. Paid by salary, not by fees. Unless the amount of business transacted by an official be insig- nificant, he should be paid by salary, not by fee. 118 PUBLIC HEALTH ADMINISTRATION Though fees be received from those having business with a department, those fees should be the property of the government, either city, state, or nation, as the case may be. If compensation be by fee for the officer there is a constant temptation to so manipulate the business as to increase the number or amount of fees received. This operates to absorb unnecessary time, and to increase the bulk of business transacted. It may foster imperfect work. Thus, in examinations for license to practice medicine, especially where there may be granted reciprocal licenses in other states, in order to receive as many fees as possible a board has seemed to be inclined to be exceedingly lenient. In that way it has attracted candidates who wish to practice in other states, from which they later received the recip- rocal licenses. Again, the fee compensation tends to give the preference to matters paying the larger fees, rather than to the affairs which are essentially the most important, or the most urgent. If the amount of business transacted by an official be very variable, and if it require only a small portion of his time, it may be that the' fee system is the only method of compensation practicable. Even here the system is pernicious. The tendency is for the officer to neglect his official duties when his private business is nourishing, and to be unduly active when he has more time. The real duties of his office might be quite the reverse. If possible, then, a fair salary should be determined upon, and the fees received be paid into the general treasury. This will enable the responsible superiors, which finally means the people of the terri- tory, to know more definitely what is being done, and what is being accomplished. THE EXECUTIVE ORGANIZATION 119 § 131. Responsibility must be tangible. As a neces- sary corollary to the foregoing, in the interest of effi- ciency each administrative department must be so sys- tematically organized that finally one man shall be definitely responsible for certain portions of the work, and that all portions shall be definitely provided for. Certain supervision must be provided, grouping por- tions similar into bnreans. The heads of the bureaus must be responsible to the department chief, and may serve as his advisory council. It is not to be pre- sumed that a department chief will give personal at- tention to individual items, unless they be very excep- tional. He must deal with the general problems of administration. § 132. Organization of state department of health. As illustrating this idea, and giving some general con- ception of the organization of a state department of health, the following is suggested : Commissioner of Health Assistant Commissioner Administrative Assistants Infectious Disease Inspector Assistants County and Local Officers Veterinarian Deputy Veterinarians Occupational Disease Investigator (and Assist- ants?) Lodging House Inspector Assistants Chief Dairy Inspector Assistants 120 PUBLIC HEALTH ADMINISTRATION Laboratory Chief Chemist Bacteriologist Pharmacist Water Analyst Food and Drug Inspector Assistants Recorder of Vital Statistics Assistants Local Registrars Chief Clerk Correspondence Clerks Accountant Assistants Librarian Records Assistant Library Assistant Editor License Council, consisting of one member from each board and presided over by the Com- missioner Examining board for Physicians, Surgeons, Midwives, Embalmers, and Nurses Pharmacists Dentists Veterinarians Entomologist Field Assistants Sanitary Engineer With such an organization, though an item might involve the attention of a number of members from the department, it need not require the notice of the Com- THE EXECUTIVE — ORGANIZATION 121 missioner. For example: suppose that a local health officer report a number of cases of infectious disease in his district, apparently traceable to milk imported from another district. He, being responsible for his district, and finding the origin of the trouble in an- other territory, must call the attention of his superior to the facts. The assistant commissioner, recognizing that the other local officer had not prevented the spread of the disease, would call upon the chief dairy inspector for information, and the dairy inspector might detail men to make a fresh inspection; or in- fectious disease inspectors might be sent to the sus- pected territory. According to this scheme every man in the service is responsible, and he cannot disclaim the responsibility. An efficient health service should assist commerce. Without an efficient organization, in such cases as that just instanced, it would be necessary for the first local health official to stop all importation of milk from the infected, or suspected territory. With efficient or- ganization it should be easy to discover the point of infection, and thus permit the noninfected milk to be delivered. By making some official responsible for every point of danger, and by making his tenure of position depend upon the accuracy of his work, as shown by results, individual attention to duty is stim- ulated, and efficiency is magnified. With such an organization, in which every man is definitely responsible for a definite portion of the work, the time and attention of the overseers may safely be devoted to the general questions arising. To use a mathematical illustration, the chiefs will work out the algebraic problems, leaving the subordinates to 122 PUBLIC HEALTH ADMINISTRATION substitute values in the result for special application, and to solve the arithmetical problems when a general solution is not possible, or advisable. § 133. Excess of power. It may be thought by some that such an organization as this just mentioned will give to the superior officers too great power, and an authority which may be easily abused. It is true that many governmental problems are first met by the ex- ecutive department. Especially in health administra- tion, it is frequently necessary to act at once, and with- out the aid of the other branches. To guard against excess in such cases we have the power of the judiciary. The courts are always open to stop executive action by injunction, when it appears that the action is not justifiable. Moreover, if the executive have worked injury unnecessarily, the court will hold the individual officer responsible, as will be shown in a subsequent chapter. (Chapter XI). The chief restraint upon administrative excess must be found in the legislature. As we have repeatedly stated, the executive has no real legislative power. Its action pre-supposes legislative action by the proper branch. If the legislature have done its duty, the executive is bound by the course there laid down. Where the legislature has failed to act, it may be neces- sary for the executive to take the responsibility of action without special authority. This fact should be kept clearly in mind. The executive must act, and its course will probably be upheld by the court in the absence of previous legislation, even though the method taken may not prove to be the best, provided that it seems to be reasonable. § 134. Appeal in department. A source of weakness THE EXECUTIVE ORGANIZATION 123 in our system of government is found in the general failure to provide for appeal from the decision of ex- ecutive officers. Such an organization as that just proposed provides the machinery for appeal. (§§ 141, 143.) Practically it makes it possible to carry appeals from the holder of the lowest village office to the governor of the state. Provision for appeals in the executive department should be made generally by statute, determining how, and how far such appeals may be taken. The division of powers assigns to the legislature the making of laws; to the judiciary the interpretation of the laws, and their application. The executive branch does the work. In a large portion of executive work there is necessity for the use of judg- ment. Accordingly many officers are vested with dis- cretionary authority. If such officers fail to use their brains, or if they are guilty of fraud or corruption in their administration, their acts are subject to the re- view of the courts ; but, as a general rule, even though a grave error of judgment has been committed, the decision of an officer with discretion is not subject to judicial review, unless such provision has been dis- tinctly made. 47 The act of the officer with discretion, if it really has been the result of a decision by the offi- cer, is final and conclusive as to the subject matter it- self. Were it not so — were the courts to attempt to pass upon the subject matter itself, it would be in effect the subjection of the executive to the judicial branch, and the union of the judicial and executive duties in one set of officers. Both of these ideas are « Elliott v. Chicago, 48 111. 293 Waugh v. Chauncey, 13 Cal. 11 TL S. v. Arredondo, 6 Pet. 691 Charles River Bridjre Co. v. War ren Bridge Co., 11 Pet. 240; Al- len v. Blunt, 3 Story, 742; Fitz- gerald v. Harms, 92 111. 372. 124 PUBLIC HEALTH ADMINISTRATION antagonistic to our system; yet owing to the lack of provision for appeal within the departments, there is a constant tendency to attempt to get the courts to pass upon the discretionary acts of executive officers. Aside from the fact that judicial review of execu- tive acts is antagonistic to our theory of government, as a problem in efficiency such a solution is not satis- factory. A general officer should be more familiar with the nature of the problems before his subordinates than one who in no way comes in contact with such problems. The judge devotes his attention to law and its interpretation ; it is not to be presumed that he knows the relative merits of different food preserva- tives. Neither is he competent to diagnosticate dis- eases. Such executive decisions, when they come be- fore him for review, must be settled according to the opinions of others, rather than himself, and he is not even able always to determine which witnesses are most trustworthy. The consequence is that his deci- sion may be very far from just. In his blindness he has reached out and caught the aid which seems at a glance the safest, but he may be greatly mistaken. Errors in judgment of executives are inevitable. In a well organized department appeal within the de- partment can most readily correct these mistakes. "The question before the inferior is, "What is proper to be done ; the question before the superior is, Whether what is done is fit. The superior thus takes the whole question up anew, and decides himself what is just in the premises upon the merits. All of which is of plain advantage to the complainant. By the internal law the claimant gets relief upon any grounds that may THE EXECUTIVE — ORGANIZATION 125 appear." 48 So in the national government it has been held that the official duty of direction and supervision implies the correlative right of appeal in every case of complaint, although no such appeal is expressly given. 49 "In the states, however, where the head of the department does not usually have the power of direction, there is no general right of appeal from the decision of subordinates to superiors." 50 This is es- pecially true where the general officers are elected, and therefore of equal rank with the governor. In the usage of the national government there are certain safeguards against oppressing the President with unnecessary appeals. Thus it has been held that there is no appeal from a Division above the head of the Department, for the performance by the Cabinet head of the Department is regarded as the performance by the President himself. 51 But an appeal may be made to the President on the question of the jurisdic- tion of an officer attempting to pass upon some matter not properly within his jurisdiction. 52 § 135. Duty of executive to advise legislation. (§99). Governmental problems are first met by the executive. In an organized department, made up of individuals specially educated in particular lines, such problems may be better solved in an intelligent man- ner than would be possible in the ordinary legislative body. This is especially true of a health department. The true scientist is a practical man. He deals with facts more than with theories. Though he may at 48 Wyman, Ad. Law, 5. id. 526; Wilcox v. Jackson, 13 Pet. 49 Butterworth v. IT. S., 112 V. 498; V. S. t. Eliason, 16 Pet. 291; S. 50; Bell v. Hearm, 19 How. 252. Confiscation eases, 20 Wal. 92, 109. so Goodnow Prin. Ad. Law, 146. 82 15 Opin. Atty. Gen. 94. M 9 Opin. of Atty. Gen. 462 ; 10 126 PUBLIC HEALTH ADMINISTRATION times group his facts under some theoretical analysis, still it is chiefly the demonstrable facts which specially interest him. Intelligent legislation must be based upon facts. It is therefore one of the most important duties of an executive department, through regular channels, and in due fonn, to set forth clearly the facts, and with them, but distinct from them, the ad- vised solution. Too frequently departmental reports consist simply of epitomes of past actions, with recom- mendations sometimes as to future needs. No recommendation or request from a department is worthy of consideration unless it be accompanied with the basal facts. In a well organized department cov- ering all the various phases of the work, it is then the duty of the subordinates to pass the facts up to their superiors. They may then collect the data from wide- ly differing localities, and from different branches, so that they may be harmonized fully before presentation to the legislature. For example: the milk problem demands that facts be collected from the health offi- cials in the dairy districts and in the cities; from the food inspectors and the dairy inspectors; from the veterinarian and perhaps from the entomologist. Un- less all be organized under one responsible head the facts collected may not be properly harmonized. The general solution has been worked out in several con- flicting ways, for each branch magnifies its own view- point. Under such conditions intelligent legislation is very improbable. The fault here does not lie with the legislative body. The real fault, though it is seldom recognized, is in the lack of efficient organization of the executive. §136. Summary. A well organized executive fixes THE EXECUTIVE — ORGANIZATION 127 responsibility definitely upon every individual in the department. It therefore insures efficiency because delinquency is easily apparent. Efficiency is aided by specialization of work, and coupling it with special training and education of members of the department. Economy is favored by eliminating duplication of ef- forts. Organization assists in the digestion of admin- istrative problems . before legislation is asked, and therefore assists in harmonizing the legislative with the executive branch. It makes better legislation pos- sible, and tends to shorten the time needed for legis- lative action, and to reduce to a minimum favoritism in legislation. The efficiency with which the Panama Canal has been constructed by the federal government has been used as an argument for state control of all great enter- prises. As a study of executive action it is worth while to listen to the comment of Sir James Bryce : 53 "To the unbiased observer it is rather an instance of the efficiency obtainable by vesting full administrative control in men whose uprightness and capacity have been already proved beyond question, who have not risen by political methods, and who have nothing to gain by any misuse of their powers. So far as any political moral can be drawn from the case, that moral recommends not democratic collectivism, but military autocracy." All efficient executive organization must contain the element of military discipline and system. Its autocracy must be within the law, but within its proper scope a certain degree of autocracy is neces- sary. As a corollary of the foregoing we may conclude 53 South America, p. 28. 128 PUBLIC HEALTH ADMINISTRATION that the most efficient organization is one in which the number of persons engaged in the higher positions is directly proportional to the number of their subor- dinates; and that the purely ministerial duties should be performed chiefly by employees of the lowest rank. The number of these employees should be the small- est which can reasonably accomplish the work before them. As the army in time of peace is only a skeleton organization which can be put upon a war strength by increasing the number of enlisted men, so a govern- mental department should be capable of expansion or contraction, according to circumstances, by increasing or diminishing the number of clerks, and other subor- dinates. Thus a state department of health should be so organized that in case of an epidemic, like that of yellow fever, or in times of special danger, such as that during and after a flood, with the least possible delay trained forces may be put into the field pre- pared to safeguard the general health. Under ordinary circumstances every member of the service should have enough to do to keep him reasonably busy. In the place of using half time of two or three men on dif- ferent lines of work, the work should be combined in the care of one. Occasional extra work should be performed by an assistant. Efficiency is frequently weakened in governmental offices by the number of persons only partially employed. CHAPTER V THE JXJDICIAKY § 137. Judiciary, a governmental § 141. No appellate power over balance-wheel. certain executive acts. § 138. Individual supremacy of § 142. Executive jurisdiction. branches. § 143. Departmental adjudication. § 139. Judicial power over legisla- § 144. State courts. tion. § 145. General statement. § 140. Judicial power over execu- tives. § 137. Judiciary, a governmental balance wheel. The third branch of the government is the judiciary. This branch, which acts as a balance wheel to prevent excesses by the other branches, is frequently misun- derstood, and unjustly criticised. There is a legal way to accomplish desirable ends, and there are often ways which are not legal. Because a court holds a measure illegal is no reason ordinarily for condemning the court. The steps taken are disapproved, not the idea. Since a clear understanding of this point will assist in the efficiency of a health department it seems best to devote a little space to the aims and methods of courts. In all constitutional government it is necessary that some body be selected to interpret the constitution and statutes. For this purpose we have the courts. Though, especially in the individual states, "the ex- ecutive is ill organized and weak, ' ' the courts are well organized. The lower courts, both state and national. 129 130 PUBLIC HEALTH ADMINISTRATION have for their province the determination of fact, and the application of the law to the fact. The chief func- tion of the higher courts is this interpretation of law, and to prevent misapplication of the law as deter- mined. Because of this function we sometimes hear of legislation by the judiciary. It is true that some- times the effect of the judicial decision is to negative the will of the people as expressed in a statute, or to find a meaning in a statute which was not contemplated by the drafters of the act. The implication of the critics is that the courts have usurped authority over other departments. Unfortunately judges are but human beings, and like other members of the human race they are not infallible. Errors may occur, but such errors will generally be found to have some basis of plausibility, and not due to the perverseness of judicial minds. More frequently no error can be just- ly charged to the courts. Temporary inconvenience, or even injury, may be caused by the judicial deter- mination of a statute; but the temporary ill is more than compensated for by preventing further excess of enthusiasm. It must always be remembered that even the Supreme Court of the United States is not per- mitted to do intentional wrong. Every member of that Court is sworn to obey the Constitution, and if he violate his oath, or if he use his high position for unworthy ends, he is subject to impeachment and re- moval by the Senate. So perfectly is the government of the United States balanced that there is a check upon excess of authority in every department. There have been instances when personal viewpoints may have biased the judgment of courts; but taken together there is no collection of writings which show more THE JUDICIARY 131 clearly the dominance of reason, than do the decisions of our own Supreme Court. Its decisions are read, and studied by lawyers in other lands for guidance, just as we study the decisions in the courts of our English cousins across the ocean. § 138. Individual supremacy of branches. It is necessary for the members of the other branches of the government to make their own interpretations of the Constitution and statutes. Some have claimed that for their own guidance such interpretation must be final, and that the judiciary have no power to review such conclusions, or to punish the members of other branches for misinterpretations, and acts done under them. Were this idea accepted by the nation, the logical result would be that in the place of a perfectly balanced government of three branches, we should have three, possibly conflicting governments, some- what dependent upon each other because of differing methods. "A house divided against itself cannot stand. ' ' Strange as it may seem, this independence of each branch seemed to be the idea of Mr. Jefferson. What the ultimate result of such a theory might be is shown in the contention of Governor Barstow of Wis- consin when he attempted to retain his position as Governor, in spite of the expressed wish of the voters to the contrary. Certain spurious election returns which were placed on file with the State Board of Can- vassers gave him an apparent majority. He therefore refused to surrender the office to his successor, and the Attorney General filed a quo warranto in the su- preme court of the state. Barstow denied the author- ity of the court to decide and consider as to his title to office, holding: 132 PUBLIC HEALTH ADMINISTRATION "1. The three departments of the state government, the legislative, the executive, and judicial, are equal, co-ordinate, and independent of each other; and that each department must be and is the ultimate judge of the election and qualifications of its own members, subject only to impeachment and appeal to the people. ' ' 2. That this court must take judicial notice of who is governor of this state, when he was inaugurated, the genuineness of his signature, etc.; and therefore cannot hear argument or evidence upon the subject. That who is rightfully entitled to the office of governor can in no case become a judicial question, and "3. That the constitution provides no means for ousting a successful usurper of either of the three de- partments of the government; that that power rests with the people, to be exercised by them when they think the emergency requires it. ' ' x Mr. Barstow ap- parently frankly stated that only a popular rebellion, and recourse to mob rule, could defeat him in his usurpation of power. Very evidently, such an appeal to the supremacy of brute force, to craft, and chicanery, rather than to reason, does not appeal to the student of government. The duties of boards of election can- vassers are ministerial, rather than judicial. 2 While such a board must determine that the returns are ap- parently in due form, it has no authority to go back of the returns, and determine as to fraud or illegal voting. 3 It is true that according to the Constitution of the United States as well as those of the individual i Attorney General v. Barstow, Hill (N. Y.) 42; People v. Pease, 4 Wis. 587. 27 N. Y. 45; Morgan v. Quacken- 2 Hudmon v. Slaughter, 70 Ala. bush, 22 Barb. 72. 546; People v. VanSlyck, 4 Cow. 3 Throop, Public Officers, 156, (N. Y.) 297; Ex parte Heath, 3 with cases cited THE JUDICIARY 133 states, each legislative house is made a judge of the qualification of its own members, and under such con- ditions the courts have no jurisdiction over the ques- tion of validity of senatorial or representative election. § 139. Judicial power over legislation. According to a general rule of interpretation, an officer with dis- cretion "may do any act within that discretion; and all that he does will be held to have been done by ex- press authorization of law." 4 Consequently, so far as a legislative body does not exceed the limits of dis- cretion as judged by the constitutions and enactments under which it works, its acts are not subject to judicial review. Congress is only subject to the fed- eral Constitution in its limitations. The state legis- latures are subject to their individual state constitu- tions, and in addition to the limitations which may be imposed by the federal Constitution and statutes. A state legislature may not impose war, nor restrict in- terstate traffic, for those matters are placed by the federal Constitution under the control of the national government. It is within the province of both state and federal courts to determine whether or not a state statute has invaded the province of the federal govern- ment. It is within the jurisdiction of the federal courts to determine whether or not an enactment of Congress has violated constitutional provisions. The supreme courts of the individual states are the final interpreters of the constitutions and laws of their states, unless it shall appear that either the acts, or the interpreta- tion, have violated provisions of the federal Constitu- tion. It therefore happens that cases arising in dif- * Wyman, Administrative Law, 83. 134 PUBLIC HEALTH ADMINISTRATION ferent states, and under state laws, may possibly be decided differently in the federal courts though the fundamental facts may be identical. The federal Su- preme Court will not declare unconstitutional a state statute which violates or conflicts with the constitution of the state, but not with that of the United States. 5 Because it is within their discretion, the different leg- islative bodies are the final authority upon the neces- sity for legislation within their jurisdiction, and for the advisability of the measures taken. This point was most clearly stated by the supreme court of Illinois, in People v. Dunne, as follows : 5a "No more baseless and defenseless proposition could be put into words than to say that the court has ever arrogated to itself the authority to pass upon the wisdom or propriety of either executive or legislative acts. It has never assumed to declare laws valid or invalid because they were wise or unwise, or because they tended to advance or retard social justice, individual justice, corrective justice, or any other variety of justice." The court concerns itself only with the preservation of the prin- ciples of the fundamental law. The members of the court may not coincide with the legislators as to the necessity or advisability of a given act, nor agree with them in the subject matter of the act, but unless the act be unconstitutional — unless it violate constitutional provisions, 6 the court has no jurisdiction in the matter. For example, a legislature may pass a law compelling all citizens to be vaccinated. The court may not think such legislation necessary or advisable, and may not believe in vaccination as a protection against small- s Calder v. Bull, 3 Dall A. 386. 539; Ives v. South Buffalo Ey. Co., »» 258 111. 441. 201 N. Y. 292 ; People v. Bradley, • McLean v. Arkansas, 211 U. S. 207 N. Y. 592. THE JUDICIARY 135 pox; but unless either the terms or the subject be in violation of the constitution the court must approve. This does not mean that even the legislature has an arbitrary power. "The meaning of the term 'discre- tionary/ when granted by the law either expressly or by implication, in connection with official duty is that the discretionaiy decision shall be the outcome of ex- amination and consideration. In other words, that it shall constitute the discharge of official duty and not be a mere expression of personal will." 7 If the act be arbitrary it is then outside of discretion, and out- side of the authority of the legislative body, and under the jurisdiction of the court to be set aside. To say that an act must not be arbitrary is to say that it must be reasonable for the purpose for which it was enacted. So when Texas and Missouri enacted statutes which were intended to prevent the spread of the Texas cattle fever, by prohibiting importations of cattle from the infected districts, the Supreme Court of the United States upheld one, as in form complying with the provisions of the Constitution, and decided that the other was unreasonable in form, and an in- terference with interstate traffic. 8 It was even affirmed by the court in one case that ' ' We need not inquire whether the requirements of the statute are unjust or oppressive. These are matters for the consideration of the legislative part of the gov- ernment. We may observe that it is difficult to dis- cover oppression or injustice in requiring the medical profession to make known to the world statistics which may promote and are promoting the public health." t U. S. v. Douglas, 19 D. C. 99. » Robinson v. Hamilton, 14 N. » Smith v. E. B. Co., 181 U. S. W. 202. 248; E. E. Co. v. Husen, 5 Otto, 465. 136 PUBLIC HEALTH ADMINISTRATION The court went on to say that the law does not require impossibilities, but that physicians should honestly at- tempt to secure the necessary information, and from the context we may understand that the court merely intended to say that it would not interfere with legisla- tive discretion where possibly some relative, and minor injustice might be caused incidentally by the opera- tion of needed requirements. So in another case it was held that if the real design of an ordinance is a quar- antine regulation to guard against the introduction of disease, a court will not undertake to determine whether some other measure interfering less with com- merce could not as well have accomplished the ob- ject. 10 It is a natural consequence in the enforcement of many police requirements that they will rest more heavily upon some than upon others, and that inno- cent parties may be restrained along with the guilty for the general good. ' ' The contention that the ordi- nance (regulating the location and maintenance of private hospitals and sanitariums) was void because it was admitted that it was enacted at the solicitation of persons residing in the vicinity of said premises and solely in their behalf as a local and special regula- tion, is answered by the court's saying that it was not permitted to inquire into the motives of the city council. If the ordinance was valid on its face, the reasons or arguments that might have moved the city council to act were not pertinent. ' ' " § 140. Judicial power over executives. Since an ex- ecutive officer derives his authority either from a con- stitution or a statute, the courts have the same juris- 10 St. Louis v. Boffinger, 19 Mo. « Shepard t. Seattle, 109 Pac. 13. 1067. THE JUDICIARY 137 diction over his acts as they have over the legislature, with certain additional authority. The determination of legality of executive acts is not limited solely by the constitutional restrictions. Almost all executive acts are prescribed by statutes. A determination of the legality of executive action may therefore involve also a determination as to legislative authority, by which the specified acts may have been passed. The statute may have made certain duties mandatory. If so, and the statute is lawful, the officer must do just that which is prescribed. He must not vary therefrom either by excess or delinquence. The court may pass upon his right to the office which he claims, and may command him to do, or not to do specific acts. It may hold him personally responsible, either to the com- munity or to individuals, for variations from his pre- scribed duty. If the executive duties be vested with discretion, then the officer may do anything within the limits of his discretion. Mandamus will not lie to compel such an officer to do a certain act. Thus, Oscar Dunlop ap- plied for mandamus to compel the reissue of a pension and the court said : 12 " The Commissioner of Pen- sions did not refuse to act or decide. He did act and decide. * * * "We have no appellate power over the Commissioner, and no right to reverse his deci- sion. That decision and his action thereon were made and done in the exercise of his official function." §141. No appellate power over certain executive acts. It will be noticed that in the Dunlop case, just cited* the court called attention to the fact that it had no appellate power over the decision of the Commis- « Dunlop v. Black, 108 U. S. 40. J38 PUBLIC HEALTH ADMINISTRATION sioner. (§ 134.) There are many executive procedures which are quasi- judicial in character. Such acts may necessitate something like court procedure, in which the opposing parties present their witnesses, and ques- tion and cross-question them to determine the facts. Over these questions of fact the decision of the execu- tive may be final. 13 "The Land Department of the United States is administrative in its character, and it has been frequently held by this Court that in the ad- ministration of the public land system of the United States questions of fact are for the consideration and judgment of the Land Department, and its judgment thereon is final. ' ' 14 The courts may very properly consider whether the executive action was rightfully performed. Thus in Low Wah Suey v. Backus, 13 an alien prostitute was ordered deported on executive hearing, after she be- came a citizen. The court said that an attack on the hearing must show that the officers hearing them were manifestly unfair. Since an executive has only such powers and au- thority as are given in enactments, the court may ques- tion the jurisdiction of the executive. In speaking of the power of the Postmaster General to exclude certain letters from the mails, the court said: "His right to exclude certain letters or to refuse to permit their delivery to persons addressed, must depend upon some law of Congress, and if no such law exist, then he can- 13 Nishimura Ekiu v. U. S., 142 cago, etc., E. R. Co., 163 U. S. 321 ; U. S. 651, 659. Johnson v. Drew, 171 U. S. 93-99; i*Amer. School of Mag. Heal- Gardner v. Bonestell, 180 V. S. ing v. McAnnulty, 187 IT. S. 94, 362. 108 ; citing Burfenning v. Chi- ls 225 U. S. 460. THE JUDICIARY 139 not exclude or refuse to deliver thern." 16 As in the case of legislation, everything which is done within the discretion of the officer will be held as legally done, but decisions made, and opinions formed, must show that they are the result of examination and considera- tion, and not be expressions of personal will or preju- dice. 17 Municipal corporations are essentially executive in nature. The corporation is given certain powers by the state statutes. Anything within those powers it may do. Anything without those powers it may not do. 18 It is essential that in the administration of the pub- lic health a certain degree of liberty be given to the officers of health. This is done when they are given discretion. It is only when the discretion is abused that the officer's acts are, or should be, subject to judicial review. It should, then, be only in clear cases of such abuse that the court should be willing to listen to complaints. To subject the acts of health officers to judicial review, when such acts were within the dis- cretion accorded by the constitution or statutes, would very frequently defeat the very object sought — the protection of the health of the community. If the offi- cer go beyond the authority granted — if he abuse his discretion, he will be personally liable for injuries re- sulting. (§ 271, 365, 366.) This matter was well cov- ered by the New Jersey court, when it said that it was not within the legislative intent, in enacting legisla- tion conferring on the local boards of health the power to prescribe quarantine regulations in a district or locality infected with a contagious disease, to subject 16 Am. Sch. of Mag. Healing v. irU. S. v. Douglas, 19 D. C. 99. McAnnulty, 187 U. S. 94, 109; isLandberg v. Chicago, 237 111. Potts v. Breen, 167 111. 67. 112. 140 PUBLIC HEALTH ADMINISTRATION the discretion of suck boards to the review of the local court for the purpose of substituting the judgment of such tribunal for that of the boards to which the power is specifically committed. If the boards of health so constituted transcend their authority in a given case, the act itself provides a remedy to the party aggrieved. The court is unable to perceive any authority in the legislation itself, or in the public policy on which it is based, which can be said to contemplate the sub- mission to a legal tribunal of the public necessity which requires in an emergency the prompt and expeditious intervention of a board to which the legislature has especially committed the determination of the facts, for the purpose of protecting the life and property of a community. No question was made in this case as to the conceded power of a proper reviewing tribunal to pass on the reasonableness of an ordinance or a res- olution passed under general laws, or the manner of the exercise of the powers therein conferred. That question has long been settled in the affirmative by re- peated adjudications. But the insistence was that a tribunal to which an appeal is presumably given may, by its review of conditions and exigencies in a trial anew, determine adversely to the board to which the power has been specifically committed, by legislative act, that its exercise in any given case was unwar- ranted, and that its discretion was improperly exer- cised. The court finds no authority in the act for such a claim, and it is proper to assume that, if the legisla- ture intended to confer such power, it would have found expression in the act. The statute makes pro- vision for the interposition of the court of chancery under certain conditions, and it defines the liability THE JUDICIARY 141 which may be imposed on the members of the board by reason of an excessive or illegal use of the power conferred. The legislative recital of these remedies carries with it a certain presumption of the exclusion of other and additional remedies. To assume that the legislature intended to confer a review of a discretion- ary power of this character, vested in a statutory board, charged with its exercise in critical situations, involving detriment to the life and health of the com- munity, is tantamount to a declaration that the police power of the state is moribund and useless. It will not be assumed, therefore, in the construction of such a statute, that the legislature intended to defeat its own will or to create absurd results such as would ensue under such conditions. 19 One reason why the dockets, of our courts are over- crowded is that too many questions of an executive nature are taken before them for settlement. Par- ticularly in matters requiring a technical knowledge, such questions may be much more intelligently decided in an administrative office. By statutory enactment, therefore, the decision of such departments should be final on questions of fact. The courts should limit their review of the cases to questions of law. Even without special statutory enactment it is customary for the higher courts to give attention to the questions of law; only considering evidence so far as it may have a bearing upon the legal principles involved. When it is found that error has been committed by the lower court the case is returned for further consideration. A law providing that proceedings and actions of is Board of Health of Cranford Township v. Court of Common Pleas, 85 At. 217. 142 PUBLIC HEALTH ADMINISTRATION boards of health shall be regarded as judicial, and prima facie just and legal, does not make the board a court whose orders are final and conclusive. 20 On the other hand, we sometimes find distinct provisions as to appeals from the action of boards of health. Notice must be given to the state board of health of Massachu- setts of an appeal from an order of that board, under Statutes, 1878, Chap. 183, Sec. 6. 21 When the statutes creating boards of health invest them with discretion- ary power as to the fixing of compensation for health officers, no appeal lies from the ordinances of the county board relative to amount of salary. 22 § 142. Executive jurisdiction. When the act of an executive officer is opposed in court, it is the first duty of the officer to show that he has jurisdiction over the matter. Failure to appreciate this point has caused disappointment in health administration. A very competent health administrator found a certain meas- ure apparently necessary for safeguarding the health of his municipality. He accordingly secured the pas- sage of an ordinance covering the point. This was con- tested, and finally appealed to the supreme court of the state, where it was set aside. The health official felt aggrieved that the supreme court did not consider what seemed to him the necessities of the case. It was decided upon a technicality. The fact was that it was not shown that the city had authority and juris- diction in the matter. The special facts were there- fore not before the court properly. The court could not consider these special facts. Unless jurisdiction be shown, the executive has no standing in court. 20 Golden v. Health Dept., New 22 Waller v. Wood, 101 Ind. 1U York, 47 N. Y. Supp. 623. 21 Pebbles v. City of Boston, 131 Maes. 197. THE JUDICIARY 143 Generally speaking, executive jurisdiction must rest upon enactment, either in the constitution or in the statutes. The jurisdiction may be very limited. It may be the duty of an officer of health to suppress nui- sances, but that does not give him authority to deter- mine finally either what are nuisances, nor how they shall be suppressed. In the absence of specific legis- lation he must appeal to the courts for such determina- tion. § 143. Departmental adjudication. According to the provisions of the national pure food and drugs act, the duty of enforcing the provisions of the statute de- volve upon certain executive officers, and especially upon the Bureau of Chemistry in the Department of Agriculture. The determination of fact, the decision as to what is or is not the composition of a certain article, rests with that Bureau. "And if it shall ap- pear from any such examination that any of such speci- mens is adulterated or misbranded within the meaning of this Act, the Secretary of Agriculture shall cause notice thereof to be given to the party from whom such sample was obtained. Any party so notified shall be given an opportunity to be heard, under such rules and regulations as may be prescribed as afore- said, and if it appears that any of the provisions of this Act have been violated by such party, then the Secretary of Agriculture shall at once certify the facts to the proper United States district attorney, with a copy of the results of the analysis or the examination of such article duly authenticated by the analyst or officer making such examination, under the oath of such officer. After judgment of the court, notice shall be 144 PUBLIC HEALTH ADMINISTRATION given by publication in such manner as may be pre- scribed by the rules and regulations aforesaid." 28 Just why it is made mandatory upon the Secretary of Agriculture to report these cases to the district at- torney is hardly apparent. Experience demonstrates that in a very large percentage of the cases there is no contest in the court. The real questions here in- volved are chiefly those of fact, for the settlement of which those specially educated are better qualified than a judge or an untrained jury could be. It is true that the Fifth Amendment to the Constitution prohib- its the nation from depriving a person of life, liberty, or property without due process of law; but a notice and an opportunity to be heard are the essentials in due process of law. 24 This section therefore provides for due process of law, the notice and opportunity to be heard, within the department. When there is no ques- tion of interpretation of law involved, neither effi- ciency of administration, speediness in action, nor justice are aided by the red tape method of submitting all of these cases to the district court. There is a very decided loss in efficiency of administration, and an unnecessary increase in cost of enforcing the pro- visions of the act. Practically it requires two hear- ings when one would be sufficient. Does the law in- clude such cases as the presence of bacteria in milk? This is a question of legal interpretation, and as such must regularly go before a court. Is a coffee mis- branded when labeled "Kio," though it comes from Venezuela? This is also a problem in construction of 23 Pure Food and Drugs Act, 249 ; Garfield v. Allison, 211 U. S. June 30, 1906, Sec. 4. 264. z* Garfield v. Goldsby, 211 U. S. THE JUDICIARY 145 the law, and as such must go to the court, when the party interested demands it. But when these ques- tions of construction have once been decided by the judiciary future cases might, did the statute so pro- vide, be much better handled by the executive depart- ment alone. Is a proprietary medicine misbranded when it states upon the label that it contains no mor- phine, but examination shows that it does contain a very appreciable quantity of that alkaloid? This is a question of fact, which might very properly be de- cided by the executive department. The ordinary judge or jury knows nothing of the intricacies of chem- ical examination. Venial experts may easily beguile such an uneducated jury — uneducated in the interpre- tation of chemical analysis, into the belief that the competent government analysts are either prejudiced or incompetent. It is said that the expense of one of these prosecutions was over a million of dollars. In a similar case, originating under the patent laws, the presiding judge was unable to distingush between a process of manufacture and a process of isolation in chemistry. He called attention in his decision to the fact that a court so constituted was beclouded by such technical problems. 25 Inasmuch as prosecutions under such an act as the Food and Drug Act are essentially under criminal law, and since the Sixth and Seventh Amendments to the Constitution preserve the right to trial by jury, even in executive hearing it might seem best and possible to preserve this feature, by providing for the impanell- ing of specially qualified experts to act as such jurors. 25 Parke Davis & Co. v. Mulf ord Co., 189 Fed. Rep. 95, 115. 146 PUBLIC HEALTH ADMINISTRATION Such a jury would be able to get its evidence much more directly than the ordinary jury. The ordinary jury must depend upon the relation of evidence given by one who obtained the direct evidence. The real evidence is found in the chemical reactions, and in the physiologic tests. Using the expression in a nonliteral, and amplified signification, the narration of the anal- ysts is essentially " hearsay" in character. It is the only evidence which the usual jury can understand, but it is "secondhand," and clearly less reliable than the direct evidence found in the chemical and physio- logic tests. The jury, not witnesses, should be experts in such cases, to the end that justice may be the more sure in all cases. To put the same proposition in another way; all would agree that a deaf mute should be barred from jury duty for cause. He could not understand the evi- dence, unless all that evidence be given in the language of mutes. So too a Eussian who is ignorant of the English language might properly be excluded from jury duty in a court where all the transactions are in English. Such men are incompetent as jurymen be- cause they do not understand the language, and are therefore obliged to depend upon the interpretation and ideas of others, rather than to form their own judgment. The man who is not educated in chemistry does not understand the language of chemistry. He is dependent upon the expert interpretation of facts for his opinion, and for his decision. When the ex- perts disagree he does not really decide the real ques- tion at issue — he simply decides which man's opinion he will accept as his own. His real decision is as to the relative reliabilitv of two men in a line of work to THE JUDICIARY 147 which he is a stranger. The witness should be limited to a statement of facts. He should state that under certain conditions stated given results followed under his observation. When he adds that in his opinion those results indicate certain facts he is assuming to judge of facts which it is the proper function of the jury to determine. His interpretation of results should be considered simply as confirmatory evidence of his other statements. § 144. State courts. According to the decisions of the United States Supreme Court, and of many state courts, the first ten amendments to the federal Consti- tution are interpreted as limitations only upon the fed- eral government. 26 It is quite customary, however, for state constitutions to offer similar provisions, so that the general discussion relative to national govern- mental procedures applies, with some individual ex- ceptions, to the methods used in the individual states. § 145. General statement. It is, therefore, the chief duty of the courts to determine points of legal inter- pretation. In an orderly consideration of every prob- lem the construction of the applicable clauses of con- stitutions and statutes must precede any study of pe- culiar facts pertaining to the case. This is not only the logical approach to the solution, but it is in the interest of ultimate justice. Individuals should be un- known to the court. Its opinions should be unbiased by any possible personalities and sympathies. The personal appeal, and the sympathy dodge before a jury are frequent causes for miscarriage of justice. 28 Barron v. Baltimore, 7 Peters, Cow. 686 ; James v. Common- 243; Murphy v. People, 2 Cow. wealth, 12 S. & E. (Pa.) 220. (N. Y.) 815; Barker v. People, 3 148 PUBLIC HEALTH ADMINISTRATION If, therefore, a case before the court began with the individual particulars, the tendency would be for the partizanship, which might be generated in spite of intention to the contrary, to overrule reason. On the other hand, in the orderly investigation of a problem it not seldom happens that the case is decided before the particulars of that individual case can be consid- ered. That being true, there is no longer occasion for taking up the time of the court with further inves- tigation. CHAPTER VI POLICE POWER — NATURE OF, AND METHODS {146, §147 §148, §149 §150, §151, §152, §153, §154, §155, §156, §157, §158. §159, CHAPTER VI § 160. Health authority based on Police Power. § 161. Police or police power. § 162. Police power defined. Characteristics. § 163. Distinguished from criminal punishment. § 164. An expression of social, eco- § 165. nomic, and political con- ditions. Alienum non laedat. § 166. Police power superior to in- dividual rights. Statutes dependent upon § 167. police power. Cannot be alienated. § 168. Police power of state may be superior to congres- sional supervision of com- § 169. merce. A dangerous power. § 170. Summary executive action. § 171. Discretion may not be co- § 172. erced. Courts feeble to resist acta under discretion. Statutory action. Judicial determination un- der police power. Efficiency increased by defi- niteness of enactment. Variety of methods. Disadvantages in adminis- tration through enact- ment. Legislation should be man- datory only when based on settled facts. Administrative action spe- cific; legislative, general. Public health portion of police power includes what? Regulation versus prohibi- tion. Reasonableness. Extreme use of police power. Extreme use must be clearly necessary. § 146. Health authority based on police power. Ref- erence was made in a previous chapter to "police power/ ' Since all authority in the preservation of public health is derived from that power, and since its nature and methods are frequently misunderstood, it is necessary to consider the subject more carefully. 149 150 PUBLIC HEALTH ADMINISTRATION Because the exercise of this power may often be un- supported by statutory enactment, and dependent ap- parently only upon the command of some executive officer, the term has sometimes been used as synony- mous with the expression "arbitrary power." Police power must never be arbitrarily exercised. Arbitrari- ness implies action of will, rather than of reason. The use of this power must always be clearly dependent upon reason. Need must be evident, and the method of execution must be dictated by the necessities of the case. Neither is the power necessarily dependent upon the executive. The order may originate from the legislature, and the warrant for enactment must be found in this power. § 147. Police or police power. Modern writers make a distinction between "police" and "police power." Formerly this distinction was not so prom- inent. Jeremy Bentham denned police as 1 "A system of precaution, either for the prevention of crimes or calamities. Its business may be distributed into eight distinct branches: 1. Police for the prevention of of- fences; 2. Police for the prevention of calamities; 3. Police for the prevention of endemic diseases; 4. Police of charity; 5. Police of internal communica- tions; 6. Police of public amusements; 7. Police for recent intelligence; 8. Police for registration." Blackstone defines 2 police as "the due regulation and domestic order of the kingdom, whereby the indi- viduals of the state, like the members of a well gov- erned family, are bound to conform their general be- havior to the rules of propriety, good neighborhood, i Works, Edinburgh Ed., Part 2 Blackstone 's Commentaries, IX, p. 157. IV, 162. POLICE POWER — NATURE OP, AND METHODS 151 and good manners, and to be decent, industrious, and inoffensive in their respective stations." Police, then, " means at the same time a power and a function of government, a system of rules, and an administrative organization and force." 3 Originally the word police referred to all the opera- tions of government. Later it came to be used only with reference to internal administration. Today it has come to be limited to that part of governmental administration which attempts to prevent the happen- ing of evil, and to the suppression of violations of law. 4 Because the peculiar matters with which this power and function have to deal were found chiefly within the municipalities, this term, derived from the Greek word for city, was limited in its application to municipal action. Today it is recognized as a function of the state. It includes all acts, whether legislative, or executive, which have for their object the preven- tion of harm to the community, or to its individual members. §148. Police power defined. Police power is more limited in application, and refers to that authority of government which is necessary for its preservation. "This extraordinary and dangerous power is not of constitutional origin or grant. It is institutional, and inherent in government; and, as wisely remarked by Chief Justice Shaw, 'it is much easier to perceive and realize the existence and source of this power than to mark its boundaries, or prescribe limits to its exer- cise.' * * * When exercised by due process of s Freund. Police Power, Sec. 2. * Goodnow. Municipal Govern- ment, p. 2-4 152 PUBLIC HEALTH ADMINISTRATION law, as in abatement of nuisances through civil or criminal proceeding, this power is usually found to be wholesome and beneficial. Its su mm ary exercise is always perilous to private right, and often cruelly un- just; as when in emergency, apparent or real, the property of someone is sacrificed for the protection of others, or one is deprived of his personal liberty for the supposed safety of the many. ' ' 5 §149. Characteristics. The distinctive characteris- tics of police power are that ' ' it aims directly to secure and promote the public welfare, and it does so by restraint and compulsion. ' ' 6 Though taxation has often a restraining influence, the taxing power is quite distinct from police power. One of the measures used in taxation is the requirement of a license, and a license is also one of the aids in the exercise of the police power, but these two forms of license are quite distinct, and upon this distinction the courts may base their decision as to the constitutionality of legislation. For the purpose of taxation the license requirements must not be prohibitive or restrictive. For the exer- cise of police power the tax levied may be so great as to have such restrictive or prohibitive effect. Thus a tax of one thousand dollars annually would probably be deemed unconstitutional upon a dealer in meats or groceries, while it would be upheld as against his neighbor who is engaged in the liquor business. In the one case the object of the tax would be revenue; in the other, restriction and regulation of the traffic. Again, even in police power, the tax may be essen- tially distinct from the license. The power to require s Ingersoll, Public Corporations, 6 Freund, Police Power, 3. 115. POLICE POWER — NATURE OP, AND METHODS 153 a license from a milk dealer is essentially police in nature. It is for the purpose of registration, and as an aid in the supervision of the sanitary conduct of the business. Not only is it useful for supervisory pur- poses, but it is a potent aid in the enforcement of rules and regulations adopted for insuring a pure supply of that widely used article of food. In such a case the tax must not be sufficiently large to restrict the trade. It is levied to pay a reasonable proportion of the work of issuing the license, and of supervising the trade. It must be the fact of license, rather than the amount of the license fee which will serve to restrict the busi- ness within reasonable limits. § 150. Distinguished from criminal punishment. In a similar manner we find a distinction between crim- inal legislation, and the legislation of police power. ' ' The peculiar province of the criminal law is the pun- ishment of acts intrinsically vicious, evil, and con- demned by social sentiment; the province of the po- lice power is the enforcement of merely conventional restraints, so that in the absence of positive legisla- tive action, there would be no possible offense. ' ' 7 We find, then, that "the range of the internal police is wider than police power." 8 Sterilization has been provided for by the laws of several states in the cases of criminals, imbeciles, epileptics, and other defectives. Mental defectiveness may be transmitted through heredity, and the police power of the state would there- fore perhaps authorize such an extreme measure to prevent the possibility of offspring who would become public charges. Criminality is not demonstrably her- editary. The police power, therefore, would not au- 7 Freund, Police Power, 26. 8 Freund, op. cit. 23. 154 PUBLIC HEALTH ADMINISTRATION thorize such a statute in the case of criminals. If the sterilization of criminals be provided, it must be con- sidered as a part of criminal punishment. These two illustrations of the same act show a difference between the operations of the criminal law and of police power. (See Chap. XX.) § 151. An expression of social, economic, and politi- cal conditions. Although the use of the term police power has become of more limited application than formerly, it by no means implies that the essential power is more limited, nor that its use is more re- stricted than formerly. On the contrary, with the in- crease of civilization this power is used in more direc- tions, and with a multitude of agencies and methods. Police power is not a fixed quantity, but it is the ex- pression of social, economic, and political conditions. "As long as these conditions vary, the police power must continue to be elastic, i. e., capable of develop- ment. ' ' 9 § 152. Alienum non laedat. The police power of a state includes the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of property within the bounds of the commonwealth. Pro- tection of property, for example, does not imply that the owner may at all times, and in all places use his possessions according to his own will and pleasure. It is a principle of the common law "sic utere tuo ut alienum non laedas." This maxim is at the base of the police power of governmental action — one may so use his property that it shall work no injury to others. How the operations of the power may vary according to circumstances may be seen from a few illustrations. A man upon a farm, far away from other property, s Freund, Police Power, 3. POLICE POWER — NATURE OF, AND METHODS 155 may if he choose, burn an old and useless building. Perhaps its preservation might injure himself, or his family, as for example, if the structure were in dan- ger of falling, or were infected with vermin. Within a crowded city the burning of the building would en- danger the houses of his neighbors, and it would clearly violate the maxim. It is evidently within the province of the police under such circumstances to prevent this use by the owner. Again: the isolated farmer, or his family, afflicted with an infectious dis- ease, might be permitted to continue his work unmo- lested. In the city, though the afflicted family remain upon their premises, as on the porch, and though the outside air might be beneficial to the patients, such freedom of motion might endanger the health and lives of others, and police power must restrain the liberty of the individual. Or again: the increase in our knowledge changes our use of the power. There is no restriction as to the right of a man to sell his farm products, so long as he does not thereby endan- ger others. The relationship of typhoid fever, or of diphtheria to milk was not formerly known. Now that the diseases are known to be the product of recogniza- ble germs, and that those germs propagate freely in milk, new dangers are recognized. Formerly malaria was supposed to be due to aerial conditions. Now we know that it is an infectious disease, spread through the agency of one family of mosquitoes. Any quaran- tine of the disease would formerly have been deemed unreasonable, and unlawful. Today it is a recognized duty of a health department under police power to restrict the disease; but quarantine would not be jus- tifiable in a district which is free from the anopheline mosquitoes. 156 PUBLIC HEALTH ADMINISTRATION § 153. Police power superior to individual rights. Therefore : ' ' The maxim of this power is that every individual must submit to such restraints in the exer- cise of his liberty or of his property as may be re- quired to remove or reduce the danger of the abuse of those rights on the part of those who are unskill- ful, careless, or unscrupulous." 10 As Chief Justice Shaw has said: 11 "Every holder of property, how- ever absolute may be his title, holds it under the im- plied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal en- joyment of their property, nor injurious to the rights of the community." Ordinarily private property may not be taken, nor destroyed, without due compensation. 12 Under police power such use, or destruction may be permitted, as when a building is destroyed to prevent the spread of a conflagration. 13 Ordinarily private individuals may not be pressed into public service, especially without compensation ; 14 but in the case of a flood, or at the time of a conflagration, since the duty is general it is held that no compensation is due. 15 So also private land may be taken for the building of needful embank- ments, without compensation. 16 §154. Statutes dependent upon police power. As io Freund, Police Power, 8. 15 Sears v. Gallatin County, 20 ii Commonwealth v. Alger, 7 Mont. 462. Cush. 84. I 6 Bass v. State, 34 La. Ann. 494 ; 12 Mitchell v. Harmony, 13 How. Euch v. New Orleans, 43 La. Ann. 115. 275; Peart v. Meeker, 45 La. Ann. is Case of Prerogative, 12 Pep. 421; Egan v. Hart, 45 La. Ann. 12: Mouse's case, 12 Pep. 63. 1358; Eldridge v. Trezevant, 160 Freund, Police Power, 534. TJ. S. 452. "Penrice v. Wallis, 37 Miss. 172. POLICE POWER — NATURE OF, AND METHODS 157 previously stated, police power may be exercised un- der statutory enactment. Such enactment may serve the purpose of due process of law, and very greatly aid in clear cases of the use of this power. Very often statutory enactment is impossible, and the steps taken are upon the verbal command of an executive officer, and without any semblance of attempt at complying with due process of law. At other times, the work is intermediate between these two extremes and due process is preserved by court action. §155. Cannot be alienated. This exceedingly im- portant power, being an inherent element of govern- ment, cannot be alienated. "Neither the legislature of a state nor a municipal corporation can surrender, bargain away, or otherwise divest itself of the police power, by non-user or by any grant, contract, or con- cession." 17 From the foregoing it follows that this power may override those provisions of the Constitu- tion which guard the sanctity of contracts, 18 freedom of person, due process of law, and property rights. In the latter case police power goes beyond eminent domain, in that the taking of property under eminent domain requires compensation, but real or personal property may be taken under police power, either for use, or for destruction, without any compensation to 17 Black's Constitutional Law, Petersburg Aqueduct Co., 102 Va. 151, citing Boston Beer Co. v. 654. Mass., 97 U. S. 25; Stone v. Mis- is Boston Beer Co. v. Massachu- sissippi, 101 U. S. 814; Shreveport setts, 97 U. S. 25; Stone v. Mis- Traction Co. v. City of Shreveport, sissippi, 101 U. S. 814; Boyd v. 122 La. Ann. 1; State v. St. Paul, Alabama, 94 U. S. 645; Butchers' M. & M. E. E. Co., 98 Minn. 380; Union Slaughterhouse v. Crescent State v. Murphy, 130 Mo. 10; C, City Live Stock Land Ins. Co., Ill St. P., M. & O. E. Co. v. Douglas TJ. S. 746; Kreser v. Lyman, 74 Co., 134 Wis. 197; Petersburg v. Fed. 765. 158 PUBLIC HEALTH ADMINISTRATION the owner. It is true that such use of the power is not common, and may impose a moral obligation for compensation, but in many cases there is no legal pro- tection for the individual. § 156. Police power of state may be superior to con- gressional supervision of commerce. Though by the Constitution the sole power to regulate interstate com- merce rests in Congress, the police power of the indi- vidual states knows no such boundary. For purposes of health the state may sometimes use its police power as superior to the regulation of commerce. 19 This is a legal use of the power of the state even when it serves to stop navigation, 20 or interferes with the operation of a treaty made by the United States with a foreign nation. 21 § 157. A dangerous power. Because of the very great danger which this power threatens to individual liberty, because of the fact that it places in jeopardy private property, and because it offers an almost un- bounded field for spoliation, it is indeed a dangerous power. It is therefore necessary, for the purposes of good government, that its use be so hedged about as to preserve its efficiency, while lessening the possibili- ties for its abuse. Is this possible? § 158. Summary executive action. There are those who think that the health official should have the wid- est possible discretion with authority. They would have him supreme, unhampered by legislature, other is Smith v. St. Louis & South- 21 Compagnie Francaise de Navi- western Ey. Co., 181 U. S. 248. gation a Vapeur v. Louisiana, 186 20 Leovy v. U. S., 177 U. S. 621; II. S. 380. Wilson v. Blackbird Creek Co., 2 Pet. 245; Oilman v. Philadelphia, 3 Wall. 713. POLICE POWER — NATURE OF. AND METHODS 159 executive officers, or even by the courts. Unfortunate- ly, this would not only give power for good to the conscientious and efficient officer, but it would remove checks from the dishonest man, and would put great power for evil into the hands of the ignorant and in- competent public servant. The natural tendency would be, as even now it sometimes seems, that health departments would be filled by unscrupulous politi- cians, rather than by experts trained in the saving of human life. It has often happened that in the past a zealous, but unwise health officer has worked great injury to private individuals, and exposed the munici- pality to needless litigation; or one less honest has used his position for private gain to the detriment of the people whom he was supposed to serve. "If an offi- cer has discretion he may do any act within that dis- cretion, and all that he does will be held to have been done with express authorization of law. ' ' 22 It is true that even if the officer has discretion, his act must not be arbitrary. "The meaning of the term * discretion- ary,' when granted by the law either expressly, or by implication, in connection with official duty, is that the discretionary decision shall be the outcome of exam- ination and consideration. In other words, that it shall constitute the discharge of official duty, and not be a mere expression of personal will. 23 It is also true that an officer is amenable for the abuse of his power of discretion. 24 "If that officer, it may be proved, has deviated ever so little from his legal authority, if with the best of intelligence, he makes a mistake of law in interpreting his powers, or if he makes a mistake of fact in applying the law to a particular case, he is by 22 Wyman, Administrative Law, 23 u. S. v. Douglas, 19 D. C. 99. 83. 2* State v. Yopp, 97 N. C. 478. 160 PUBLIC HEALTH ADMINISTRATION the principal doctrine, if applied to its logical conclu- sion, liable as a private wrong doer, and responsible in such damages as may be proved." 25 "The criminal law regards as a crime almost every act of an officer which, if committed by an individual, would be a crime." 26 But, "In the case of officers acting with discretion, the act to be punished criminally must be willful and corrupt. " 27 In all such cases the presump- tion must be that the officer has acted within his dis- cretion unless it is clearly shown that he has not. There must be clear evidence of abuse of the power, and the burden of proof is upon the complainant. Any other condition would paralyze administration. 28 § 159. Discretion may not be coerced. On the other hand, if the discretion be left entirely to the adminis- trative officer there is no way in which he can be forced to act. (§§ 271, 274.) Mandamus can not lie against an officer who is acting under discretion. "We have no power to compel either of the departments of government to perform any duty which the constitu- tion or the law may impose upon them, no matter how palpable such duty may be." 29 "It is also held that an officer is not liable to a private action for neglect of an exclusively public duty, even to a person spe- cially injured thereby, and in some cases even though the act was unlawful and malicious. ' ' 30 25 Wyman, Administrative Law, 28 Durand v. Hollings, 4 Batch. 15. 451. 26 Goodnow, Principles of Ad- 29 People v. Bissel, 19 111. 232 ; ministrative Law, 298, citing Pennoyer v. McConnaughy, 140 U. Bishop, Criminal Law, II, Sec. 982. S. 1. 27 Goodnow, op. cit. 298, citing so Ingersoll, Pub. Corp., 90. People v. Coon, 15 Wend. (N. Y.) 277; People v. Norton, 7 Barb. (N. Y.) 477. POLICE POWER — NATURE OF, AND METHODS 161 § 160. Courts feeble to resist acts under discretion. It therefore follows that though the courts have a right to review the acts of officers, the courts offer but a feeble resistance to the misdeeds, either of commission or of omission, of an officer acting under discretionary power. The evils, therefore, of such an administration may possibly far exceed the benefits. The very fact of personal liability under discretionary power may often deter an officer from doing his duty. This is par- ticularly the fact when the action must be summary. He may act in good faith and with intelligence, but after the act has passed he may be cited into court, and a miscarriage of justice is far from impossible. In the absence of immediate danger, facts assume a different color, and far too frequently the decisions as to fact must rest with a jury who are neither fitted by nature nor education to give an intelligent decision. Attorneys ordinarily competent not infrequently fail to grasp the underlying principles of public health ad- ministration, even when they suppose themselves posted; and judges, in their zeal to protect the rights of the individual, may be somewhat colorblind, and misled. This denotes no intentional injustice. It is merely the result of the natural limitations in knowl- edge especially among the laity in regard to a rapidly advancing science. § 161. Statutory action. Opposed to discretionary authority and duty we find those specially commanded by statutory enactments. In mandatory matters the work of the officer is not with discretion, but is called ministerial. In ministerial duties the officer has cer- tain set bounds of action. He must do all that the law commands; he must not do that which the law pro- 162 PUBLIC HEALTH ADMINISTRATION hibits. Here he may be forced by mandamus, and he is also subject to private action, whenever he shall de- viate from the prescribed limits of his duty. Manda- tory law may be just as truly under police power as action which is discretionary. Thus, the requirement that a man must obtain a license before entering upon the business of selling milk is mandatory upon the in- dividual, and it is to be justified by the necessity of public supervision of the trade under police power. It is mandatory upon the officer because he must en- force the requirement of license. So, too, a law may be partially mandatory, and partially discretionary. A law requiring the health office to quarantine cases of infectious diseases would be mandatory as to fact of quarantine ; but it would be discretionary as to the method and degree of quarantine, and also, unless the diseases were specified, as to what diseases should be included, until there should be a determination by judicial action. Public health workers today would include malaria. Many physicians would not consider that disease a fit object of quarantine. The official might, or might not regard it as included under the general term. If he attempted to quarantine such a case he might be cited into court to justify his action. If he convinced the court of the soundness of his views, he would, under the supposed conditions, thereafter be forced to quarantine all such cases. If, on the other hand, he did not quarantine a malarious case, he might be cited into court by some aggrieved neighbor, and the private interests might prove the infectious nature of the ailment. Again the officer would be forced to act. Mandatory law presupposes a predetermination of POLICE POWER — NATURE OF, AND METHODS 163 the necessities of all the cases which might arise. This is manifestly impossible; and even were it possible it would often be practically impossible so to draft the statute as to give the greatest efficiency with the least hardship. §162. Judicial determination under police power. Since the basis of most public health work is to be found in the general idea of nuisance, the health ex- ecutive may very properly appeal to the court for the determination of each particular case. This is indeed due process of law, and the decision of the court is final. This will protect the executive from danger of damage suits. The responsibility then rests with the courts. Such a course causes delay, and sacrifices ef- ficiency to protection of the officer. Unfortunately the court is seldom educated to the essential requirements of the service. He must depend upon the opinion of others, and he may not at all times be able to decide as to which of conflicting opinions presented is correct. He may easily be led to trust to the advice of some reputable practitioner of medicine who may not be es- pecially educated in the science of public health. Fur- ther, unless the health official be also posted as to legal proceedings, and thus able to conduct his case personal- ly, the essential points may not be properly presented to the court. While, therefore, this method preserves effectually some of the rights of individuals, it ham- pers and endangers efficiency in administration. 1 ' The basis of all administration is found in the law itself. If the law is absolute, what is commanded must be done; if the law is specific, that must be performed that is directed — to the extent that a duty is minister- ial, mechanical execution is required. This is not a 164 PUBLIC HEALTH ADMINISTRATION question of the better method; that method must be followed." 31 If then the law be specific, the only questions which may come before the court are those of fact. If the power granted by the law be discretion- ary, the questions which may be presented to the court are those of fact, of reasonableness, and of extent of discretion. The law may be discretionary as to method chosen, though it be mandatory in requiring action. Suppose that a statute requires the quarantine of in- fectious diseases, but neither specifies the manner of quarantine, nor defines what diseases are to be in- cluded. These points must then lie within the discre- tion of the officer, and his acts may be at any time questioned. (Chap. XIV.) He may be obliged to prove in court that his diagnosis is correct ; 32 that the disease is infectious within the meaning of the law ; 33 and that the quarantine measures adopted are reason- able. 34 If, on the other hand, the statute specified which diseases are to be considered infectious, and specified as to the maximum and minimum require- ments as to quarantine, a very large proportion of the possible delay and annoyance caused by litigation, would be removed, and the efficiency of the health ad- ministrator would be thereby increased. If also the statute specify that the diagnosis of the health official shall be legally binding and final, the discretionary power thereby granted would again increase the power of the health office. It would seem advisable, how- 3i Wyman, Ad. Law, 90. 34 Haverty v. Bass, 66 Me. 11; 32 Miller v. Horton, 152 Mass. Kirk v. Wyman, 65 S. E. E. 387; 540; Brown v. Purdy, 8 N. Y. St. Bloom v. City of Utiea, 2 Barb. 143. 104; Harrison v. Mayor of Balti- 33 Kirk v. Wyman, 65 S. E. E. more, 1 Gill, 26-*. (S. Car.) 387. POLICE POWER — NATURE OF, AND METHODS 165 ever, to provide for an appeal as to diagnosis, within the health department. Such an appeal should not serve, as would court action, to stop proceedings, and thus to hamper efficiency; and the provision for the appeal should be so worded that a change in diagnosis should not be retroactive, back of the time when the new diagnosis may be made. A case which is strong- ly suggestive of diphtheria must be regarded by the efficient officer as one of genuine diphtheria until it is clear that it is not. Such a diagnosis calls for the im- mediate injection of antitoxin as a curative measure, and perhaps in the persons of those exposed to prevent infection. As the result of such a diagnosis the family may be put to large expense, as well as worry. If the final decision is against the diphtherial infection, and if a court is convinced that there had been no infection with that germ, it is not at all impossible that the maker of the first diagnosis may be legally, though un- justly, assessed damages. There is another reason for such a statute. A diagnosis is often impossible at the first call. Time must be given for a study of the de- velopment of the case, and for the incubation of cul- tures. In the development of cultures time must also be permitted to guard against errors. For example, even in a throat containing many diphtheria bacilli, through the preliminary use of local antiseptic by the patient, or through some other unfavorable element, the first attempt at getting a culture may be negative, but later the germs may be found in large numbers. The diagnosis of the health officer should be considered final, in that he should not be held for error in judg- ment ; but all interested should have the protection af- forded by an appeal against incompetence or malad- ministration on the part of the officer. 166 PUBLIC HEALTH ADMINISTRATION Take another illustration. The general authority of a health officer under police power is sufficient to jus- tify and enable him to make such orders as he might think needed relative to the care to be used in the milk business. If, however, the farmer or the dealer should see fit to violate those orders or regulations, the burden of proof must of necessity fall upon the health depart- ment to show the necessity for the regulations, and the reasonableness of their provisions. Each case must be tried separately. With a statute covering the gen- eral subject much of the possible question would be removed, and court investigations would be reduced chiefly to matters of fact — the question as to the viola- tion of the law. "The distinction between a judicial and a legislative act is well defined. The one deter- mines what the law is, and what the rights of the par- ties are, with reference to the transactions already had; the other prescribes what the law shall be, in future cases arising under it. ' ' 35 § 163. Efficiency increased by definiteness of enact- ment. It may be seen then that in administration of police power in the interest of life and health efficiency is increased and certainty is gained through definite- ness of statutory enactment. It is indeed a supremacy of law, with the personal equation reduced to a mini- mum. With this definiteness, and by the same act, individual liberty is safeguarded. By enactment a large portion of discretionary power is substituted by ministerial duty. §164. Variety of methods. We find, therefore, that 35 Sinking Fund Cases, 90 U. S. (per Field, J.) 761; also Mabry v. Baxter, 11 Heisk. (Tenn.) 682. POLICE POWER — NATURE OF, AND METHODS 167 in the use of police power there are many methods, each of which has its proper place and value. 1. Sum- mary action, by the executive, must be preserved; but it should be limited to emergency, and an emergency is not such a condition as might have been reasonably anticipated. 36 Still, if as a matter of fact the condi- tions be not anticipated, and guarded against, sum- mary action may become necessary. 2. Individual ac- tion by the aid of court decision, and without previous legislation or general regulation, is frequently efficient in the case of nuisance. It is more safe for the execu- tive, and more perfectly guards the safety and liberty of the individual citizen, and the security of his prop- erty. 3. General rules, regulations, and orders, issued and published by the executive, while sometimes effi- cient under the general power, yet when contested generally prove to be a veiy weak reed upon which to lean. The executive may issue only such or- ders as are clearly within prescribed power. 37 4. Municipal ordinances. For the same reasons, par- tially, as in the previous class of cases, ordinances may prove weak and inefficient. The municipality is prac- tically considered an executive, not a legislative body. Municipal ordinances are superior to executive regula- tions issued by the health department in that they do more fully preserve the due process of law, by virtue of the fact that a certain public hearing is afforded in the passage of the ordinance. 5. Lastly there is the method of legislation. This preserves the idea of due process, largely reduces the personal equation of ad- 36 Jenkins v. Board of Educa- 466; Pub. Co. v. Payne, 30 Was. tion, 234 111. 422. L. E. 339. 37 Morrill v. Jones, 106 U. S. 168 PUBLIC HEALTH ADMINISTRATION ministration, and substitutes a certain definiteness for the uncertainties of discretionary administration. It relieves the executive of much responsibility, and so long as he is complying with the exact requirements of the statute he is personally protected from all civil ac- tion. As will subsequently be shown (Chapter XI), even the community is protected from the danger of civil claims. § 165. Disadvantages in administration through enactment. While administration through legislation has certain advantages, it also has certain disadvan- tages. It provides no latitude of application, if the requirements are definite. This may seriously hamper efficiency, and work injustice to individuals. For ex- ample: there may be typhoid fever in two adjacent families. The one is intelligent, and conscientious. They may carefully sterilize all discharges from the patient, and in other ways protect the community from danger of infection. The working members of the family may be employed where there is practically no possibility for communicating infection, as in the hard- ware business. The other family may be careless, and not realize the necessities for caution. They regard, perhaps, the illness as one of the inscrutable ministra- tions of providence. They do not understand the exact requirements of sterilization of discharges, and while they go through the form, they are not thorough. The members of the family indiscriminately take care of the patient, and while ordinarily clean to appearance, they use no special precaution as to cleansing their hands. Moreover, the working members of the family may be engaged in the handling of food which will not be cooked after their handling, as in a bakery, or milk POLICE POWER — NATURE OF, AND METHODS 169 depot. This second family must be strictly quar- antined, and restricted from participating in business, to secure the same degree of community protection as may be present without any restriction placed upon the first family. If one law is to be enacted to fully cover both cases, the basis of that law, for the good of the community, must be the second family. Such a law would work an injustice to the first family. Again: exact legislation makes no provision for advances in science. Suppose that the law required disinfection by formaldehyde fumigation in all cases of infection. That gas is weak as against bedbugs, or vermin. It is quite possible for bedbugs to preserve the germ of typhoid, and to infect other persons. The formaldehyde gas is not efficient therefore in such dis- infection, whereas, sulphurdioxide would be efficient. The same is true relative to the disinfection after a case of plague, which is communicated through the partnership of the flea and rat. A short time ago it was supposed that the burying of infected typhoid discharges was sufficient unless such burial might in- fect water supplies. Now it is known that the typhoid bacillus, which dies soon in pure water, or when ex- posed to the dry sunlight, will live in the earth at least eighty days; and that fly infected discharges buried six feet under the surface of the ground may permit the hatched larvae to crawl to the free air as a fly. Legislation based on the former ideas might prevent efficient administration. Further it has been shown that lettuce grown upon infected soil may bear the typhoid bacilli upon its leaves. This shows a ne- cessity for a restriction in the disposal of nightsoil which might have been unnecessary under the former degree of knowledge. (See Chapter XVI.) 170 PUBLIC HEALTH ADMINISTRATION § 166. Legislation should be mandatory only where based on settled facts. Efficiency and justice in the administration of police power therefore suggest that as much as possible shall be anticipated in legislation, but legislation should only be definite and mandatory with regard to the points which are more sure. Dis- cretionary administrative power should be added to extend the beneficent governmental supervision, and that that discretion should, so far as possible, be made exact by general rules and regulations. Regulations may be speedily altered with changed conditions, whereas legislative action must be slowly effective. Finally, there must be reserved to the health depart- ment, and to each of its responsible officers, certain discretionary powers for use in genuine emergency. Practically this plan amounts to this- — that the min- imum requirements should be marked by legislation, remembering that the necessity for extension of de- mands must, in case of question, be proven to the satis- faction of the court. Legislation forms a basis for action, and permits the administrator to devote his attention to other matters. It serves much the same purpose as would the substitution of solid concrete for a portion of an earthen dyke, permitting the guar- dian to devote practically all of his thought to the more limited area. §167. Administrative action specific; legislative, general. Administrative action is specific and indi- vidual, as contrasted with the general nature of legis- lative action, and regulations. Executive force is ap- plied in particular cases to preserve the general wel- fare. Not seldom an individual action of the executive may be sustained in the court; when as a general prop- POLICE POWER — NATURE OF, AND METHODS 171 osition it would be refused recognition. In other words, an emergency will justify that which under other conditions would be a violation of right. Sup- pose, for example, that a health officer found in a mountain valley that typhoid fever, evidently water- borne, was making its way to the foot of the valley; and that the people insisted in drinking the water from their springs. It is probable that he would be sustained in the courts if he impregnated every spring with ample quantities of chlorinated lime, even though he did so without previous notice, and to execute his design he entered upon private property. Such gross violation of the rights of the individual would not be tolerated as a general proposition, and the executive taking such measures will run the risk of being re- garded as a common trespasser, and of being forced individually to pay heavy damages. To guard against this danger to the official, he should, in all cases in which the necessary delay will not too greatly hamper efficiency, preserve that protection of individual lib- erty, due process, by taking the case into court, and thus throwing the responsibility entirely upon the court. § 168. Public health portion of police power includes what? "The police power, so far as it relates to the public health includes the making of sewers and drains for the removal of garbage and filth, the boring of artesian wells and the construction of aqueducts for the purpose of procuring a supply of pure, fresh water, the drain of malarious swamps, and the erec- tion of levees to prevent overflows." 38 Laws fbrbid- 38 Wilson v. Sanitary District of Chicago, 133 111. 443. 172 PUBLIC HEALTH ADMINISTRATION ding the intermarriage of white and black persons are a proper use of police power. 39 But such laws passed under police power must be the same for all classes, and not varied for particular individuals, or favored classes. 40 The business of dealing in second-hand clothing is a proper one for police regulation. 41 Eeg- ulation of the milk industry, preserving the purity and good quality of milk, is a proper use of police power. 42 A law limiting the hours of labor in mines was upheld by the Supreme Court of the United States as a proper use of the police power. 43 With the changes in indus- trial conditions, and with the clearer insight into the biological problems involved, we may find a change in the attitude of courts with regard to similar laws. This change is also due in part to the difference in the way of presenting the case. Thus, in the first Ritchie case, 44 emphasis was placed upon the indus- trial and economic factors of the case, and a law lim- iting the hours for employment of women was declared to be an improper use of police power. Fourteen years later the same court in the second Eitchie case, 45 39 State v. Gibson, 36 Ind. 389 ; 42 State v. Nelson, 66 Minn. 166 ; State v. Hairston, 63 N. C. 451; People v. Mulholland, 82 N. Y. Allis v. State, 42 Ala. 525. 324; Commonwealth v. Wheeler, 91 40 Locke on Civil Government, N. E. E. Mass. 415 ; State v. Dupa- Sec. 142; State v. Duffy, 7 Nev. quier, 46 La. Ann. 577; People v. 349; Dewis v. Webb, 3 Greenl. Van de Carr, 81 App. Div. 128; 326; Durham v. Lewiston, 4 Commonwealth v. Waite, 11 Allen Greenl. 140; Holden v. James, 11 (Mass.) 264; Commonwealth v. Mass. 396. Carter, 132 Mass. 12; State v. 4i State v. Taft, 118 N. C. 1190; Campbell, 64 N. H. 402; Johnson Greensborough v. Ehrenruch, 80 v. Simonton, 43 Cal. 242. Ala. 579; Weil v. Record, 24 N. J. « Holden v. Hardy, 169 U. S. Eq. 169; State v. Long Branch, 366. 42 N. J. L. 364 ; State v. Seigel, 44 Ritchie v. People, 155 111. 98. 60 Minn. 507; Marmet v. State, 45 45 Eitchie v. Wayman, 244 111. Ohio, 63. 509. POLICE POWER — NATURE OF, AND METHODS 173 in which emphasis was placed upon the biologic laws involved, upheld a similar law as a right use of police power. In People v. Williams, 46 a statute prohibiting night factory work by women was declared not valid, apparently upon technical legal grounds. It was not clearly intended as a health measure, according to the wording of the statute. A statute in Oregon, limiting the laboring hours of women was upheld by the Su- preme Court of the United States in the October term, 1907, in a sweeping decision. 47 (See Chapter XVIII.) Eegulation of the practice of medicine is proper under police power. 48 The requirement of a license before engaging in a business or occupation is a very common use of the police power, but laws interfering with personal lib- erty cannot be upheld unless the public health, com- fort, safety, or welfare depend upon their enactment and liberty embraces the right to follow a chosen occu- pation. 49 The law must be impartial. 50 There must be no discrimination as to fee, or otherwise, between residents and non-residents. 51 "Since health as well as order is an essential of good living, and one of the primary purposes of mu- nicipal incorporation, sanitary powers may not only be expressly conferred by the charter, or implied there- from, but they have been judicially declared to be in- herent in a municipality as a necessary attribute Op. Cit., p. 415. a Foster v. Neilson, 2 Pet. 314. 248 PUBLIC HEALTH ADMINISTRATION §218. Treaties classified. Treaties are practically contracts, and like ordinary contracts between indi- viduals they may be divided into two classes — executed and executory. An executed treaty is one in which the transaction is finished by that document, as in the transfer of sovereignty over a district from one nation to another. Such a treaty "differs in nothing from a grant." 10 By the treaty with England in 1794 certain property rights of Americans in England, and of Eng- lish in America, were recognized. In both countries it was held that the war of 1812 did not abrogate those rights. 11 It was found under the old federation that the different states regarded treaties as only general moral restraints, and they did frequently disregard treaty provisions. Congress in vain sent a circular letter (April 13, 1787), to the states, though right was with Congress. 12 Consequently, when the Constitution was drafted this authority of Treaties was stated very emphatically, ' ' anything in the constitution or laws of any state to the contrary notwithstanding. ' ' Some treaties, being in the nature of a lasting con- tract, are complete in themselves, and provide for their own execution. They do not require legislative action to make them active. Others are practically agreements between the powers to do certain things. To be of force the powers must pass certain enact- ments. Such a treaty is that between this country and Italy, before mentioned. It is particularly such trea- ties as are liable to be of interest to workers for the preservation of the public health. Article XVI of the io Fletcher v. Peck, 6 Cranch. gating the Gospel v. New Haven, 8 136. Wheat. 464. ii Sutton v. Sutton, 1 Russell & i 2 Opinion of Iredell, J., in Mylne, 663, and Society for Propa- Ware v. Hylton, 3 Dall. 270. PUBLIC HEALTH POWERS AND LIMITATIONS 249 convention of 1878 necessitates certain definite action from Congress, and Congress has been negligent. It has failed to specify who shall be deemed "competent local officers " ; it has not assigned the duty of making these reports to consular agents; it has provided no penalty for failure to observe these requirements. It has provided no means by which the ' ' competent local officers" may become cognizant of the deaths of Italians. This last item practically raises the question whether the national government has the power to establish a registration of deaths. § 219. Legislative power originating in treaty mak- ing" authority. The power to do a certain governmental act, especially if that power be exclusive, presupposes a full authority to complete the transaction. The indi- vidual states are not subject to any compulsion from the national government. The authority to compel certain acts from the states would presuppose an authority over the subject matter itself. But we are not left to these general reasonings. The Constitution is explicit in the settlement of the question. Article 1, Sec. 8, Paragraph 18, grants to Congress power and authority "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitu- tion in the government of the United States or any department or officer thereof.'' Many treaties cannot become law until there shall have been legislation to give the treaty effect. 13 § 220. Subjects of treaty. Whereas, in some coun- tries the treaty making power is divided, by our Con- 13 In re Metzger, 1 Parker, Cr. R. (N. Y.) 108. 250 PUBLIC HEALTH ADMINISTRATION stitution the treaty making power is solely in the hands of national officers. The Constitution puts no limita- tion thereon. This does not mean that the power is absolutely without limit. By the principles of inter- national law a treaty which binds one of the parties to do acts which are unlawful is void; such as con- tradicting a prior treaty with another power, or to do acts of injustice as to put down liberty, or to conquer and appropriate an independent country. 14 A treaty must not conflict with the Constitution. It has been claimed by some that the President and Senate may not negotiate a treaty upon a subject over which, either expressly, or by implication, the Constitution gives jurisdiction to some other body. First, there are treaties which require action by Congress. Because the House of Representatives is a portion of Congress, and because it has no part in the treaty making power, it was contended that a treaty might not be made which required such legislation; but, as Mr. Jeffer- son 15 says of the thirty-one articles in the commercial treaty with France, if we were to admit of such limita- tion, it would be found that not more than small por- tions of two or three articles would remain as subjects for treaty. Mr. Washington, when President, called attention to the fact that the treaty making power did not include the House of Representatives, in a refusal to send certain papers to Congress. It is now well recognized that questions relative to commerce are among the most important of our international prob- lems which must be met by treaty; and that the treaties nWoolsey, International Law, is Man. of Pari. Prac. (1843) 105; Taylor, International Public 111. Law, 361. PUBLIC HEALTH POWERS AND LIMITATIONS 251 so made are binding upon Congress as the supreme law of the land. Congress has never failed to appropriate money, when demanded by the terms of a treaty. In such cases, therefore, it must be recognized that the apparent limitation of the Constitution is not a restric- tion upon the treaty making power. Again: when Mr. Livingston was Secretary of State, he called attention (to Mr. de Sacken, June 13, 1831), to the fact that the right of regulating succes- sions was among the powers reserved to the states, and therefore not within treaty making power. In 1874, Mr. Fish, Secretary of State, wrote to Aristarchi Bey (May 19) "The estates of decedents are administered upon and settled in the United States under the law of the state of which decedent was a resident at the time of his death, and on this account, in the absence of any treaty on the subject, interference in the dispo- sition of such measures as may be prescribed by the laws of the particular state in such cases is not within the province of the federal authorities. ' ' Note that he says, "in the absence of any treaty." "Treaty stipu- lations may restrict or abolish the disability of aliens as to property in the several states. ' ' lc We are not dependent upon mere opinions of executive officers. Cases have been repeatedly before the courts. Thus it was held in Chirac v. Chirac 17 that by the convention with France in 1800 aliens might inherit lands without being naturalized, and the treaty was held to dis- pense with limitations in a state statute on alien in- heritance. "A treaty giving the subjects of a foreign state (Switzerland) the privilege of holding real estate in the United States is the supreme law of the land." 1S 16 8 Op. 411, dishing, 1857. is Wharton, International Law 17 2 Wheat. 259. Digest, 138, citing Hauenstein v. 252 PUBLIC HEALTH ADMINISTRATION It is a duty of every sovereign state to protect the lives and property interests of its citizens, both at home and abroad. To deny the power, would be to deny sovereignty. The individual states have no treaty making power. By exclusion, therefore, as a govern- mental proposition, we must conclude that even though it invade the ordinary rights of the states, the nation has authority to make a treaty which may be deemed necessary for such protection of the lives and property of American citizens. §221. Legislation dependent upon treaty making power. Since many treaties require legislation, and because such treaties are lawfully within the power of the President to make, it naturally follows that the nation has the power and authority to pass such legislation as may be required to make the treaty effec- tive. If, then, it can be shown that in order to give full effect to the treaty with Italy, as above mentioned, it is necessary to enact a law requiring the reporting and recording of every death, it follows that the national government has that power. Treaties rela- tive to alien inheritance may require the recording of births also, for residents of the United States have lost foreign inheritances through inability to comply with the requirement of certain lands, which demand that as proof of heirship a copy of birth record must be supplied. Concerning this legislative power of the nation which depends upon the treaty making power, Pomeroy says : 19 " There is, as I believe, a mine of power which Lynham, 100 U. S. 483; affirming Frederickson v. Louisiana, 23 How. Chirac v. Chirac, 2 Wheat. 259; 445. Carneal v. Banks, 10 Wheat. 181 ; is Constitutional Law, § 679. PUBLIC HEALTH POWERS AND LIMITATIONS 253 has been almost unworked, a mine rich in beneficent and most efficacious results. The President may, and must, manage the foreign relations; he may, in the manner prescribed, enter into treaties. To these execu- tive attributes must be added the legislative authority to pass all laws which may be necessary and proper to aid the President in exercising these functions. From this combination there result particular powers in the national government commensurate with the needs of every possible related occasion. We have been too much accustomed to look at the particular grants con- tained in the Constitution, in order to ascertain what the government may do. But here is a most ample and comprehensive grant. The government not only may, but must, preserve its foreign relations; it not only may, but must, use all such means as shall pre- vent just causes of war against us by foreign powers. Its international relations are unlimited in number and extent; they affect to a greater or less degree the internal and domestic relations; many of the measures which are necessary to preserve and control them, must act entirely within the national territory, and directly upon private persons or rights. So far as those external relations affect the internal, and so far as the measures appropriate in exercising the function of controlling the external relations act within the interior, and upon private persons and rights, just so far has the government all the power under the Con- stitution which the exigencies of any occasion may demand. Where the act is legislative in its nature, the Congress may legislate; where the act is executive in its nature, the President may execute." And again Pomeroy says: 20 "The states have no international 20 Op. cit., 680. 254 PUBLIC HEALTH ADMINISTRATION status; but they may, through their governments, do such acts as endanger the foreign relations of the nation : for these acts the government is responsible to the foreign power, and cannot evade the responsibility by asserting its want of control over the state. As the responsibility rests upon it, the power must belong to it. * * * I repeat, that in this executive attribute, and in the capacity of Congress to pass laws in aid thereof, there is a source of power which has, as yet, been little resorted to, which has even been little thought of, but which is fruitful in most important and salutary results." The treaty making power seems therefore to cover the enactment of a national vital statistics law, and perhaps other matters pertaining to public health. §222. Qualifications for federal officers. Article I, Section 2, Paragraph 2, of the Constitution provides that "No person shall be a representative who shall not have attained to the age of twenty-five years." Similarly in the same Article, Section 3, and Paragraph 3, it provides "No person shall be a senator who shall not have attained the age of thirty years." In like manner Article II, Section I, Paragraph 5, in speaking of the Presidency, says : ' ' Neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years," and the third paragraph of the Twelfth Amendment stipulates that "No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." It would seem that under these provisions Congress would have authority to enact a statute requiring the filing of certificates of birth, as an evi- dence of age. If so, it would seem to have the further PUBLIC HEALTH POWERS AND LIMITATIONS 255 authority to provide for suitable registrations of birth. Especially in cases of the presidency and vice presi- dency, such provisions as to birth certificate would be particularly warranted because in Article II, Section 1, Paragraph 5, it is demanded that the President must be a natural-born citizen, and the Twelfth Amendment extends this requirement to the vice president. § 223. Qualifications for citizenship. The first clause of the second section of Article IV of the Constitution reads: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the sev- eral states. ' ' Citizenship is defined in the first section of the Fourteenth Amendment as follows: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"; and the last paragraph of this amendment gives to Congress "power to enforce by appropriate legislation the provisions of this article." Do not these provisions also grant to Congress the authority to enact a statute requiring the registration of births in order that citizenship may be thus more definitely proven 1 § 224. Vital statistics as evidence. Although regis- tration of births and deaths is commonly regarded as a portion of the work of health departments, it must be recognized that by far the most important use of such records is essentially commercial. They are needed in proof of heirship; in proof of title to prop- erty; in proof of age, as for admission to school, to work, right to practice medicine or other professions, 256 PUBLIC HEALTH ADMINISTRATION the right to be married, etc. ; in criminal trials ; to pre- vent fraud in life insurance; proof of legitimacy, etc. Since persons living in one state may inherit property in others, and since the transfer of property is essen- tially in the nature of a commercial transaction, it would seem that the clause in the Constitution which gives to the nation control over interstate and foreign commerce might also have a bearing upon the power of the nation to enact a national vital statistics law. Article IV of the Constitution says: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state; and Congress may, by general laws, prescribe the manner in which such acts, records, and proceed- ings, shall be proved, and the effect thereof." This again seems to give to the federal government authority to enact a vital statistics law. § 225. Census. Article I, Section 3, of the Constitu- tion provides for the taking of a national census. ''The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. ' ' This clause gives the outside limits as to period of time from one census to the next. It does not say that the nation may not take a continual census. In point of fact, under that clause it has been customary for the nation to collect, year by year, such reports of births and deaths as seem to the officers of the Bureau of Census reliable. The Bureau has also collected in the general census data relative to various public health problems, such as blindness, deafness, mental disease, and the like. If the nation has any power to PUBLIC HEALTH POWERS AND LIMITATIONS 257 collect such data it must have the authority to do so completely. It would seem, therefore, that under the census clause the nation has authority to require the regular reports of births and deaths, and the recording of the same, and also an act requiring the reports of morbidity and accidents. At first the national census was taken once in ten years by a service organized for that particular census. This method was not found to be efficient, and as early as 1845 the then Secretary of the Treasury, Bibb, urged upon Congress the formation of a permanent Bureau, in order to avoid a recurrence of errors. 21 But it is not only to prevent errors that a permanent organiza- tion is desirable. As was pointed out in an article by Prof. Wilcox, 22 a highly organized government should provide for the continuous registration of social phe- nomena, as well as for the periodical census of social conditions. He further set forth that the establishment of a permanent statistical office at Washington, with a continuous co-operation with state and municipal gov- ernments, was an essential. Such a permanent office was established, and it is now a vast statistical labora- tory. If there be authority for the national govern- ment to maintain such a permanent laboratory, it would seem that it contemplated real efficiency to make the work as perfect as possible. For such per- fection it is essential that every possible check and counter check be used. To make the data as perfect as possible, therefore, and sufficiently up to date to be of greatest use, it is necessary that there be a prompt reporting of all births and deaths. 21 Compendium of the Seventh ' 22 Quarterly Journal of Eco- Census, p. 18. nomics, Aug. 1900. 258 PUBLIC HEALTH ADMINISTRATION §226. Authority to require reports, not authority for prevention. It must be remembered that power to require reports of morbidity and accidents does not empower the nation to take steps to prevent such con- ditions. If the nation has such power of prevention this must be found in some other grant of the Consti- tution. The power of prevention of evil or injury is essentially police ; and because the police power is ordi- narily reserved to the individual states, the steps to be taken to prevent the disease or accident must re- main in the states. It is true that in some cases the nation has even this power and authority for preven- tion, but it is found independently of authority to re- quire reports. Thus, under the commerce clause, it has been possible to stop the shipment of milk containing bacteria from one state to another. Safety appliances have been required on railroads doing an interstate business. This does not indicate that the nation has the authority to prevent the shipment of infected milk from one place to another within the state, nor that it may require safety appliances in factories located within individual states. While this last power might possibly be found, it must be found in other clauses of the constitution, and neither from such as would require reports, nor such as refer to commerce. Legally speaking, authority for acts very similar, or most intimately connected, may be widely separated. §227. Vital statistics not essentially health meas- ures. A record of a birth or of a death is not essen- tially a health measure. The mere report does little towards enabling a health official to prevent future sickness and future deaths. It is true that sometimes a death report discloses the existence of an infectious PUBLIC HEALTH POWERS AND LIMITATIONS 259 disease; but that particular case has ceased to exist before the death report has been filed. The death report therefore does not enable the health officer to do anything to mitigate that case, nor does it ordi- narily give him aid in discovering other possible cases. Taken together the records of deaths are valuable aids in the study of diseases in a community, and birth reports taken with death records are important guides. Individually considered, the value of a record of a birth, or of a death, is almost absolutely limited to its use as evidence. It seems an error, therefore, to seek authority for requiring such reports in the police power, the essence of which is the prevention of evils. There seems to be full authority in several clauses of the federal Constitution for the enactment of a national law requiring the recording of births and deaths which occur within the borders of this country. Although the power may rest with the nation, as a problem of expediency, or advisability, it may not seem as yet to be advisable; but inasmuch as a uniform system is greatly to be desired, and because the indi- vidual state governments have frequently shown a local influence antagonistic to the most perfect system, and further, because the value of collected statistics increases in proportion to their amplitude, other things being equal, it appears that for greatest value the Congress should enact such statutes as may be neces- sary. Again on the ground of expediency it might be best that in states having an efficient registration the business be conducted in a sort of partnership. Indi- vidual states may need some special information, or need it immediately, for certain administrative state business. The partnership arrangement would thus 260 PUBLIC HEALTH ADMINISTRATION prevent duplication of work. On the other hand, in states which have neglected to enact, or enforce, efficient state statutes relative to the registration of births and deaths, the federal law should be enforced by federal officials, ignoring local governments. § 228. Specified and implied powers. It is true that we do not find it written in the Constitution that Con- gress "shall have power to enact laws requiring the reporting of all births and deaths." "The Constitu- tion unavoidably deals in general language. It did not suit the purpose of the people in framing this great charter of our liberties to provide for minute specifica- tions of its powers, or to declare the means by which those powers should be carried into execution." 23 As Chief Justice Marshall put it: "America has chosen to be, in many respects and to many purposes, a nation, and for all these purposes her government is complete; for all these objects it is supreme. It can then, in effecting these objects, legitimately control all individuals or governments within the American ter- ritory. ' ' 24 A careful study of the Constitution reveals the fact that those powers are reserved to the individual states which operate and affect only within the state limits. They are strictly matters of private interest to the state. Those affairs which, though occurring within one state, affect also the residents of other states, are matters of national concern. Authority over such must, if the United States be a nation, remain either 23 Martin v. Hunter, 1 Wheat. 24 Cohens v. Bank of Virginia, 6 326; also McCulloch v. Maryland, Wheat. 414. 4 Wheat. 316; Cohens v. Bank of Virginia, 6 Wheat. 414; Legal Tender Cases, 12 Wall. 457. PUBLIC HEALTH POWERS AND LIMITATIONS 261 supremely, or exclusively, with the national govern- ment. Executive authority over a subject implies an equal degree of legislative power, and both imply judicial power. The three branches of government are equal in dignity, and completive of each other. With the development of interstate and international rela- tionships, the importance of the United States as a nation must increase; and because of that fact, authority and power which before lay dormant must be exercised. In the earlier years even under the Con- stitution there would be relatively very few occasions for protecting the persons and property of Americans in foreign lands. Today the United States is a recog- nized world power. Our islands get the first rays of the rising sun, and other of our lands watch his setting. There is no part of the world in which we are not to some degree interested. A nation is not the result of an enactment. The enactment of a constitution is the result of the development of a nation. Neither is a nation the product of a moment ; it is rather the ripen- ing product of growth. Its existence as a nation pre- supposes power and authority commensurate with its needs. When its infant clothing restricts too much its growth, the clothing must be changed; but appar- ently the Constitution which was so wisely framed by our fathers provides for all the power and authority which we may require for some time in the future. Custom may be a chain to retard progress. The fact that a power has not been used does not argue that the power has not existed, but that necessity for its use has not been sufficiently strong to require it. Today we are a nation as never before. As a nation we have need of powers which before were possibly of doubtful 262 PUBLIC HEALTH ADMINISTRATION value. Those were chiefly implied powers. Other powers were distinctly specified in the Constitution. Since the demand for a federal Constitution arose largely from commercial circles, and on account of complications referable to commercial transactions, it was very natural that commercial powers should receive especial attention ; and among the public health functions of the federal government there are probably none of greater importance than those which pertain to commerce. Aside from the matters pertaining to interstate and international trade, specific power is given over territories, and over lands owned by the federal government. § 229. Powers of the nation — Territories. Article IV, Section 3, Paragraph 2, of the federal Constitu- tion provides : ' ' The Congress shall have power to dis- pose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.' ' The first portion of this paragraph seems to give to Congress all needed authority for the administration of the government of such territories and colonies as may from time to time come under our control. More- over, the very right of ownership in such territorial lands presupposes also the power and duty to govern them in accordance with the spirit of our government. In the American Insurance Company v. Canter, 25 Chief Justice Marshall says : ' ' Perhaps the power of govern- ing the territory belonging to the United States, which has not by becoming a state acquired the means as l Peters, 511, 542. PUBLIC HEALTH POWERS AND LIMITATIONS 263 of self government, may result necessarily from the facts that it is not within the jurisdiction of any par- ticular state, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire terri- tory. ' ' Mr. Justice Marshall further says in this case : "In legislating for them (i. e., the territories), Con- gress exercises the combined powers of the general and of a state government." Without specially prolonging the general consider- ation of this subject we may quote the following sum- mary: 26 "That Congress possesses the power to legis- late for the territories; that this power is exclusive; that it may be exercised directly, or delegated to local governments set up by Congress and retained under its supervision, are propositions of constitutional con- struction settled by the uniform practice of the govern- ment and by the unvarying decisions of the Supreme Court. The contrary dogma, that the inhabitants of a territory have the entire control of their own local concerns, and may form their governments independ- ently of the national legislature, never rose above the level of a mere party cry; if never obtained the assent of any department of government, and has been dis- tinctly repudiated by the Supreme Court." The right to make laws implies the right to enforce them. This right of legislation therefore carries with it executive and judicial authority also. Since "Con- gress exercises the combined powers of the general and of a state government," and as the public health administration is ordinarily in the hands of the state, 26 Pomeroy, Constitutional Law, Sec. 494. 264 PUBLIC HEALTH ADMINISTRATION it follows that the nation has supreme authority over the matters pertaining to the health of the territories. Moreover, it must be remembered that police power is inherent in government; it cannot be alienated. To deny the right of police control over the territories is therefore to deny the right of government. On the other hand, anything which it may be neces- sary to do on the part of the inhabitants of those lands for the protection of life and health would be deemed lawfully done, under the general rules of interpreta- tion, provided that it be done in accord with the spirit of our institutions. It must not be so done as to con- flict with enacted statutes. It must be remembered that the relationship of territories to the nation are much the same as those which exist between counties and cities to state governments. The only power as to legislating, and in the executive administration, residing in the territories are such as are distinctly given by Congressional action. It has been the policy of the government to leave the exercise of police power in the organized territories almost exclusively in the hands of the territorial government. §230. Powers of nation over public places. By Article 1, Section 8, and Paragraph 17, of the federal Constitution, Congress is given the authority ' ' To exer- cise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of government of the United States; and to exercise like authority over all places purchased, by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. ' ' PUBLIC HEALTH POWERS AND LIMITATIONS 265 The provisions of this paragraph are very broad. At the time that the Constitution was adopted it might not have been appreciated how broad it really was. It covers not only the class of buildings named, which related almost exclusively to the support of the army and navy, but also to postoffices, hospitals, turning basins in harbors, needful shore defenses, and dams. The consent of the legislature of the state may be specific, for a certain tract of ground mentioned, or general. Thus, the Eevised Statutes of Illinois con- tain nine specific cessions, and one general. This ces- sion of governmental authority absolutely ousts police power 27 of the state over the grounds thus ceded, though the state may reserve the authority to serve and execute civil or criminal processes within the pre- scribed territory. 28 Lands thus ceded are free from the imposition of state or municipal taxes and assess- ments. In Loughborough v. Blake, 29 it was contended that Congress was in effect two bodies, one having the general powers of the national legislature, and the other practically taking the place of the state legis- lature in enacting laws for the territories. It was therefore claimed that a general tax assessed upon the states and District of Columbia was not proper; that though Congress had the power to levy taxes upon the District of Columbia, those taxes should be for District purposes only. The court did not directly answer this contention, but it clearly affirmed that the power of legislation also included the power of taxing. As a general proposition it may be stated that every 27 Freimd, Police Power, 67. 2t > 5 Wheaton, 317. 28 Eevised Statutes of Illinois, Chap. 143, Sec. 29. 266 PUBLIC HEALTH ADMINISTRATION power which the national government has over the individual states, it also has over the territories, colonial possessions, District of Columbia, and such grounds and property as it may have purchased for public uses. The converse is not true. Congress has powers over territories and public places which it may not use in individual states. Under police power a law prohibiting mixed marriages within the District of Columbia would probably be declared binding, but a similar law enacted for the nation would be uncon- stitutional. Ordinarily, with the recession of a tract of land the state again acquires police jurisdiction. This is not always true, as is shown in the case of Ohio v. Thomas. 30 April 3, 1867, Ohio ceded to the United States a certain tract of ground for a National Asylum for disabled volunteer soldiers. The management of the asylum was in the care of a Board of Managers incorporated by action of Congress for that purpose. January 21, 1871, Congress ceded this ground back to the state, but the act contained the following clause: "Provided, that nothing contained in this act shall be construed to impair the powers heretofore conferred upon the Board of Managers of the National Asylum for Disabled Volunteer Soldiers, incorporated under said act, in and over said territory." The Governor of the Asylum was arrested by an officer of the state for violation of the state oleomargerine law. After trial and conviction before a justice court the governor of the home was fined $50.00. and sentenced to imprisonment until the fine should be paid. He was released on a writ of habeas corpus from the U. S. Dis- 30 173 U. S. 276. PUBLIC HEALTH POWERS AND LIMITATIONS 267 trict Court. The state appealed, and the case ulti- mately reached the Supreme Court, which upheld the act of the lower federal court. The effect of this decision is practically that, though for most purposes the state had reacquired full authority in the premises, it could not use its power of police to interfere with any of the operations of the management of the home which were within the authority given by Congress. In the reasoning of the court more stress was laid upon the personal factor — upon the fact that the governor of the home was acting practically as an officer of the government and in the line of duty, because the case was really one of habeas corpus, and the relative powers of nation and state in matters of sanitation were not exhaustively discussed. §231. Powers of the nation, among states. Grant- ing that the basis of governmental action for the preservation of health is found in police power, and that this power is reserved to the individual states, does it follow that the national government has neither duties, authority, nor power to safeguard the lives of the citizens who chance to reside in organized states? It is evident that such possibilities as are at present offered to the federal government must be indirect, rather than direct. Chief of these indirect powers for the preservation of public health is that found in Sec- tion 8, of the first Article of the Constitution, which gives to Congress the power: "3. To regulate com- merce with foreign nations, and among the several states, and with the Indian tribes." § 232. Regulation of commerce. We are told by Mr. Justice Marvin 31 that "A leading object of the Con- 3i Metropolitan Bank v. Van Fyck, 13 Smith (N. Y.) 508. 268 PUBLIC HEALTH ADMINISTRATION stitution was to get rid of all conflicting commercial interests, and, as to commerce, to effect a union of all the people, of all the states, great and small, and make them one people, one nation, without divided interests, and without the power, as states, to produce divided interests or conflicts. ' ' 32 Before the Constitution was adopted, each individual state placed such restrictions, as it thought wise, upon commerce. This made the transaction of business unnecessarily expensive. The protection and fostering of business relationships is one of the important functions of government. Though essentially the regulation of business is a portion of police, in American law it is not so included, for the reason that the regulation of commerce was distinctly named as one of the functions of Congress. Of neces- sity, due to the exigencies of the case, therefore, Con- gress was given the power to regulate commerce. § 233. Commerce includes what? By the interpreta- tions of the Supreme Court the word commerce, as intended in the Constitution, is very broad. It includes the means used for the conduct of trade with foreign nations, and between the states, and the subjects of that trade. The means used include the supervision of navigation and railroads. Congress thus takes con- trol over navigable waters which may be used in inter- state traffic, and over the construction and operation of railroads. It may legislate as to the composition of the substances forming a portion of interstate traffic. Persons as well as merchandise are included under the term commerce. 33 "Congress has not only the right 32 See also Prentice and Egan, 33 Passenger Cases, 7 Howard, Commerce Clause, Federal Consti- 283. tution, p. 1. PUBLIC HEALTH POWERS AND LIMITATIONS 269 to pass laws regulating legitimate commerce among the states and with foreign nations, but also has full power to bar from the channels of such commerce illicit and harmful articles." 338 ''Disease, pestilence, and pauperism are not subjects of commerce, although among its attendant evils. They are not things to be regulated and trafficked in, but to be prevented, as far as human foresight or human means can guard against them. ' ' 34 The national government has there- fore used its inherent police power to prevent, by means of quarantine, the importation of disease from foreign lands. This in no way interferes with the police power of the individual states. It is the duty of the state, under its police power, to protect the health and lives of its citizens. National quarantine therefore simply assists the state in this protection. § 234. Pure foods and drugs. Through its power to regulate commerce between the states Congress has seen fit to pass statutes determining standards of purity for foods and drugs, and to prohibit the sale of goods not properly labeled, or not coming up to the standard adopted. (Chap. XVII.) This power of Con- gress is clearly limited to goods forming a part of interstate traffic. It may not determine for any state what shall be the standard of purity used for goods manufactured and sold within that state, but no state may fix a standard which shall prevent the sale, in the original package, of goods forming a portion of inter- state traffic. Since the national control over the subject of purity 33a McDermott v. Wisconsin, 228 Mass. ; Fletcher v. Rhode Island ; TJ. S. 115. Peiree v. New Hampshire, 5 How- 34 License Cases, Thurlow v. ard, 504. 270 PUBLIC HEALTH ADMINISTRATION of food and drugs is commercial in nature, it follows that laws passed for that purpose must be considered on a commercial basis. The fact that such a law may protect health of citizens is incidental. The Act of June 30, 1906, which went into effect January 1, 1907, was the first enactment by the national government to fix a standard of purity. The conditions under which drugs and foods were to be considered impure, adul- terated, or misbranded for the purposes of the act are there stated very definitely, and the constitutionality of the act has been repeatedly upheld. In Section 7, the fifth provision relative to adulteration in the case of food says: "If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health : provided, that when in the prepara- tion of food products for shipment they are preserved by any external application applied in such a manner that the preservative is necessarily removed mechanic- ally, or by maceration in water, or otherwise, and direc- tions for the removal of said preservative shall be printed on the covering or the package, the provisions of this act shall be construed as applying only when said products are ready for consumption." It will be noticed that there is a possible question as to when a food product may contain a poisonous ingredient. Benzoate of soda has been used as a pre- servative. In large quantities it is harmful; in small quantities it may not be harmful. The determination as to this harmfulness is primarily executive by the terms of the act, and in the Bureau of Chemistry in the Department of Agriculture. If it shall appear that the terms of the act have been violated the Secretary PUBLIC HEALTH POWERS AND LIMITATIONS 271 of Agriculture must give to the party from whom the sample was obtained, notice and opportunity to be heard. If then it shall appear that the terms of the act have been violated the case is to be certified to the District Attorney for prosecution. The harmfulness of the ingredient is then a question of fact, to be proven before the court. The decision does not rest with the Secretary of Agriculture. Much less does it rest with the Bureau of Chemistry. It is a question of fact, and not of opinion. Moreover, it is a question of fact to be determined specifically for each article, and although one decision may serve as a precedent and guide for similar future cases, one case may not defi- nitely fix the law, as would a decision involving the interpretation of an act. Another case, exactly similar, but in the light of further evidence, may be determined quite the reverse. Section 8 of the act further provides that an article may be deemed misbranded, if the package or label shall bear any statement regarding the ingredients or substances "which shall be false or misleading in any particular. ' ' This is another question of fact, and not of opinion. It is to be determined by the court. One Johnson shipped packages of medicine from Missouri to Washington, and the packages bore labels that stated or implied that the contents were effective in curing cancer. On the ground that such representa- tions were false, prosecution was begun, but on motion of the defendant the District Judge quashed the indict- ment. 35 A writ of error brought the case to the Supreme Court, 36 and Mr. Justice Holmes gave the 35 U. S. v. Johnson, 177 Fed. 36 U. S. v. Johnson, 221 U. S. Rep. 313. 488. 272 PUBLIC HEALTH ADMINISTRATION opinion of the court, to the effect that though such a statement was misleading, it was not clearly mislead- ing in the sense intended in the act. "It was much more likely to regulate commerce in food and drugs with reference to plain matter of fact, so that food and drugs should be what they professed to be, when the kind was stated, than to distort the uses of its constitutional power to establishing criteria in regions where opinions are far apart. As we have said above, the reference of the question to the Bureau of Chem- istry for determination confirms what would have been our expectation, and what is our understanding of the words immediately in point." Mr. Justice Hughes (Justices Harlan and Day, concurring) gave the dis- senting opinion, holding that the terms of the act did cover such misrepresentation as in this case. He said: "Granting the wide domain of opinion, and allow- ing the widest range to the conflict of medical views, there still remains a field in which statements as to curative properties are downright falsehoods and in no sense expressions of judgment. This field I believe this statute covers. * * * The question then is whether, if an article is shipped in interstate com- merce, bearing on its label a representation that it is a cure for a given disease, when on a showing of the facts there would be a unanimous agreement that it was absolutely worthless and an out and out cheat, the act of Congress can be said to apply to it. To my mind the answer appears clear. * * * "Nor does it seem to me that any serious question arises in this case as to the power of Congress. I take it to be conceded that misbranding may cover state- ments as to strength, quality, and purity. But so long PUBLIC HEALTH POWERS AND LIMITATIONS 273 as the statement is not as to matter of opinion, but consists of a false representation of fact — in labeling the article as a cure when it is nothing of the sort from any point of view, but wholly worthless — there would appear to be no basis for a constitutional dis- tinction. It is none the less descriptive — and falsely descriptive — of the article. Why should not worthless stuff, purveyed under false labels as cures, be made contraband of interstate commerce, as well as lottery tickets 1 37 I entirely agree that in any case brought under the act for misbranding, — by a false or mislead- ing statement as to curative properties of an article — it would be the duty of the court to direct an acquittal when it appeared that the statement concerned a mat- ter of opinion. Conviction would stand only where it had been shown that, apart from any question of opin- ion, the so-called remedy was absolutely worthless and hence the label demonstrably false; but in such case it seems to me to be fully authorized by the statute. ' ' It will be noticed that the only difference of view between the opinion of the majority and minority of the Court was whether or not the curative effect were a matter of opinion. Mr. Justice Holmes in his opinion stated clearly: "It is a postulate, as the case comes before us, that in a certain sense the statement on the label was false, or, at least, misleading." The indict- ments affirmed "when in truth and fact said article is wholly worthless and ineffective in bringing about the cure of cancer, as he, the said 0. A. Johnson, then and there well knew." It does not appear that the said Johnson, in his motion to quash, or otherwise, in any 37 Champion v. Ames, 188 U. S. 331. 274 PUBLIC HEALTH ADMINISTRATION way denied this allegation in the indictments. It was in the opinion of Mr. Phillips, District Jndge, that we find the statement as to curative effect designated as a matter of opinion. Why, under the circumstances, it was so designated by Mr. Justice Holmes, therefore, does not appear. The Court was in agreement as to the fact that the act was intended to protect the citizens in the genuine- ness of the article itself, and was not so much con- cerned with the effect of the article of commerce upon the citizens. It intended that when a citizen of one state purchased an article from a foreign country, or from another state, he might depend upon its being just what he desired. In other words, as the act stands, .it is a regulation of commerce, and not an exercise of police power in the American signification and limita- tion. True, the line between the two is not always clear, but it must be remembered. §235. Determination by executive. It will be noticed that the first hearing of cases under the Pure Food Law is before an executive officer. It is not his province to interpret the law. He is not to decide as to the scope of the intent of Congress. He is to determine matters of fact. His determination of mat- ters of fact, by the terms of the law itself, is not final, but it must then be passed to the courts for final settle- ment. The provision that the case must be submitted to the court is not a matter of inherent necessity. The law might have provided that the determination as to matters of fact by the executive department should be final. ' ' The Land Department of the United States is Administrative in its character, and it has been fre- quently held by this Court that in the administration PUBLIC HEALTH POWERS AND LIMITATIONS 275 of the public land system of the United States ques- tions of fact are for the consideration and judgment of the Land Department, and its judgment thereon is final." 38 But, the executive has no unlimited power to pass upon matters of fact. He must find his authority in the statute. The Postmaster General decided after investigation that a certain institution was essentially fraudulent, and denied to the institu- tion the use of the mails. The Court held that he had exceeded his authority, saying: "His right to exclude letters, or to refuse to permit their delivery to persons addressed must depend upon some law of Congress, and if no such law exist, then he cannot exclude or refuse to deliver them. ' ' 39 § 236. Interstate commerce includes persons. As we have previously stated, persons, as well as live stock and ordinary articles of merchandise, are subjects of interstate commerce. 40 This by no means implies that the persons so included are articles of merchandise. Under this commerce clause, therefore, Congress has full power to regulate the entrance of persons into the country, and their passage from one state to another. Under this clause Congress has legislated to prohibit the entrance of undesirable persons from foreign lands. It excludes paupers, those mentally deficient, and those afflicted with certain diseases. The determination of fact may be made by the executive officers. 41 38 American School of Mag. Healing v. McAnnulty, 187 U. S. Healing v. McAnnulty, 187 U. S. 94, 109. 94; citing Burfenning v. Chicago, *o Passenger Cases, 7 Howard, etc., E, E. Co., 163 U. S. 321; 283. Johnson v. Drew, 171 U. S. 94, 99; *i Japanese Immigration Case, Gardner v. Bonestell, 180 U. S. 189 U. S. 86; IT. S. v. Williams, 362. 194 U. S. 279. 3n Amprican School of Magnetic 276 PUBLIC HEALTH ADMINISTRATION §237. White slave traffic. More recently we have the decisions under the Mann Act, designed to stop the transportation of women and girls from one state to another for immoral purposes. One Effie Hoke, aided by Basil Economides, enticed a woman from New Orleans to Beaumont, Texas, and was prosecuted for violation of the act. The defense was purely based upon the exclusive police power of the state, and that the regulation of prostitution was therefore the duty of the state with which the national government had no authority to interfere. The Court said: "The power of Congress under the commerce clause of the Con- stitution is the ultimate determining question. If the statute be a valid exercise of that power, how it may affect persons or states is not material to be con- sidered. It is the supreme law of the land, and persons and states are subject to it. Congress is given power ' to regulate commerce with foreign nations and among the several states.' The power is direct; there is no word of limitation in it. Commerce among the states consists of intercourse and traffic between their citi- zens, and includes the transportation of persons and property; that is, a person may move or be moved in interstate commerce. "Our dual form of government has its perplexities, state and nation having different spheres of jurisdic- tion, as we have said, but it must be kept in mind that we are one people, and the powers reserved to the states and those conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral. This is the effect of the decisions, and surely if the facility of interstate transportation can be taken away PUBLIC HEALTH POWERS AND LIMITATIONS 277 from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle and persons, the impurity of food and drugs, the like facility can be taken away from the systematic debauchery of women, and more insistently of girls." 42 The law was also sustained in the same sitting of the court in Athanasa v. United States, 43 Bennett v. U. S., 44 and Harris v. U. S. 45 In the latter two cases it was held, further, that an error in the name of the person transported, or in the name of the station at which tickets were bought was not sufficient cause for a rever- sion of decision. It will be noticed that this act, and the decisions under it, are not interferences with the police power of the states. The states are still free to act. Police power is essentially restrictive in action. Failure to act gives no special rights. A regulation which gives permission is good so far as the limits of the states are concerned, but no further, and practically it is as if no action were taken. It does not prevent the state from future action. Clearly then, the fact that the state has taken no action, or that it has practically declined to act by giving a permission, can in no way be considered as interfering with the operation of Con- gress in regulating interstate traffic. Neither is this action of Congress an interference with the police power of the state. The state still has full power to put such further restrictions upon the traffic as it may reasonably have done before the act of Congress. * ' The intent of Congress to supersede the exercise by the states of their police power will not be inferred unless 42 Hoke v. U. S., 227 IT. S. 308. 4* 227 U. S. 333. 43 227 U. S. 326. 45 227 U. S. 340. 278 PUBLIC HEALTH ADMINISTRATION the act of Congress fairly interpreted is in actual con- flict with the law of the state." 46 Before the passage of the Mann Act immigrant pros- titutes were excluded from the country as undesirables. An alien, having married a citizen, thus becoming a citizen herself, entered the country. When it appeared that she had become an inmate of a house of illfame she was ordered deported by the immigration officials.. The order of deportation was contested, partly as a violation of "due process of law" in that the investiga- tion was made by an executive officer, and not by a court. The order was sustained, the Court saying that an attack on the hearing must show that the officers hearing them were manifestly unfair. 47 Apparently, under this decision any alien found in a house of ill- fame might be deported by executive order, irrespec- tive of the time she had resided in this country, and the fact of marriage with a citizen might be no bar. In a subsequent case 48 it was held that prostitutes may be deported regardless of the time they are in the country. §238. Meaning of "interstate." Ordinarily there could be no question as to interstate signification. "Commerce among the states consists of intercourse and traffic between their citizens," that is, between the citizens of different states. The beginning and the end of the transaction may, however, be within a single state, and yet it may be interstate. Thus, a shipment from Fort Smith, Ark., to Grannis, Ark., via 4e Savage v. Jones, 225 XJ. S. *s Bugajewitz v. Adams, 228 IT. 501; also Standard Stock & Food S. 585. Co. v. Wright, 225 U. S. 540. ** Low Wah Suey v. Backus, 225 IT. S. 460. PUBLIC HEALTH POWERS AND LIMITATIONS 279 Spiro, Indian Territory, was held to be interstate, and therefore within the authority of Congress. 49 It is true that in certain cases involving the state right to levy tax, or to fix tariff a contrary opinion has been held by state courts. Generally speaking, interstate, or foreign commerce begins when goods have been manufactured and are consigned for shipment to another point, and that shipment will take them out- side of the state in which they were before consign- ment. During that passage the goods are a part of the interstate traffic, and as such they are not subject to state laws in such a manner as to interfere with the passage. The track within a state is reasonably sub- ject to local taxation, and the earning power of the road within the state may properly be considered sub- ject to taxation ; but the interstate traffic is not subject to local tax, if in any way such a tax would operate to interfere with the traffic. It is well recognized that a municipality may, if the state laws so permit, require a local license of all who engage in peddling goods, or in taking orders for such goods to be delivered later. In Caldwell v. North Carolina, 50 it was held that when such an agent was soliciting orders for picture frames to be sent from another state the operation of such a license was an interference with interstate traffic, and to that extent it was an unconstitutional invadement of the authority of the nation. A police measure other- wise within the constitutional power of the state will not be held unconstitutional under the commerce clause of the federal Constitution because it inci- « Handley v. Kansas City South- 267 ; Sternberger v. Cape Fear & em Ry. Co., 187 U. S. 617; also Y. V. R. R., 29 S. C. 510. State v. Railroad Co., 40 Minn. oo 1S7 U. S. 622. 280 PUBLIC HEALTH ADMINISTRATION dentally and remotely affects interstate commerce. 51 Still, the regulation of the liquor traffic is an example of the use of police power, and it has been repeatedly held that such laws must not operate to stop the delivery of original packages. The leading case in this line was Brown v. Maryland. 52 The state had enacted a statute which required importers of foreign goods to take out a state license. The case was carried to the Supreme Court, and Chief Justice Marshall delivered the opinion of the Court, in which he said: "If this power reaches the interior of a state and may there be exercised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse, one of the most ordinary ingredients of traffic. It is unconceivable that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy should be com- plete, should cease at the point where its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccom- panied with the power to authorize a sale of the thing imported 1 ? Sale is the object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, therefore, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right, not only to authorize importation, but to authorize the importer to sell." After asking what answer the United States si Plumley v. Mass., 155 U. S. 32 12 Wheat. 419. 461; Silz v. Hesterberg, 211 U. S. 31. PUBLIC HEALTH POWERS AND LIMITATIONS 281 could give, if after permitting the importation of foreign goods the sale of such goods be hindered, he proceeds to say: "Any penalty inflicted on the im- porter for selling the article in his character of importer, must be in opposition to the act of Congress, which authorizes importation. Any charge on the introduction and incorporation of the articles into and with the mass of property in the country, must be hostile to the power given to Congress to regulate com- merce; since an essential part of the regulation, and the principle object of it, is to prescribe the regular means for accomplishing that introduction and incor- poration." This case referred to foreign commerce, but for some time there was a different interpreta- tion of the taxing power upon interstate traffic. In 1868 Mr. Justice Miller delivered the decision in Wood- ruff v. Parham. 53 Alabama had imposed a tax upon articles imported from other states and sold in original packages. This law was sustained, Mr. Justice Miller saying that it is obvious that if articles brought from another state are exempt from taxation, the grossest injustice must prevail. "The merchant who buys his goods in New York and sells at wholesale in the origi- nal packages, may have his millions employed in trade for half a lifetime and escape all state, county, and city taxes ; for all that he is worth is invested in goods which he claims to be protected as imports from New York. Neither the state nor the city which protects his life and property can make him contribute a dollar to support its government, improve its thoroughfares, or educate its children." This rule was followed in Brown v. Houston. 54 5a 8 Wall. 123. s* H4 u. S. 622. 282 PUBLIC HEALTH ADMINISTRATION In Bobbins v. Taxing District 55 the ruling was slightly changed, in that the power of the state to tax imported articles from other states was admitted, so long as there was no discrimination against such goods as interstate merchandise. In Bowman v. Northwestern R. R. Co., 56 however, the court, by a divided vote returned to the earlier decision of Brown v. Maryland, and applied it to interstate traffic. The case involved the right of the railroad company to transport liquor into Iowa, in spite of the state pro- hibition upon the liquor trade. The Iowa law was clear use of its police power, and it was intended to preserve the health and morals of that community. It was essentially a quarantine law, against an infectious trade. But there is an honest difference of opinion as to whether or not the liquor trade is essentially an evil, so the Court said that whether or not an article is a subject of commerce is to be determined by the usages of the commercial world, rather than by the opinion of individuals, or even the enactment of states, and in a subsequent case, 57 this right of importation was held to include the right of the importer to sell the imported beer in the original packages. On the other hand, the right of a state to refuse to permit the importation from another state of oleomargarine colored in imitation of butter, was sustained. 58 It was not denied that the oleomargarine was wholesome and fit for use as food, but it was in the nature of a fraud ; it was colored so that its true character was not easily determined by the ordinary customer. Commerce ss 120 U. S. 489. 171 U. S. 1 ; Vance v. Vandercook, se 125 U. S. 465. 170 U. S. 438. 57 Leisy v. Hardin, 135 U. S. 100; ss Plumley v. Massachusetts, 155 see also Sehollenberger v. Perm. U. S. 461. PUBLIC HEALTH POWERS AND LIMITATIONS 283 implies legitimate trade, honest transactions, and though frauds may be perpetrated in the name of com- merce they are not legitimate portions thereof. To stop such frauds is not an interference with commerce. The objection was not that the oleomargarine was colored, but that it was colored to imitate butter. Had it been ordered by a state statute that it be colored with a harmless red or blue dye its character as a substitute would have been so apparent that, because of general prejudice, the commerce would have been restricted. Such a restriction, however, would not have been because of the demand of the state law, but because of the natural disinclination of customers to buy the substitute. Such a law would not then be an interference with interstate traffic, even though it might practically stop the same. We may say, therefore, that interstate commerce begins when legitimate articles of commerce are pur- chased, or consigned, for shipment into another state, or when persons start on a journey from one state to another. Interstate commerce ends when the persons have reached their destination, or the goods have been either sold in unbroken packages, or the packages have been broken, so that the goods have become so mixed with the merchandise of the state as to be a real part of the general stock. 59 In a similar manner, persons may be considered as a part of interstate com- merce until they become really a portion of the population of the state into which they move. 60 While a person, or an article of trade, is a part of interstate commerce, he or it is within the jurisdiction of the 59 Low et al. v. Austin, 80 U. S. «"Low Wah Suey v. Backus, 225 29. U. S. 460. 284 PUBLIC HEALTH ADMINISTRATION United States, and not subject to the laws of the indi- vidual states, except under certain special cases where as a matter of the necessary use of police power the commerce may be stopped, either temporarily or permanently. § 239. What is an original package? The answer to this question is of so great importance, as showing the line of demarcation between the jurisdiction of the state and the nation, that, without any apology there- for, we shall copy the discussion found in Food Inspec- tion Decision 86, from the Department of Agriculture, which is as follows: Regulation 2 of the Rules and Regulations for the Enforcement of the Food and Drugs Act (Circular No. 21, Office of the Secretary, United States Department of Agriculture) declares: The term ' ' original unbroken package ' ' as used in this act is the original package, carton, case, can, box, barrel, bottle, phial, or other receptacle put up by the manufacturer, to -which the label is attached, or which may be suitable for the attachment of a label, making one complete package of the food or drug article. The original package contemplated includes both the wholesale and the retail package. This definition of original unbroken package was inserted in the regulations for the purpose of facilitating the administration of the act. It was intended to be, or at all events is, a guide to the inspectors who purchase the samples throughout the United States, as to the na- ture of an original unbroken package. Upon the basis of this regula- tion the inspectors have collected a large number of samples, but when an examination of some of the cases has been made, with prosecutions in view, it has been found that no action could be taken because the package bought was not an original package, though apparently so upon a reasonable interpretation of the regulation. Furthermore, the Department is advised that the food commissioners of some of the States, guided by a literal interpretation of the regulation, have re- frained from enforcement of their laws upon all packages apparently embraced within its terms. It is believed that the discussion of the question and the cases cited will prove helpful to those United States attorneys to whom cases are re- ported for seizure in original packages under section 10 of the food and drugs act. To prevent the further misconception of the scope of the regulation, and for the information of those concerned, it is the purpose of this PUBLIC HEALTH POWERS AND LIMITATIONS 285 decision to set out the interpretation the Department has made of it, and the authorities therefor. Construed in the light of judicial determinations of the question, the terms "original unbroken packages" (as set out in the regulation and as used in sections 2 and 10 of the act) and "unbroken packages" (as used in section 3 of the act) will be restricted to such a package con- taining the food and drug product as has been prepared for shipment or transportation and shipped or transported, as an entirety or unit, from a State, Territory, or the District of Columbia, or a foreign country, into another State, Territory, or the District of Columbia, and delivered to the consignee, remaining his property in the identical form and condition in -which it was shipped or transported. After arrival in a State and delivery to the consignee, if any part of the contents of the package be removed, or if the package be opened and commingled with other property, or if the package be transferred by the consignee, it is no longer an original package. The retail package is not an orig- inal package unless it bears the characteristics set forth above. It is not practicable to frame an universally accurate and satisfactory definition of an "original package." No statute has done so, and the Department disclaims any attempt to do so in its construction of the terms. The question must be determined largely upon each case as it arises, with the guidance of the authoritative decisions of the courts, which for the sake of elucidating and explaining the subject are pre- sented in the following pages of this decision. The food and drugs act of June 30, 1906, entitled "An act for pre- venting the manufacture, sale, or transportation of adulterated or mis- branded or poisonous or deleterious foods, drugs, medicines, and liquors, and for regulating traffic therein, and for other purposes," pro- vides in sections 2, 3, and 10 as follows: Sec. 2. * * * Any person * * * who shall receive in any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or foreign country, and hav- ing so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any such article [food or drug] so adulterated or misbranded within the meaning of this Act, * * * shall be guilty of a misdemeanor, and for such offense be fined not exceeding two hundred dollars for the first offense, and upon conviction for each subsequent offense not exceeding three hundred dol- lars or be imprisoned not exceeding one year, or both, in the discretion of the court. * * * Sec. 3. That the Secretary of the Treasury, the Secretary of Agri- culture, and the Secretary of Commerce and Labor shall make uniform rules and regulations for carrying out the provisions of this Act, includ- ing the collection and examination of specimens of foods and drugs * * * which shall be offered for sale in unbroken packages in any State other than that in which they shall have been respectively manu- factured or produced, * * * 286 PUBLIC HEALTH ADMINISTRATION See. 10. That any article of food, drug, or liquor that is adulterated or misbranded within the meaning of this Act, and is being trans- ported from one State, Territory, District, or insular possession to another for sale, or, having been transported, remains unloaded, unsold, or in original unbroken packages, * * * shall be liable to be pro- ceeded against in any district court of the United States within the district where the same is found, and seized for confiscation by a proc- ess of libel for condemnation. * * * In the enforcement and administration of these provisions, it is necessary to determine what is an "original unbroken package" or an "unbroken package." For the purpose of such determination it is not permissible to resort to the common and popular understanding of these words, for the reason that they have received a special meaning and import when applied to the law of interstate and foreign commerce through numerous judicial decisions upon the commerce clause of the Constitution and were employed in the food and drugs act in that sense. It will be seen hereafter that these words, when used in their legal signification in connection with interstate or foreign commerce, are of restricted import. The expression ' ' original package ' ' was employed for the first time in the case of Brown v. Maryland, 6 * decided by the Supreme Court of the United States in 1827. In the larger number of cases subsequent thereto in which the expression is used it will be seen that no modifica- tion is made in the term. But in the present act the word ' ' unbroken ' ' has been added in sections 2 and 10, and has been substituted for "original" in section 3, but without qualifying effect, as the courts have used the words "unbroken" and "original" as synonymous. It is held, therefore, that their combination or substitution effects no change in significance. 62 It is sought in this decision to show what is an original package. Possibly it might be logical to proceed to that question at once, but it has been thought advisable, if not necessary, to consider first the extent of the power of Congress over food and drug articles transported into a State from another State or Territory, the District of Columbia, or a foreign country, and there remaining. When this has been considered it will appear that the control of Congress over food and drugs, so transported, continues, after their arrival in the State, so long as they are in original packages. It will then be shown what is an original package. In Brown v. Maryland, heretofore referred to, it was decided that the law of Maryland imposing a license tax upon all importers of foreign articles, dry goods, and merchandise by bale or package, and upon other persons selling the same, was unconstitutional so far as it undertook to si 25 U. S. 419. 29 ; United States v. Fox, Federal sz Low et al. v. Austin, 80 U. S. Cases No. 15155. PUBLIC HEALTH POWERS AND LIMITATIONS 287 require such license tax from an importer of goods from a foreign country for the sale thereof in the original packages in which they were imported; that such a tax was an interference with foreign commerce, which, under the Constitution of the United States, was committed to Congress to regulate. The conclusion of the court is contained in the following syllabus: An act of a state legislature, requiring all importers of foreign goods by the bale or package, etc., and other persons selling the same by wholesale, bale, or package, etc., to take out a license, for which they shall pay $50.00, and in case of neglect or refusal to take out such license, subjecting them to certain forfeitures and penalties, is repug- nant to that provision of the United States which declares that "No state shall, without consent of Congress, lay any impost or duty on imports or exports, except what may be absolutely necessary for executing its inspection laws ; ' ' and to that which declares that Con- gress shall have power ' ' to regulate commerce with foreign nations, among the several states, and with the Indian tribes. ' ' The goods in this case were imported from a foreign country, but the court said — "It may be proper to add, that we suppose the prin- ciples laid down in this case, to apply equally to importations from a sister state." This dictum was afterwards affirmed as law in the case of Leisy v. Hardin,^ decided in 1899, which overruled Peirce v. New Hampshire,64 decided subsequently to Brown v. Maryland. In Peirce v. New Hampshire it was held that a barrel of gin shipped from Massa- chusetts to New Hampshire was subject to the law of New Hampshire prohibiting the sale of gin, so as to render the seller amenable to the law for the sale of the barrel in the exact condition in which he re- ceived it. In the case of Waring v. The Mayor,65 decided in 1868, the Supreme Court held that the sacks of salt brought into Mobile Bay from Eng- land and sold to a merchant in Mobile City after arrival of the vessel in the bay, twenty-five miles from the city, and transported by the mer- chant 's lighters to Mobile, were subject to the taxation by the city. The sacks had been sold by the importer after their arrival in Ala- bama, and hence were merged in the general mass of property in the state and were no longer under the shelter of the commerce clause of the Constitution when taxed by the city of Mobile. In 1871 the question of taxation of imports from foreign countries in the original packages came again before the Supreme Court in the case of Low et al v. Austin,66 and it was there held — ' ' Goods imported from a foreign country, upon which the duties and charges at the custom house have been paid, are not subject to state taxation whilst remain- ing in the original cases, unbroken and unsold, in the hands of the 63 135 U. S. 100. es 75 XT. S. 110. «*46 U. S. 504. « 6 80 U. S. 29. 288 PUBLIC HEALTH ADMINISTRATION importer, whether the tax be imposed upon the goods as imports, or upon the goods as part of the general property of the citizens of the state, which is subjected to an ad valorem tax. ' ' It will be seen that the Court here uses the expression, ' ' original cases, unbroken and unsold. ' ' In Cook v. Pennsylvania^ decided in 1878, the same court held a tax imposed by the law of the state upon every auctioneer on the amount of his sales invalid when applied to the sale of imported goods in original packages. It was held that — "The statute of Pennsylvania of May 20, 1853, modified by that of April 9, 1859, requiring every auc- tioneer to collect and pay into the state treasury a tax on his sales, is, when applied to imported goods in the original packages, by him sold for the importer, in conflict with sections 8 and 10 of article 1 of the Constitution of the United States, and therefore void, as laying a duty on imports and being a regulation of commerce. ' ' In Sehollenberger v. Pennsylvania es an act of the State of Pennsyl- vania prohibiting the sale of any oleaginous substance or compound of the same designed to take the place of butter was held unconstitutional so far as attempted to be enforced in the case of a sale of a 40-pound tub of oleomargarine imported from Ehode Island and sold as oleo- margarine in the identical condition in which imported. The law of the case is contained in the following syllabus: Act No. 21 of the legislature of Pennsylvania, enacted May 21, 1885, enacting that "no person, firm, or corporate' body shall manufacture out of any oleaginous substance, or any compound of the same, other than that produced from unadulterated milk or cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream from the same, or of any imitation of adulterated butter or cheese, nor shall sell nor offer for sale, or have in his, her, or their possession with intent to sell the same as an article of food," and making such act a misdemeanor, punishable by fine and imprisonment, is invalid to the extent that it prohibits the introduc- tion of oleomargarine from another state, and its sale in the original package. The right of a State to prohibit the importation of a recognized article of commerce was distinctly denied by the Supreme Court in the case of Bowman v. Chicago and Northwestern Eailway Company,69 de- cided in 1887. In that case the court declared invalid the statute of Iowa forbidding any railway company from bringing into the State intoxicating liquors unless previously furnished with a certificate from the county auditor that the consignee was authorized to sell them. It was held that — "A State can not, for the purpose of protecting its people against the evils of intemperance, enact laws which regulate 67 97 U. S. 566. 69 125 U. S. 465. 68 171 U. S. 1. PUBLIC HEALTH POWERS AND LIMITATIONS 289 commerce between its people and those of other States of the Union, unless the consent of Congress, express or implied, is first obtained. Section 1553 of the Code of the State of Iowa, as amended by C. 143 of the Acts of the 20th General Assembly in 1886, (forbidding common carriers to bring intoxicating liquors into the State from any other State or Territory, without being first furnished with a certificate, under the seal of the auditor of the county to which it is to be trans- ported or consigned, certifying that the consignee or person to whom it is to be transported or delivered is authorized to sell intoxicating liquors in the county), although adopted without a purpose of effecting interstate commerce, but as a part of a general system designed to protect the health and morals of the people against the evils resulting from the unrestricted manufacture and sale of intoxicating liquors within the state, is neither an inspection law, nor a quarantine law, but is essentially a regulation of commerce among the states, affecting inter- state commerce in an essential and vital part, and, not being sanctioned by the authority, express or implied, of Congress is repugnant to the Constitution of the United States." It will be seen from the above that in this case the question of the right of the importer to sell the article so imported in the original package was not decided. Two years later the question just stated was squarely presented to the court in the case of Leisy v. Hardin,™ where it was held that the statute of Iowa prohibiting the sale of intoxicating liquors, except for certain prescribed purposes, was, as applied to the sale by the importer, in original packages or kegs, unbroken and unopened, of liquors manu- factured in and brought from another state, unconstitutional and void, as repugnant to the Constitution of the United States, granting to Con- gress the power to regulate commerce among the states. The law of the case was stated in the following syllabus: A statute of a state, prohibiting the sale of any intoxicating liquors, except for pharmaceutical, medicinal,, chemical, or sacramental purposes, and under a license from a county court of the state, is, as applied to a sale by the importer, and in the original packages or kegs, unbroken and unopened, of such liquors manufactured in and brought from an- other state, unconstitutional and void, as repugnant to the clause of the Constitution, granting to Congress the power to regulate commerce with foreign nations and among the several states. Peirce v. New Hamp- shire, 5 How., 504, overruled. In Vance v. Vandereook Co. 71 the court reaffirmed its prior decisions upon the subject. The law of interstate commerce and the relation of. the original package thereto, is succinctly stated in the following sylla- bus to the opinion: "It is settled by previous adjudications of this court — (1) * * * (2) That the right to send liquors from one state into another, and to 135 U. S. 100. 7i 170 U. S. 438. 290 PUBLIC HEALTH ADMINISTRATION the act of sending the same is interstate commerce, the regulation whereof has been committed by the Constitution of the United States to Congress, and hence, that a state law which denies such a right or substantially interferes with or hampers the same is in conflict with the Constitution of the United States. (3) That the power to ship merchandise from one state into another carries with it as an incident the right in the receiver of the goods to sell them in the original packages, any state regulation to the contrary notwithstanding; that is to say, that the goods received by interstate commerce remain under the shelter of the interstate commerce clause of the Constitution until by a sale in the original package they have been commingled with the general mass of property in the State. * * * These decisions settled the respective rights of the Federal and State government over goods moving in interstate and foreign commerce. It was determined that a State could not prevent the introduction into its territory of a recognized article of commerce; that it could not prevent the disposition by the importer in the original package of an article of commerce brought into its territory; and that Congress alone could regulate interstate commerce in such goods and the disposition of them in the original package by the importer. This is now the settled law. Hence the food and drugs act asserts the right of the United States to prohibit the sale or disposition of adulterated and misbranded food and drugs imported into a State and remaining in the original package. The next question to be determined is, At what time in the existence of imports does the power of Congress to regulate their disposition cease? Stated otherwise, When does an original package cease to be such and the regulation of its disposition pass beyond the jurisdiction of the Federal Government? This question was answered in general terms by the Supreme Court in Brown v. Maryland, heretofore mentioned, as follows: "It is suf- ficient for the present to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State." In the case of Low et al v. Austin,72 decided in 1871, it was held that — "Goods imported do not lose their character as imports, and become incorporated into the mass of property of the State until they have passed from the control of the importer or been broken up by him from their original cases." Again in Vance v. Vandercook Co., heretofore referred to, it was held that — "Goods received by interstate commerce remain under the shelter of the interstate commerce clause of the Constitution, until by a sale in the original packages they have been commingled with the general mass of property in the State." 72 80 TJ. S. 29. PUBLIC HEALTH POWERS AND LIMITATIONS 291 In the case of Heyman v. Southern Railway Company,73 recently decided, it was said — "In the absence of Congressional legislation goods moving in interstate commerce cease to be such commerce only after de- livery and sale in the original package." From these decisions it will be seen that merchandise brought into a State is protected from State interference only so long as it remains in the original package, unbroken, and in the hands of the importer. If the importer sells the article in the identical condition and form in which imported, or if he breaks the package, it is no longer an original package, but has become merged in the mass of property in the State and subject to its laws. Let these decisions be applied to a hypothetical case under the food and drugs act: A, a wholesale dealer in New York City, ships by ex- press to B, in Hoboken, N. J., a box containing one dozen cans of adulterated condensed milk. B receives them into his store and shortly thereafter sells the box, just as received, to C. B in this example would be liable to the penalties prescribed by the act, because he is the importer and sold the original package. But should C, in due course, sell this identical box to D in Hoboken, he could not be suc- cessfully prosecuted under the act because he is not the importer. When the box was sold by B it lost the character of an original package and became merged in the property of the State, and the State only may regulate its disposition by C. Suppose B, after receipt of the box, opens it and removes a can of the milk, which he sells to C. B is exempt from prosecution under the food and drugs act for the sale of this can or for a subsequent sale of the remaining eleven, even though he sells the eleven in the box. By this act of removing one can he has broken the original package and in con- sequence destroyed the jurisdiction of the United States over it and over him. But suppose B simply removes the top of the box to permit inspec- tion, in no way disturbing the contents, replaces the top, and sells box and milk to C. Has B incurred the penalties prescribed by the food and drugs act? Such a question has not been presented to the Supreme Court, but two cases very similar have been decided by the lower Fed- eral courts. The first case, United States v. Fox,?* decided in 1869, was a suit by the United States under the internal-revenue act of July 13, 1866,75 to recover the penalties therein prescribed for the sale of perfumery without affixing a proper stamp thereon. A proviso in the act pre- scribed that when imported perfumery was sold in the original and un- broken package in which the bottle or other inclosure was packed by the manufacturer the person so selling should not be liable to the afore- said penalty. «203 U. S. 270. "14 Stat. 144. 74 Federal Cases No. 15155. 292 PUBLIC HEALTH ADMINISTRATION Fox sold one small wooden box containing twelve l 1 ,^ -ounce bottles of hair oil and a similar but larger box containing twelve bottles of pomade. He opened both boxes, so that the purchaser might examine the contents. The top of the smaller box was put on again before delivery without change of the contents. In the larger box, containing pomade, Fox, at the request of the purchaser, substituted three smaller bottles taken from the shelf of the store, and nailed up the box. In respect to the smaller box of oil the court said — "Although the top of this box was taken off by the defendant Fox, it was only for the purpose of enabling the witness Quivey to ascertain the kind and quality of its contents, and before the sale and delivery to him it was put on again, with the contents unchanged in kind or quantity. Under these circumstances the defendant must be considered as selling an unbroken package, the contents of which were not then required to be stamped. ' ' But as to the sale of the box of pomade, the court said: "The package was opened, and three bottles being taken out of it, it was sold with only the remaining nine bottles in it. This was a broken package, and so the court instructed the jury. ' ' The verdict of the jury in favor of the defendant, Fox, was set aside on motion of the United States, upon the ground that the package of pomade was not an original package, the court holding: "Goods are sold 'in the original and unbroken package' within the meaning of the act of July 13, 1866,76 although the package is opened for inspection, if closed again before delivery without the contents being changed." In the other case, In re McAllister, 7 7 decided in 1892, the facts were these: Two men, emissaries of a butter dealer in Baltimore, went to the store of McAllister, a dealer in oleomargarine, and sought to buy butter. McAllister stated that he had none, but could supply oleo- margarine. They requested him to remove the lid from the tub of oleomargarine that they might look 'at it. He did so, stating that he could not sell less than 10 pounds, as it reached him in the tub from' Chicago. They purchased the tub and forthwith informed on him. He was duly tried in the State court and convicted. The State Court of Appeals affirmed the conviction, and McAllister applied to the Circuit Court of the United States for a writ of habeas corpus, on the ground that the sale of the tub of oleomargarine was a sale of an original package and beyond the power of the State to prohibit, which it sought to do in an act of the legislature. The court granted the writ and an- nounced the proposition of law involved, in the following syllabus to the case: "Removing the lid of an original package of oleomargarine, so that a prospective buyer may examine its contents, is not such a breaking of the package as will destroy its original character." In reaching the above conclusion the court said : " It is argued that the taking the lid from the tub containing this oleomargarine was a breaking 76 14 Stat. 144. 7751 Fed. 282. PUBLIC HEALTH POWERS AND LIMITATIONS 293 of the package so as to destroy its original character. This in no sense did it do. The goods had in no way become commingled with his prop- erty or the general property of the State. 78 Anyone calling for oleo- margarine with an honest purpose would have purchased this package as an original one, even if he knew it had had its lid lifted off once to see whether or not it held another substance than it purported to hold. The laws of the United States recognize oleomargarine as a merchantable article. Being such, while a State may perhaps regulate its sale, it can not prohibit its importation. The statute in question does this, and is unconstitutional, and in this respect void. The petitioner is discharged. ' ' Upon the authority of these two cases, and following their reasoning, it must be concluded that B, in the last example, is amenable to the penalties prescribed by the food and drugs act. The first of these cases has another and important significance in connection with this decision, namely, the use of the word ' ' unbroken ' ' as synonymous with ' ' orig- inal, " thus substantiating the statement in the preliminary part of this discussion that the courts used the words interchangeably. An example may be profitably introduced at this point to show how far goods moving in interstate commerce may be subjected to seizure under section 10 of the act. A, a wholesale dealer in New York City, ships 50 barrels of flour to B in St. Louis, Mo. This flour may be seized, if adulterated or misbranded, at New York City after delivery to the carrier, or at any point along the route, and may likewise be seized in St. Louis in the hands of the carrier before delivery to B, regardless of the question of whether or not it still remains in original packages, which, in the illustration, are the barrels. After delivery of the flour to B it may still be seized, in his hands, if it remains in the barrels (the original packages) as shipped. But if B, after delivery to him, transfers the flour to 5-pound sacks, or otherwise breaks the bar- rels and commingles the flour with his stock of goods, the original pack- ages have been destroyed, and it is no longer subject to seizure by the United States; nor are the barrels liable to seizure by the United States after B disposes of them to C in Missouri, even though no alteration is made in their condition. Having now briefly reviewed the decisions of the Federal courts as- serting the power of Congress to regulate the disposition of goods imported into a State from elsewhere, it is necessary to advert to the original question of what is an original package. The first distinct definition of an original package by the Supreme Court was announced in the case of Austin v. Tennessee,^ where it was held that : ' ' Original packages are such as are used in bona fide trans- actions carried on between the manufacturer and wholesale dealers resid- ing in different States. ' ' This is hardly an accurate test to determine what is an original pack- ' 78 Low v. Austin, 13 Wall. 29. 79179 u. S. 343. 294 PUBLIC HEALTH ADMINISTRATION age in every ease, and certainly can not restrict the provisions of sections 2 and 10 of the food and drugs act of 1906 to transactions wholly be- tween the manufacturer and the wholesale dealer. If so, the plain intent of the act could be easily defeated, in the case of sales by im- porters in original packages. An illustration will forcibly demonstrate the incompleteness of the definition when applied to the food and drugs act. It will scarcely be gainsaid that a can of tomatoes shipped by a per- son in no way connected with the manufacture or preparation thereof, from one State to a person in another State in no way engaged in the general sale of such commodities, is a shipment and receipt of an orig- inal package, and if the recipient disposes of it in any way, in the form in which it comes to him, he has violated the food and drugs act. The above language of the court is materially modified by its ex- pressions in Schollenberger v. Pennsylvania, heretofore referred to, where it was said: "The right of the importer to sell can not depend upon whether the original package is suitable for retail trade or not. His right to sell is the same whether to consumers or to wholesale deal- ers in the article, provided he' sells them in original packages." A much more satisfactory and exact definition is contained in the decision in Guckenheimer v. Sellers, 80 where it was held that: "An original package within the meaning of the law of interstate commerce, is the package delivered by the importer to the carrier at the initial point of shipment, in the exact condition in which it was shipped." And when this is followed by the expression of the court in the case In re Beine, 81 where it was said: "It is not perceived why, in the absence of a regulation by Congress to the contrary, the importer may not determine for himself the form and size of the packages he puts up for export." It seems there could hardly arise a question in the en- forcement of the provisions of the food and drugs act under consider- ation that could not be tested by the foregoing definitions. Concrete examples of what have been held to be original packages are found in several of the adjudicated cases: Peirce v. New Hampshire: g 2 A barrel of gin. Bowman v. Chicago and Northwestern Railway Company: 83 A bar- rel of beer. Leisy v. Hardin : 8 * One-fourth barrel of beer ; one-eighth barrel of beer; and a sealed case of beer. Schollenberger v. Pennsylvania ;ss 10 and 40 pound tubs of oleo- margarine. Rhodes v. Iowa: 8 s A box of liquors. May v. New Orleans: 87 Box, case, or bale in which were inclosed separate bundles and packages of dry goods. 8 o81 Fed. 997. 84 135 U. S. 100. si 42 Fed. 545. 85 171 U. S. 1. 82 46 U. S. 504. 80 170 U. S. 412. 83 125 U. S. 465. 87 178 U. S. 496. PUBLIC HEALTH POWERS AND LIMITATIONS 295 Austin v. Tennessee: 88 A large open basket in which were shipped numerous pasteboard boxes, each containing ten cigarettes. Plumley v. Massachusetts: 89 A 10-pound package of oleomargarine. In re Beine: 90 A single bottle of beer or whisky, packed, sealed, and mailed up in a pasteboard or wooden box. In re Harmon: 9 * An open pine box containing several pint and quart bottles of whisky, each done up in a paper wrapper or box and sealed. In re McAllister : 9 2 A 10-pound tub of oleomargarine, even though its lid had been removed to allow inspection by the purchaser. United States v. Fox: 9 s A small wooden box containing twelve \ x fa- ounce bottles of oil, even though its top had been removed by the seller to permit inspection by the purchaser. Guekenheimer v. Sellers: 94 A single bottle of beer, if shipped singly; several bottles of beer fastened together and so shipped constitute one package; if several bottles be inclosed in one box, barrel, crate, or other receptacle, the box, barrel, crate, or other receptacle is the original package. In May v. New Orleans, 9 5 decided in 1899, the Supreme Court held that where dry goods were imported into New Orleans from a foreign country in boxes, bales, and cases, each containing separate bundles of merchandise, separately marked and packed, which were so exposed for sale or taken out of the boxes, bales, and cases and sold, the boxes, bales, and cases were the original packages, and when the separate bundles were removed or exposed for sale the goods lost their distinc- tive character as imports and each parcel or bundle became a part of the general mass of property in the State and subject to local taxation. The syllabus of the ease states the law as follows: "May & Co., mer- chants at New Orleans, were engaged in the business of importing goods from abroad, and selling them. In each box or case in which they were brought into this country, there would be many packages, each of which was separately marked and wrapped. The importer sold each package separately. The city of New Orleans taxed the goods after they reached the hands of the importer (the duties having been paid) and were ready for sale. Held: (1) That the box, case, or bale in which the separate parcels or bundles were placed by the foreign seller, manufacturer or packer was to be regarded as the original package, and when it reached its destina- tion for trade or sale and was opened for the purpose of using or exposing to sale the separate parcels or bundles the goods lost their 88 179 U. S. 343. S2 5i Fed. 282. 89 155 U. S. 461. 9 3 Federal Cases No. 15155. 9 °42 Fed. 545. 9 * 81 Fed. 997. 9 i43 Fed. 372. ss 178 U. S. 496. 296 PUBLIC HEALTH ADMINISTRATION distinctive character as imports and each parcel or bundle became a part of the general mass of property in the State and subject to local taxation. ' ' (2) * * * The case In re Harmon as presented the following facts: Harmon was agent in Sardis, Miss., for Jordan, a liquor dealer in Memphis, Tenn. Panola County, in which Sardis is situated, was a "prohibition" county. Jordan shipped from Memphis to Harmon at Sardis a num- ber of boxes containing bottles or flasks of whisky, some containing a pint, others a quart. These bottles or flasks had each a paper wrapper or box placed around it and sealed. These boxes so inclosed were by Jordan placed in ordinary pine boxes, but without caver, closely packed together. They were so shipped, and there was an understanding be- tween Harmon and Jordan that the wooden boxes were to be returned to Jordan when all the bottles or flasks of whisky had been sold. (The fact that these boxes were comparatively valueless and not worth the return express charges exposed the agreement to return them to the suspicion of fraud). Harmon received the liquors in this condition, and when a sale was effected would take each bottle out of the box and deliver to purchaser. He was convicted in the State court for selling liquor. Being imprisoned upon the judgment, he applied to the Circuit Court of the United States for a writ of habeas corpus, alleging the restraint of his liberty in violation of the Constitution of the United States, supporting this contention by the allegation that the whisky was sold in original packages and therefore beyond the jurisdiction of the State to prevent. The decision was as follows: "Where bottles of whisky, each sealed up in a paper wrapper and closely packed together in uncovered wooden boxes furnished by an express company, and marked, 'To be returned,' are shipped from one State to another, the boxes, and not the bottles, constitute the 'original packages' within the meaning of decisions of the Supreme Court upon the interstate com- merce provision of the National Constitution." The case of Gucken- heimer et al v. Sellers et al 97 contains the following definition of an original package : ' ' An original package, within the meaning of the law of interstate commerce, is the package delivered by the importer to the carrier at the initial point of shipment, in the exact condition in which it was shipped. In the case of liquors in bottles, if the bottles are shipped singly, each is an original package, but if a number are fastened together, and marked, or are packed in a box, barrel, crate, or other receptacle, such bundle, box, barrel, crate, or receptacle constitutes the original package." In the Austin ease ss there was presented the question whether or not a pasteboard box containing 10 cigarettes, over one end of which was ae 43 Fed. 372. 98 179 U. S. 343. 97 81 Fed. 997. PUBLIC HEALTH POWERS AND LIMITATIONS 297 securely pasted the United States revenue stamp, was an original pack- age under the circumstances of that case and within the prior decisions of the court. The facts were: The legislature of Tennessee in 1897 passed an act to prohibit the sale of any cigarettes or introduction of them into the State for that purpose. Austin was a merchant in the State and in the course of his business purchased from a factory in North Carolina a number of pack- ages of cigarettes put up in small boxes, containing 10 cigarettes each, there being securely pasted over the end of each box a United States revenue stamp. When the order was received by the North Carolina factory, the packages above described were placed in a pile on the floor of their warehouse and the agent of the Southern Express Company notified to come for them. An employee of the company brought with him a large basket without cover, belonging to his company, in which he gathered the individual boxes and took them to the station for car- riage to Austin, in Tennessee. When the basket containing the pack- ages reached its destination in Tennessee, the agent of the company there took it to Austin 's store and emptied the packages on the counter of the store and took the basket away with him. Austin immediately exposed the cigarettes for sale and sold one package to a customer. He was indicted, tried, and convicted for this sale. His defense was that the package was an original package, and that the law of the State so far as applicable to this transaction was unconstitutional as an inter- ference with interstate commerce. Upon appeal to the Supreme Court of the State the conviction was affirmed. He then sued out a writ of error to the Supreme Court of the United States. A majority of the Justices held that the original package in this case was the basket in which the packages were transported, and not the package sold. They therefore affirmed the judgment of the State court. The results of the conclusions reached are expressed in the syllabus, as follows: "Original packages are such as are used in bona fide transactions carried on between the manufacturer and wholesale dealers residing in different States. Where the size of the package is such as to indicate that it was prepared for the purpose of evading the law of the State to which it is sent, it will not be protected as an original package against the police laws of that State. Where cigarettes were imported in paper packages of three inches in length and one and one- half in width, containing ten cigarettes, unboxed but thrown loosely into baskets: Held, that such paper parcels were not original packages within the meaning of the law, and that such importations were evidently made for the purpose of evading the law of the State prohibiting the sale of cigarettes." The court rested its decision in this case more upon the palpable fraud upon the laws of Tennessee than upon any attempt to analyze the definition of an original package. So in Cook v. Marshall County,* 8 99 196 U. S. 261. 298 PUBLIC HEALTH ADMINISTRATION Iowa, the boxes of cigarettes in the same form as in the Austin case were shoveled into the car in Missouri and delivered to Cook in Iowa in that condition. They were not inclosed in any receptacle, but shipped in bulk. The State imposed a tax of $300 on the business of selling cigar- ettes. Cook resisted the payment upon the ground that he sold only in original packages and was therefore protected by the interstate com- merce clause of the Constitution. Having lost in the State courts, he prosecuted a writ of error to the Supreme Court of the United States, where it was held that Cook was not exempt from the tax; that the manner of dealing disclosed by the facts in the case was a gross fraud upon the laws of Iowa, and the court would not lend its aid to such a proceeding. The question of what was an original package in the case was a matter of minor importance, though the court said the term original package did not include packages which could not be commer- cially transported from one State to another. The syllabus contains the law, as follows: The term original package is not denned by statute, and while it may be impossible to judicially determine its size or shape, under the principle upon which its exemption while an article of interstate com- merce is founded, the term does not include packages which can not be commercially transported from one State to another. While a perfectly lawful act may not be impugned by the fact that the person doing it was impelled thereto by a bad motive, where the law- fulness or unlawfulness of the act is made an issue, the intent of the actor may be material in characterizing the transaction, and where a party, in, transporting goods from one State to another, selects an un- usual method for the express purpose of evading or defying the police laws of the latter State the commerce clause of the Federal Constitu- tion can not he invoked as a cover for fraudulent dealing. This court adheres to its decision in Austin v. Tennessee, 1 - 00 that small pasteboard boxes each containing ten cigarettes, and sealed and stamped with the revenue stamp, whether shipped in a basket or loosely, not boxed, baled, or attached together, and not separately or otherwise addressed but for which the express company has given a receipt and agreement to deliver them to a person named therein in another State, are not original packages and are not protected under the commerce clause of the Federal Constitution from regulation by the police power of the State. From a consideration of all the decisions and upon the basis of com- mon understanding of the words, it seems that an original package within the meaning of the food and drugs act is the unit, complete in itself, delivered by the shipper to the carrier, addressed to the con- signee, and received by him in the identical condition in which it was sent, without separation of the contents in any manner. This unit may 100179 U. S. 343. PUBLIC HEALTH POWERS AND LIMITATIONS 299 be a hogshead containing 500 bottles of wine, or a single can of tomatoes, or it is a small ounce phial of some drug if shipped to the consignee in that form; and if the consignee sells or gives away any one of the three in the unaltered condition in which he received it, if contents be adultered or misbranded, he has violated the act. This presentation of the decisions of the courts would not be com- plete, and certainly not satisfactory, if some reference were not made to three very important decisions, two of the Supreme Court of the United States : Plumley v. Massachusetts i and Crossman v. Lurman - and one of the Circuit Court of Appeals of the Sixth Circuit: Arbuckle Bros. v. Blackburn, Dairy and Food Commission of Ohio. 3 But they are referred to here simply to show that, so far as the food and drugs act of June 30, 1906, is concerned, they are in a sense obsolete. These decisions were rendered prior to the passage of the aforesaid act, and asserted the right of the States to prohibit the sale and traffic in adul- terated and misbranded foods and drugs even in original packages. They were rendered in the absence of Congressional action covering the entire subject-matter of interstate commerce in foods and drugs. Since then Congress has assumed its full authority over the subject by the passage of the act of June 30, 1906. The decisions proceeded upon the well-recognized principle that in the absence of complete Federal regulation of interstate and foreign commerce effect will be given to the legitimate exercise of the police powers of the States, even though incidentally affecting that commerce. There can scarcely be a doubt that since the enactment of the food and drugs act all power of the States over interstate commerce in foods and drugs, including the regulation of importations and sales in original packages, has been abrogated, and the subject is entirely and exclus- ively under the control of the Federal Government. That such is the state of the law is clearly and succinctly shown by the following quota- tion from the opinion of Justice Harlan in the case of Eeid v. Colorado, 187 U. S., at page 146: It is quite true, as urged on behalf of the defendant, that the trans- portation of live stock from State to State is a branch of interstate commerce and that any specified rule or regulation in respect of such transportation, which Congress may lawfully prescribe or authorize and which may properly be deemed a regulation of such commerce, is para- mount throughout the Union. So that when the entire subject of the transportation of live stock from one State to another is taken under direct national supervision and a system devised by which diseased stock may be excluded from interstate commerce, all local or State regulations in respect of such matters and covering the same ground will cease to have any force, whether formally abrogated or not; and i 155 U. S. 461. 3 113 Fed. 616. 2 192 U. S. 189. 300 PUBLIC HEALTH ADMINISTRATION such rules and regulations as Congress may lawfully prescribe or author- ize will alone control. * * * The power which the States might thus exercise may in this way be suspended until national control is abandoned and the subject be thereby left under the police power of the States. This case involved the validity of a certain act of the State of Colo- rado designed to prevent the introduction of infectious and contagious diseases among the cattle of the State. The defendant contended that the act was void as an interference with interstate commerce, and because the subject-matter had already been covered by an act of Con- gress. The Supreme Court sustained the validity of the act of Colorado, because a legitimate exercise of the police power in the absence of com- plete regulation by Congress covering the matter. The act of Congress in force at that time did not attempt a full and complete regulation of interstate transporation of animals. The principal that the State police laws affecting interstate and foreign commerce must yield to the regulation of Congress when it shall assume jurisdiction is well and tersely stated by Freund in his work on Police Power, at page 82, as follows: Sec. 85. The State may enact measures for the protection of safety, order, and morals, though affecting foreign and interstate commerce, subject to the following principles : 1. Every measure of State legislation, however legitimate in itself, yields to positive regulation of interstate or foreign commerce by act of Congress, inconsistent with such measure or intended fully to cover the same matter. (January 31, 1908.) It must be remembered that the commercial expres- sion "original package" is not synonymous always with the legal definition. A drug firm in Baltimore may put up a mixture in certain sizes of bottles, each properly labelled, and sealed, and ready for sale by the retailer. The manufacturers pack these bottles in boxes, each containing a dozen or two dozen. Legally this box is the original package. Commercially each bottle is an original package. But the individual bottle may legally become an original package when, in the course of the retail trade, it shall be shipped from one state to another. It must be remembered, as will be shown in Chapter XVII, that when this bottle is so shipped the guaranty printed upon the bottle will PUBLIC HEALTH POWERS AND LIMITATIONS 301 aot necessarily protect the retailer, if it shall appear that the bottle be mislabelled (§464). § 240. Federal control over manufacture. In United States v. Boyer, 4 which concerned an indictment for attempting to bribe an inspector to consent that dis- eased carcasses might be made into food products, the court held that slaughtering and packing of cattle intended for transportation to other states and terri- tories was not interstate commerce, or subject to reg- ulation by Congress; that inspection of meat during the process of packing belongs to the states; that the inspector was not performing a duty as a federal offi- cer, and that therefore the attempt to bribe was not a federal offense. Therefore Prentice and Egan 5 con- clude that federal laws relative to the inspection of meat during the process of packing, or other federal control over manufacture is beyond the constitutional authority of the nation. It certainly is true that inter- state commerce cannot strictly begin until after the process of manufacture has been completed. It is also true that there is hardly any article of manufacture which is not, to a greater or less extent, a subject of interstate commerce. To grant full federal control over such manufacture would imply the authority to control nearly all of the operations of the citizens. As was remarked in Kidd v. Pearson, 6 "Does not the wheat grower of the Northwest, and the cotton planter of the South, plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York, and Chicago? The power being vested in Congress and denied to the states, it would follow as an inevitable * 85 Fed. Rep. 425. « 128 U. S. 1. 5 Commerce Clause of the Fed- eral Constitution, 34 and 339. 302 PUBLIC HEALTH ADMINISTRATION result that the duty would devolve upon Congress to regulate all of these delicate, multiform, and vital interests — interests which in their nature are and must be local in all the details of their successful manage- ment." It seems to us that the fault in this line of argument is in the failure to clearly distinguish between interstate and local commerce. It is clearly within the province of the federal government to pro- hibit interstate commerce in diseased meat. That is admitted. It is also admitted that the detection of evidence of disease in meat may be much more thor- oughly and satisfactorily made at the time of slaughter- ing. It seems, therefore, fully within the province of the federal government to require evidence of such inspection upon all carcasses shipped in interstate, or foreign commerce. An officer inspecting goods during interstate or foreign transportation is clearly within the authority of the federal government. It seems that an officer who inspects goods for admission to such traffic would equally be within the constitutional provision giving to Congress full authority over such commerce. "With due deference to the learned judge in the Boyer case, it seems to us that such an inspector is performing the duties of a federal officer. He may not, perhaps, under federal regulations, absolutely refuse to permit such diseased meat to be placed among articles of food, but it would seem to be his duty to insure its exclusion from interstate or foreign commerce. It is of the utmost importance that such articles of commerce as antitoxic sera be absolutely reliable. Much harm might be done before a fault be detected, unless the process of manufacture be carefully super- PUBLIC HEALTH POWERS AND LIMITATIONS 303 vised. The bacillus of tetanus has been spread in diphtheria antitoxin, and the germs of the foot and mouth disease were scattered through the country in the virus of vaccina. For the government to rely upon examinations of samples sent out alone, would be to delay detection of danger until after the harm has been done. The inspection of the animals before the virus is collected, and the supervision of the care with which the manufacture is conducted, are absolutely necessary for federal control over this line of com- merce. It is therefore required that such manu- facturers, engaged in interstate commerce, shall take out government licenses, and such general supervision is required in the taking of a license. This does not interfere with manufacture for domestic consumption. Neither need it interfere with state regulation of manu- facture. Unfortunately state regulation of the manufacture of biologic products is often very lax and inefficient. In one case where several deaths were caused by diphtheria antitoxin contaminated with the virus of tetanus, the product was manufactured for local con- sumption, and not under federal control. Because of the laxity of state control, unless federal supervision be required for manufacture of such products, the federal government would be practically powerless to control the matter. Further, to leave this necessary supervision to the states would be to deny the sovereignty of the nation in this regard, and it would take from Congress full control over interstate com- merce. § 241. Authority versus policy. Much may fre- quently be accomplished without full authority. 304 PUBLIC HEALTH ADMINISTRATION According to our interpretation it is the duty of meat inspectors to make sure that no diseased meat shall enter interstate or foreign commerce. When a carcass has been condemned it would seem to be official duty to make sure that it should not by any possibility be returned to the lot of accepted pieces. It would seem reasonable to require that such carcasses be sent at once to a rendering establishment. Such a rule, or regulation might very properly be made by the super- vising officer as a condition of inspection. True, he might have no authority to order such destruction, according to the constitutional provisions; but the requirement would still be reasonable. There is no constitutional provision which gives a shipper a right to export his goods. The provision which gives to Congress sole authority in regulating interstate com- merce, is sufficient to cover any reasonable regulations with which the shipper must comply. It is a purely voluntary agreement. There is no compulsion about it. The government says to the shipper, when you comply with these regulations you may make the ship- ment; and the shipper says to the government, I will comply with these regulations on condition that I may then make shipment. If he fails to keep his part of the agreement, the contract is rendered null, and ship- ment may then be denied to him, not only as to the articles specially condemned but reasonably he may be refused any shipment. Having broken his contract he cannot be trusted. On the other hand, if he does not wish to comply with the regulations, he may still dispose of his merchandise to local customers, so far as federal control is concerned. He has not been deprived of his property, nor of its lawful use. PUBLIC HEALTH POWERS AND LIMITATIONS 305 The government may not lawfully demand that a condemned carcass be destroyed. It may require this act as a part of its contract with the shipper, but it may not make this absolute demand. Compliance with the requirement rests with the will of the shipper. It would seem to be bad policy for him to refuse to com- ply, for that would of necessity exclude his products from the wider commerce, and it would put his more valuable products upon a par with those of less value. Still, in the absence of state legislation, should the condemned carcass be forcibly taken without his con- sent, it is probable that he might legally recover from the officer so taking, for it is probable that such for- cible taking would not be considered as authorized under the federal Constitution. The officer in such case would be exceeding his authority, and therefore would be not an officer in that act, but a private wrong doer. Reasonable policy may therefore accomplish that which may not be covered by constitutional provisions. This would be lawful, though not authorized by law, in the sense that it implies authority. The only author- ity in the matter is the authority under contract. § 242. Federal control over means of transportation. Federal control over interstate and foreign commerce includes of necessity the means used for the commerce. A statute of Louisiana required separate accommodations for whites and negroes, but it was held that this statute could not apply to steamers ply- ing the Mississippi river, even though the passengers be traveling from one point in the state to another. If such a law be valid, a neighboring state might with equal propriety order that separate accommodations 306 PUBLIC HEALTH ADMINISTRATION be not furnished, and this would work confusion with interstate commerce. 7 In the case of railways, the same statute may be complied with by adding extra cars to the train, and the statute would be within the constitutional power of the state so long as it did not operate upon interstate traffic. 8 It is fully within the authority of Congress, therefore, to enact such statutes as may be indicated for the preservation of the lives and health of those engaged in interstate traffic. Con- gress has acted under this right to regulate the condi- tions under which ships may be navigated upon interstate waters, or the high seas. It may properly go further. Epidemics of typhoid fever have been traced to the water used for drinking purposes upon Mississippi river steamers engaged in interstate traffic. One series of such epidemics occurred as the result of carelessness upon an excursion boat which touched three states, Illinois, Iowa, and Missouri, and the epi- demics were found in each state. Certain excursion boats upon Lake Michigan were found to yield an undue proportion of typhoid patients for the marine hospitals. Investigation showed that, though the water for the drinking tanks was taken in out in the lake, while the boats lay in the Chicago or Milwaukee harbors it was customary to use the same pipes for pumping water for the boilers. In that way the drink- ing water was also polluted. Clearly, neither the state of Illinois, nor that of Wisconsin, could have jurisdic- tion over such a matter, though it be of a purely police nature. The responsibility must rest with the federal government to give this protection to its citizens. 7 Hall v. DuCuir, 95 U. S. 485. s Louisville, etc., Ry. Co. v. Mis- sissippi, 133 U. S. 587. PUBLIC HEALTH POWERS AND LIMITATIONS 307 So on the railroads engaged in interstate traffic, it is qnite within the province of the federal government to make such rules as to car couplers as will serve to prevent accidents. It might very properly also enact rules and regulations for railway employees engaged in the care of interstate cars, so as to prevent acci- dents. "The power of Congress under the commerce clause of the Constitution is plenary and competent to protect persons and property moving in interstate com- merce from all danger, no matter what the source may be; to that end Congress may require all vehicles, moving on highways of interstate commerce to be so equipped as to avoid danger to persons and property moving in interstate commerce. ' ' 9 Under general authority granted to the Public Health Service, general rules and regulations have been issued governing the various matters connected with interstate transporta- tion, specifying as to the cleaning of cars, supply of water and ice for cars, disinfection of cars, etc. The authority resides with the nation and policy indicates that this authority should be so used. So long as these matters are left under the control of individual states, there has been such conflict as to requirements that the railroad companies have been embarrassed, and state governments have found difficulty in enforcing their own laws. § 243. Purity of interstate waters. Under the com- merce clause of the Constitution Congress has seen fit to take charge of navigable waters. (§ 442.) Before a city may do anything which will by any possibility interfere with navigation, as by extending a water in- » Southern Ry. Co. v. U. S., 222 U. S. 20. 308 PUBLIC HEALTH ADMINISTRATION take pipe into a lake or river, it must receive federal permission. There may possibly be some question as to the authority of Congress to legislate to prevent pol- lution of such interstate waters. In the case of such pollution by the citizens of one state, the citizens of another state, injured thereby, might, upon proof thereof, collect civil damages from the offending state. Such civil damages might be assessed so high as to force the offending state to abate the nuisance, but such action is really civil, not governmental. True, commerce may be conducted on the waters without the use of boats, as when logs are floated from one place to another, and on the same basis it has sometimes been claimed that the transportation of disease germs in the water could come under the federal control of com- merce. Desirable as this reasoning seems to be in this case, it does not appear to us that it is sound. Disease is often an attending evil of commerce, but disease germs are not subjects of commerce. 10 It will not be permitted that at one time one interpretation be placed upon a subject, and at another time, though for good reason, the interpretation be reversed. That must of necessity work confusion, and give rise to a claim of arbitrariness on the part of the court. By very many decisions the powers of Congress over navigable waters are those which pertain to preserving such waters as a means of communication. It is true that if the dis- charge of a sewer into a navigable stream tends to obstruct navigation Congress would have full power to prohibit such discharge; but it would seem that there must be an actual obstruction to navigation, clearly 10 License Cases, 5 How. 504, 465 ; Commsrs. of Immigration v. 576; Leisy v. Hardin, 135 U. S. Brandt, 26 La. Ann. 29. 100; R. R. Co. v. Husen, 95 U. S. PUBLIC HEALTH POWERS AND LIMITATIONS 309 traceable to the sewer. Such obstruction may be shown in some streams to a degree which would war- rant action of Congress. It seems doubtful, however, in case of such legislation by Congress that the act would be held valid in the absence of such actual obstruction. Water itself may be an object of commerce, and as such it is clearly within the authority of Congress to pass such legislation as shall be necessary and rea- sonable to preserve the purity of waters transported from one state to another. Apparently it matters not whether that water be transported in bottles, casks, tanks, conduits, or by open channels, the authority of Congress would be the same. In point of fact each method has been used for the interstate traffic in water, except possibly the last mentioned. Apparently there should be a distinction between a case in which the water of a spring, or lake in one state is piped, or otherwise conducted into another state, and either the water itself is sold, or the ground from which it is derived is sold or leased to the water company or municipality, and a case in which the waters arising in one state, but flowing through a natural channel into or by another state, are there taken for domestic use. In the one case it would seem to be within the power and duty of the federal government to enact such statutes as shall prevent pollution, and preserve the purity of the waters thus supplied. It is within the power of Congress, for such waters are clearly articles of interstate commerce. It is the duty, for the source of supply, being within the limits of another commonwealth, is out of the jurisdiction of the state whose citizens are dependent upon this water. Water 310 PUBLIC HEALTH ADMINISTRATION taken from a stream or lake, where the intake is sit- uated within the state using the water, can hardly be called interstate commerce, although the origin of the water be in an adjoining state. The commercial nature of the article begins and ends within one state. Article 1, Section 8, paragraph 10 gives to Con- gress power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." Article III, Section 2 of the Constitu- tion grants to the federal courts jurisdiction over ' ' all cases of admiralty and maritime jurisdiction. ' ' Neither of these provisions would seem to warrant legislation by Congress prohibiting the pollution, from a sani- tary point of view, of interstate lakes and rivers. The term "high seas" has been legally interpreted as referring to extra territorial waters, and not including tidal rivers, bays, and harbors. 11 Pollution of the waters through the discharge of sewage is within the police jurisdiction of the individual states, and is not therefore on the high seas. It is within the tide waters. As to water supply, moreover, the problem is not on the salt waters, but the inland lakes and rivers. Pol- lution of oyster beds, as affecting articles of interstate traffic, might be lawfully prevented by the federal gov- ernment on other grounds, even though within the tidal waters. It is not the pollution of the waters, but the pollution of the oyster beds which would then be the object of the legislation. Again: the term "felonies" refers to grave crimes, rather than to misdemeanors, whereas pollution of the ii U. S. v. Wiltberger, 5 Wheat. son, 398 ; IT. S. v. Bevans, 3 Wheat. 76; U. S. v. Grush, 5 Mason, 336; U. S. v. Furlong, 5 Wheat. 290; U. S. v. Boss, 1 Gallison, 624, 134; U. S. v. Holmes, 5 Wheat, but see DeLovio v. Boit, 2 Galli- 412. PUBLIC HEALTH POWERS AND LIMITATIONS 311 water supply would be classified as a misdemeanor. The federal government has admiralty and maritime jurisdiction relative to matter within harbors, and rivers; but such jurisdiction refers exclusively to matters pertaining to the conduct and care of the boats, with their management. Although the Great Lakes and rivers may each be interstate, there is no portion which is not intra state. The area of Lake Michigan, for example, is entirely divided between Indiana, Illinois, Michigan, and Wis- consin. By the constitution of Illinois the boundary of the state is fixed at the middle of the lake, and by statute, the jurisdiction of Cook and Lake Counties extends to the same line. Although the ordinary juris- diction of a city upon the shores of the lake extends only three miles from low water mark, the jurisdiction of the same city may extend ten miles out to protect the purity of its water supply. Though the admiralty jurisdiction of the federal government extends into the harbors, Congress has no general police jurisdiction over any portion of the lake. Many members of the bar, generally well informed, seem to be quite ' ' at sea ' ' upon this point, affirming that the jurisdiction of the state extends only three miles from the shore. We find, however, no basis for such a statement, as the charters of the states, and the acts of Congress estab- lishing the states, clearly so fix state boundaries as to include all of the waters within the limits of the nation. Contractors dredging the Chicago river, under the authority of the War Department, were accustomed to dump their dredgings where they polluted the water supply of the city of Chicago, contrary to the ordi- nances of the city. Upon appeal having been made to 312 PUBLIC HEALTH ADMINISTRATION the authorities at Washington, Mr. Attorney General Griggs gave an opinion saying, ' ' "While an ordinance of the city of Chicago may, as to all persons subject to its jurisdiction, forbid the deposit of any heavy substance in the waters of Lake Michigan within eight miles of the shore in front of that city, it cannot control or limit the power of Congress over the navigable waters of the United States, nor dictate where it shall or where it shall not deposit, within such waters, material removed in the improvement of one of its harbors." It seems unfortunate that this matter was not taken to the high court for determination. The problem was solved by an act of Congress prohibiting the dumping com- plained of. The ex cathedra statement of the Attorney General seems to ignore certain facts. As regards obstruction to navigation the opinion seems to be sound, but the complaint was not with reference to navigation. The filth removed from the river bottom was laden with the germs of disease, and being dumped near the intake cribs the water supply of the city was polluted. The place where the dumping occurred was well within the limits of the state. The state had granted to the city full authority to protect the purity of its water supply, to a point ten miles from the shore. Within that authority the city had prohibited such dumping. This was all within the police power of the state to protect the lives and health of its citizens. As will be subsequently shown, by numerous cases the Su- preme Court of the United States has always upheld this police power of states to protect life and health. An officer who commits an illegal act is in such act no longer an officer, but a private wrong doer. In making a contract with the dredging company, therefore, it PUBLIC HEALTH POWERS AND LIMITATIONS 313 was presumed that the government expected the dredg- ing company to so dump its dredgings that they would not violate either the laws of the state or city pertain- ing to health. The Attorney General, in his opinion, distinctly admitted the power of the city to enact the ordinance. He simply denied that agents of the fed- eral government were subject to such ordinances. In substantiation of his claim he cited no cases, and he forgot the sanitary nature of the ordinance. § 244. Enforcement of state acts. There is one fur- ther clause of the federal Constitution which may assist sanitary measures to some extent. The first sec- tion of Article IV directs: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state; and the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved and the effect thereof. ' ' It has been a custom of parties divorced, and by the divorce prohibited from remarrying within a stated time, to dodge or attempt to dodge, this prohibition, by going to another state and there marrying according to the laws of the second state. Such marriages have been declared illegal by Judge Tuttle of the Superior Court of Cook County, but the matter has not been passed upon by the Supreme Court. It would seem, under this Section of the Constitution, to be within the authority of Congress to make such marriages crim- inal, and subject all participants in such illegal mar- riages to certain prescribed penalties. Under the existing circumstances, the clerk in the second state, and the minister performing the ceremony, are not subject to the jurisdiction of the state in which the 314 PUBLIC HEALTH ADMINISTRATION divorce is granted. Though the participants in such second marriage may be guilty of contempt of Court, they are free so long as they remain without the juris- diction of the Court. Apparently the only means open for enforcing such prohibitive decrees is by congress- ional action. Marriage has a direct relationship to that field of public health designated as Eugenics, which pertains to the betterment of the race. It is possible, also, that in other matters pertaining to the public health, this same provision of the Constitution may be applicable. State § 245. Sanitary authority of the states. The Tenth Amendment to the federal Constitution provides: "The powers not delegated to the United States by the Con- stitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." This provision was not included in the original draft of the Constitution. It seemed to be a reasonable stipulation insisted upon by the representatives of certain state ratification conventions. Included under this reservation is that peculiar authority called police power. Originally this power pertained only to the internal affairs of the individual state. At the time of the adoption of this amendment the states were not thickly settled and as compared with the present time they were isolated. The provisions necessary under the then existing conditions were not numerous. As has been shown by Professor Beard, 12 the demand for the 12 An Economic Interpretation of the Constitution of the United States. PUBLIC HEALTH POWERS AND LIMITATIONS 315 enactment of the Constitution was largely commercial in origin, and the provisions adopted were very largely those which seemed desirable for the safe- guarding of business transactions. Practically the only ordinary relationships between the citizens of different states were those pertaining to commerce. There was no science of preventive medicine at that time. Any community might adopt such methods as seemed requisite for the protection of the lives and property of its citizens, without any possible injury to citizens of other states, so long as commercial rela- tionships were not disturbed. The Congressional con- trol over interstate traffic therefore gave all the pro- tection needed to the citizens of one state from the actions or negligence of other states. Today all this is changed. This provision, which was never really needed, and was inserted simply to satisfy the fears of some colonists, has now become a serious hindrance for the nation. There is great con- fusion occasioned by the diverse laws of the states relative to marriage and divorce, for example. The fact that a man may be permitted to practice medicine in one state grants relatively little assurance that he may be permitted to enter practice in any other. So long as he is a law abiding citizen he may go freely from one state to another, and he may engage in almost any business. He may know before he starts from his old to his new home that he may thus engage in ordi- nary business, but there is always an uncertainty as to a physician's being able to get a license in another state. Here the federal government is weak. It can afford him no protection. The federal government may make treaties with foreign nations pertaining to 316 PUBLIC HEALTH ADMINISTRATION the reciprocal rights of citizens. The states may not have such foreign relationships; but any state may more or less effectually block the efforts of the nation. Questions relating to the relative powers of the state and nation give rise to many expensive litigations. No longer are the states isolated commonwealths. The boundaries between states are imaginary lines which work great confusion of authority. The provi- sion which was at first innocent has become a hind- rance. It is the one great defect in the Constitution — the one great blemish in the national idea. The abro- gation of the Tenth Amendment to the Constitution would empower the national government to take the full charge of conflicting methods, and to bring har- mony in the place of chaos. Only this repeal of the Tenth Amendment can raise the nation to the dignity which it should attain. It has served its purpose. Its preservation can give no further advantage to the grand cause of government, but it may be used as one of the tools for attaining petty advantages against the general good. While it might often be desirable that the nation have full authority in all matters pertaining to the public health, the condition which confronts us is one of fact, not of ideals. Since the basis of most opera- tions for the preservation of life and health is in police power, and since that power is reserved to the states by the Constitution, it necessarily follows that the supreme authority in almost all legislative or execu- tive action for such preservation of health resides in the individual states. §246. State authority in health recognized by the federal government. The national government has PUBLIC HEALTH POWERS AND LIMITATIONS 317 recognized the authority of the states in matters per- taining to health. Congress, in a general law relative to quarantine, has directed federal cooperation with state laws and officials. 13 In harmony with this idea the naval authorities surrendered an infected vessel to the health officer of a port. The supreme court of New Hampshire held 14 that this did not make the port health official an officer of the United States. § 247. Conflict between state health regulation and national law. Although national laws are superior to those of the individual states when alike in nature, the inherent necessity of certain kinds of governmental action gives them greater importance than other classes of legislation or administration. The motto of police power is Salus populi est suprema lex. That which is necessary to preserve the life and health of citizens is more important than mere commercial rela- tions. It does sometimes happen, therefore, that a state law or regulation pertaining to health adminis- tration may be given preference over a federal statute or even the provisions of a treaty with a foreign country. § 248. State stoppage of navigation. A leading case showing that the state laws may successfully interfere with national administration was the Blackbird Creek case, decided in 1829 by the Supreme Court of the United States. 15 This case, which was not at the time deemed important, and was not elaborately considered by the court, has been the basis upon which subsequent decisions have been founded, involving very much more than did this. The Blackbird Creek Company, 13 See. 3 of Act of Feb. 15, 1893. is "Wilson v. Blackbird Creek Co., i* Delano v. Goodwin, 48 N. H. 2 Peters, 245. 203. 318 PUBLIC HEALTH ADMINISTRATION incorporated under the laws of Delaware, was the owner of marsh lands bordering Blackbird Creek. The tide ebbed and flowed in this creek, and it was used for the navigation of small vessels. In order to reclaim the marsh land the Company empowered by the state of Delaware erected a dam across the creek. Wilson was the owner of a sloop licensed and enrolled under the statutes of the United States. He found that the dam arrested his course, and he therefore broke and injured the dam. The Company sued him for damages. Wilson justified his trespass by setting up his license and enrollment, and his right to navigate the creek, and that the dam was an unlawful obstruction to his right which he might properly, and did, remove. The Company demurred. The only question arising was the validity of the statute of the state of Delaware. The supreme court of the State upheld this validity of the statute, and found for the plaintiff. Wilson then appealed to the Supreme Court of the United States. Chief Justice Marshall delivered the opinion of the Court, as follows : "The act of Assembly by which the plaintiffs were authorized to construct their dam plainly shows that this is one of those many creeks passing through a deep, level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the prop- erty on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabi- tants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those powers which are reserved to the states. But the measure authorized bj^ PUBLIC HEALTH POWERS AND LIMITATION'S 31 ( J this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accus- tomed to use it. But this abridgment, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Dela- ware and its citizens, of which this court can take no cognizance. The counsel for the plaintiff in error insist that it comes in conflict with the power of the United States to regulate commerce with foreign nations, and among the several states. If Congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control state legislation over these small navigable creeks into which the tide flows, we should not feel much difficulty in saying that a state law coming in conflict with such an act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states; a power which has not been so exercised as to affect the question. We do not think that the act empowering the company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate com- merce in its dormant state, or as being in conflict with any law passed upon the subject.' ' At a later date the state of Pennsylvania passed an act enabling the city of Philadelphia to erect a bridge across the Schuylkill river, below the docks of one Gil- man. This bridge, being permanent, and only thirty feet above the water, would prevent coal bearing ships having masts to come to Oilman's dock. Gilman 320 PUBLIC HEALTH ADMINISTRATION therefore sought to enjoin the city from erecting the bridge, basing his plea upon its interference with com- merce. The Supreme Court upheld 16 the power of the city and state, basing their decision upon the Blackbird Creek case. Justice Clifford, Wayne and Davis concurring, delivered a dissenting opinion, and affirmed that the Blackbird Creek case was decided as a sanitary measure. He said: "Judgment was ren- dered in that case by the same court which gave judg- ment in the case of Gibbons v. Ogden; 17 and there is not a man living, I suppose, who has any reason to con- clude that the constitutional views of the court had at that time undergone any change. Instead of overrul- ing that case, it will he seen that the Chief Justice who gave the opinion did not even allude to it, although as a sound exposition of the Constitution of the United States, it is second in importance to no one which that great magistrate ever delivered. Evidently he had no occasion to refer to it or to any of its doctrines, as he spoke of the creek mentioned in the case as a low sluggish water, of little or no consequence, and treated the erection of the dam as one adapted to reclaim the adjacent marshes and as essential to the public health, and sustained the constitutionality of the law authorizing the erection, upon the ground that it was within the reserved police power of the state. ' ' There was no sanitary question involved in the Philadelphia bridge case. The state of New York enacted a statute which required masters of vessels arriving at New York from a foreign port, or from a port in another state, to make i6 Gilman v. Philadelphia, 3 it 9 Wheat. 1. Wall. 713. PUBLIC HEALTH POWERS AND LIMITATIONS 321 a report in writing within twenty-four hours after arri- val, giving the names, ages, and last place of residence of all passengers. One Miln having arrived with pas- sengers, and having failed to make report as required by the statute, was sued. He defended his action on the ground that the state statute was a violation of that portion of the Constitution which gave to Con- gress jurisdiction over interstate and foreign com- merce. This case was carried to the high court, and the authority of the state in the matter was upheld as a police measure. 18 It was not a regulation of com- merce. The court said: "It is apparent from the whole scope of the law, that the object of the legisla- ture was to prevent New York from being burdened by an influx of persons brought thither in ships, either from foreign countries, or from any other of the states; and for that purpose a report was required of the names, place of birth, etc. of all passengers, that the necessary steps might be taken by the city authorities to prevent them from becoming chargeable as paupers. Now we hold that both the end, and the means here used, are within the competency of the states. * * * "That a state has the same undeniable, unlimited jur- isdiction over all persons and things within its terri- torial limits, as any foreign nation, where that juris- diction is not surrendered or restrained by the Con- stitution of the United States: that, by virtue of this it is not only the right but the bounden and solemn duty of a state, to advance the safety, happiness, and welfare, by any and every act of legislation which it may deem to be conducive to those ends, where the is City of New York v. Miln, 11 Pet. 102. 322 PUBLIC HEALTH ADMINISTRATION power over the particular subject, or the manner of its exercise, is not surrendered or restrained in the manner just stated : that all these powers which relate to municipal legislation, or what may, perhaps, more properly be called internal police, are not thus sur- rendered or restrained; and that consequently, in rela- tion to these the authority of a state is complete, unqualified, and exclusive." In Gibbons v. Ogden, 19 while speaking of inspection laws, Chief Justice Marshall said : ' ' They form a por- tion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government; all which can be most advantageously exercised by the states them- selves. Inspection laws, quarantine laws, health laws of every description — are component parts of this mass. No direct general power over these objects is granted to Congress; and, consequently, they remain subject to state legislation." Likewise, we find the statement in Barbier v. Con- nolly, 20 that the police power of the state includes the authority "to prescribe regulations to promote the health, peace, morals, education, and good order of the people." And in Jacobson v. Massachusetts, Mr. Jus- tice Harlan says: 21 "The authority of the state to enact this statute is to be referred to what is commonly called the police power — a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of the power, yet it has distinctly recognized the authority is 9 Wheat. 1- 21 197 IT. S. 11, 25. 20 113 TJ. S. 27, 31. PUBLIC HEALTH POWERS AND LIMITATIONS 323 of a state to enact quarantine laws and 'health laws of every description;' indeed all laws that relate to mat- ters completely within its territory, and which do not by their necessary operation affect the people of other states." § 249. State authority in matters of health is exclu- sive. From these and other decisions it is apparent that the power to legislate on matters pertaining directly, and solely, to the health of the nation resides in the individual states, and that the federal govern- ment has no authority in the subject. This is true, though in their necessary operation they do today often affect the people of other states, and perhaps they may even conflict with our relationship with for- eign nations. Federal statutes relative to health are therefore practically advisory. For that reason the national quarantine law directs federal officers to rec- ognize state and local statutes and regulations, and to cooperate with local officers. As previously stated, under the commerce clause the national government may stand guard at the confines of the state. "Within the state it has no authority. The national govern- ment does sometimes send its officers into the states to aid in sanitary work. It does so at the request of local officials. Because of greater efficiency, due to a broader training, the national officers may be given charge; but in these cases they are practically loaned to the states, and the authority comes from the state, not from the nation. This was the case when Surgeon "White took charge at New Orleans to exterminate yellow fever. It was true also when the national Public Health Service undertook the extermination of the bubonic plague from California. The advisorv character of the 324 PUBLIC HEALTH ADMINISTRATION national health service is further shown in the inves- tigations relative to different epidemic diseases, with the instruction given as to preserving the purity of water supplies, care of milk, and prevention of the hook-worm disease, for example. The authority rests in the state. National influence must be advisory. § 250. State sanitary authority may override federal authority. As Mr. Justice Harlan has said : 22 " The mere grant to Congress of the power to regulate com- merce with foreign nations and among the states did not, without legislation by Congress, impair the authority of the states to establish such reasonable regulations as were appropriate for the protection of the health, the lives, and the safety of their people. ' ' This power of the state has been sustained, even when it stopped navigation, 23 as by a dam on Kinloch Creek: or by a dike erected in the interest of public health. 24 The syllabus in Morgan's Steamship Co. v. Louisiana Board of Health says: 25 "The system of quarantine laws established by the statutes of Louisi- ana is a rightful exercise of the police power for the protection of health which is not forbidden by the Constitution of the United States. While some of the rules of that system may amount to regulations of commerce with foreign nations or among the states, though not so designed, they belong to that class which the states may establish until Congress acts in the matter, by covering the same ground, or forbidding state laws. Congress, so far from doing either of these things, has, by the act of 1799 26 and previous 22 N. Y., N. H. & H. R. v. N. Y., 24 Leovy v. U. S., 177 U. S. 621. 165 U. S. 628, 631. 25 H8 U. S. 455. 23 Manigault v. Springs, 199 U. 26 Chap. 53, Rev. Stat. S. 473. PUBLIC HEALTH POWERS AND LIMITATIONS 325 laws, and by the recent act of 1878 27 adopted the laws of the states on that subject, and forbidden all inter- ference with their enforcement. ' ' The power of the state relative to quarantine was upheld by the Supreme Court, when a steamship com- pany was not permitted to land its passengers at cer- tain Louisiana ports then under quarantine, though those passengers were not diseased, nor had they been exposed to any infectious disease, so far as was shown, and though those passengers had sailed from certain European ports, in accordance with treaties made between United States and European nations. 28 (§408). § 251. State laws not conclusive as to authority. While it is true that in matters pertaining to the public health the individual legislatures are practically supreme, it is not sufficient that the legislature be satisfied that there is necessity for action, neither has it an unlimited choice of methods. State statutes are subject to the review of the federal courts and they may there be set aside. "The federal courts do not accept as conclusive the judgment of the state leg- islature that a measure restraining commerce is called for by the interest of public health, but inquire in every case whether there is a legitimate exercise of the police power." 29 Although the court set aside, as an unconstitutional interference with commerce, a statute of Missouri which prohibited the importation of cattle during certain months from certain specified territory, which was commonly infected by the Texas cattle 27 20 Stat. 37. 29 Freund, Police Power, Sec. 28 Compagnie Francaise de Navi- 387. gation a Vapeur v. Louisiana State Board of Health, 186 U. S. 380. 326 PUBLIC HEALTH ADMINISTRATION fever, 30 the same court upheld the law of Texas which prohibited the importation of cattle from infected ter- ritory, saying: 31 "the prevention of disease is the essence of a quarantine law. Such law is directed not only to the actually diseased, but to what has become exposed to disease." The Missouri statute was a bar against a certain territory, without necessary refer- ence to infection; but cattle might be imported from other territory which was infected. The Texas law excluded only cattle from actually infected territory. One was a law against a geographic area; the other was against a disease. With reference to the Missouri statute in another case, the court said: 32 "No attempt was made to show that all Texas, Mexican, or Indian cattle coming from the malarial districts during the months mentioned were infected with the disease, or that such cattle were so generally infected that it would have been impossible to separate the healthy from the diseased. Had such proof been given, a dif- ferent question would have been presented for the consideration of the court." Quarantine regulations against infected areas have been repeatedly upheld. 33 § 252. Meat inspection. It is well recognized that the states are empowered to legislate for the preserva- tion of the purity of the food supply. It is true that an inspection of meat may best be made where it is slaughtered, for the appearance of an animal on the hoof may show at a glance facts which might easily 30 Ey. Co. v. Husen, 5 Otto, 465. 33 Easmussen v. Idaho, 181 IT. S. 3i Smith v. St. Louis & South- 198 ; Smith v. St. Louis & S. W. western Ey. Co., 181 IT. S. 248, E, Co., 181 IT. S. 248; Eeid v. 255. Colorado, 187 IT. S. 137. 32Kimmish v. Ball, 129 U. S. 217. PUBLIC HEALTH POWERS AND LIMITATIONS 327 be overlooked after the meat is exposed for sale; but a law prohibiting the sale of meat which had not been inspected in the state before slaughter is a prohibition against the importation of an article of commerce. 34 Such a statute is not essentially a health proposition. Its real action is commercial — a restraint of commerce in the interest of local industries. It is therefore an unconstitutional invadement of the authority of Con- gress. So, also, a Virginia statute was declared uncon- stitutional, which required the inspection of all flour imported from other states, with the payment of a fee therefor, but it did not require a like inspection of flour made within the state. 35 Both of these statutes made an arbitrary difference between the state in which they were enacted and other states, and that difference did not exist in sanitary conditions. Another Virginia statute permitted the sale of meat a hundred miles or more from the place of slaughter only after inspection by local officers, and the payment of fees therefor, amounting to one cent per pound. This was set aside as unconstitutional on the ground that the tax was so onerous as to be practically a prohibition, and it was therefore an interference with commerce, unjustifiable on sanitary grounds. 36 § 253. Authority of state must be evident in the act. Granting, then, that the state has full authority to leg- islate for the preservation of health, and admitting that it is the duty of the state thus to protect its citi- zens, it is evident that the statute passed must clearly show that it is a sanitary measure, in purpose and in 34 Minnesota v. Barter, 136 TJ. 36 Brimfher v. Rebman, 138 TJ. S. 313. S. 78. 35Voight v. Wright, 141 U. S. 62. 328 PUBLIC HEALTH ADMINISTRATION operation. It will not do for the state to attempt to gain a commercial advantage under the cloak of sani- tation, though evidently commercial advantage may locally accrue from the enforcement of a strictly sani- tary provision; but such commercial advantage must be incidental and secondary to the greater object of sanitation. There must be evident a need for the enact- ment, and the means used must be reasonable, and designed to attain the object with the least possible interference with commerce. Even a statute like that prohibiting the importation of Texan cattle into Mis- souri might be upheld in its operation if its enforce- ment were limited to cases of actual danger; but it would manifestly be better were the statute so drawn as to be always upheld, thus leaving no opening for the plea that its execution was arbitrary. City § 254. Relation of municipality to state. The gov- ernmental relationship between city and state is not at all analogous to that existing between the state and the nation. The city has no powers but those which are expressly given it by the state. The state has received nothing of authority from the nation. All power originally belongs to the states, in our theory. Certain portions of this power were ceded by the states to the nation. All that was not ceded still remains to the states. Power ceded to the nation, but unused, may sometimes be employed by the state until the nation gets ready to act in the matter. On the other hand, the city is a component part of the state, and as such may be permitted to do a portion of the work of the state, under the direct guidance of the state. A PUBLIC HEALTH POWERS AND LIMITATIONS 329 limited, or subordinated authority over certain mat- ters is delegated by the state to the city; it is not ceded. Such authority may be modified, or withdrawn by the state. Certain powers belong exclusively to the nation; others, to the state. None belongs to the city, in the same sense, though the city may be permitted to use a portion of the power of the state. Neither the state nor the nation may be sued en tort. An incorporated city may be sued for its misdeeds or nonaction. Both state and nation are supplied with all of the machinery of government. The city is essentially only an executive organization. It has not true legislative authority. Its common council may make certain rules or regulations, prescribing how the affairs of the city may be conducted, but those ordi- nances must be within limits prescribed by the state, and always subject to nullification by the state. The nation and state are distinct governmental bodies. The city is only a part of the state. These distinctions are real, and important, though often overlooked. § 255. City corporation. An incorporated city bears a duplex character. Territorially it is a portion of the state, and as such it shares with unincorporated towns and villages the duty of preserving state laws, and doing its part of the state business. But there are certain communal interests in a thickly settled section which are not so evident in the country at large. For example: in a farming district the economical method of furnishing water for domestic use would be by indi- vidual wells. Each owner may then safeguard the purity of his own supply. In the city wells are not safe; they are always a source of danger. The safe way is to have a general supply, often carried from 330 PUBLIC HEALTH ADMINISTRATION some distant source. As a commercial proposition it is impossible for each property owner to manage this business for himself. The supply may be furnished by a commercial company, which will be legally and financially responsible for any damages which may result, either from a flooding of land, through a break- age in the dams or conduits, or for impurity which produces disease. The supply of water for that indi- vidual city is not fully of vital interest to the remain- der of the state. The farmer must dig his own well, build his own windmill and tank. It would be mani- festly unfair to require that he also contribute for the erection and maintenance of a water plant in a distant city. However, the residents of the city may object to contributing unnecessarily to give profits to the water company. Since all citizens are interested in the matter, it is not more than right that they, and not some few individuals, perhaps not even citizens, should reap the financial profits. They therefore make a public corporation. As such a corporation the city comes in commercial competition with individual men and business corporations. To gain certain advan- tages the citizens incorporate. Having incorporated the city becomes legally responsible. If now it fur- nishes impure water, infected with disease, damages may be assessed in court for resulting injuries. 37 The furnishing a city with water, gas, sewers, etc., is not strictly governmental in character, but rather com- mercial competition with private enterprises. The city must therefore be recognized as partially govern- 37 Milnes v. Huddersfield, L. E, 10 Q. B., Div. 124; Keever v. Man- kato, 113 Minn. 55. PUBLIC HEALTH POWERS AND LIMITATIONS 331 mental, and partially as any other corporation doing business for commercial profit. A corporation which is organized ostensibly to man- ufacture some given article of farming machinery would hardly be upheld in conducting a general mer- cantile business, unless it amend its charter. In sell- ing the farm implements the corporation might accum- ulate notes, mortgages, and bonds, as a necessary part of the business; but that would not excuse a general dabbling in the bond market as brokers. The private corporation is permitted to do only that for which it is incorporated. For a like reason, when, to gain special advantage, the inhabitants of a district apply for a charter as an incorporated city, they do so for certain specified objects. The state then permits them to do those things specified. It does not surrender authority, but in return for corporate privileges the city agrees to take care of certain local governmental matters. It is therefore apparent that the city may do anything which is permitted, or specified by its char- ter. It must not attempt to pass the bounds set by the charter, either as to subject, territory, or degree of authority. § 256. Legislation. It is a general rule in law that work which is ministerial in nature may be executed by a deputy; but where the duties require the exercise of discretion they must be performed by the officer selected for that purpose. Thus, a board of health may not delegate to a committee the duty of employing a physician. 38 The duty of enacting the laws for a state resides in the legislature, or general assembly. It can- 38 Young v. Blackhawk County, 66 Iowa, 460. 332 PUBLIC HEALTH ADMINISTRATION not shift that responsibility, or delegate it to any other officer, or governmental body. ' ' The legislative neither must nor can transfer the power of making laws to any body else, or place it anywhere but where the people have. ' ' 39 The legislature may not, under the general rule, delegate its law-making power to munic- ipalities, though the state constitution may make pro- vision which would grant that transference of power, and in differences in interpretation of municipal ordi- nances this possibility must be remembered. Such a possibility is suggested by the supreme court of Minnesota when it says: "It is a principle not ques- tioned, that except where authorized by the constitu- tion, as in respect to municipalities, the legislative power * * * can not confer on any body or person the power to determine what shall be law. The legisla- ture only must determine this. ' ' 40 There cannot be two independent law making authorities. It must be left to some one body to deter- mine what shall be the law. However, under certain general provisions it is quite reasonable to leave to individual communities the determination as to how a certain problem shall be met. Thus, the legislature might under a general statute forbid the sale of liquor in any city which shall so determine. The ordinance of the city in that case simply puts into effect the state law. It is itself only a bylaw. Ordinances are some- times called laws, and their passage is spoken of as legislation, but really they are not of themselves on the same footing as state statutes. The state legislature enacts the general statute, within whose limits the city as Locke, On Civil Government, i0 State v. Young, 29 Minn. 551. Sec. 142. PUBLIC HEALTH POWERS AND LIMITATIONS 333 determines how it shall be administered. This is the only reasonable way in which much of police power, especially, may be fairly administered. The stringent rules which may be necessary for the city may often be a hardship for the more thinly settled community. The density of a city population, of itself, frequently makes additional requirements necessary, particularly in matters pertaining to public health. State laws must of necessity be reasonable for the entire state; and it therefore becomes necessary to grant to munic- ipalities additional powers. It has sometimes been held that both the state and municipality may, inde- pendently of each other, pass statutes or regulations upon a given subject and that the ordinances of the city will be sustained unless there be positive conflict with the provisions of the state law. 41 The ruling in Massachusetts was to the effect that the authority of the city will be sustained in the absence of any state law upon the same subject. 42 In a case in Illinois the supreme court said, in speaking of municipal corpora- tions, 43 ' ' The necessity for their organization may be found in the density of the population, and the condi- tions incidental thereto. Because of this the municipal government should have power to make further and more definite regulations than are usually provided by general regulation, and to enforce them by appropriate penalties." Again the same court has said: "The most important of police powers is that of caring for the health of the community, and that is inherent in a 4i City of Bellingham v. Cissna, < 3 Chicago v. Ice Cream Com- 87 Pac. 481; Ex parte Snowden, 12 pany, 252 111. 311. Cal. App. 521. 42 Commonwealth v. Newhall, 205 Mass. 344. 334 PUBLIC HEALTH ADMINISTRATION municipality, and may be exercised whether expressly granted or not, because the preservation of the health of the public is indispensable to the existence of the municipal corporation. ,,43a This power has been sus- tained in the case of milk, 44 and in the regulation of the manufacture and sale of bread. 45 If both the state and the city legislate upon a matter, and each provide penalties to be inflicted in case of violation of their regulation, it might be claimed that the constitutional provision relative to twice being in jeopardy for the same offence might be violated. So far as I have noticed, however, this view has not been taken by the court, but the violation of each law has been con- sidered a misdemeanor by itself, so that a single act may practically be two misdemeanors. § 257. Ordinances must not exceed limits of statutes. Since the legislature cannot delegate its law making power, it necessarily follows that the city ordinance must not go beyond the reasonable meaning of the statute. It does not seem that a statute authorizing a city to regulate the liquor traffic would grant the power to prohibit the same. ' ' The term restraint may be used to designate the forbidding and punishing of the excess or abuse of liberty or property, to the incon- venience or injury of the community ; regulation differs from restraint either by defining a precise line the limit beyond which rights may not be exercised, or by creat- ing positive duties which without the statute would have no existence; by prohibition is meant the forbid- 43a Gundling v. Chicago, 176 111. 45 Chicago v. Schmidinger, 243 340, 348; Ferguson v. Selma, 43 111. 167. Ala. 400. 4* Chicago v. The Bowman Dairy Company, 234 111. 294. PUBLIC HEALTH POWERS AND LIMITATIONS 335 ding of acts in themselves harmless because they may be carried to excess." 46 The power to regulate or restrain does not therefore seem to give the power to prohibit. 47 Under the general power to regulate, with authority to restrict the sale of liquor to the busi- ness portion, the city ordinance, defining by certain designated streets and avenues what is the business portion, is prima facie binding, though it is admissible to show by other evidence that the declaration is wrong- as a matter of fact. 48 Note, that the statute under which this ordinance was passed restricts the sale to the business portion, and does not specifically give to the city the determination of what shall be so termed. The city ordinance does not extend the scope of the law, unless as a matter of fact it includes in the speci- fied territory a portion which may- not properly be called business portion. If it does this it is an exercise of legislative authority, and therefore unconstitutional and void. In California the general power to "make and enforce within its limits all such local, police, sani- tary, and other regulations as are not in conflict with general laws, ' ' 49 has been held to place the liquor traffic entirely within local control, even to the extent of absolute prohibition. 50 Likewise in Alabama the power to restrain has been held to include the power to prohibit. 51 The operation of the city ordinance must not reach beyond the limits of the city, though it may do so 46 Freund, Police Power, 28. *8 Rowland v. Greencastle, 157 *7 Milliken v. Weatherford, 54 Ind. 707. Tex. 388, in which an ordinance, *s> Constitution, Cal. Act. XI, passed under the authority to reg- Sec. 11. ulate, and prohibiting the renting so Ex parte Campbell, 74 Cal. 20. of bouses to lewd women, was de- si Town of Marion v. Chandler, clared void. 6 Ala. 899. 336 PUBLIC HEALTH ADMINISTRATION indirectly. The prohibition of the bringing into town for sale secondhand clothing without proof of nonin- fection has been held as an unwarranted interference with trade. 52 Such an ordinance is really legislation, affecting parties without the jurisdiction of the city. It is also unreasonable. Were there evidence of special danger, or were the ordinance so general as to require the evidence of noninfection for all secondhand cloth- ing offered for sale, it would doubtless have been sus- tained. As it was it put a special burden upon non- residents. A general authority granted to control infectious disease, while sufficient to warrant a general vaccina- tion in the presence of an epidemic, does not warrant the passage of an ordinance requiring that all children be excluded from school in the absence of an epidemic until they present evidence of successful vaccination. 53 Such an ordinance went beyond the reasonable author- ity of the city in the matter, and consisted in real legislation — putting special requirements for admis- sion to the public schools. The schools of the city were only a portion of those in the state, all being under certain general laws. To enforce the vaccination requirement upon the scholars in one city would be to open the way for all kinds of different stipulations as to schools, and to bring chaos into the educational system of the state. Only the legislature has authority to pass that legislation. The proper disposal of garbage in a city becomes often an important sanitary problem. A general sani- tary authority will enable the municipality to make 52 Kosciusko v. Stomberg, 68 53 Jenkins v. Board of Educa- Miss. 469; Freund, Police Power, tion, 234 111. 427. 142. PUBLIC HEALTH POWERS AND LIMITATIONS 337 rules and ordinances specifying how the garbage shall be kept, and how collected ; but, unless specially author- ized by the charter, or statute, the city may not create a monopoly, nor take property of citizens. 54 "Since all the powers of a corporation are derived from the law and its charter, it is evident that no ordinance or bylaw of a corporation can diminish, or vary its powers." 55 The power to change a salary does not include the right to abolish it altogether. 50 Neither does the power to legislate relative to hucksters imply the authority to include under that term "any person not a fanner or butcher who should sell, or offer for sale any commodity not of his own manufacture," for no municipality has authority under its franchise to change the ordinary meaning of English words. 57 §258. Authority may be general, specific, or im- plied. The authority under which a city enacts ordi- nances may be in general terms, or specific in character, or simply implied. ' ' The power to make by-laws, when not expressly given, is implied as an incident to the very existence of a corporation; but in the case of an express grant of the power to enact by-laws limited to certain specified cases and for certain purposes, the corporate power of legislation is confined to the objects specified, all others being excluded by implication." 58 Where the grant of power is specific, the city may not exceed the specific limits. Where the power is gen- 54Landberg v. Chicago, 237 111. 349; Garden City v. Abbott, 34 112; Chicago v. Eumpff, 45 111. Kan. 283, etc. 90. 5G State v. Nashville, 15 Lea, 55 Dillon, Municipal Corpora- 697. tions, 317 ; citing Thompson v. 57 Mays v. Cincinnati, 1 Ohio, Carroll, 22 How. 242; Andrews v. 268. Insurance Co., 37 Me. 256; ss Sawyer, J., in State v. Fer- Thomas v. Eichmond, 12 Wall. guson, 33 N. H. 424, 430. 338 PUBLIC HEALTH ADMINISTRATION eral, anything may be done which is not repugnant to the constitution or the statutes, in letter or in spirit. Where certain general authority is given, and specific mention is made of certain subjects, the general power does not permit an enlarged authority over the specific subjects. A power to pass ordinances to ' ' improve the morals and order" of the people does not authorize an ordinance to punish the offence of keeping a house of ill-fame according to a decision in Iowa. 59 No expres- sion of authority would permit the city to go beyond the provisions of the constitution or statutes, and the municipality, being a child of the state, cannot do that which would be prohibited to the state legislature. The authority given to a city, by which it may require a license from peddlers or trade solicitors, is valid when applied to matters wholly within the state, but it is void as applied to a solicitor for interstate trade. 00 The state legislature had not this power over interstate commerce; and because it did not have it, the state could not have given that authority in the general grant to the city. Because state statutes must be reasonable, the state cannot give to the city authority to pass an ordinance making unreasonable requirements. An ordinance which subjects the citi- zens to the will or judgment of a given executive officer without special restraints, is deemed unreason- able. It is liable to abuse, and to be used for oppres- sion of individuals. 61 It is to avoid this danger that Eaton, in his Government of Municipalities, 62 argued that health administration should always be by a board 59 Chariton v. Barber, 54 Iowa, si Baltimore v. Badecke, 49 Md. 360. 217. eo Caldwell v. North Carolina, «2 p. 407. 187 U. S. 622. PUBLIC HEALTH POWERS AND LIMITATIONS 339 of health. In his argument, however, he failed to recognize that administration to be effective must be immediate, and that efficiency is always weakened by division of responsibility. He seems further to ignore the fact that this executive branch of government has no legislative authority, and can have none. § 259. Ordinance must not contravene common rights. Unless the power be distinctly, and specifically granted, either in the constitution, charter, or statutes, the city cannot pass an ordinance which contravenes common rights. A man has a common right to rent his property to whomsoever he may choose. If he rent to undesirable tenants he works an injury upon the surrounding property owners. If the property be used for immoral purposes it is a menace to the morals and health of the community. It seems highly desir- able, therefore, that he should be prohibited from rent- ing to lewd women. Such an ordinance would be a good use of the police power, but the power to regu- late the business does not give authority for the pas- sage of an ordinance prohibiting such rental. 63 Every- one, according to the laws of some of the states, has a common right to fish in navigable waters. A city may make ordinances regulating fisheries, but unless specifically granted, there is no authority for an ordi- nance which prohibits fishing within the city limits. 64 While under the general sanitary power it might be lawful to prohibit all fisheries within the city limits, such sanitary control would not warrant the arbitrary selection of one class for prohibition, and another for 63 Milliken v. Weatherford, 54 (Conn.) 22; Willard v. Killing- Tex. 388. worth, 8 Conn. 247; Classon v. e* Hayden v. Noyes, 5 Conn. Milwaukee, 30 Wis. 316. 391 ; Peek v. Lockwood, 5 Day 340 PUBLIC HEALTH ADMINISTRATION permission. Such an ordinance is therefore open to the charge of arbitrariness, as well as that it contra- venes common rights. When there is no common right an ordinance will not be declared void which prohibits a special class from doing a certain act. No one has a common right to slaughter animals in the street. An ordinance which prohibits such slaughtering by butchers is not therefore arbitrary, nor does it con- travene common rights. 65 A municipal contract giv- ing exclusive rights and franchises by a city is void, otherwise than in the exercise of the police power of the city. 66 But under the police power a contract for the exclusive right to clear and dispose of the garbage of a city has been declared not an illegal monopoly. 67 ' ' While ordinances which unnecessarily restrain trade or operate oppressively upon individuals will not be sustained, yet such as are reasonably calculated to pre- serve the public health are valid although they may abridge individual liberty and individual rights in respect to property. ' ' 68 On this ground an ordinance in a populous city, prohibiting the purchasing of car- casses of animals for boiling, steaming, and rendering, and the rendering of the same within the city, except in certain enumerated cases, and under specified condi- tions, was sustained as reasonable. 69 An ordinance conferring upon one person the right to remove and convert to his own use dead animals, to the exclu- sion of the owner's rights, was held to be an uncon- 65 City Council v. Ahrens, 4 Mich. 570; State v. Orr, 68 Conn. Strob. (S. C.) 241; City Council 101. v. Baptist Church, 4 Strob. 306; 68 Dillon, Mun. Corp. 326, ap- Peoria v. Calhoun, 29 111. 317; St. proved in State v. Holcomn, 68 Paul v. Colter, 12 Minn. 41. Iowa, 107; Commonwealth v. ee Long v. Duluth, 49 Minn. 280. Patch, 97 Mass. 221. 67 Grand Eapids v. DeVries, 123 69 state v. Fischer, 52 Mo. 174. PUBLIC HEALTH POWERS AND LIMITATIONS 341 stitutional taking of private property without compen- sation, and also a deprivation of property without due process of law. 70 McGehee holds 71 that "the property interests in the noxious materials must be subordinated to the general good." 72 While this is true as to state legislation it is not true as to the right of a city to enact ordinances unless that authority be distinctly given. It is in such cases that misunderstandings arise as to conflicts in decisions. The general principles of this problem have been thus very well stated by Professor Freund : 73 "Under the principle of local self government local authorities cannot be vested with powers necessarily exceeding their territorial jurisdiction; those matters therefore which equally affect the people of the state at large, and cannot be confined locally, must be reserved to the state legislature. Moreover, the inauguration of a novel policy in matters of safety and health, the pro- hibition of articles of consumption, possibly but not undoubtedly injurious to health, the establishment of monopolies, the restriction of the right to pursue estab- lished avocations, may under circumstances be con- ceded to the legislature of the state, but cannot be introduced by local authorities under mere general grants of power." In a similar strain the supreme court of Georgia said, relative to a health ordinance : 74 "The city council is restrained to such matters, whether specially enumerated or included under gen- 70 River Rendering Co. v. Behr, S. 306; Gardner v. Michigan, 199 77 Mo. 91; Landberg v. Chicago, U. S. 325. 237 111. 112. 73 Police Power, 142. 7i Due Process of Law, p. 336. 74 Dubois v. Augusta, Dudley R. 72 Citing California Reduction 30. Co. v. Sanitary Bed Works, 199 U. 342 1UBLIC HEALTH ADMINISTRATION eral grant, as are indifferent in themselves, snch mat- ters as are free from constitutional objection, and have not been the subject of general legislation; or, as it is expressed in the charter, are not repugnant to the constitution or laws of the land." § 260. State may do what the city may not. From the foregoing it is evident that the state may do that which is not permitted to the ordinance making power of the city. There are many problems in the public health work which are designated as questions of public policy. Public policy is not decided according to the opinion of an individual, nor by the consensus of the inhabitants of a given city. It is of broader signification, and must be settled according to the con- sensus of opinion in each unit of government having the police power; and that unit is the state. The opinion is expressed, not by the executive, nor by the judicial branches, but by the legislature. 75 "The best indications of public policy are to be found in the enact- ments of the legislature. To say that such a law is of unusual tendency is disrespectful to the legislature, who, no doubt, designed to promote the morals and health of the citizens. Whether the ordinance in ques- tion is calculated to promote the object is a question with which the courts have no concern, ' ' 76 when the legislative will has been clearly expressed. "Courts of last resort * * * would have no means of ascer- taining whether it was a collusive case or not, or whether the weight of evidence was in accord with the truth. * * * The legislature in determining upon the passage of the law may make investigations which 75 License Cases, 5 Wall. 462, 76 State v. Clarke, 54 Mo. 17, ■ 475. 36. PUBLIC HEALTH POWERS AND LIMITATIONS 343 the court cannot." 77 The conclusiveness of the legis- lative judgment as to the necessity or wisdom of a sanitary measure is strongly insisted upon in the mat- ter of compulsory vaccination by the supreme court of Georgia. 78 "With the wisdom of vaccination we have nothing to do. * * * The legislature has seen fit to adopt the opinion of those scientists who insist that it is efficacious and that is conclusive upon us." § 261. Ordinance not unreasonable if authorized by state. When authority is specifically granted in the charter, or by the laws of the state, an ordinance passed within the authority cannot be deemed unreasonable. 79 If the ordinance complies with the authorization, but exceeds the limits of constitutional rights, the act of the state granting the authority must be attacked, rather than the ordinance. Though ordinarily it is contrary to public policy to grant monopolies, and though an ordinance creating a monopoly would gen- erally be declared void on that account, the state has the authority under its police power to grant to the city such jurisdiction for the preservation of health. Under such conditions an ordinance granting a monopoly in the matter of the collection of manure and garbage was upheld. 80 This ordinance also disre- garded the- property rights in the matter of ownership. § 262. Executive authority depends upon legislative. As executive authority must ordinarily be derived from legislative action, it necessarily follows that under such conditions the executive is thus limited 77 People v. Smith, 108 Mieh. 79 Coal Float Co. v. City of Jef - 527; also see State v. Main, 69 ferson, 112, Ind. 15; Cooley, Const. Conn. 123. Lim. 241. 78 Morris v. Columbus, 102 Ga. so Walker v. Jameson, 140 Ind. 792. 591. 344 PUBLIC HEALTH ADMINISTRATION to such powers as are granted. This means that the authority for a municipal officer is found either under the general laws of the state, in the charter, or in the enactments of the city itself. Under the police power, however, the health officer may sometimes lawfully do that which the city may not direct or authorize by a general ordinance. The fact that during a small-pox epidemic a health officer might very properly, and lawfully insist upon a general vaccination, is no authority for the passage of an ordinance requiring general vaccination. 81 In the presence of yellow fever the sanitary officer might very properly arrest with- out warrant, and hold without trial, a person whom he suspected of having been exposed to the bites of infected mosquitoes. The warrant for such executive action must be found in the dictum of Salus populi. The check upon the officer to prevent excess of action, and the working of injustice, is found in personal lia- bility. Such summary administrative measures would not be tolerated except in extreme emergency. The officer who attempts to use such measures under ordi- nary conditions will hardly be sustained by the court. In such a course under ordinary conditions he would not show official authority so much as arbitrary or autocratic assumption of power, and it would not be unlikely that he might be assessed heavy personal damages. A village board of health is purely a creature of statute. It has only such powers, and may use only such methods, as may be provided by statutory enact- ment. Although, having been created, the board may si Jenkins v. Board of Educa- tion, 234 111. 422. PUBLIC HEALTH POWERS AND LIMITATIONS 345 be expected to improve the general sanitary condition of the community, still it must use only such modes of operation as are clearly given. In the absence of such distinct authority, an attempt to impose penalties for violations of its orders, and to collect the same, would be a deviation from recognized course of action, and as such it would be void. The accused might very properly take advantage of such excess of authority. 82 82 Carthage v. Colligan, 144 N. Y. Supp. 468; Case of Bonham, 8 Coke, 107a. CHAPTER X OFFICERS § 263. Importance of the subject. § 264. Executive department com- posed of officers and em- ployees. § 265. Office and employment dis- tinguished. § 266. Offices not dependent upon statutes. § 267. Honorary office. § 268. Lucrative office. § 269. Classification according to service. § 270. Ministerial or discretionary duties. § 271. Discretion implies free use of judgment. § 272. Discretionary power cannot be delegated. § 273. Arbitrary action not discre- tion. § 274. Officers with discretion can- not be coerced. § 275. Discretionary decision not subject of purchase. § 276. Public and private officers. § 277. State versus municipal of- ficers. § 278. State officers proper. § 279. Officers de jure and de facto. § 280. No office de facto. § 281. Determination of title to office. § 282. Appointment to office. 346 284. 285. 286. 287. 288. 289. 290. 291. 292. §293. §294. §295. §296. §297. §298. §299. §300. §301. Appointment by same branch of government. Appointment by non-official body. Power to appoint must be given by law. Municipal or board appoint- ments. Appointment implies writ- ten commission. Commission is evidence of appointment. Commission best evidence of appointment. Time for appointment. Appointments requiring con- firmation made during recess. Eecess appointments must be submitted for con- firmation. Time for which appointed. Vote must show approval. Action of majority. Vote need not show quorum. Sufficiency of notice. Appointment by two or more bodies. Appointive power once used is exhausted. Appointment of self. Appointments by outgoing officers. OFFICERS 347 § 302. Municipal authority to cre- ate offices and make ap- pointments. § 303. Appointment of two or more for unspecified class or district. § 304. Officers of health appointed, not elected. § 305. Eligibility for appointment, citizenship. § 306. Natural qualifications. § 307. Educational qualifications. § 308. Legislative restrictions. § 309. Holding two offices. § 310. Civil service. § 311. Acceptance of office. §312. Taking office. § 313. Taking receipts from suc- cessor in office. § 314. Term of office. § 315. No term, office held at pleasure. § 316. Term fixed by constitution. § 317. Holding over term. § 318. Appointments to fill vacan- cies. § 319. When term begins. § 320. Compensation for service — office not a contract. § 321. Importance of salary in health service. § 322. Inadequate salaries expen- sive. §323. "Office" of wider signifi- cance than ' ' officer. ' ' §324. Officer's compensation de- termined by legislation. § 325. Constitutional prohibition of change of salary during term. § 326. When compensation may be fixed after appointment. § 327. Effect of increased duties. § 328. Payment of substitute for extra service not permis- sible. § 329. Extra official duties. § 330. Compensation for two of- fices. § 331. Compensation depends upon actual service. § 332. Second term presupposes old rate. § 333. Abolition of office stops compensation. § 334. Dissatisfied officer may re- sign. § 335. Original bond covers extra duties. § 336. Officer can not pay self. § 337. Unearned salary not assign- able. § 338. Officers ' salaries are not subject to garnishee. § 339. Termination of official re- lation. §340. Death. § 341. Abolition of office. § 342. Expiration of term. § 343. When an officer may not hold over. § 344. Abandonment of office. Fail- ure to qualify. § 345. Abandonment after qualifi- cation. § 346. Malfeasance. § 347. Nonuser as cause of for- feiture. § 348. Eefusal to perform the du- ties of the office. § 349. Acceptance of incompatible office. § 350. Eesignation. § 351. Power of removal is inci- dental to that of appoint- ment. § 352. Conditions for removal fixed in the Constitution. § 353. Statutory requirements for removal. § 354. What is not removal. § 355. Power to remove does not include power to suspend. § 356. Impeachment. 348 PUBLIC HEALTH ADMINISTRATION § 263. Importance of the subject. From the public health standpoint, the most important branch of gov- ernmental work is the executive. It is in this field that problems are first met. The executive must make the first decisions. He collects the evidence upon which legislation must be based. He carries into effect the orders of the state as expressed in legislation. Very much, therefore, depends upon the character of the men in the executive work of preserving the public health. Most intimately related with the character of the service we find such questions as : Who ar fc officers f What makes them officers? What are the duties and liabilities of officers'? Strange as it may seem, it sometimes happens that men accept the responsibilities of office with only a very hazy idea as to what their acceptance may imply, further than the right to regularly receive a check for services rendered, or neglected. Because the ques- tions do not frequently come to the attention of trial lawyers, it happens that even well informed attorneys are by no means clear as to what is legal, and what is not. This is shown from a case mentioned in this chapter in which a well known attorney, with extensive experience, when elected to a responsible position, tried twice, with honesty of purpose, to make an illegal appointment, though in the meantime he had neg- lected an opportunity to make the same appointment legally. § 264. Executive department composed of officers and employees. Executive departments are composed of officers and employees, or agents. This distinction may not always be important, particularly as to rela- tions with the public; but to the individual exercising OFFICERS 349 the authority it may be very important to determine his position. Upon the answer to the question whether he be an officer or agent may depend his right to his position, and the amount of his compensation. Neither are officers all upon the same footing. Some are elected, and others are appointed. Since the members of departments of health in this country are seldom, or never, elected, further special consideration of elec- tive offices will be but lightly touched. As health executives, we are chiefly interested in laws relating to elective officers simply because they make appoint- ments. The sovereign power resides in the people. They unite in election to collect the authority into the hands of a few individuals. The people temporarily resign their authority to the elected officer. The elected officer having received this authority, appoints either alone, or with the concurrence of other officers, subordinate officers to look after specified portions of the governmental business. Officers employ additional assistance, and the individuals so engaged are not officers, but employees or agents. Appointive officers and employees are not responsible to the sovereign people, but to the superior officer, or officers by whom they were appointed. 1 As we have attempted to show in Chapter IV, effi- ciency is closely related to complete organization, and complete organization implies that the entire executive department, or branch, is centered in one head, to whom ultimately every subordinate officer and employee is responsible. Efficiency means the prompt, economic transaction of the affairs of the government. Simplicity and perfection of the organization, with its i See Wyman, Ad. Law, 46. 350 PUBLIC HEALTH ADMINISTRATION graduated positions, is of vital importance from every point of view. In proportion to the size of the govern- mental department we find that the proportion of employees to officers is increased, and the line is not always easily drawn between the two classes. §265. Office and employment distinguished. "An officer is a public agent; the employee is a private agent." 2 "The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature the individual is not a public officer. ' ' 3 There are exceptions to almost every other distin- guishing characteristic of an office. Ordinarily an office depends upon enactment for its status, and this enactment may be found in the constitution or in the statute of a legislature. The act creating the office generally states how the office is to be filled; the term of appointment or election, or whether it be at the will of the appointing power; sometimes it fixes the salary or compensation to be received by the holder; always it defines the duties pertaining to the position. Generally, it will be noticed that the office is perma- 2Wyman, A3. Law, 42. S. v. Mouat, 124 IT. S. 303; and s Mechem, Pub. Officers, 4 ; cit- several others. Also Wyman, Ad. ing Bunn v. People, 45 111. 397; Law, 43; Throop, Pub. Off., U. S. v. Germaine, 99 U. S. 508; Chap. 1. U. S. v. Smith, 124 U. S. 525; U. OFFICERS 351 nent, at least until abolished by subsequent legislation, though the incumbent may be changed at short inter- vals of time. As distinguished therefrom, an agency or employment is frequently self limited. The employ- ment ends when the duty or contract has been per- formed. The duties are not fixed by statute. The holder of the position is never elected. An employ- ment may be continuous, — renewed each pay day, but the position is indefinite as to permanence, and char- acter. The Ohio supreme court has said that where the powers and duties of a public nature are required by the law of the state, and where the state law also fixes the character of the individual authorized to per- form those duties, he holds an office. 4 Perhaps the distinction between office and employ- ment may be better appreciated by illustration. Sup- pose that under the general powers granted in charter and statutes, a city should appoint a health officer, or commissioner of health, his duties being specified in state statutes and municipal ordinances. Suppose that a city ordinance makes provision for the appoint- ment of a physician to treat the destitute sick within the city, and other city charges. In each case, accord- ing to the ordinances the appointment is to be for one year. "While in the determination of the question whether these two positions are offices or employ- ments, much will depend upon the exact wording of the enactments. On general principles we should ex- pect the health commissionership to be declared an office, and the other an employment. The. work of the one is directly governmental, as a part of the state * State ex rel. Attorney General v. Kennon, 7 Ohio, 547. 352 PUBLIC HEALTH ADMINISTRATION police in the prevention of harm to the citizens as a whole. The other has none of the characteristics of government. He has no part of the sovereignty dele- gated to him. He deals with the citizens as indi- viduals. He may be under the general supervision of the health office, and incidentally he may make the bacteriologic diagnosis of cases suspected of being infectious. He may also attend to the disinfections ordered by the department, but essentially his position is an employment under contract. With such a differ- entiation of position the following are some of the results. The officer may be removed at any time. The physician can hold his position for the year, and if discharged before the expiration of the contract, unless he be guilty of violating it, he could recover pay for the entire year. In the case of a serious epidemic, involving a very material increase in the work of each, interfering with their private business, the health officer could not hope for special extra compensation, and the city would, in most jurisdictions, be barred from paying extra money, above the regular salary. The physician would perhaps have no legal right to demand greater pay, but the city could, and should in justice, award him extra for such special service. On the other hand, the officer may at any time resign his office, whereas the physician cannot give up his work without the consent of the city. The commis- sioner of health, so far as his duties are ministerial, may delegate them to an assistant; but so far as they are with discretion he must do the work himself. The physician may employ a substitute, provided that he supply one as competent as himself, particularly if the arrangement be made with the consent of the city OFFICERS 353 authorities. Mere consent of the city government would not, apparently, be sufficient for the providing of a substitute commissioner of health. An ordinance providing for the office of assistant, or deputy com- missioner, would be necessary, though that ordinance might be temporary, in the form of a resolution form- ally passed and recorded, stating by whom the appoint- ment shall be made. (But see § 272.) If it be held that the commissioner is a state officer, that is, that his duties are such that he is using the authority of the state, so long as he keeps within his discretion, even if through poor judgment serious harm may result to individuals, neither the city, nor the officer may be successfully sued in the courts. If through lack of care injury result in the physician's service, both city and its agent are liable for damages. It must be remembered that the two positions may be combined. The statute, or ordinance, providing for the appointment of the commissioner must state the duties of the office. If it seem best for the same man to perform other service for the city, service not con- flicting with his work as commissioner, there is no reason why the city may not employ him for such service. Having made such an arrangement in case of legal question as to office or employment, it will be necessary to determine, not whether he be an officer, but whether in the matter at bar he acted as an officer, or as an agent or employee. It must be remembered that the additional service may be made a part of his official duty. If the additional service, by resolution of the council be awarded to the officer by name, it would probably be deemed an employment. If the resolution, or ordinance, be formally passed, imposing 354 PUBLIC HEALTH ADMINISTRATION the extra duties upon the commissioner, without men- tioning the name, they would be deemed official. Though an officer may not receive extra pay for an increase in service naturally pertaining to his office, he may receive such extra pay when assigned addi- tional duties. (This subject will be discussed later in the chapter. §329.) § 266. Offices not dependent upon statutes. While, as has been stated, an office generally depends upon enactment for its existence, this is not always true. The essential characteristic of an office is the posses- sion of some degree of sovereign power. The recog- nition of the office may be found in the common law. We thus find in Connecticut that the court recognized a clergyman as a public officer. A "clergyman, in the administration of marriage, is a public civil officer, and in relation to this subject, is not at all distin- guished from a judge of the superior or county court, or a justice of the peace, in the performance of the same duty;" and his acts are prima facie evidence of his official character. 5 What is it that makes him able to perform this service? — not his learning, nor any educational degree, but his investure with the office by the church. It is that alone which gives him the authority to pronounce a man and woman husband and wife. When he has so pronounced it will take judicial action to part them in the name of the state. The clergyman is invested with this governmental authority as an accident to his position in the church. But authority implies also duty. As an officer he is charged with a quasi-judicial obligation. In England s Goshen v. Stonington, 4 Conn. 209. OFFICERS 355 it has been held that a clergyman of the Church of England, who was ad hoc a public officer, was there- fore guilty of a misdemeanor for refusing to marry two persons who might be legally married. 6 But the greater portion of a clergyman's work is not clothed with any governmental livery. If he be wrongfully kept from his office, unless such deprivation involves the loss of some emolument of office, or legal right, the court will not act to restore him to his official position. 7 In the United States the government has little or no control over the entrance of men into the public office of clergyman. It is more than possible that by reasoning similar to that relative to clergymen physicians may be regarded as quasi-public officers. In most of the states the state does exert control over the entrance into such an office. It is a general rule that a person may hold two offices unless they be incompatible, and that a per- manent office exempts from a temporary service. 8 By common practice, and often by statutory enactment, physicians are exempted from jury service. Such an exemption would be in the nature of special privilege, and therefore repugnant to the American system, unless the exemption be based upon some general dis- qualification. As special privilege it would also be an unconstitutional provision, according to the constitu- tions of many states. This is true in Illinois, for example. Now there could be nothing in the personal character of physicians which would unfit them for such service. They are of good moral character, and e Beg. v. James, 2 Den. Cr. Winemiller, 4 H. & McH. (Md.), Cas. 1. 429. 7 Union Church v. Saunders, 1 « Rex v. Tizzard, 9 B. & C. 418. Houst (Del.), 100; Eunkel v. 356 PUBLIC HEALTH ADMINISTRATION more intelligent than many jurors. There is nothing in the belief of physicians which would unfit them for giving fair consideration to evidence. The Illinois statute, listing those exempt from jury service, names school teachers, but qualifies the exemption by adding "during the term of school." 9 So, as to clergymen, the exemption is ' ' officiating ministers of the gospel. ' ' As with other classes mentioned there is a manifest conflict between their ordinary duties and the tempo- rary service on the jury, so when "physicians" are included in the same list we must conclude that there is an official conflict. Farmers are not exempted ' ' dur- ing seedtime and harvest," though at such a time for a farmer to be confined on jury duty might very seriously endanger his financial standing, and even the ownership in his home. Exemptions are not based upon the conflict between private business and public service. A juror is a public officer. 10 The exemption of physicians, therefore, implies that they also have an official status. Statutes generally state the qualifi- cations for physicians. They also name some of the duties of physicians — duties to the people in general, and for the conduct of government. They are given the mandatory duty of reporting to the proper officers all cases of infectious diseases with which they come in contact. Another mandatory duty is to record legally the evidence of the births and deaths occurring in their practice. These reports of physicians are not sworn to, but they are by law termed "prima facie evi- dence" of the facts recorded, and as such evidence they are used in many classes of cases decided by the s Statutes, HI. Chap. 78, Sec. 4. ioTurpin v. Booth, 56 Cal. 65; Hunter v. Mathis, 40 Ind. 356, OFFICERS 357 courts. These duties are mandatory, and a physician who neglects to perform these public duties promptly and accurately is false to his trust, and should be removed from office, by the cancellation of his license to practice; or, if he does not wish to perform his official duties, he should resign his office by retiring from practice. As distinguished from these official duties, the work of a physician for the government may sometimes be an employment. Thus, surgeons appointed by the Commissioner of Pensions are not officers of the United States. 11 Their service is purely ministerial — to examine and record the physical con- dition of applicants for pension ordered before them. Such examining surgeons do not possess any degree of sovereign authority. As employees these examining surgeons are paid regular fees, proportional definitely to the work done. If upon the regular day the board of examiners make no examinations they receive no pay. As officers, physicians often receive no pecuniary compensation for their services. An employment always implies compensation. § 267. Honorary office. When there is no pecuniary compensation attached to an office, and the duties are assumed by the incumbent merely for the public good, the office is called naked, or honorary. 12 § 268. Lucrative office. An office of profit, also called a lucrative office, is one in which the incumbent receives compensation for his services, either in the form of salary, honorarium, or fees. As used in law the designation lucrative office has no reference to the amount of compensation. If any compensation What- ii U. S. v. Germaine, 99 U. S. 12 State v. Stanley, 66 N. C. 59; 508. Throop v. Langdon, 40 Mich. 673. 358 PUBLIC HEALTH ADMINISTRATION ever be attached to the office, it is presumed in law that this compensation is in full, even though it be shown that the necessary expenses of the officer are in excess of his compensation. 13 § 269. Classification according to service. It is cus- tomary to classify officers according to their duties into military, naval, and civil; and to subdivide the civil officers into legislative, judicial, and executive. It would seem better to make the second division first, dividing officers into legislative, judicial, and execu- tive. Executive officers may be military, naval, or civil. Judicial officers are also designated civil, though legislators are generally not considered as civil, bas- ing this action upon the refusal of the United States Senate in 1797 to entertain impeachment proceedings against Senator "William Blount, on the ground that he was not a civil officer. 14 Legislative officers are sometimes grouped under the head ' ' civil. ' ' 15 Legislative officers are such as determine what the law shall be. Their duties pertain to the enactment of statutes. This class includes the members of Con- gress and state legislatures. Judicial officers determine what the law is, or was at a specified time, and decide controversies between individuals, or between individuals and the public. They alone may make an authoritative interpretation of the law. isDailey v. State, 8 Blackf (Ind.) 329; State v. Kirk, 44 Ind 401; State v. Valle, 41 Mo. 29 People v. Whitman, 10 Cal. 38 Crawford v. Dunbar, 52 Cal. 36; i* Senate Journal, 10th January, 1799; Story, Constitution, 792; Pomeroy, Const. Law, 716; Bawle, Cons. 213; Twenty per cent Cases, 13 Wall. 568. Kerr v. Jones, 19 Ind. 351 ; State is Twenty per cent Cases, 13 v. DeGress, 53 Tex. 387; In re Wall. 568; Tuck. Black. Comm. Corliss, 11 E. I. 638 ; Foltz v. Ker- App. 57. lin, 105 Ind. 221. OFFICERS 359 Executive officers are those whose duty it is to secure observation of the law as it then exists, and to trans- act the routine business of the government. It is their duty to abide by the will of the people, as expressed in the legislative branch. The fact that to them is entrusted administrative authority, does not give to them the right to ignore, nor oppose, the legislative branch in action. As executives their duty is purely to obey the expressed wish of the people. However, as citizens, and particularly as having special knowl- edge of a subject, it is the privilege and perhaps duty of the executive to give advice and information to the legislature. Having given the advice and informa- tion, his rights cease as to making legislation, except as he may have the power to veto. §270. Ministerial or discretionary duties. The duties of an office are either ministerial or discre- tionary. It often happens that the duties of a given officer are of both kinds. When a specific duty is imposed by the statutes in a mandatory way, the executive power is purely ministerial. If the officer is permitted to use his judgment, his function is said to be discretionary. "If an officer has discretion, he may do any act within that discretion, and all that he does will be held to have been done by express authori- zation of law. On the other hand, if the duty of the officer is ministerial, only that very act which he had been directed to do can be held to have been done with authorization of law. Therefore if he acts beyond this express authorization, his acts will be held to be void." 16 (§ 360.) The ministerial officer must do all that the law commands, and nothing more. Mandamus is Wyman, Admin. Law, 83. 360 PUBLIC HEALTH ADMINISTRATION may be used to enforce the performance of purely min- isterial duties. 17 §271. Discretion implies free use of judgment. - ' The meaning of the term discretionary, when granted by the law, either expressly or by implication, in con- nection with official duty, is that the discretionary decision shall be the outcome of examination and con- sideration. In other words, that it shall constitute the discharge of official duty and not be a mere expression of personal will. ' ' 1S This, therefore, is the essential characteristic of discretionary duties, that they must be the resultant product of a personal investigation and consideration. If the action taken be not based upon the results of such investigation and judg- ment, — if it be not the outcome of reason, the act is arbitrary and so unauthorized in law. As Mr. Cooley said, 19 "A public office is a public trust"; and he who is elected or appointed to an office with discretionary power is false to his trust when he fails to be governed solely by reason in the discharge of his duty. "An office whose duties and functions require the exercise of discretion, judgment, experience, and skill is an office of trust, and it is not necessary that the office should have the handling of money or property, or the care or oversight of some pecuniary interest of the government. ,,2 ° § 272. Discretionary power cannot be delegated. It is a well settled rule that where a trust, either public 17 U. S. v. Seaman, 17 How. 225; is Southern Law Review, Vol. 3, U. S. v. Commissioners, 5 Wall. N. S., p. 531. 563; U. S. v. Sehurz, 102 U. S. 20 Mechem, Pub. Off. 16; citing 378; People v. Bender, 36 Mich. In re Corliss, 11 R. I. 638; Doyle 195. v. Raleigh, 89 N. C. 133. is U. S. v. Douglas, 19 D. C. 99. OFFICERS 361 or private, involves matters of personal judgment or discretion the authority cannot be delegated to another person. It is presumed that the trust has been imposed upon him because of his knowledge or special fitness for making a reasonable decision in the matter. "A judicial officer cannot, it is said, make a deputy, unless he hath a clause in his patent to enable him, because his judgment is relied on in matters relating to his office, which might be the reason of making the grant to him." 21 This rule has been applied in the United States as to private agency, presuming that the agent has been selected by his principle because of special preference. 22 A physician employed to treat the sick of the community may not properly employ another to do his work ; and if he does so he is not entitled to receive pay for such services. It is legally presumed that his own employment is based upon the estimate of his fitness. 23 Neither may a health officer delegate his duties to another, so as to give the person employed the right to make his services a county charge. 24 So as to offi- cers, unless there be a specific permission in the en- acted laws of the jurisdiction, there may be no dele- gation of powers requiring the exercise of judgment and discretion. 25 So, under the statutory power to employ a physician, a board of health cannot leave 21 Bacon. Abr. Tit. Offices and Mechem, Pub. Off. 567 ; Crocker v. Officers, L., Vol. VII. Crane, 21 Wend. 211; Sheehan v. 22 Mechem, On Agency, Sees. Gleeson, 46 Mo. 100 ; State v. Pat- 184-197; Mechem, Pub. Off. 567. terson, 34 N. J. L. 163; Abrams 23 Chapman v. Muskegon County, v. Ervin, 9 Iowa, 87 ; State v. 134 N. W. 1025. Shaw, 64 Me. 263 ; Lewis v. Lewis, 2* Copple v. Davie County, 50 9 Mo. 183; Gale v. Kalamazoo, 23 S. E. 574. Mich. 344. 25Throop, Pub. Off. 572; 362 PUBLIC HEALTH ADMINISTRATION this duty to a committee. 26 Though if the action of the committee be later endorsed by the board the power would not be deemed delegated, and the action though irregular would be legal. 27 In a Wisconsin case it was said that the power to investigate and report is given to the health officer without limitation, but the power to take measures for the prevention, suppression, and control of the disease is vested in the board and cannot be exercised by the health officer without the approval of the board. Whether this legislation is wise or otherwise, and whether more extensive powers should be given to health officers are not questions for the courts. The legislature, doubtless, in limiting the powers of the health officers, and making them subject to the ap- proval of the board, clearly intended that such mat- ters involving the exercise of judgment and discre- tion should be vested in the board, and not in the health officer, and that the acts of the health officer in such matters should not be binding without the ap- proval of the board. This seems to be the plain and obvious intention of the legislature, and cannot be disregarded. 28 We fear that this well known and well recognized principle, that discretionary powers shall not be dele- gated, has been frequently violated by boards having charge of examinations for license. The Illinois stat- ute relative to medical practice, 29 for example, pro- vides that after an applicant for license to practice medicine has complied with certain preliminary re- 26 Young v. Blackhawk Co., 66 28 Collier v. Town of Scott, 102 Iowa, 460. N. W. 909. 27 Lyth v. Buffalo, 48 Hun, 175. 29 Stat. 111., Chap. 91, Sec. 6. OFFICERS 363 quirements, "the board shall notify the applicant to appear before it for examination," and "examina- tions may be made in whole or in part in writing by the board." Very clearly the duties of the board in this case are not ministerial. The examination re- quires the exercise of judgment and discretion: it must therefore be conducted by the board, and not by deputies. The statute further specifies in what branches of professional education the applicant shall be examined. There is nothing in the statute which provides for license "by reciprocity," that is, the issuance of a license on the strength of an examination made in another state. Since this judicial duty can- not be delegated, it seems that such licenses by reci- procity are not warranted in the law of Illinois. Neither would it be lawful for a member of the board to entrust the marking of examination papers to an assistant, or deputy. The reading of the papers must be done in person by the member of the board. On the other hand, the direct superintendence of the ex- amination, the watching, and otherwise attending to the mechanical details of the test, does not imply a quasi- judicial duty. Such service is ministerial, and may therefore be performed by a deputy or clerk. (§426.) § 273. Arbitrary action not discretion. Discretion implies the use of reason rather than will. "It not infrequently happens that the statutes require par- ticular things to be done that must be made to depend upon the judgment — discretion — of a designated offi- cer, and the discretion in such is not arbitrary, it is lawful and must be lawfully executed," and an officer is personally liable for an abuse of that discretion. 30 so State v. Yopp, 97 N. C. 478. 364 PUBLIC HEALTH ADMINISTRATION "It follows that boards of health may not deprive any person of his liberty, unless the deprivation is made to appear, by due inquiry, to be reasonably necessary to the public health." 31 Since an officer may not exceed his authority and in a matter requiring the exercise of judgment arbitrary action is not warranted in law, such arbitrary action is contrary to law. "An officer charged with discretionary power is not liable in dam- ages unless he acts arbitrarily, and in obvious viola- tion of law." 32 "It is a general rule that judicial officers acting within their jurisdiction cannot be held personally resjDonsible for the improper, or erroneous performance of their duties. This rule embraces all officers exercising discretionary powers," but the rule does not apply when an officer has been actuated by cor- rupt or malicious motives, or has practiced fraud upon the injured party. 33 § 274. Officers with discretion cannot be coerced. A duty which is imposed with discretion implies the use of a free exercise of judgment. (§ 159.) Anything within that discretion is lawful. It therefore follows that the officer may not be legally coerced in his deci- sion. He may, under certain circumstances, be com- pelled by mandamus to take action, but how the action shall result is within the discretion of the officer. A board may be compelled to audit accounts, but not to approve them. 34 A board of auditors may be com- pelled to examine an account, but not to allow the 3i Kirk v. Wyman, 65 S. E. R. Rounds v. Mumford, 2 R. I. 154; 387. Baker v. State, 27 Ind. 485. 32 Ingersoll, Pub. Corp. 89 ; 33 Ingersoll, Pub. Corp. 90, cit- Boute v. Emmer, 43 La. Ann. 980; ing numerous cases. Pruden v. Love, 67 Ga. 160; Mc- 3* People v. Supervisors. 53 Hun, Carthy v. DeArmit, 99 Pa. 63; 254. OFFICERS 365 account. 35 In so far as the act is ministerial, manda- mus will lie to compel action even upon officers with discretion; 36 but beyond that point the decision of the officer must be absolutely free and untrammeled. "To the judiciary department is intrusted the inter- pretation of the laws, the determination of rights, and the application of remedies, and in this regard it is sometimes difficult for the courts to properly appre- ciate the fact that the executive department is charged with perfectly independent duties, which require the ascertainment of facts, involve the interpretation of laws, and in many respects call for the exercise of judgment and discretion; and this independence is so great that no matter how gross an error may be com- mitted in the execution of these duties, the courts are nevertheless powerless to interfere. Private interests may suffer in instances, and rights may sometimes be denied; but these alone do not authorize the inter- ference of the courts with executive officers. Greater evils could not exist under our system of government than would follow the usurpation by the judiciary of powers not entrusted to them." And therefore, in this case, the court refused a mandamus to compel the registration of a trademark. 37 Any effort therefore made to influence a decision of such an officer, other than by argument, is illegal. 38 In this connection it 35 People v. Barnes, 114 N. Y. 38 St. Claire v. People, 85 111. 317. 396; People v. Henry, 236 111. 124; 36 Attorney General v. Common People v. Dental Examiners, 110 Council, 29 Mich. 108; State v. 111. 105; People v. Rose, 225 111. Commissioners, 31 Ohio, 451; Peo- 496; People v. Knickerbocker, 114 pie v. Judge, 27 Mich. 170; State 111. 539; Commonwealth v. Mc- v. Webber, 38 Minn. 397; Case v. Laughlin, 120 Penn. 518; State v. Blood, 71 Iowa, 632; Eden v. Tem- Webber, 38 Minn. 397; State v. pleton, 72 Iowa, 687. Young, 84 Mo. 90; People v. 37 Seymour v. U. S., 2 App. D. C. Chapin, 104 N. Y. 96. 240. 366 PUBLIC HEALTH ADMINISTRATION may not be out of place to call attention to a modern tendency in American governmental methods which seems to be a violation of this principle. By use of the patronage, by withholding appropriations, by riders in appropriation bills, and by various other tricks, executive officers have sought to force legisla- tive action in particular lines, and legislatures have tried to compel executives to do as desired by the other branch. This system cannot be too strongly condemned. The legislative duty rests entirely with the legislature, and the legislature has no authority over the executive other than that found in legitimate statute making. The present tendency is to destroy the fundamental division of government into three branches. It is the duty of the executive to bring to the attention of the legislature subjects requiring legislation, according to his opinion. It is very doubt- ful if he have the moral right to call special sessions to compel the legislature to do specific things. § 275. Discretionary decision not subject of pur- chase. By common law and common parlance efforts to influence decisions of officers by purchase are deemed corrupt and contrary to public good. Agree- ments or contracts made to bias such decisions are not legal. Thus an agreement to appoint a certain person to office is void. 39 "With reference to legislation it has been said: "Any contract, therefore, for services to be performed in procuring or attempting to procure the passage or defeat of any public or private act by the use of any improper means or the exercise of undue influence, or by using personal solicitation, influence or persuasion with the members is void; and any 39 Hager v. Catlin, 18 Hun, 148. OFFICERS 367 agreement for the payment of a fee for such services is likewise void. ' ' 40 Where one agreed to work for the election of a certain candidate, on condition that if suc- cessful the candidate would appoint him a deputy, the agreement was void. 41 §276. Public and private officers. An individual invested with some portion of the sovereign powers of the government, to be exercised by him for the benefit of the public, is a public officer. 42 As distinguished from the foregoing we have private officers, who pos- sess none of the sovereign power. It is one of the duties of the state to protect its citizens from harm. This is a sovereign duty, and it is also the duty of policemen. They are therefore public officers. 43 Since, however, the duties of a police patrolman refer chiefly to the enforcement of municipal ordinances, such an officer has sometimes been, perhaps mistakenly, held to be not a public officer. 44 It must be remembered that, considering the nature of his duties, an officer of a municipality may sometimes be a public, and sometimes a corporate officer. So far as a mayor's duties consist in enforcing state laws he may be con- sidered as a state officer; but in signing a contract for the erection of a municipal gas, or water plant he is acting as an official of the corporation as such. In a suit alleging injury or debt the court would consider, not the abstract position of the officer, but his position with regard to the specific act. A college professor *o Meohem, Pub. Off. 360, citing 43 Dickson v. People, 17 HI. 191 ; cases. Farrell v. Bridgeport, 45 Conn. 4i Stout v. Ennis, 28 Kans. 706. 191. 42 Mechem, Pub. Off. 1 ; Throop, 44 Doyle v. Kaleigh, 89 N. C. Pub. Off. 1-28 ; Bunn v. People, 45 133. HI. 397; U. S. v. Smith, 124 U. S. 525. 368 PUBLIC HEALTH ADMINISTRATION does not exercise any of the sovereign powers of the state, even though he hold his position in a state uni- versity. He is therefore not a public officer. 45 The members of a commission appointed to fund the float- ing of a municipal debt are not public officers; 46 and the treasurer of a city was held not to be a public officer. 47 The sovereign power is represented by the state. For convenience in administration the state is divided into counties, towns, villages, and cities. Certain com- munities incorporate themselves for commercial ad- vantage. As portions of the state they conduct the local affairs of the state government, and officers thus engaged are public officers. As cooperative corpora- tions they manufacture gas, lay sewers, and sell water, and the officers thus engaged are not public officers. Whatever is necessary for government, or essentially a part of government, is public ; whatever is essentially a cooperative affair of business is not public. This is not a mere distinction of name. It is of practical importance because of the difference in legal liability. The preservation of health, and the protection of citi- zens generally from infectious diseases, is an attribute of police power, and that power is an evidence of sovereignty. It naturally follows that a city officer of health (not a physician treating the poor of the city at public expense), though appointed by the municipality, and with powers confined to the limits of the city, is a public officer. 48 45 Butler v. Kegents, 32 Wis. *i State v. Wilmington, 3 Harr. 124. (Del.) 294. 46 People v. Middleton, 28 Cal. ^ In re Whiting, 1 Edm. Sel. 608. Cas. (N. Y.) 498. OFFICERS 369 §277. State versus municipal officers. Because municipal, township, or county officials who exercise real governmental powers are essentially doing the work of the state, they are sometimes called "state officers." Thus, Judge Dillon says: 49 "It is import- ant to bear in mind the before mentioned distinction between state officers — that is, officers whose duties con- cern the state at large, or the general public, although exercised within defined territorial limits — and munici- pal officers, whose functions relate exclusively to local concerns of the particular municipality. The adminis- tration of justice, the preservation of the peace and the like, although confined to local agencies, are mat- ters of public concern ; while the enforcement of munici- pal by-laws proper, the establishment of gasworks, the construction of sewers and the like, are matters which pertain to the municipality as distinguished from the state at large." 50 Therefore, police are state officers, rather than municipal. 51 Because the work of the police department of cities is really in the nature of necessary governmental action, and because it has fre- quently happened that, owing to local influences, the departments have been lax in enforcing certain police regulations of the statutes, such as restriction of the sale of liquor, it is now becoming more common to place municipal police departments under direct state con- trol, and statutes so providing have been found con- 49 Municipal Corporations, Sec. 567; Britton v. Steber, 62 Mo. 58. ' 370; also Fairlie, Munic. Ad., p. go Citing People v. Hurlburt, 24 142. Mich. 44; Chicago v. Wright, 69 si Burch v. Hardwick, 30 Gratt. 111. 326 ; People v. Draper, 15 N. 24 ; Farrell v. Bridgeport, 45 Conn. Y. 543; Wolsey (In re) 95 N. Y. 191. 135 ; Astor v. New York, 62 N. Y. 370 PUBLIC HEALTH ADMINISTRATION stitutional. 52 When the administration is left with the municipality, the corporation is therefore regarded simply as the agent of the state. It has been held that the state may fix the pay of municipal police. 53 Whatever has been said relative to the police as state officers, applies especially to public health administra- tors. Certainly, if any local officer, that is, one whose appointment is received from local sources, and whose authority is limited by the confines of the city, is en- titled to be regarded as a state officer, it must be the officer of health, for his efficiency guards other com- munities besides his own, and his negligence endangers large areas. 1 i The health officers of a city are officers of the state, their functions are governmental and are conferred in the interest of the public at large. ' ' 54 Public officers, even when elected by the voters of a town to perform statutory duties which involve the expenditure of money properly raised by local taxation, are not the agents of the town. The members of a board of health, therefore, cannot be removed by a vote of the inhabi- tants of the town. 55 It is competent for the legislature, in the preservation of the public health and prevention of disease, to appoint or direct the manner of appoint- ing persons to act as health officers, and to impose the expenses incurred by them in the performance of their duties on the municipality for which they are ap- pointed. 56 When the state law provides the manner of 52Goodnow, Principles of Ad. 54 White v. San Antonio, 60 S. Law, p. 100; Fairlie, Municipal W. 427. Administration, p. 142; Dillon, 65 Attorney General v. Stratton, Munic. Corp., See. 40. 194 Mass. 51. 53 See Dillon, Munic. Corp. 60, 56 Keef e v. Union, 56 Atl. 571. note for list of eases. Baltimore v. State, 15 Md. 376. OFFICERS 371 appointing, and the number of members of a board of health, an ordinance changing these provisions is ille- gal and void. 57 The police power, which controls every- thing essential to the public health, has been left to the individual states, but in its operation it is largely left to the authority of municipalities and of local boards of health. 58 But where the legislature has vested in boards of health authority to make regulations and ordinances to preserve the public health, ordinances made by county commissioners are invalid. 59 This last case illustrates, by conflicting ideas of authority, the inadvisability of permitting any degree of real legis- lative authority to an administrative board. § 278. State officers proper. As in ordinary conver- sation a word varies in meaning according to its con- text, so legal terms vary, not only according to the individual opinions of the interpreting authorities, but also according to the context in which the words are found in the law to be interpreted. The expression "state officers" as used in the preceding paragraph refers only to the nature of the duties of such officers. It is the duty of the attorney general to appear for and defend ' ' state officers. ' ' As thus used the term applies only to those who are connected with the government of the state at large. 60 Thus, the commissioners of a metropolitan police district, even though appointed by the governer of the state, are not state officers in this 57 Lozin v. Newark Board of ton v. Harvard, 8 Cush. 68 ; Meyers Health, 48 N. J. L. 452. v. Clarke, 122 Ky. 866. 58 Klopfer v. Board of Health, 59 state v. Beacham, . 34 S. E. 9 N. P. N. S. O. 33; Atlantic City 447. v. Crandol, 38 Vr. 488 ; Johnston eo Throop, Public Officers, 29. v. Belmar, 13 Dick. 354; Withing- 372 PUBLIC HEALTH ADMINISTRATION sense. 61 Neither is an officer elected under a municipal charter a state officer. 62 §279. Officers de jure, and de facto. There is another important classification of officers, namely officers de jure, and officers de facto. A de jure officer is one who has been legally appointed or elected to a genuine, or de jure, office, and who has complied with all of the requirements pertaining to the assumption of the office. This implies that he is legally eligible for the office, that he has a legally executed commission, and otherwise has complied with the constitutional or statutory requirements. A defect at any point makes the officer de facto. As ordinarily used the terms are exclusive. 63 An officer de jure may or may not be in possession of the office, though Mechem 64 defines an officer de jure as "one who has the lawful right to the office in all respects, but who has either been ousted from it or who has never actually taken possession of it. "When the officer de jure is also the officer de facto the lawful title and possession are united. ' ' 65 Lord Ellenborough, in Bex v. Bedford Level, 66 has defined an officer de facto to be * ' one who has the repu- tation of being an officer he assumes to be, and yet is not a good officer in point of law. " Although there has been a tendency to qualify this definition in American cases, requiring the color of title to the office, by virtue of an election or appointment, 67 it is now the estab- 6i N. Y. & Harlem E. E. Co. v. 65 Citing Hamlin v. Kassafer, 15 Mayor, 1 Hilt. (N. Y.) 441. Oreg. 456; Plymouth v. Painter, 62Britton v. Steber, 62 Mo. 370; 17 Conn. 585. Mohan v. Jackson, 52 Ind. 599; 663 East, 356. People v. Conover, 17 N. Y. 64. 67 Wilcox v. Smith, 5 Wend. eaThroop, Public Officers, 622. (N. Y.) 231; Cary v. State, 76 64 Public Officers, 316. Ala. 78; People v. Tieman, 30 OFFICERS 373 lished usage to follow the definition given by Chief Jus- tice Butler of Connecticut, in State v. Carrol. 68 He said: "An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties were exercised: First, without a known appointment or election, but under such circum- stances of reputation or quiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. Second, under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition, as to take an oath, give a bond, and the like. Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public. Fourth, under color of an election, or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such. ' ' The reason why public policy demands that for the time during which they officiate, such officers* acts should be legal as regards the public and third persons, is well stated by Justice Devens, in the case of Peter- silea v. Stone. 69 Barb. 193 ; People v. Collins, 7 Wickwire, 19 Conn. 492 ; Carleton Johns (N. Y.), 549; Mclnstry v. v. People, 10 Mich. 250. Tanner, 9 Johns, 135; Cocke v. 68 38 Conn. 449. Halsey, 16 Pet. 71 ; Douglas v. eo 119 Mass. 465. 374 PUBLIC HEALTH ADMINISTRATION A usurper, one who thrusts himself into, or assumes an office contrary to law, is distinguished from an officer de facto. The acts of a person who thus intrudes him- self without color of law, are void both as regards the public and as to other persons. 70 One who is at first a mere usurper may by acquiescence become an officer de facto. 71 Likewise, an officer de facto may become an officer de jure, through the completion of some of the required steps of entering into office, such as filing a bond, taking an oath, or the issuance of a legal com- mission. Members of a board of health for a village constitute a board de facto, notwithstanding irregularity in the passage of the ordinance creating the board ; 72 but a city physician, though duly elected by the city council, is not ex officio a member of the board of health, where the ordinance making him such is invalid. 73 § 280. No office de facto. There can be no office de facto, according to the system of the United States. 74 ''Where the law has provided that an office may legally be filled then the acts of an incumbent may be valid although not lawfully appointed, because the public being bound to know the law, knows that somebody may or should fill the place and perform the duties; and possession would as to them be evidence of 70 State v. Taylor, 108 N. C. 72 Smith v. Lynch, 29 Ohio, 261. 196; Plymouth v. Painter, 17 Conn. 73 Attorney General v. McCabe, 585; State v. Carroll, 38 Conn. 52 N. E. 717. 449; Hooper v. Goodwin, 48 Me. 74 Hildreth v. Mclntire, 1 J. J. 79; Tucker v. Aiken, 7 N. H. 113; Marsh (Ky.), 206; Hawver v. Sel- Hamlin v. Kassafer, 15 Ore. 456; denridge, 2 W. Va. 274; Norton v. McCraw v. Williams, 33 Gratt. Shelby County, 118 U. S. 425. (Va.) 510. 7iMechem, Public Officers, 319; State v. Carroll, 38 Conn. 449. OFFICERS 375 title. But where the law itself negatives the idea that there can be a legal incumbent, anyone assuming to act assumes what everyone is bound to know is not a legal office, and his acts cannot be effectual for any purpose." 75 But the rule "would seem to be that a person who holds a position which has been estab- lished by an unconstitutional law, should be regarded, until the law establishing the position has been declared unconstitutional, a de facto officer, inasmuch as he is holding a position under color of the title which comes from a law which has not been formally declared unconstitutional. This view of the subject may also be sustained upon the theory that the title to office may not be impeached in a collateral proceeding to which the officer is not a party, even though the ground of the impeachment is the fact that the position is based upon an unconstitutional law." 76 An officer de jure may become an officer de facto, through the expiration of his term of office. 77 But when the statute provides that an incumbent shall hold his office until his successor is elected or appointed and qualified, the officer so holding over is an officer de jure, not de facto. 78 "Where such a pro- vision exists, it is held that so far as it is necessary to 75 Campbell, J., in Carleton v. 78 Goodnow, Prin. Ad. Law, p. People, 10 Mieh. 250, 258. 306; State v. Bulkeley, 61 Conn. 76 Goodnow, Principles of Ad- 287; People v. Forquer, 1 111. 104; ministrative Law, p. 258, citing People v. Bissell, 49 Cal. 407; Peo- State v. Gardner, 54 Ohio, 24; pie v. Hammond, 66 Cal. 654; Peo- Burt v. Kailway Co., 31 Minn. pie v. Tyrell, 87 Cal. 475; People 472; American Law Review, Jan. v. Tilton, 37 Cal. 614; People v. 1896; Leach v. People, 122 111. Osborne, 7 Colo. 605 ; State v. Har- 240. rison, 113 Ind. 434; People v. Me- 77 People v. Tieman, 30 Barb. Adoo, 110 N. Y. Sup. 432. 193; Newman v. Beckwith, 61 N. Y. 205. 376 PUBLIC HEALTH ADMINISTRATION the protection of the public the officer will be deemed to be in office even if he has resigned and his resigna- tion has been accepted." 79 The appointments of an officer de facto are themselves de facto, and the Eng- lish rule is that ousting the appointer also ousts the appointee. 80 Though there is some difference in the rul- ing of American courts, the English rule seems to have been followed in the later American cases. 81 It is manifestly impossible that two persons shall hold the same position at one and the same time. It therefore follows that there can not be at the same time an officer de jure and an officer de facto. 82 Neither can there be two officers de facto for the same office. 83 §281. Determination of title to office. Since the actual occupancy of an office presupposes that the incumbent is there lawfully, it is a well recognized principle that the title to office cannot be tested col- laterally. 84 Thus an injunction will not lie to oust a usurper from office. 85 (§ 382.) Neither may the title to office be tried by certiorari. 86 (§ 383.) In Simon v. Hoboken, 86a the court held that certiorari would not lie to test title to office, even though the person appointed 79 Goodnow, Prin. Ad. Law, p. Ohio, 16 ; State v. Jacobs, 17 Ohio, 306; State v. Bulkeley, 61 Conn. 143; Mallett v. Uncle Sam G. Co., 287; State v. Howe, 25 Ohio St. 1 Nev. 188. 588. 82 Mechem, Public Officers, 322, so Rex v. Lisle, Andrews, 163 ; citing cases. Rex v. Mayor, 5 Term R. (D. &. «3 Mechem, Public Officers, 323, E.) 66; Rex v. Grimes, 5 Burr, citing cases. 2599; Rex v. Hebden, Andrews, 8 * Mechem, Pub. Off. 330, citing 389. cases, 343. si People v. Anthony, 6 Hun (N. ^ Throop, Pub. Off. 850, citing Y.), 142; People v. Murray, 73 cases. N. Y. 535; Contra, People v. Sta- ** Donough v. Dewey, 82 Mich, ton, 73 N. C. 546 ; Brady v. Howe, 309. 50 Miss. 608; State v. Ailing, 12 sea 52 N. J. L. 367. OFFICERS 377 had not entered upon the discharge of his duties, so that quo warranto would not lie. Mandamus will not lie to oust an officer de facto. 87 (§ 384.) When the title to office has been settled, and there is no other incumbent, then mandamus may be employed to seat the officer de jure. 8S Since a person may not profit by his own fault, it naturally follows that, though the acts of an officer de facto are valid as regards others, they are not valid as regards himself. "When an individual claims by action an office, or the incidents to the office, he can only recover upon proof of title. Possession under color of right may well serve as a shield for defense ; but can- not, as against the public, be converted into a weapon of attack, to secure the fruits of the usurpation and the incidents of the office. ' ' 89 Neither may an officer de facto plead in defense, when action is brought against him for any misfeasance in office, that he was not an officer de jure. 90 Likewise, he may be com- pelled by mandamus to perform the duties of the office which he assumes. 91 The proper remedy to test the title to office, in the absence of any special statutory provision, is by quo warranto, or information in the nature of quo war- ranto, 92 except in the case of officers of a court, where the matter may be decided by motion. (§ 379.) 87 Throop, Pub. Off. 825 et seq., Mechem, Pub. Off. 338, citing citing cases. cases. ss Throop, Pub. Off. 828, citing oi Mechem, Pub. Off. 339 ; cases. Throop, Pub. Off. 666; Bunion v. 89 People v. Tieman, 30 Barb. Latimer, 6 S. C. 126; Kelly v. 193; Mechem, Pub. Off. 331, 342; Wimberly, 61 Miss. 548. Throop, Pub. Off. 517, 518, citing 02 Mechem, Pub. Off. 344; cases, 659. Throop, Pub. Off. 776 et seq. so Throop, Pub. Off. 664; 378 PUBLIC HEALTH ADMINISTRATION A de facto officer may be punished for negligence, malfeasance, or misfeasance. 93 He may be compelled by mandamus to perform the duties of the office. 94 But he may at any time withdraw from office, or pub- licly disavow authority, and he will thereafter not be liable for nonfeasance. 95 An officer de facto cannot enforce payment for his services. 96 The emoluments of office belong to the offi- cer de jure, even though he be kept out of office, and he may collect the same from the proper disbursing officer. 97 It has been held in one case that the officer de jure may collect all of the emoluments of the office, and that he need not deduct the amount which he has otherwise earned while he was kept out of his office. 98 When the officer de facto has been paid the salary, the officer de jure may not claim the salary from the officer or corporation which has paid the officer de facto." But he may collect by action for that purpose, against the officer de facto. 100 It has sometimes been held that an officer de facto is entitled to deduct his expenses in earning the fees and emoluments. 1 In other cases it was held that the officer de jure might collect the whole salary, without deduction. 2 In New Jersey it was held that the officer de jure might not 93 Mechem, Pub. Off. 336, 337, N. Y. 536; Andrews v. Portland, 338; Throop, Pub. Off. 668. 79 Me. 484. 9* Mechem, Pub. Off. 339; »9 Memphis v. Woodward, 12 Throop, Pub. Off. 666. Heisk, 499; Mechem, Pub. Off. ssMechem, Pub. Off. 340; 332; Goodnow, Prin. Ad. Law, p. Throop, Pub. Off. 666. 288. 96 Mechem, Pub. Off. 331; ioo Mechem, Pub.. Off. 333; Throop, Pub. Off. 661. Throop, Pub. Off. 523; Goodnow, 97 Throop, Pub. Off. 661 ; Fitz- Prin. Ad. Law, p. 288. Simmons v. Brooklyn, 102 N. Y. i Mayfield v. Moore, 53 111. 428. 536. 2 People v. Miller, 24 Mich. 458. 98 Fitzsimmons v. Brooklyn, 102 OFFICERS 379 recover the salary earned by the officer de facto. 3 The public cannot recover salary voluntarily paid to an officer de facto. 4 The emoluments collected by an officer de facto, may be collected from him by the officer de jure, but they may not be collected from his sureties. 5 Dillon calls attention G to the fact that the fees of an office are not property, and cannot be collected by action against the city, by officer wrongfully kept from office. 7 "Where a statute annexes a pecuniary penalty to an office, and empowers a particular officer to sue for it, a person suing for the penalty must show that he is the officer de jure, as well as de facto. 8 This results from the rule, that he must sue in his individual name, with the addition of his official title ; and in pleading he must allege, that he is the officer he purports to be, upon which issue may be taken. 9 But where a statutory penalty is given to a town, county, or other munici- pality, an action therefore may be maintained by the municipality, although the penalty was incurred by the violation of rules established by officers of the munici- pality, who were merely officers de facto, ex gr. a board of health. " 10 § 282. Appointment to office. An appointment may be the result of the action of a single officer, or of a 3 Stuhr v. Curran, 15 Vroom, 20 Kans. 298 ; Dolan v. Mayor, 68 181. N. Y. 279; Hadley v. Mayor, 33 ♦ Badeau v. United States, 130 N. Y. 603. U. S. 439. 8 Horton v. Parsons, 37 Hun, 42 ; 5 Throop, Pub. Off. 256, citing People v. Nostrand, 46 N. Y. 375. Curry v. Wright, 86 Tenn. 636; 9 Gould v. Glass, 19 Barb. 179; Mechem, Pub. Off. 334. Supervisor v. Stinson, 4 Hill (N. 6 Municipal Corporations, 235, Y.), 136; Commissioners v. Peck, note. 5 Hill, 215. 7 Citing Smith v. New York, 37 i° Throop, Pub. Off. 862, citing N. Y. 518 ; Saline Co. v. Anderson, Bedford v. Eice, 58 N. H. 446. 380 PUBLIC HEALTH ADMINISTRATION select body. The fact that a statute, in prescribing that certain officers shall be chosen by certain boards, uses the word election does not affect the question, for such a selection is in legal effect an appointment. 11 A selection made by a court, or by the legislature, or by a municipal council, is not an election. It is legally an appointment. 12 "An appointment by the Governor or other person is not an election, so as to satisfy a pro- vision of the constitution directing an election in cer- tain cases." 13 § 283. Appointment by same branch of government. The fundamental idea of the separation of the powers implies the right of each branch to select its own agents. (§ 124.) The legislature may therefore appoint, either directly or indirectly through its officers, executive officers for its own body. 14 Such appointments could not be made by the general state executive. On the other hand, and for like reason, the legislature may not appoint a purely administrative officer. 15 In State v. Hyde, Mr. Justice Berkshire said "that the power to appoint to office is not a legislative function it seems there can be no question. Is it an executive function? That the power to appoint to office is intrinsically an executive function has been decided over and over again. Therefore the legislature cannot do what it has attempted in this case: take upon itself the appoint- ment of the head of a department, as the appointment "Sturgis v. Spofford, 45 N. Y. Officers, 84; Wyman, Ad. Law, 47. 446. i3Throop, Pub. Off. 84, citing 12 State v. MeCollister, 11 Ohio, Speed v. Crawford, 3 Met. (Ky.) 46; Carpenter v. People, 8 Col. 207. 116; People v. Lord, 9 Mich. 227; "State v. Denny, 118 Ind. 449. People v. Bull, 46 N. Y. 57 ; State is State v. Kennon, 7 Ohio, 546 ; v. Denny, 118 Ind. 449; State v. State v. Hyde, 121 Ind. 20. Hyde, 121 Ind. 20; Throop, Pub. OFFICERS 381 to office is an executive function. ' ' The legislature may establish the office, and may provide for the appoint- ment of the officer; it may increase or decrease his duties ; but it may not appoint. Therefore, when Con- gress established a commission for a park, and pro- vided that it should consist of five persons, three of whom should be appointed by the President, with the advice and consent of the Senate, and the other two should be two existing officers of the United States, it was held that Congress did not appoint these two addi- tional members to the commission, but that it simply enlarged their previous duties, and left the appointing power in the hands of the President. 16 § 284. Appointment by nonomcial body. Throop cites, 17 with apparent approval Sturges v. Spofford, 18 and In re Bulger, 19 to show that in the absence of any specific direction in the constitution of the state, the legislature may provide for appointment by unofficial persons or corporations. We may hardly agree with that distinguished writer, nor with the reasoning of the court cited. The decision written by Mr. Justice Cartwright in Lasher v. People, 20 seems to be the more safe. In effect, it is that since the legislature could not itself make the appointment, as that would be an encroachment of the legislative upon the powers of the executive, therefore the legislature was also power- less to grant the appointive power to another, to clothe the corporations with the sovereign power of appoint- ment. is Shoemaker v. United States, « 45 Cal. 553. 147 U. S. 282. 20 183 111. 226, 233. See also " Pub. Off. 85. Commissioners Ct. Perry Co. v. 18 45 N. Y. 446. Med. Soc, 128 Ala. 257. 382 PUBLIC HEALTH ADMINISTRATION In Lasher v. People 21 there was also a constitutional question involved, further than that of the separation of the powers. The statute involved was an act passed in 1899 to regulate the shipping, consignment, and sale of produce, fruit, butter, eggs, poultry, etc. The act created a Board of Inspectors, and provided that those inspectors should be appointed by several societies from their own membership. One member was to be selected by each of the societies named. The constitu- tion of the state prohibits 22 the legislature from pass- ing any law ' ' Granting to any corporation, association, or individual any special or exclusive privilege, im- munity or franchise whatever." The court said: ' ' Such rights as inhere in the sovereign power can only be exercised by the individual or corporation by virtue of a grant from such sovereign power, and whenever the state grants such a right it is a franchise. ' ' 23 The appointing power is an attribute of sovereignty. 24 Therefore the granting to these private corporations the right to appoint public officers was granting to them special privileges, and franchise. The act was there- fore unconstitutional. This prohibition as to the granting of appointive power to corporations or individuals outside of the official body has a direct application in the administra- tion of public health. It is frequently suggested that the selection of health officials, or members of medical examining boards, should be left to the membership of the medical societies, who would be the more com- petent, on an average, to make proper selections. The 2H83 HI. 226. 111. 80; People v. Holtz, 92 111. 22 Art. IV, See. 22. 426. 23 Board of Trade v. People, 91 ** 1 Blaekstone 's Com. 272. OFFICERS 383 general rule would prohibit such delegation of appointing power. To a degree, the same end may be secured by requiring the societies to nominate to the appointing officer such persons as may be deemed suitable. Such nominations, however, would have no binding power, and the appointing power may entirely disregard them. "As the function is executive, it is independent; no dictation to the department can be made without violation of the rule of separation of powers. Qualifications upon the eligibility of officers may be made, but directions as to the choice may not be made. Since appointment is an executive function, these results follow." 25 § 285. Power to appoint must be given by law. The power of appointment must be distinctly given either by the constitution, or by the legislative enact- ment. 26 It is customary in the state constitutions to give to the Governor a general power of appointment in all cases where either by the constitution, or by enactment, other provision is not made. (§ 125.) It is also customary in the constitutions and statutes that the power of appointment given to the Governor over the more important offices, is subject to the advice and consent of the senate. The appointment consists in the choice. If the choice requires nothing more than the commission of the appointing power, the appoint- ment is absolute. When the consent of another body or officer is required before the issuance of the com- mission, the appointment is conditional. Where an officer was appointed when the senate was not in session, and entered upon the discharge of 26 Wyman, Ad. Law, 48. Fox v. McDonald, 101 Ala. 51 ; 20 State v. French, 141 Ind. 618; State v. George, 22 Oregon, 142. 384 PUBLIC HEALTH ADMINISTRATION his duties, and served until notified that the senate had refused to confirm his appointment, it was held that he must be deemed to have been duly and legally appointed, and entitled to the office while he served. 27 Since the power of appointment depends upon statute, it naturally follows that the provisions of the statute must be carefully observed. Thus, an appoint- ment of a health officer by the common council without the nomination of the mayor, as disposed by law, is invalid; 2S but boards appointed by the mayor under ordinances not specifying manner of appointment are to be deemed legally appointed. 29 Under the general law in California authorizing a county to make and enforce police and sanitary laws and regulations, boards of supervisors have power to appoint health officers and to provide for the payment of their sal- aries. 30 The statutory requirement that three out of the five members of a local board of health shall be physicians does not prohibit the organization of a municipal board of health on which more than three of the five members are physicians. 31 A law providing for the appointment of health officers by boards of health, and for the payment of salary is mandatory. 32 §286. Municipal or board appointments. By the laws of some states certain municipal officers are said to be elected, but they are really appointed by the mayor and common council. In such cases the mayor does not act independently, but simply as the presiding 27 GouH v. United States, 19 Ct. so Valle v. Shaffer, 81 Pac. 1028. of Claims (U. S.), 593. si State ex rel. Weber v. Kohnke, 28Braman v. New London, 74 31 So. 45. Conn. 695. 32 State v. Massillon, 24 Ohio 29 Taunton v. Taylor, 116 Mass. Cir. Ct. 249. 254. OFFICERS 385 officer of the council. The written resolution, duly entered in the minutes of the council, has been con- sidered a complete appointment even though the mayor refused to attest it. 33 After a city officer has been declared duly chosen by a board of aldermen, and the declaration has been recorded, the board can- not at any adjourned meeting, held the next day, reconsider its action and choose another. 34 So too, after having confirmed an appointment, the council cannot reconsider its action and refuse to confirm. 35 But a rule regularly adopted, providing for a reconsid- eration is valid. 36 When an appointment is once made, no subsequent appointment is valid. 37 An office once filled cannot be declared vacant until the term for which the appointment is made has expired, or the death, resignation, or removal of the person appointed. 38 An appointment to take effect at some future time specified is valid. 39 But such appointment made by outgoing officers, to take effect after the expiration of the service of the appointers, is not valid. 40 §287. Appointment implies written commission. An appointment to be complete implies a written com- mission from a person authorized to issue the same, 41 33 People v. Stowell, 9 Abb. N. C. 38 Johnston v. Wilson, 2 N. H. (N. Y.) 456. 202. 34 State v. Phillips, 79 Me. 506; 39 Smith v. Dyer, 1 Call (Va.), also State v. Barbour, 53 Conn. 76. 562 ; Whitney v. Van Buskirk, 40 35 State v. Wadham, 64 Minn. N. J. L. 463. 318. 40 Ivy v. Lusk, 11 La. Ann. 486; 36 People v. Mills, 32 Hun, 459 ; State v. Meehan, 45 N. J. L. 189 ; State v. Hamilton Co., 7 Ohio, 134. People v. Eeid, 11 Colo. 141. 37 Thomas v. Burrus, 23 Miss. 4i Cooner v. Gilmer, 32 Cal. 75; 550; People v. Woodruff, 32 N. Y. Wood v. Cutter, 138 Mass. 149. 355. 386 PUBLIC HEALTH ADMINISTRATION and evidence of the acceptance of the same by the appointee. 42 The rule above given, that an appointment is valid only when a commission is issued has not always been strictly followed. "If a person acts notoriously as an officer of a corporation, and is recognized by it as such officer, a regular appointment will be presumed, and his acts will bind the corporation, although no written proof is, or can be, adduced of his appointment." 43 The appointment, and authority of a municipal officer may be presumed by the recognition, or adoption of the work of such officer. 44 This does not necessarily mean that such an officer is one de jure. It does fol- low that as regards the public such an officer's acts must be regarded as those of a true official. In one of the early New York cases it was held that in the absence of a constitutional or statutory requirement that the appointment be in writing, an oral appoint- ment was sufficient. 45 In a subsequent case it was held that a written communication to the council, and con- firmed by the council, (though such confirmation was not necessary), was a sufficient commission, though not in due form. 46 In another case where the mayor nominated a candidate orally to the council, and the council regularly confirmed the same, regularly recording the action in the minutes of the meeting, it was held that since the confirmation was not required by the law, the action was a nullity; and since the only act of appointment was the oral appointment of the 42 People v. Willard, 44 Hun 44 Killey v. Forsee, 57 Mo. 390. (N. Y.), 580. 45 People v. Murray, 5 Hun, 42. 43 Dillon, Munic. Corp. 213, cit- 46 People v. Fitzsimmons, 68 N. ing Bank of U. S. v. Danridge, 12 Y. 514. Wheat. 64. OFFICERS 387 mayor, it violated the common law upon the subject, and was no appointment. 47 In delivering the opinion in this case Mr. Justice Allen cited Hunt v. Ellisden, 48 Curies' Case, 49 and Craig v. Norfolk, 50 which held that an oral appointment is invalid. He therefore concluded that since by the common law the act was invalid, by implication it was also contrary to the statute. An appointment is not complete until a commission has been made and signed, and until such time the appoint- ment may be revoked. 51 § 288. Commission is evidence of appointment. The commission is not the appointment, but the evidence of the appointment. 52 It is not necessary that the com- mission shall have been delivered. 53 When a person has been nominated by the President, and confirmed by the senate, and the commission has been signed and sealed, his appointment is complete. The delivery of the commission to the appointee is not necessary to his investure with the office. He may be required to perform certain acts, such as taking the oath of office, before the investure of office is complete, but the deliv- ery of the commission is not essential. 54 § 289. Commission best evidence of appointment. Though some kind of a written commission is neces- sary for a valid appointment, that commission is not the appointment itself, but the evidence of appoint- *7 People v. Murray, 70 N. Y. 54 Marbury v. Madison, 1 521. Cranch, 137; U. S. v. LeBaron, 19 •*8 2 Dyer, 152. How. 73; Hill v. State, 1 Ala. 559; 4»11 Coke, 2. Jeter v. State, 1 McCord (S. C), sol Mod. 122. 233; State v. Lylies, 1 McCord (S. si Cooner v. Gilmer, 32 Cal. 75; C), 238; Justices v. Clark," 1 T. B. Wood v. Cutter, 138 Mass. 149. Mon. (Ky.) 82; Johnston v. Wll- 52 State v. Allen, 21 Ind. 516. son, 2 N. H. 202. 53 Marbury v. Madison, 1 Cranch, 137. 388 PUBLIC HEALTH ADMINISTRATION ment, and generally speaking it is the best possible evidence. 55 One holding an office by virtue of a com- mission must show that the person making such appointment, and signing the commission, was law- fully empowered to make the appointment. 56 In a case where the constitution declared that the appointment should be made by the Gov- ernor, and the general assembly assumed to make a selection, and the Governor issued a commission in which it was stated that the officer was appointed by the vote of the general assembly, it was held that this was not an appointment by the Governor, and the appointment was therefore void. 57 So also, in cases where a commission is issued through any error, as for an elective office when a commission is issued to one person under the mistaken idea that he had received the highest number of votes, the commission is void. 58 And a commission which was issued by the Governor, under the mistaken supposition that there was a vacancy, conferred no title. 59 § 290. Time for appointment. When county judges make appointments to membership in boards of health they may exercise their discretion in filling vacancies without delay. 60 Where authority is given to appoint a successor "at" the expiration of an offi- 55 State v. Allen, 21 Ind. 516; ss State v. Johnson, 17 Ark. 407 ; U. S. v. LeBaron, 19 How. 73; Ewing v. Filley, 43 Pa. 384; Kerr Allen v. State, 21 Ga. 217; Carter v. Trego, 47 Pa. 292; Low v. v. Sympson, 8 B. Mon. (Ky.) 155; Towns, 8 Ga. 360; Luzerne Co. v. Bank of U. S. v. Dandridge, 12 Trimmer, 95 Pa. 97; also see Har- Wheat. 64; Callison v. Hedrick, 15 din v. Colquitt, 63 Ga. 588. Gratt. (Va.) 244. 59 State v. McNeely, 24 La. Ann. se State v. Board of Health, 49 19. N. J. L. 349. e °In re Board of Health, 64 57 State v. Peele, 124 Ind. 515. Hun, 634. OFFICERS 389 cer's term, it was held that the appointment might be made at or near the time of the expiration of the term. 61 It was held that an appointment made within six months of a specified time was valid, even though the statute directs the Governor to make the appoint- ment "at least six months" before that time. 62 In a similar manner it was decided that a county treasurer was validly appointed when he gave a bond three days afterward, and the bond was accepted and approved by the commissioners, even though when the appointment was made it was conditional upon the giving of a bond within two days. 63 ' ' Where a statute vested the appointing power in the mayor and two aldermen of a city, and two justices of peace of the county, and directed that it should be exercised on a certain day; and the appointment was made clandestinely, after a refusal by the mayor to inform certain aldermen and justices of the peace as to the hour when and the place where the appointment would be made; it was held, that this was not such an exercise of the mayor's discretion as would satisfy the law; and leave was granted to file an information in the nature of a quo warranto against the officers so appointed." 64 § 291. Appointments requiring confirmation made during recess. There is another class of cases in which a question as to legality of appointment may arise, namely in those in which the appointment requires confirmation by the legislative body. In the state of 6i People v. Blanding, 63 Cal. es State v. Eing, 29 Minn. 78, 333. 83. 62 1% re Census Superintendent, 64 Throop, Public Officers, 94 ; 15 B. I. 614; also People v. Police citing Comm. v. Douglas, 1 Binn. Board, 46 Hun (N. Y.), 296. 77. 390 PUBLIC HEALTH ADMINISTRATION New York the constitution provides that the Governor may temporarily fill a vacancy in the office of justice of the supreme court, by the advice and consent of the senate "if the senate shall be in session," or by his own appointment if the senate be not in session. The senate adjourned an extraordinary session from September 10 to November 20. On September 13 a vacancy occurred which the Governor filled on the 21st. The question raised was whether the senate was then in session, as within the meaning of the constitution. The court of appeals held that the appointment was valid, for the reason that when the sittings of the body were ter- minated by an adjournment of months, it could not be said to be in session. The court suggested, but did not pass upon, the question whether the provision in the constitution referred to any other than the regular sessions of the senate as a branch of the legislature. 65 The question of the power of the Governor to appoint during a recess of the legislature, when the statute says that the appointment shall be made "by and with the advice and consent of the senate," is quite fully con- sidered in an opinion by Attorney General Stead of Illi- nois. 66 The statute says, 67 in part : ' ' The Governor of this state, by and with the advice and consent of the senate, shall, before the first Monday in December, 1881, and every four years thereafter, appoint in each county in this state, and as often as any vacancy may occur, a suitable person to be known as public adminis- trator of such county, who shall hold his office for the term of four years from the first Monday in December, es People v. Fancher, 50 N. Y. 67 Eevised Statutes, Chap. 3, 288. Par. 44. 6a Eeport of the Attorney Gen- eral, 1910, p. 172. OFFICERS 391 1881, or until his successor is appointed and qualified. ' ' On December 6, 1909, the Governor appointed one Tracy to the office of public administrator of Kankakee County, for four years from date, and a certificate was made out and issued on that date. The senate was not then in session. The preceding administrator had neither resigned, died, nor been removed, but he was still holding the office, and discharging the duties thereof. The county judge refused to permit Mr. Tracy to qualify, because the senate had not concurred in the appointment when the commission was made out, or when said Tracy applied to qualify. The senate met in extraordinary session December 14, 1909, and adjourned, sine die, March 2, 1910. Mr. Tracy's nomi- nation was not submitted for confirmation. On March 3, 1910, the Governor submitted to the Attorney Gen- eral for opinion three questions. First: Can the Governor make such appointment, and issue a commis- sion during a recess of the senate, and before the senate has concurred in such appointment? Second: Has the county court the right to question the validity of such appointment when asked to enter an order fixing a bond of such appointee ? Third : If the appointment of December 6th was not valid because it was not sub- mitted to the senate, can the Governor reappoint said Tracy? In his opinion Mr. Stead said that so far as he was aware the questions submitted had not been passed upon by the courts of Illinois, nor by those of other states. He then says : 6S " The law is well settled that an office does not become vacant on the expiration of the fixed term of the incumbent of the office, where, 68 P. 173. 392 PUBLIC HEALTH ADMINISTRATION under the law, he holds over until his successor is elected or appointed and qualified. " 60 Mr. Stead then proceeds to say that there being no vacancy, the appointment must be considered as for the full term, beginning with the expiration of the term of the incum- bent then in office. But the statute did not give to the Governor the power to make such appointment alone, but only "with the advice and consent of the senate." The original appointment was therefore illegal and void, and the county court was justified in refusing to treat the appointment as valid, and in refusing to enter the order fixing the amount of the bond. As supporting the contention that the Governor could not issue a law- ful commission without the consent of the senate, Mr. Stead cites, Marbury v. Madison; 70 Field v. People, 71 and People v. 'Toole, 72 each of which held that the chief executive could not act alone, but that it must be the concerted action of the Governor (President), and the senate. § 292. Recess appointments must be submitted for confirmation. According to a statute in California an officer held over, after the expiration of his term, until his successor qualified ; and a person appointed to fill a vacancy held until his appointment was acted upon by the senate. It was held that having made an appoint- ment to fill the vacancy, the governor could not revoke the appointment, but must submit it to the senate. 73 A vacancy which occurred during a session of the legis- eo People v. Forquer, 1 111. 104 People v. Bissell, 49 Cal. 407 People v. Hammond, 66 Cal. 654 People v. Tyrell, 87 Cal. 475 People v. Tilton, 37 Cal. 614 People v. Osborne, 7 Colo. 605 State v. Harrison, 113 Ind. 434 People v. McAdoo, 110 N. Y. Supp. 432. 70 1 Cranch. 137. 7i 2 Scam. 79. 72 164 111. 344. 73 People v. Cazneau, 20 Cal. 504. OFFICERS 393 lature may be filled by appointment under the provision which permits the governor to appoint during recess of the legislature. 74 The provision of the constitution which requires the governor shall nominate to the senate such civil officers as are thus to be appointed, "within fifty days from the commencement of each reg- ular session of the legislature," does not apply to such offices as were created by acts passed during that ses- sion of the legislature. 75 A municipal officer appointed by the mayor temporarily to fill an office during the absence of the regular officer (a defaulter), contended that the mayor had only the power to appoint to fill a vacancy, and that the appointment was therefore for the remainder of the full term. It was held that if the mayor did not have the power to appoint temporarily his action was a nullity. 76 § 293. Time for which appointed. Where a correct interpretation of the charter of the city provided that the term of a city officer was two years, and the city council appointed a man for one year, supposing that one year was the correct term, it was held that the appointment was legally for two years, and the appoint- ment of a successor at the end of one year was nullity. 77 (§§314-316.) § 294. Vote must show approval. A case in Massa- chusetts centered upon the vote for confirmation of a nomination by the mayor. The statute said that, ' ' The mayor shall have the exclusive power of nomination, subject however to confirmation or rejection by the board of aldermen." The same nomination had been 74 State v. Kuhl, 51 N. J. L. 76 People v. Hall, 104 N. Y. 170; 191. People v. Lord, 9 Mich. 227. 75 Co. Coins, v. Hellen, 72 Md. 77 Stadle* v. "Detroit. 1-2 Mich. 603. 34G 394 PUBLIC HEALTH ADMINISTRATION rejected ten times, and upon being made again the mayor put it to vote in this form : ' ' Shall the nomina- tion be rejected?" There were three votes for, and three against. The mayor declared the nomination not rejected, and the nominee appointed. There was no objection made at that time, and the officer's bond was approved by the aldermen, after the appointee had taken his oath of office. It was held by the court that if the nomination was not confirmed by a majority vote of those voting the appointment was not made, and the appointee would be ousted upon quo warranto. 78 § 295. Action of majority. The English rule as to whether or not the act of the majority concludes the minority is thus stated by Ch. J. Eyre : 79 "I think it is now pretty well established that where a number of persons are entrusted with powers, not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole. ' ' so The American rule is that when the statutes confer upon three or more persons the power to act in a matter of public concern, requiring discretion and judgment, but contain no directions as to the number of those who may exercise the power, such action requires the pres- ence of all and the action of a majority. 81 78 Com. v. Allen, 128 Mass. 308; 314; Withnell v. Gartham, 6 T. R. also Baker v. Comrs., 62 Mich. (D. & E.) 388. 327. siMeehem, Pub. Off. 575; 79 Grindley v. Barker, 1 Bos. & Throop, Public Officers, 106, cit- Pul. 229. ing: Caldwell v. Harrison, 11 Ala. so See also, Rex v. Whitaker, 9 755 ; Pulaski Co. v. Lincoln, 9 Ark. B. & C. 648; Rex v. Beeston, 3 320; Louk v. Woods, 15 111. 256; T. R. (D. & E.) 592; Cortis v. Paola R. R. Co. v. Anderson Co., 16 Kent Waterworks Co., 7 B. & C. Kas. 302; Merrill v. Berkshire, 11 OFFICERS 395 If there be any vacancies upon the board, it has been held that the members in office cannot act, even though they constitute a majority of the full board. 82 But if all have been duly convened the dissent of a minority, or their withdrawal or refusal to be considered as mem- bers of the board will not affect the validity of the acts of the majority. 83 If two out of three act in the absence of the third, his subsequent signature to the instrument executed by them will not cure the defect. 84 Approval by full board of minutes where two acted will not cure defect. 85 Where a statute provides that a majority may act, they may act without consultation with the minority. 86 It is not necessary that the statute should specifically confer upon the majority the power to act, even without notice to the minority, if such power may be reasonably inferred from the provisions, or the nature of the power conferred. 87 The right of a majority to act in the absence of the minority is thus stated by Judge Emott: 88 "The rule of the common Pick. (Mass.) 268; Williams v. 599 ; Schenck v. Peay, 1 Wool. 175. School Dist., 12 Met. (Mass.) 497; 83 See cases above cited. State v. Porter, 113 Ind. 79 ; Scott 8 * Keeler v. Frost, 22 Barb. 400. v. Detroit Y. M. C. A., 1 Doug. 85 In re Palmer, 1 Abb. Pr. N. S. (Mich.) 119; State v. Smith, 22 (N. Y.) 30. Minn. 218; Jewett v. Alton, 7 86 Johnson v. Dodd, 56 N. Y. N. H. 253; Charles v. Hoboken, 27 76; People v. Batehelor, 22 N. Y. N. J. L. 203; Green v. Miller, 6 128; Jefferson Co. v. Slagle, 66 Johns. (N. Y.) 39; Cooper v. Pa. St. 202; Austin v. Helms, 65 Lampeter, 8 Watts (Pa.) 125; N. C. 560; Walcott v. Walcott, 19 Cassin v. Zavalla, 70 Tex. 419; Vt. 37. Schenck v. Peay, 1 Woolw. (U. S.) 8 ? Pulaski Co. v. Lincoln, 9 Ark. 175; Curtis v. Butler, 24 How. 320; State v. Wilkesville, 20 Ohio 435; Cooley v. O'Connor, 12 Wall. 288; People v. Nichols, 52 N. Y. 391; First Nat'l Bank v. Mount 478; Keeler v. Frost, 22 Barb. Tabor, 52 Vt. 87; Soens v. Bacine, 400; People v. Williams, 36 N. Y. 10 Wis. 271; and numerous other 441. cases. 88 Horton v. Garrison, 23 Barb. 82 Cassin v. Zavalla, 70 Tex. 176, 179. 419; Williamsburg v. Lord, 51 Me. 396 PUBLIC HEALTH ADMINISTRATION law, which is now declared by statute, that where an authority is to be exercised by more than one officer, they must all concur in its exercise, or all meet and consult and a majority agree to act, is subject to the necessary qualification, that if one is notified to attend and refuses, it is the same as if he had attended and dis- sented from the act. ' ' 89 Under the statutory provisions requiring the pres- ence of all of the three members of the executive com- mittee of the State Board of Health to make a valid quarantine order, an order signed by two members, that is by a majority, is invalid in the absence of proof that all of the members were present when the order was made. 90 §296. Vote need not show quorum. The presence of a quorum is not required to be shown by the votes cast. When a majority of the board are present, if a majority of those present decline to vote, or vote in a different manner than that prescribed by law, as viva voce when the statute requires vote by ballot, a minority, composed even of a single member, is suffi- cient to make an appointment. 91 §297. Sufficiency of notice. "As to the sufficiency of the notice required, in order to enable the majority to act in the absence of the minority, it seems that a reasonable notice suffices ; and whether a notice is, or is not reasonable, will depend upon the circumstances of 89 Also see McCoy v. Curtice, 9 201 ; People v. Batchelor, 22 N. Y. Wend. 17; Woolsey v. Tompkins, 128; People v. Nichols, 52 N. Y. 23 Wend. 324; Perry v. Tynan, 22 478. Barb. 137; People v. Walker, 23 so Wilson v. Ala. Ga. S. Ry. Co., Barb. 304; In re Church St., 49 77 Missi 714, 28 S. 567. Barb. 455; People v. Supervisors, 91 Comm. v. Bead, 2 Ashm. 10 Abb. Pr. 233; Gildersleeve v. (Pa.) 261. Board of Education, 17 Abb. Pr OFFICERS 397 each particular case." 92 A member who is present and participates in a meeting is thereby estopped from objecting to a special meeting on the ground of insuffi- cient notice. 03 A body having established rules or by- laws, with stated times and places of meetings may make appointments at such regular meetings without special notice to absentees. 94 A board having ap- pointed a day for choosing a city officer, and at an inter- vening meeting rescinded the resolution and proceeded to make the selection, some of the aldermen being absent, and not having had notice of the change, it was held that the action was void. 95 Where the day of the meeting of the Mayor and council is fixed by statute, half of the aldermen may not defeat an election by absenting themselves, thus to leave the board without a quorum. 96 Where the statute directed the township trustees of a county to meet on a specified day and appoint a county superintendent, but gave no direction as to the requisite number to form a quorum, or the manner of election ; and on the given day ten trustees met and ballotted unsuccessfully until noon, and then adjourned to meet on the day following; when only five met and made the selection ; it was held that the com- mon law rule requires the presence of a majority to render the action valid, and the appointment was there- fore void. 97 Where the town officers met on the day specified by statute and selected a town treasurer, and saThroop, Public Officers, 113, 128; Gildersleeve v. Board of Edu- citing Whiteside v. People, 26 cation, 17 Abb. Pr. 201. Wend. 634, reversing 23 Wend. 9 ; 95 People v. Batchelor, 22 N. Y. People v. Batchelor, 28 Barb. 310; 128. In re Church Street, 49 Barb. 455. so Kimball v. Marshall, 44 N. H. 93 Mitchell v. Horton, 75 Iowa 465. 271. 97 state v. Porter, 113 Ind. 79. 94 People v. Batchelor, 22 N. Y. 398 PUBLIC HEALTH ADMINISTRATION then adjourned to a certain day to enable the appointee to accept or decline the appointment; and on the day appointed he appeared and declined the appointment, and the town officers then adjourned to another certain day and on that day appointed another man; it was held that the last appointee was lawfully appointed, and that the former incumbent did not hold over. 98 § 298. Appointment by two or more bodies. ' ' Where the power of appointment to an office is conferred by statute upon two or more bodies, and no provision for a quorum is made, nor is it provided that they shall act separately, the rule is that all the bodies must meet together for consultation, or all must be notified so to meet; and thereupon if the majority of those present constitute a majority of all the members of all the bodies, they may proceed to make the appointment. ' ' " But even when the law requires a joint ballot, an appointment by ballot of the separate bodies is suffi- cient to give color of office. 100 Where the statute gives the power to appoint to two bodies, specifying that when they disagree they shall meet and make the appointment by joint ballot, the failure of one body to nominate is the same as a disagreement, and the appointment must be made by joint ballot. 1 If after so meeting in joint session to make an appointment, and the smaller body, finding itself in the minority, withdraws; and the larger body, having present a majority of the combined joint meeting proceeds to 98 Carter v. McFarland, 75 Iowa Canniff v. Mayor, 4 E. D. Smith, 196. 430; Davenport v. Hull, IS Wend. 99Throop, Pub. Off. 116, citing 510. People v. Walker, 23 Barb. 304; "<> Belfast v. Morrell, 65 Me. Gildersleeve v. Board of Educa- 580. tion, 17 Abb. Pr. 201 ; Comm. y. i Ex parte Humphrey, 10 Wend. Hargest, 7 Pa. County Court, 333; 613. OFFICERS 399 make an appointment, it was held that the appointment was valid. 2 § 299. Appointive power once used is exhausted. Whenever the appointive power, either of an officer or of a board has been legally used, no subsequent appointment can be made until a vacancy exists by reason of the expiration of the term for which appoint- ment was made, or by the death, resignation, or removal of the appointee. 3 Where an appointment is complete, and the incumbent is removable only "for cause," the appointing power has no authority to revoke a commis- sion, nor to rescind an appointment. 4 But if the appointment was illegally made, either as to manner, or by officers not having authority to make the appoint- ment, another appointment may lawfully be made. 5 A ballot having been taken and announced cannot be rescinded by resolution, and the person so appointed was held to have been legally appointed. 6 But if the result of the ballot has not been announced, though counted, a second appointment will be valid. 7 Where the body has a general rule providing for reconsidera- tion, a vote taken and recorded, may at a later meeting be reconsidered, and another appointment be lawfully made. 8 2 Whiteside v. People, 26 Wend. s State v. Peele, 124 Ind. 515; 634; Kimball v. Marshall, 44 N. H. Commissioners v. Philadelphia 465. Commrs., 5 Binn. 534. 3 Thomas v. Burrus, 23 Miss. 6 State v. Barbour, 53 Conn. 76 ; 550 ; People v. Woodruff, 32 N. Y. State v. Phillips, 79 Me. 506. 355; Johnson v. Wilson, 2 N. H. 7 Baker v. Cushman, 127 Mass. 202; People v. Bissell, 49 Cal. 407. 105; Putnam v. Langley, 133 Mass. * Ewing v. Thompson, 43 Pa. 204. 372; State v. Love, 39 N. J. L. « People v. Mills, 32 Hun, 459. 14; People v. Stowell, 9 Abb. N. C. 456; Marbury v. Madison, 1 Cranrh, 137. 400 PUBLIC HEALTH ADMINISTRATION § 300. Appointment of self. It is sometimes neces- sary for a board to appoint one of its own members to a position. A vote of an authorized committee, electing the clerk as city engineer, duly recorded and signed by him as clerk was declared valid, and sufficient to take the appointment out of the statute of frauds. 9 But appointment of one 's self to office is contrary to public policy, and where a board is to make the appointment, and they appoint one of their own members, and owing to division the candidate 's own vote was necessary for his election, it was held that the appointment was void. 10 Under a city ordinance providing for the appoint- ment of a quarantine physican by the local board of health the board could not lawfully and properly elect one of themselves to this office. The ordinance, by requiring that he shall be subject to the orders of the board, contemplates that he shall not be a member. His charges are to be only such as the board approves. His personal interest in these charges is inconsistent with the proper performance as a member of the board of health to fix their amount in the interest of the public and the protection of the patients. Such appointment was therefore contrary to public policy, and the mayor was upheld in removing the members of the board of health for making such appointment. 11 §301. Appointments by outgoing officers. It is manifestly contrary to public policy for an outgoing 9 Chase v. Lowell, 7 Gray « Gaw v. Ashley, 195 Mass. (Mass.) 33. 173. Also, Ft. Wayne v. Eosen- io People v. Thomas, 33 Barb, thai, 75 Ind. 156; Spearman v. 287; State v. Hoyt, 2 Oreg. 246j Texarkana, 24 S. W. 883. But see See also Sloan v. Peoria, 106 Ills. St. Johns v. Supervisors, 70 N. W. App. 151. 131. OFFICERS 401 officer to appoint subordinates for his successor. Though it is a duty to make appointments to fill vacancies, the retiring officer may not make appoint- ments to positions which will not be vacant during the terms of the appointors. 12 Where a county commis- sioner whose term had expired the night before, and whose successor had been elected and qualified, took part in the appointment of a county treasurer, it was held that therefore the appointment was void. 13 § 302. Municipal authority to create offices and make appointments. By the common law a city has the power to create such officers as shall seem necessary for conducting the business of the city. Such civil offices must be of very limited authority and jurisdic- tion. By the general rules governing the relationship between the city and the state, the city may not create any office, nor impose powers and duties, contrary to the general statutes of the state; and the state may at any time nullify the act of the city by state legisla- tion. The city has no power to create any office which is not authorized by the state. This authorization may be general, rather than specific. Formerly all health administration was local in character. Local health officials were therefore recognized in the common law. In addition, under the general powers given to the city to preserve the health of the citizens, it would therefore be lawful for a city to create such offices of health as might seem necessary, even though power to create offices of health be not distinctly given by the state. The power is implied. In creating offices the city has 12 State v. Meehan, 45 N. J. L. is Sogers v. Buffalo, 123 N. Y. 189; People v. Blanding, 63 Cal. 173. 333. 402 PUBLIC HEALTH ADMINISTRATION full authority to determine by whom appointments shall be made, for what time, for what duties, and how paid. The city may at any time abolish an office so created. 14 §303. Appointments of two or more for unspeci- fied class or district. It sometimes happens that an appointing body has to elect, that is, in reality appoint, two or more officers of equal rank and designation, but for different term, or class, or for different districts, the districts being known by number. When the vote is not distinctly announced beforehand as for a given term or district, it has been held that the one first chosen shall be deemed appointed for the first class or district, and others in order to other classes or dis- tricts ; but if both be elected on one ballot the person whose name appears first on the record shall be deemed appointed for the first class or district. 15 It is evident that resort to this ruling is undesirable, and that it should be distinctly understood before a ballot be taken what position is about to be filled. In case that there be two vacancies to be filled, that which has longest existed should be first filled. Suppose that A be appointed to a certain office, presumably in conformity with law, and enter upon the discharge of his office. Later, and before the expiration of the term of B in a corresponding office, with same title, suppose that G be appointed to the office by name without designat- ing the term. But before the expiration of the term of B suppose that it be determined that A was not legally appointed; apparently, under the ruling in People v. I* Dillon, Munic. Corp. 206, 207. Pr. (N. Y.) 404; People v. Super- is People v. Kneissel, 58 How. visors, 20 N. Y. 252. OFFICERS 403 Supervisors, 16 it would be held that C would take the unexpired term which was being occupied by A, even though when he was appointed it was supposed that he would succeed to the long term. In other words, of two undesignated officers, the term of the one first appointed should expire before that of subsequent ap- pointees. § 304. Officers of health appointed, not elected. It will perhaps be noticed that in this discussion little has been said relative to elective officers. Neither have all the possible phases of appointments been covered. So far as I am aware, the officers of public health admin- istration are always appointed, in this and foreign countries. They never should be elected, and there is little probability that they will be. The laws govern- ing elections are therefore of interest in public health administration only secondarily, as determining the right of elective officers to make appointments. On the other hand, an attempt has been made to select from the decisions relative to the power of appoint- ment such as might have a bearing upon a possible appointment of health officers. Much may depend upon the legality of appointment, and one may easily err in supposing himself an officer de jure. §305. Eligibility for appointment — Citizenship. Having decided who shall make an appointment, and how it may be accomplished, the next question which arises is, Who are eligible for appointment? (§ 126.) At the very beginning of the answer to this question one is met by the distinction between an appointment to office and an employment. There is nothing in nature or law, aside from the statutes, which would in 16 20 N. Y. 252. 404 PUBLIC HEALTH ADMINISTRATION any way interfere with employing the best man avail- able for a position, irrespective of his citizenship. In fact, such a course is highly commendable. But to an officer the people resign a portion of their sovereign authority. It would be beyond belief that any self- respecting nation would permit a resignation of sovereign authority within its own bounds to any foreign power, except in such reciprocal limited areas as are used for diplomatic service. To appoint to an office one who is not a citizen, one who owes allegiance to another nation, is practically to surrender such authority to the foreign power. A fundamental prin- ciple therefore is that an officer must be a citizen. Thus it was held that officers appointed by the State Board of Health for towns must be residents of the town for which appointed. 17 This seems to be an extreme view, and not necessarily for the greatest efficiency, though endorsed by legal principles. If the local health officer be really a state officer, and appointed by a state board, the necessity of local residence does not seem emphatic. On the other hand, the city physician who is not a mem- ber of the board of health is simply the servant of the city, and though called an officer it was held that the place could be filled by an alien. 18 Exactly what shall be the definition of the limits of citizenship must be left to enactment, either in the constitutions, or statutes. It may be easier to acquire citizenship in one jurisdiction than in another. Citizen- ship requires, ordinarily, that in acquiring that status in one jurisdiction it must be relinquished in the former residence. In moving from one ward to another, one 17 Nay v. Underbill, 42 Atl. 610. is Attorney General v. McCabe, 172 Mass. 417. OFFICERS 405 country to another, or one state to another in the nation, the fact of such removal, and the nonexercise of the rights of citizenship in the former residence is generally deemed sufficient to transfer citizenship to the new residence. As to the time of such residence necessary in the new domicile, that is a matter to be fixed by the statutes, and it may be varied by subse- quent enactment. In coming from a foreign country citizenship is acquired by judicial proceedings in which the former allegiance is formally resigned. In one case it was held that the fact that a candidate was not a citizen did not prohibit him from election to office. The conditions were peculiar. By the constitution of Indiana it was provided that "No person shall be elected or appointed as a county officer, who shall not have been an inhabitant thereof during one year next preceding his appointment, ' ' and the fact that a candi- date who had resided in the county for the requisite time, and under the constitution was a voter, made him eligible, though he had not been naturalized. 19 So also the fact that a candidate had only been naturalized two months, though he had resided in the county a full year, was no bar to his election. 20 But if he have the power of voting, the delegation of authority is not alienated in giving him the office. "The word inhab- itant means one who dwells or resides permanently in a place, or who has a fixed residence, as distinguished from an occasional lodger or visitor. A citizen is a native or naturalized person." 21 As a general rule, however, an alien may not hold a public office. 22 i» McCarty v. Froelke, 63 Ind, 21 State v. Kilroy, 86 Ind. 118. 507. 22 state v. Smith, 14 Wis. 497; 20 State v. Kilroy, 86 Ind. 118. State v. Murray, 28 Wis. 96. 406 PUBLIC HEALTH ADMINISTRATION For this reason, and that the fact of residence and citizenship may be clear, it is customary that state con- stitutions require a residence of a year next preced- ing election or appointment to public office. A resident of another state may not, therefore, be lawfully ap- pointed as an officer in the health service of a state, though he may be employed in such service. As an employee he has no sovereign power. Disregard of this principle has sometimes brought disappointment. Officers have been selected for their fitness, and hav- ing relinquished former positions they find that they may not lawfully enter the new places until after the expiration of the stipulated period of time. Where it was shown that an appointee had intended to make Milwaukee his residence, without claiming that he had actually been there continuously, that was sufficient to comply with the provision that a commissioner of health shall have resided in the city continuously at least one year prior to his appointment. 23 § 306. Natural qualifications. By the common law of England, as adopted by the people of the United States there is a recognition of certain natural quali- fications or disqualifications. It is evident that a person of unsound mind is incompetent to hold office. So, where the office is vested with discretion, and where its exercise requires the exercise of judgment, a person of immature mind is disqualified ; but in min- isterial duties only, a minor who is otherwise qualified, may take office. While by the common law women have been barred from holding legislative or judicial posi- tions, 24 ' ' The common law of England, which was our 23 Kempster v. Milwaukee, 97 Conn. 131, and Matter of Goodell, Wis. 345. 48 Wis. 693. 24 But see Matter of Hall, 50 OFFICERS 407 law upon the subject, permitted a woman to fill any local office of an administrative character, the duties attached to which were such that a woman was compe- tent to perform them. ' ' 25 On this basis women have been permitted to occupy many offices. It is compe- tent for the Governor to appoint women as members of the State Board of Health. 26 There is sometimes a necessary conflict between two offices. Under such conditions it is manifestly im- proper, and it would so be held by the court, to attempt to thus unite them in one person. By the general rule, therefore, acceptance of a second office incompatible with the first, vacates the first office. 27 (§ 309.) § 307. Educational qualifications. Aside from any special requirement as to qualifications for office to be found in enactments, by the common law a man should have a training or education which will fit him for the position to which he may be elected or appointed. Once again we must go back to the old writers. " If an office, either of the grant of the king or subject, which con- cerns the administration, proceeding, or execution of justice, or the king's revenue, or the commonwealth, or the interest, benefit, or safety of the subject, or the like ; if these, or any of them be granted to a man that is inexpert, and hath no skill and science to exercise or execute the same, the grant is merely void, and the party disabled by law, and incapable to take the same, pro commodo regis et populi; for only men of skill, knowledge, and ability to exercise the same, are capable to serve the king and his people. " 2S While this rule 25 Opinion of Judges, 115 Mass. 27 Mechem, Pub. Off. 420, citing 602. cases. 2 « Opinion of Justices, 136 Mass. 28 Bacon, Abbr. Titl. Offices and 578. Officers, I, citing cases. 408 PUBLIC HEALTH ADMINISTRATION has not been frequently applied in this country, and its application is hedged about with difficulties, it has been used, as when an interpreter was removed from his position in one of the New York city courts. 29 It would be well if sometimes more attention were paid to the provisions of this common law restriction, espe- cially in making appointments pertaining to work requiring a special or technical training. For example, the head of a state department of health should be one thoroughly versed in the science of preventive medi- cine, and that includes a vast field beyond the educa- tion which fits one for the practice of medicine. On the other hand, there is much in the education of a prac- ticing physician or surgeon which has only a very remote application in public sanitation. In conse- quence a man may be an expert practioner, but utterly incompetent as a health official; yet it is the ordinary course for appointing officers in selecting their health officials to pick their men according to standing as physicians. Far more competent sanitarians might be frequently found among the engineering profession than among physicians. In fact, much of the effective work in preserving the public health, perhaps the large percentage, will be found to center on engineering problems, for which the average practicing physician is utterly incompetent. Problems of drainage; sewage; waste disposal, including the collection, transportation and conversion or destruction of garbage, litter and stable waste; water supplies, including purification and problems of construction; construction of build- ings for various purposes; manufacture, transporta- 29 Conroy v. Mayor, 6 Daly, 490, affirmed, 67 N. Y. 610. OFFICERS 409 tion, and storage of food products; elimination of domestic pests; — all of these are much more closely connected with the science of engineering than with that of medical and surgical practice. This cannot too strongly be impressed upon the minds of those respon- sible for appointments to public health positions. It was contended that the health commissioner of St. Louis was disqualified from sitting as a member of the board of health, when, before the board met, in the written notice issued by him to the relators, call- ing them to appear before the board to answer to the charge as to their works being a nuisance, he stated that in his opinion the works as operated constituted a nuisance and were detrimental to the public health. The court did not agree that proceedings before the board should be conducted with an impartiality, and absence of preconceived opinions as would be required in a court trial. The competent man must have an opinion when a matter is brought before him, and to agree to the contention would require incompetent offi- cers. 30 The common law requirement for educational quali- fication as a requisite for appointment to office, though not clearly perceived generally, is realy the basis of civil service requirements, and it is customary for those in charge of such service to examine as to partic- ular fitness for special positions. § 308. Legislative restrictions. It is usual for gov- ernmental bodies to enact certain other restrictions relative to election or appointment to office, and the basis of these will be found in the common law, ampli- 30 State ex rel. Parker-Washing- ton Co. v. St. Louis, 207 Mo. 354. 410 PUBLIC HEALTH ADMINISTRATION fying, or more definitely stating those requirements. Such restrictions are found in the general statements in the various constitutions and in the enacted statutes. In addition to the general restrictions, it is common in acts providing for certain offices to place thereon spe- cial restrictions; for example, in an act providing for appointing a board of examiners for license, it is the rule that the act specifies that the members of the board shall be selected from those who are engaged in the same profession. It would be manifestly improper that a board of architect examiners be picked from the legal or medical professions. Statutes making these definite restrictions, if general, and based upon reason- able ideas, will be sustained. Statutes and constitutions frequently make a defi- nite age limit for appointments, following the example set in the Constitution of the United States. A repre- sentative in Congress must be twenty-five years of age ; a senator, thirty years ; and a President, thirty-five, of age, at least. The United States Constitution further provides that no person shall be elected President who has not resided at least fourteen years in the United States. In state statutes defining qualifications for office it is quite customary that a stated period of resi- dence be required in the jurisdiction before election or appointment, and this residence must be next pre- ceding the election or appointment. Under such a statute it has been held that the period of residence must be before the election or appointment, rather than before the beginning of term of service. 31 A non- resident is eligible to office unless the contrary is pro- vided by statute. 32 31 Parker v. Smith, 3 Minn. 240 ; 32 Com. v. Jones, 12 Pa. 365; State v. McMillen, 23 ISTebr. 385. State v. George, 23 Fla. 585. OFFICERS 411 While the general requirement of previous residence may be highly desirable as to elective offices, it may be a distinct disadvantage in such appointive offices as require special, or technical education. By the gen- eral statutes of Illinois, 33 it is required that no person shall be elected or appointed to any office in a city or village, who has not been a resident thereof for the year next preceding the election or appointment; but it makes two exceptions to this requirement, namely, city engineer and attorney. Now it may very well be true that in even a fairly large city or village, the best service obtainable within its limits in these particular lines will be inferior to the requirements of the situa- tion. Moreover, a removal of this requirement as to residence will stimulate home talent to apply itself for perfection, in the hope that having made a record in the smaller place promotion may be offered to a more lucrative position elsewhere. The same argument is doubly applicable relative to public sanitarians. A lawyer, or an engineer may find private employment elsewhere, if he prove efficient. There is practically no private demand for sanitarians, and he who applies himself to mastering this branch of science is prac- tically limited to public employment. If, then, there is no opportunity for the resident in a small city or village to take a position in another city of the com- mon wealth there is no incentive for him to pay any attention to this line of investigation. The idea at the base of the exceptions in the Illinois statute is sound. It favors a better and more efficient service. As it stands, however, it is of doubtful legality it being dis- tinctly class legislation. The exception should be gen- 33 Chap. 24, Art. VI, Sec. 6. 412 PUBLIC HEALTH ADMINISTRATION eral, and cover all such appointive offices as require special technical education or training. In fact, it would seem desirable that the exception be made so broad as to permit appointments to office requiring such special training or education, without restriction as to previous residence, provided the appointee be a citizen of the United States. Such exception should include both state and local offices, but it should not include elective offices. In most states such a broad exception would need to be embodied in the constitu- tion. In a more restricted form, as applying to resi- dents of the state, and to local offices, a general statute would be sufficient. Conviction of crime, or a previous unsettled public account, are often statutory disqualifications for office, as may also be the previous holding of another office. In all cases of statutory restriction, the exact wording of the constitution and of the statutes of that particu- lar state must govern. There are in some cases of statutory restriction certain general considerations, which have a bearing. After the civil war of '61-5 many states passed statutes giving a preference to vet- erans of the military service. In New York state that statute was held not to apply to membership on boards of health for villages. 34 § 309. Holding two offices. By the common law it is forbidden that the same person shall hold incom- patible offices at the same time. By statutory enact- ment we frequently find this prohibition widened to include the holding of a position under state and national government, the holding of two positions of s* People v. Board of Trustees, 159 N. Y. 568. OFFICERS 413 trust, or the holding of two lucrative positions at the same time. With regard to the last it must be remem- bered that every office carrying any pecuniary com- pensation, no matter how infinitesimal the compensa- tion may be, is an office of profit, according to law. "Two offices are incompatible when the holder can- not in every instance discharge the duties of each. ' ' 35 The American rule is well stated by Dillon as follows : "Incompatibility in offices exists where the nature and duty of the two offices are such as to render it improper, from considerations of public policy, for one incumbent to retain both." 3G An officer on the retired list of the United States Army may hold an executive office under the national government, and draw his salary therefor, in addition to his pay; 37 and he is not under the statutory prohibition against the hold- ing by certain municipal officers of ' ' any other federal, state, or municipal office." 38 Ordinarily, whether the holding of two offices is for- bidden, by either the common or statutory law, accept- ance of the second vacates the first office. 39 But this rule does not apply when the second appointment was illegal. Thus, where the statute prohibited members of a city council from holding certain offices, and a member of the council was appointed to such office, it was held that the appointment was illegal, and there- fore it did not vacate his position in the council. 40 35Rex v. Tizzard, 9 B. & C. 367. The contrary was held in 418. State v. DeGrass, 53 Tex. 387. 36 Municip. Corp. 166, note. so Foltz v. Kerlin, 105 Ind. 221 (Abridged from the opinion in Dickson v. People, 17 111. 191 State v. Buttz, 9 S. C. 156. See People v. Hanifan, 96 111. 420 pp. 182-184.) People v. Brooklyn, 77 N. Y. 503 37 Collins v. U. S. 15 Ct. of State v. Draper, 45 Mo. 355. Claims, 22. 40 state v. Kearns, 47 Ohio, 566. as People v. Duane, 121 N. Y. 414 PUBLIC HEALTH ADMINISTRATION Another exception is to be fonnd where the appointee is obliged under penalty, to accept the second office, as where an officer was appointed inspector of election. To cause thus a vacancy in the first office would be to give to the police commission power to vacate that position. 41 In this last case there is considerable question as to the soundness of the decision. If the holding of the two offices was contrary to the statutes the board of police had no authority to make such appointment, unless the first office was to be relin- quished. But under penalty for refusing to accept the second office he could not thus be forced to relinquish the first by a board having no authority over the first office. In other words, the appointment was illegal. 42 So it has been held that an officer holding one office may not be a candidate for an incompatible office, and if elected he is disqualified from accepting the same. The election is void. 43 In the Goettman case there was no compulsion upon Goettman as to accepting the second office, for the fact that it would be illegal would be sufficient excuse to prevent the imposition of the penalty. 44 When, however, the holding of the two positions is prohibited by state law, and the second office is under the national government, clearly the state law cannot control the national appointment. It does control the state position, and therefore it is not necessarily the first position which must be vacated, but *i Goettman v. Mayor, 6 Hun, In re Corliss, 11 R. I. 638 ; People 132. v. Clute, 50 Barb. 451; Foltz v. 42 See State v. Clarke, 3 Nev. Kerlin, 105 Ind. 221. 566; Spear v. Robinson, 29 Me. « Reg. v. Richmond, 11 W. R. 531. •'..: 65; London v. Headon, 76 N. C. 43Vogel v. State, 107 Ind. 374; 72; Hartford v. Bennett, 10 Ohio, Crawford v. Dunbar, 52 Cal. 36; 441. OFFICERS 415 the one to which the state law applies. 45 While it has been held, as stated above, that the holding of an incompatible office disqualifies a candidate for election, and if elected the election is void, if the disqualification be removed by resignation or otherwise, before the time for entering upon the second office, the election will not then be considered void. 46 The fact that an officer either elected or appointed to an office is inelig- ible can only be determined by direct test of title, by quo warranto. 47 But acceptance of a second office, incompatible with the first, ipso facto, vacates the first, and it requires no proceedings in quo warranto to accomplish the fact. 48 §310. Civil service. The right to make appoint- ments is an executive prerogative. (§ 126.) This prerogative should be freely exercised, without dicta- tion. The legislature may not order the executive to make a definite appointment, but it may, by reasonable legislation, restrict the appointment to persons having certain qualifications. Under what are called " civil service ' ' statutes it is now common that restriction of appointments to certain positions, both of employment and in office, is made to require that the candidates pass certain definite examinations, and that preference be given to those who stand the highest on the list. The making of certain general exceptions to such rules, as by giving a preference to old soldiers, where there is an evident and just reason for the exception, has been frequently sustained. Where the civil service 45 People v. Leonard, 73 Cal. 48 People v. Brooklyn, 77 N. Y. 230; Foltz v. Kerlin, 105 Ind. 221. 503; Whiting v. Carique, 2 Hill, 46 Privett v. Biekf ord, 26 Kan- 93 ; People v. Nostrand, 46 N. Y. sas, 52. 375; People v. Green, 58 N. Y. 47 Hall v. Luther, 13 Wend. 491 ; 304. Hamlin v. Dingman, 5 Lans. 61. 416 PUBLIC HEALTH ADMINISTRATION law is justly and honestly administered, it is an un- doubted advantage. Where it is dishonestly admin- istered, it may prove a temporary advantage to dishonest officials. It must further be remembered that in its administration the law favors the mediocre incumbent of a position. The fact that he has the position, though he may be naturally unfitted therefor, tends to hold him there so long as he does nothing positively wrong. Sometimes the law serves as a hindrance to efficient administration. In a large public institution under civil service candi- dates for the position came from quite a large area. The superintendent found that the candidates for the lower positions especially, where the pay was small, were very likely to look for appointment when work was not plenty and general wages were low. On the other hand, when work was plenty and wages were high these positions were vacated. By law the Super- intendent was obliged to offer appointment to those highest on the waiting list, and would be obliged to delay to hear from one after another, instead of appointing an available man near at hand. § 311. Acceptance of office. The statutes ordinarily specify that before entering upon an office the appointee shall take an official oath, and sometimes that he shall file an official bond, for the faithful dis- charge of his trust. Where the statute requires that an acceptance be filed within a specified time, and a failure to file such acceptance shall be deemed a refusal, the filing of the acceptance is a substitute for the oath, according to one case. 49 The best evidence of accept- "Bentley v. Phelps, 27 Barb. 524. OFFICERS 417 ance of office is the taking of the official oath, and giving the required bond, and entering into, and actually discharging the duties of the office. The offi- cer administering the oath of office is not empowered to consider the validity of an appointment or election. 50 § 312. Taking office. Ordinarily there is no trouble in this country as to the taking of an office, unless there be a dispute over the claims of two or more can- didates. Without such a dispute it is still possible that there may properly be some hesitancy on the part of the former incumbent, due to an honest questioning relative to the legality of the appointment. An officer in charge of an office is responsible therefor until he is formally and properly released by the lawful authority. If he turn the office over to an imposter, or to one who may not lawfully have the responsibility of the position, then the former officer may be held responsible, even for the misdeeds of his successor. It is therefore incumbent upon the holder of an office that he shall be fully satisfied as to the legality of the claims of his successor to office, before he relinquishes his hold. If there be a reasonable doubt in the case the only way open is for him to sit quiet until the case is decided by the court. It is not the duty of the holder of the office to bring action. That remains for the officer who is deprived of his lawful position. What are the proper legal steps to be taken to settle ques- tions relative to changes in office will be considered in other sections. (§§281,379.) § 313. Taking receipts from successor in office. In turning over an office to a successor, the first incumbent so People v. Dean, 3 Wend. 438. 418 PUBLIC HEALTH ADMINISTRATION should have an invoice prepared of all property turned over, and he should take a receipt from his successor for such property and especially for all moneys thus transferred. All books should be balanced. This in- cludes not only books containing financial accounts, but books of record, showing exactly the state of the work. For example: if there be records of reports of infectious diseases, the balance should show the number and location, of each case still active. If there be accounts of antitoxin out, the balance should show how much and where it may be located. In some states it is customary to keep supplies of antitoxin at differ- ent stations, to be handed out on special vouchers. Those vouchers are transmitted to the state office, and final reports are to be sent in each case by the physi- cians using the same. The balance should therefore show what each agent still has for use, and how much has been handed out without the final report having been received. Incidentally it may here be remarked that many practitioners seem to be negligent of mak- ing these final reports. It may well be questioned whether such physicians deserve further recognition, by the honoring of their vouchers, if they persistently neglect to do their share, by making the final reports, by which the value of the service may be estimated. § 314. Term of office. The statute, or other enact- ment, providing for an office usually defines the duties of the office, and specifies by whom, and for what period of time, the office is to be filled. The word "term," when used relative to tenure of office, denotes a fixed period of time. (§ 293.) § 315. No term— office held at pleasure. If neither the constitution nor the statute, under which the office OFFICERS 419 exists, mention a term for which the appointment is made, the office is held at the pleasure of the appoint- ing power, and the holder may be removed at any time by the officer, or officers, holding the appointing power, and without giving any reason therefor. 51 Where the constitution provides that officers of cities and villages shall be elected ''for such terms and in such manner as may be prescribed by law," and the statute pro- vided that certain offices should be held at the pleasure of the appointing power, it was held that the statute did not comply with the constitutional provision, for there is no " term " where the office is held at pleasure. 52 The office of a deputy expires with the office on which it depends, and if the principal be reappointed the deputy cannot serve without a reappointment. 53 But a commission of one holding an office "during the pleasure of the Governor for the time being" does not expire with the term of the Governor making the appointment. 54 The repeal of a statute or ordinance under which an office exists abolishes the office. 55 So it has been held that the abolishment of the office making an appoint- ment vacates the subordinate offices. 56 On the other hand, under similar conditions, where the Governor of California undertook to make an appointment under si Field v. Girard Col., 54 Pa. 233; Story, Constitution, 1537; Com. v. Sutherland, 3 S. & E. 145 ; Patton v. Vaughan, 39 Ark. 211; People v. Whitlock, 92 N. Y. 191 ; Keenan v. Perry, 24 Tex. 253; People v. Hill, 7 Cal. 97; State v. Alt, 26 Mo. App. 673; Gibbs v. Morgan, 39 N. J. Eq. 126. 52 Speed v. Crawford, 3 Met. (Ky.) 207. 53 Banner v. McMurray, 1 Dev. L. 218. 5* Kaufman v. Stone, 25 Ark« 336. 55 Chandler v. Lawrence, 128 Mass. 213. se State v. Board of Public Lands, 7 Neb. 42. 420 PUBLIC HEALTH ADMINISTRATION the general provision as to appointing to fill vacancies, and where by the abolishment of district courts there was no other provision for appointment of police com- missioners, it was held that the old officers still held, and there was no vacancy. 57 An office may be changed by general enactment from "at pleasure" to a fixed term. Thus, where an office was held at pleasure, a subsequent statute providing that the terms of "all officers not otherwise fixed" should be fixed at four years, it was held that this fixed a definite term of four years for this office. 58 § 316. Term fixed by constitution. When the term of an office is fixed in the constitution, the legislature cannot extend it nor abridge it. 59 But a constitutional provision that the term of an officer should not be extended does not prevent such reasonable changes in times of holding elections as the legislature may make, even though, incidentally, the term of an officer be thereby extended. 60 Where the constitution provided for a term of four years, and the legislature passed an act providing for the filling of the office by an election and fixing the term at two years, it was held that the act was void as to the length of term, but valid otherwise; and that a person elected under the statute was lawfully elected for a term of four years. 61 When the term of an office is fixed by law the Governor can- not alter the term, by extension or abbreviation, nor can he alter the duties of the office, by changes made sr People v. Hammond, 66 Cal. Throop, Pub. Off. 305 and 311, 654. See also Currier v. R. E. Co., citing eases. 31 N. H. 209. eo state v. McGoveny, 92 Mo. ss Hughes v. Buckingham, 13- 328. Miss. 632. 61 People v. Rosborough, 14 59Mechem, Pub. Off. 387; Cal. 180. OFFICERS 421 in the wording of the commission issued. 62 Whenever there is a doubt as to the construction of the statute or constitution, in determining the length of an officer 's term the court will always give preference to that inter- pretation which limits the term to the shortest time. 63 Though the commission of an officer may, or may not, state the exact term for which the appointment is made, as to beginning, duration, or ending, this is a question, of fact to be proven by evidence, and that evidence may conflict with the dates as given by the commis- sion. 64 Unless it be contrary to special constitutional provisions, the legislature may at any time by enact- ment alter the term of an office. 65 The legislature may lengthen the term, even after the election or appoint- ment of an officer, 66 and that is not a violation of the constitutional provision against ex post facto laws, for that provision applies only to criminal legislation. 67 But such legislation does not necessarily extend the term of those holding office at the time, unless that intention be clearly shown. 68 Such extension of term was, by the California supreme court, not considered as a legislative appointment. 69 The reasoning of the New York court on a similar question seems more G2Hench v. State, 72 Ind. 297. ^ In re Jordan, 37 Minn. 174; 63 Wright v. Adams, 45 Tex. State v. Bailey, 33 N. W. B. 778 ; 134. In re Bulger, 45 Cal. 553; Wilcox e* State v. Fulkerson, 10 Mo. v. Eodman, 46 Mo. 322. 681; State v. Chapin, 110 Ind. 67 Johannersen v. U. S., 225 272; State v. Taylor, 15 Ohio, 137; U. S. 227. Hale v. Evans, 12 Kas. 562. es Parrel v. Pingree, 16 Pac. 65 State v. Bailey, 33 N. W. K. Eep. 843. 778 ; State v. Howe, 25 Ohio, 588 ; eg Christy v. Supervisors, 39 In re Bulger, 45 Cal. 553 ; Taf t v. Cal. 3. Adams, 128 Mass. 213; Wilcox v. Eodman, 46 Mo. 322; In re Jor- dan, 37 Minn. 174. 422 PUBLIC HEALTH ADMINISTRATION nearly correct, and less liable to abuse. The constitu- tion provided that town officers must be elected or appointed as the legislature should prescribe. A statute, extending the terms of the present incumbents of certain town officers was virtually an attempt of the legislature to exercise the power of appointment ; such a statute was therefore in conflict with the constitu- tion; that though the legislature had authority to lengthen the terms of officers, the extension of terms should apply only to future holders; and a person elected at the town meeting, just before the expiration of the terms of officers in authority at the time of the passage of the act, was entitled to the office, and that the term of the former holder was not extended. 70 Under the constitutional provision authorizing the legislature to fix the term of office, an act has been called unconstitutional which changes the term during the incumbency of an officer. 71 So a statute which lengthens the term by advancing the beginning has been considered unconstitutional. 72 But where the con- stitution fixes the length of the term, but does not define the beginning, the legislature may determine the time of beginning. 73 Under the authority of the statute, empowering the city council to regulate the manner of appointment and removal of officers, an ordinance fixing the duration as "during good be- havior" is valid. 74 By an act amending a city charter, and providing for the election of a mayor two years before the expiration of the term of the incumbent, but not stating when the newly elected mayor should take to People v. McKinney, 52 N. Y. 73 People v. Kosborough, 14 Cal. 57. 181. 7i People v. Bull, 46 N. Y. 57. 74 state v. Trenton, 50 N. J. L. 72 Howard v. State, 10 Ind. 99. 331. OFFICERS 423 his chair, it was held that he might take immediate possession of the office. 75 Where the constitution fixes the maximum term, the legislature may alter its dura- tion, provided that it does not exceed the maximum. 76 The constitution of Michigan provided for the elec- tion of a judge of probate, who should hold office for four years, and until his successor was elected and qualified. A judge was reelected, but before the expira- tion of his old term he died, and the Governor, under his general powers to appoint to fill a vacancy, made an appointment, issuing a commission reciting that it was to hold until the Governor should revoke the com- mission. After the beginning of the new term, under the supposition that there was a vacancy, the Governor made a new appointment. The court held that the first appointee was lawfully appointed to fill the vacancy, and that the Governor's power to appoint to fill vacancy was not applicable, there being no vacancy. The holder was entitled to the office. 77 Where the dura- tion of a term is fixed, and an incumbent fixes his construction of the statute by entering the office upon a certain day, he is thereby estopped from putting another interpretation upon it, and thus trying to extend his term. 78 Where a city charter provided that the appointment of a marshal for a term of two years should be made by the council, and the council made an appointment by resolution fixing the term for one year, and the bond given recited that it was for the term of one year, it was held that the limitation to one year was void, and that the appointee held for two years, "5 Alexander v. McKenzie, 2 " People v. Lord, 9 Mich. 227. S. C. 81. TsPursel v. State, 111 Ind. 519; 76 Christy v. Supervisors, 39 Grieble v. State, 111 Ind. 369. Cal. 3. 424 PUBLIC HEALTH ADMINISTRATION and that the bond was valid for the two years. 79 An office filled by appointment, and where the beginning of the term is not otherwise fixed, may be assumed by the appointee as soon as he qualifies. 80 The term really begins from time of appointment, though the officer may not draw pay until he has qualified. 81 Authority and office cease with the accomplishment of the result when an officer is appointed to accomplish a specific result or an office is created to perform a definite act. 82 And where the legislature provided for the appoint- ment of an officer for a fixed time, and at the expiration of that time provided for the appointment for a similar fixed time, it was held that the office ceased with the expiration of the second period. 83 Where an appro- priation act provided for the appointment of assistant agents of the Treasury Department at a certain place, it was held that the office ceased with the expiration of the appropriation. 84 When there is a constitutional provision for appointing to fill a vacancy, stipulating that the person so appointed shall hold office "until the next regular election, " this means the next regular election for that office. 85 But where the law provided that the successor should be elected at the first annual election occurring more than thirty days after the 79 Stadler v. Detroit, 13 Mich. «3 State v. Brown, 38 Ohio, 344. 346. 84Beaman v. U. S., 19 Ct. of so State v. Love, 39 N. J. L. 14 ; Claims, 5. It will be noticed that Also, McGee v. Grill, 79 Ky. 106. according to the distinction made 81 Atty. General v. Love, 39 in § 265 in some of these cases the N. J. L. 476, approving dictum in positions may properly be consid- Marbury v. Madison, 1 Cranch, ered employments rather than of- 137, and disapproving Brodie v. fices. Campbell, 17 Cal. 11. ss People v. Wilson, 72 N. C. s? Bergen v. Powell, 94 N. Y. 155. 591; Douvielle v. Supervisors, 40 Mich. 585. OFFICERS 425 happening of the vacancy, it was held that a judge could not be elected for the unexpired term at an elec- tion held within thirty days, but that he might be so elected for the succeeding term. 86 A statute directing the appointment of an officer of the city to hold office during a term of two years creates a permanent office, and requires a new appointment at the expiration of the term, and an officer so appointed holds for two years. 87 Likewise, where a statute provided for the appointment of seven commissioners, and directed that they cast lots to hold office for one, two, three, four, five, six, and seven years, it was held that at the expiration of those terms new commissioners ap- pointed to fill the vacancies continued seven years each. 88 §317. Holding over term. It is repugnant to law that there be an absolute vacancy, and in the interpre- tation of laws the courts are bound in each case, if pos- sible, so to construe that the vacancy shall not exist. It is customary, either by constitution or by statute, to provide that an officer shall hold office until his suc- cessor shall have qualified. Under such conditions it has been held that the incumbent shall remain in office until his successor has qualified, even though he thus hold beyond the term fixed by law. 89 When there is no such provision for thus holding over term, it is the general rule that the incumbent continues to remain until his successor qualifies. 90 When a successor has se State v. Black, 22 Minn. 336. Baker v. Kirk, 33 Ind. 517; State 87 People v. Addison, 10 Cal. 1 ; v. Howe, 25 Ohio, 588. State v. Pearcy, 44 Mo. 159. »o People v. Oulton, 28 Cal. 44 as Holden v. People, 90 111. 434. (full discussion) ; Dillon, Munic. 89 Walker v. Ferrill, 58 Ga. 512; Corp., 219, citing cases; Mechem Jones v. Jefferson, 66 Tex. 576; Pub. Off. 397, 398, 399. 426 PUBLIC HEALTH ADMINISTRATION been elected and qualified, his death before the begin- ning of his term does not revive right of predecessor to hold over. 91 Boards of health retain their powers until their successors are appointed. 92 §318. Appointments to fill vacancies. Where the constitution provided that the Governor might make an appointment until the close of the next session of the legislature, it was held that, though the Governor made the appointment for the full term, the appoint- ment lasted only until the close of the legislative ses- sion, but the officer so appointed would continue in office until his successor was appointed or elected and qualified. 93 Where the statutes are not specific as to the term of an officer appointed to fill a vacancy, the courts have been somewhat divided as to whether the appointment would be for a full term, or only for the unexpired time of the previous incumbent, the majority seeming to favor the idea that he holds for a full term. 94 In California it was held that an appointment during a recess of the senate was not an appointment to fill a vacancy under the authority to fill a vacancy until the next session of the legislature. The appointment was therefore for the full term, and a new appointment could not be made, unless the senate refused to concur in the appointment. 95 §319. When term begins. When the date of the beginning of a term is stated, as from a certain day, the day mentioned is excluded from the computation. »i State v. Seay, 64 Mo. 89; 93 People v. Tyrrell, 87 Cal. 475. State v. Hopkins, 10 Ohio, 509. 94 Throop, Pub. Off. 320, citing But see Commonwealth v. Hanley, cases. 9 Pa. 509. ss People v. Mizner, 7 Cal. 519; 92 Board of Health of Kort- People ■*. Addison, 10 Cal. 1. right v. Cease, 53 Hun, 638. OFFICERS 427 Thus when a commission states that the appointee shall hold his office for four years from January 1, 1900, the appointee would take office on January 2, 1900, and be in office on January 1, 1904. 96 §320. Compensation for service — office not a con- tract. "It is therefore well settled in the United States, that an office is not regarded as held under a grant or contract, within the constitutional provision protecting contracts ; but, unless the constitution other- wise expressly provides, the legislature has power to increase or vary the duties, or diminish the salary or other compensation appurtenant to the office, or abolish any of its rights or privileges, before the end of the term, or to alter or abridge the term, or to abolish the office itself. But if either of those incidents of the office is fixed by the constitution, the legislature has no power to alter them, unless the power to do so is expressly reserved in the constitution. On the other hand, the acceptance of the office does not create a con- tract on the part of the officer to serve during the term fixed by law, and he may determine the relation at any time. The same rules apply to a city, county, or other municipal officer, and the common council or other legis- lative body of the municipality, where that body has power by statute to create and regulate the office, with- out restriction upon its powers or to particular inci- dents of the office. So, where the board of supervisors of a county has power to fix the salary of a county officer, its action in doing so does not create a contract between the officer and the county, and the legislature may authorize the board to reduce the salary, as far as it has not already been earned." 97 96 Best v. Po]k, 18 Wall. 112. cases; Mechem, Pub. Off, Chap. "Throop, Pub. Off. 19, citing VI. 428 PUBLIC HEALTH ADMINISTRATION A county health officer, appointed by the board of supervisors is only entitled to the salary fixed in ad- vance by the board of supervisors as compensation for official services rendered by him, and he cannot maintain an action of assumpsit upon a quantum me- ruit for such services, however great. 98 Later the same court said that under the statutes of Mississippi it is the duty of the board of county supervisors to fix the salary of a county health officer in advance of his appointment ; but in the event that it fails to do so it may fix his salary at a later date. To hold otherwise would result in depriving such officer of any compensa- tion for services which might have been rendered after his appointment and before his salary was fixed, for the reason that he can receive no compensation except at a salary fixed by the board. There is no conflict herewith in the prior decision that where a salary of a health officer has been fixed by order of the board it cannot be subsequently reduced to such an amount as virtually to abolish the office." Before a health officer may sue a city of the third class in Kentucky to recover for services rendered in attending a family afflicted with the smallpox, he must show that his sal- ary was fixed as provided by law. 100 The Kentucky statute which provides for the appointment of the county officer, also provides for the payment of such salary as may be fixed by the fiscal court, and at no time shall he receive other compensation. Though a county contended that the determination of the fiscal court was final in that matter, it was held that either ss Yandell v. Madison County, 100 Cawley v. Allentown, 2 Leh. 32 So. 918; 81 Miss. 288. 58. as Adams County v. Aikman, 52 So. 513. OFFICERS 429 party had the right of appeal should the amount fixed be not a ' ' reasonable amount. ' ' x But before the amount allowed shall be put aside the court must be convinced that there has been a palpable abuse of discretion amounting to injustice, and in the case at bar there was not sufficient evidence to show that the salary fixed, being $250.00 per annum, was so small as to constitute an abuse of discretion. 2 Under the general provisions of the public health laws of New York state, a local board of health is expressly empowered to fix the compensation of its health officer, and to allow him in addition to the sum so fixed his reasonable expenses in attending the annual sanitary conference of health officers. Under the same law the local board is directed to prescribe the duties of such health officer, and direct him in their performance. The failure of the board to prescribe the duties is no ground for withholding his compensa- tion. Neither could the board of town auditors reject the claims of the health officer for his reasonable expenses because it did not agree with the board of health as to the rate of compensation or the value of his services. 3 A health officer is entitled to his salary while he was not removed, irrespective of whether he had properly discharged his duties. 4 Extra compen- sation may be allowed to a health officer for perform- ing other duties than those for which he was appointed or employed. 5 The city of Elmira, New York, created the office of city physician, and appointed an incum- i Butler County v. Gardner, 96 4 People v. Sipple, 96 N. Y, S. W. 582. Supp. 897. 2 Graves v. Padueah, 89 S. W. 5 Allen v. DeKalb Co., 61 S. W. 708. 291. 3 People ex rel. Sherwood v. Blood, 105 N. Y. S. 20. 430 PUBLIC HEALTH ADMINISTRATION bent, and fixed his salary. The court held that the city council had no authority to create such an office, and that therefore there was no such office, and there was no salary. Neither was there a contract for pay, for the city council had no authority to bind the city by such a contract. If he be regarded simply as an employee, he could be discharged at any time, and he was entitled to no compensation further than for the time actually served. 6 The matter of treatment is distinct from the quaran- tine of persons sick with infectious diseases. There- fore unless the treatment be a part of the regular duties of the health officer as prescribed by law, before he assumes the treatment of a case for the city, or county, as the case may be, there should be a distinct understanding with the proper officers. In most of these cases the service in treatment must be consid- ered an employment. The following cases are men- tioned here chiefly because of their bearing upon the work of health departments, and particularly in the service of health officers in country districts. In Mich- igan it was held that it was not necessary that a health officer have had an express agreement with the proper officers, namely the board of health, for his services in the treatment of patients sick with infectious diseases, if the board knew that the services were being ren- dered, and afterwards allowed his bill. 7 Also, when a physician has presented his bill for services rendered to indigent persons, his bill has been audited, and he has accepted without protest the amount allowed, he is estopped to claim the balance as service rendered e Jacobs v. Elmira, 132 N. Y. ? Cedar Creek v. Wexford Supp. 54. County, 135 Mich. 124. OFFICERS 431 under statute. 8 After the board of supervisors had made a valid contract with a physician to treat the indigent of the county he could not require the board to pay more than the sum agreed upon, although by reason of an epidemic he was called upon to render more service than was expected when the contract was made. 9 The compensation of a clerk employed by the commissioner of health is not properly a charge against a board of health. 10 § 321. Importance of salary in health service. There is nothing in a public office which implies any legal right of the holder to demand pay for service. As we have already seen, many offices are honorary, and with- out compensation. This, however, does not imply that the community has a moral right to make special use of a citizen's time and special training for the com- mon good without rendering pay therefor. Where one person may serve the state or the city as well as an- other, there may sometimes be a little excuse in pro- viding either no pay, or such a small amount of com- pensation that it is merely nominal — perhaps not enough to cover the official expenses. When on the other hand, the service requires practically all of the officer's working time, it is neither just, nor in har- mony with sound business judgment, to expect to se- cure such services without paying therefor practi- cally what similar services would bring elsewhere. When, in addition, the service requires a specific s Brown v. Livingston County, of Chicago, 92 111. App. 333 ; 85 N. W. 745. Sloan v. Peoria, 106 111.' 151: o Zimmerman v. Cheboygan Reynolds v. Mt. Vernon, 164 N. Y. County, 95 N. W. 535. See also Supp. 592. Bjelland v. Mankato, 127 N. W. io Goodson v. Detroit Board of 397; Bourke v. Sanitary District Health, 72 N. W. 185. 432 PUBLIC HEALTH ADMINISTRATION knowledge, or technical education, it is ridiculous to expect that the service will be faithfully rendered, in proportion to the needs of the community, unless an adequate provision be made for the pay of the officer. In this regard the United States is particularly weak, and nowhere is this vital defect more clearly shown than in the public health service. Physicians engaged in the warfare are actuated by altruistic motives, and their aid has been freely rendered, but they have by no means given such service as the needs of the people demand. This is particularly true because of the very high degree of technical education required, and the fact that there is practically no market for such ser- vice, and for the use of such training, aside from that to be found in public office. It is therefore good busi- ness sense to pay officers of health adequate salaries. A very common mistake, it seems, is to provide plenty of subordinate help in the office, and not to pay the supervisor sufficient salary to keep his full time. In this, as in other matters, the very size of the office is an impediment to efficiency. Certainly not more than two or three persons should be connected with an office of health, unless the head of the service give thereto his full time. The office is one which requires brains, and sound judgment, rather than mechanical attention to small details, though the details are important. The underling has neither the judgment, nor the education, to give the best service. (§ 129.) The Earl of Cromer has had a long experience in the British foreign office. That experience has been as broad and varied as it has been long. "What he says relative to the government of Egypt and the Sudan is as nearly authoritative as it could be ; and what he says OFFICERS 433 relative to that service applies equally well to service in public health offices. In his Introduction to Low's "Egypt in Transition" Cromer says: "Imperialist England requires, not the mediocre by- products of the race, but the flower of those who are turned out from our schools and colleges to carry out successfully an Imperial policy. Their services cannot be secured unless they are adequately paid. Of all the mistakes that can be committed in the execution of an Imperialist policy the greatest, in my opinion, is to attempt to run a big undertaking 'on the cheap.' I am, of course, very fully aware of the financial diffi- culties encountered in granting a high scale of salaries. I can speak with some experience on this point, in as much as for a long period, during the early days of our Egyptian troubles, I had to deal with a semi-bank- rupt Exchequer. But my reply to the financial argu- ment is that if money is not forthcoming to pay the price necessary to secure the services of a really com- petent man, it is far preferable not to make any appointment at all." 1X § 322. Inadequate salaries expensive. Colquhoun, in his ' l Greater America, ' ' says : 12 " The liberality of the United States Government does not apply in the matter of official salaries which are invariably, and even scandalously, inadequate. ' ' The tendency of this inadequateness is not towards economy. It frequently happens that either a man is sought for a position on account of his wealth, and an ample fortune which he is willing to spend for the sake of personal prestige, or incompetent men are placed in positions because the competent cannot afford to make the personal sac- 11 Low, p. XVIII. 32 p. 296. 434 PUBLIC HEALTH ADMINISTRATION rifice. With inadequate salaries there is always a ten- dency to attempt to "come out even" by engaging in outside enterprises, often to the neglect of official duties. Sometimes it happens that the trusted offi- cials of a community have misused their positions to amass illegal gains. Because of the ineffectiveness of official service, it often happens, also that really public service must be performed by private associations, organized to supply governmental deficiencies. This frequently results in duplication of endeavors, where several organizations, acting independently, each seek to do the same work. This is shown in charity organ- izations, where it not seldom happens that families receive at the same time aid from two or more organ- izations, each being ignorant of the interest of the other. It is this same inadequacy of governmental methods in America which has given rise to the ' ' Anti- tuberculosis" societies, Milk Supply societies, for the distribution of pure milk among the deserving poor, and to the employment of agents by private societies to detect and prevent various unsanitary practices. All of this work should be much more efficiently managed by governmental agencies, and at less expense. As it is the extra service and expense falls upon a few citizens, though all reap the benefit. §323. " Office' ' of wider significance than "officer." In considering the economic side of this matter of pay, it is important to remember that in reality the word * * office ' ' includes far more than ' ' officer. ' ' Legally the two words are used as if coextensive, and the officer includes in his liabilities all the employees. What the clerk, or the messenger, or the day laborer does in a given office, all are the work of the officer. His is the OFFICERS 435 hand which guides the machine ; his is the brain which must plan the work. The employees in an office are but parts of a machine. In mechanics, no man would think of building an efficient piece of mechanism with expensive parts carelessly adjusted and put together; but in American governmental operations this is com- mon. The head of the department, the officer, should be more than a mere figure, and that implies that he be properly paid. He is the responsible holder of the trust of the people, and that fact demands a fuller recognition. The employees are under the ordinary regulation of commercial law. Their pay depends upon the contract made. That contract may be at any time altered by mutual agreement, but it cannot be changed except by such agreement. Or they are under the general rules of employment. The amount of the pay of individual employees is often fixed by individual officers. The pay of the officer is not thus determined. § 324. Officer's compensation determined by legisla- tion. The pay of an officer may be in the form of salary, honorarium, or fees, but in each case it is determined by some act of legislation. The salary of the principal officers of the state may be fixed by the constitution. Other general officers find their com- pensation stated in the statutes. Sometimes the pay is determined in appropriation bills. The stipend of municipal officers is ordinarily determined in the city ordinances. In each case the public estimation of the value of the individual officer's service is expressed by the act of the legislative representation of the sover- eign will. Unless some compensation is thus fixed by law for a given office, none may be claimed nor recov- 436 PUBLIC HEALTH ADMINISTRATION ered. Unless there be such provision in law, 13 the office is considered to be assumed as a public duty, and a personal honor for trust reposed, and services are rendered gratuitously. There is no implied contract to pay what the services may be worth. This rule applies to cities, 14 where neither in the statutes, nor in the ordinances is provision made for pay. 14a But when a corporation requires special services, as of an engi- neer, in its corporate, rather than its governmental capacity, he is then regarded as a private agent, and may recover reasonable value. 15 So where a statute provided that a board of officers should have a secre- tary, but made no provision for the pay of such clerk, it was decided that he was entitled to a reasonable compensation. 16 This position was hardly that of a public officer, but rather that of an employment. If right to compensation exist for an officer it must be found in the fact that the law provides it. 17 The only contract that may be presumed is that the incumbent is entitled to such compensation as the law at that time provided. 18 Unless there be a constitutional prohibi- tion, the legislature may at any time change, or abolish, the compensation attached to an office ; and in the same way, unless there be constitutional, or legislative pro- 13 State v. Brewer, 59 Ala. 130; wa Dillon Mun. Corp. 230. Wortham v. Grayson Co., 13 is Detroit v. Kedfield, 19 Mich. Bush, 53; Perry v. Cheboygan, 55 376; Chase v. Lowell, 7 Gray, 33. Mich. 250; White v. Levant, 78 is Territory v. Norris, 1 Ore. Me. 568. 107. i* White v. Levant, 78 Me. 568 Sikes v. Hatfield, 13 Gray, 347 Walker v. Cook, 129 Mass. 578 Locke v. Central City, 4 Colo. 65 Haswell v. Mayor, 81 N. Y. 255 Barton v. New Orleans, 16 La Ann. 317, i7 Steubenville v. Culp, 38 Ohio, 18. is Hoboken v. Gear, 27 N. J. L. 265; Locke v. Central City, 4 Colo. 65. OFFICERS 437 liibition, a municipality may at any time alter the pay of its officers. 19 The pay may at one time be in the form of a fixed salary, or at another it may be in fees. Because it is a matter of law, rather than of executive detail, a superior officer has no control over the pay of his subordinate. If the superior attempts to cut down the pay of the subordinate, by holding back a portion of his salary, the subordinate may recover the full amount, even though he may have accepted the smaller sum at the time. 20 An act fixing an officer's pay does not necessarily repeal former provisions. The new act must distinctly state its intention of change, as by the expression "in full compensation," or by a statement that the sum is in lieu of any differ- ent amount. 21 Therefore an officer is not estopped from collecting the larger sum by having accepted a smaller amount. 22 Where the pay of one officer is made the same as that of another, the change of one does not alter the pay of the other, unless the intention is clear. 23 "The term 'salary' of itself imports a com- pensation for personal services, and not the repay- ment of moneys expended in the discharge of the duties of the office." 24 So, where a public officer, in the discharge of his official duties, has been express- edly, or by implication, required to incur special ex- pense, and that expense is not clearly covered by his salary or fees, as allowed by law, he is entitled to i» Meehem, Pub. Off. 857, citing 23 Johnson v. Lovett, 65 Ga. eases; Throop, 443. 716; Kinsey v. Sherman, 46 Iowa, zoKehn v. State, 93 N. Y. 291. 463. 21 U. S. v. Fisher, 109 XL S. 143; 24 Sniffen v. Mayor, 4 Sandf U. S. v. Mitchell, 109 U. S. 146. 193. 22 State v. Steele, 57 Tex. 200. But see Brown v. Livingston Co., 85 N. W. 745. 438 PUBLIC HEALTH ADMINISTRATION recover the amount thus expended, in addition to his other pay. 25 But where the constitution prohibited the increase or diminution of the ' ' emoluments " of an office during the term of the incumbent, it was held that the board of prisoners was among the emoluments of the office of sheriff, and so within the constitutional prohibition. 26 Another case illustrating how the pro- vision for expenses may be included in the "emolu- ments" of an office arose in the state of New York. The constitution of 1880 contains a provision that jus- tices of the supreme court shall not continue to serve after the 31st of December, following the attainment of the age of seventy years. It also provides that a justice so retired from service, who shall have served ten years or more, shall continue to draw "the com- pensation" attached to the office for the remainder of the term for which he was elected. Whereas formerly there had been a statute providing that each justice should receive an annual salary of $6,000, and in addi- tion a per diem allowance of five dollars a day for reasonable expenses when absent from home on judi- cial business, in 1872, it was enacted that each of the justices should receive $1,200 annually, "in lieu of and in full of all expenses now allowed by law." A justice having been thus retired claimed the $7,200 per annum, but it was claimed that he was entitled only to his salary, and that the $1,200 was intended only for expenses while on duty. He therefore sought by mandamus to compel the payment of the entire sum. The court of appeals held that there was no distinction 25 Andrews v. U. S., 2 Story 26 Apple v. Crawford County, C. C. 202; U. S. v. Flanders, 112 105 Pa. 300. U. S. 88; Powell v. Newburgh, 19 Johns. 284. OFFICERS 439 between the two items, and "that the $7,200 had be- come a debt from the state, which nothing could extin- guish except payment, and which remained such until the official term for which he had been elected had expired. " 27 On the other hand, it has been held that the constitutional provision against the change of a county officer's compensation does not prohibit the county board from making such allowances for clerk hire, fuel, and other office expenses, in sums from time to time as may seem necessary. 28 § 325. Constitutional prohibition of change of salary during term. Very properly, most states provide in their constitutions a prohibition of the change of the compensation of an officer during his term of office. Such a provision is wise, for it tends to restrict the possibility for improperly depleting the treasury. But if the compensation of an officer may not be changed during his term of service, he should be aware of the full import of the provision before he enters upon the duties and responsibilities which he is about to assume. The courts are very strict in interpreting this prohibi- tion. A county board attempted to reduce the salary of the district attorney about an hour after he had qualified. They were acting under the statute which authorized them to fix the salary, but they were pro- hibited from changing it during his term. It was held by the court that the reduction was void, as a viola- tion of the prohibition. 29 Where a reduction has thus illegally been made, though the reduced salary has 27 People v. Wemple, 115 N. Y. 29 p le v. Minnehaha Co., 5 302; reversing, 52 Hun, 414. Dak. T. 129. See also Milner v. 28 Briscoe v. Clark Co., 95 111. Reibenstein, 85 Cal. 593. 309; Kirkwood v. Soto, 87 Cal: 394. 440 PUBLIC HEALTH ADMINISTRATION been accepted, there is no doctrine of waiver or estop- pel which prevents an officer from recovering the bal- ance of the larger amount. Likewise an increase in an officer's salary made three days after he had entered upon his duties, was decided to be illegal, though he would be entitled to it upon his reelection. 30 An offi- cer may not receive the larger salary, increased in spite of the prohibition during his term, by resigning, and being reappointed. 31 The general expression " during his continuance in office simply refers to the term held by the officer during which an attempt may be made to increase or decrease his pay, and it does not refer to future terms. 32 By the same interpretation, an officer who is appointed to fill a vacancy is not entitled to an increase in salary which may have been voted during that term of office, though before the occurrence of the vacancy. 33 It may therefore become very impor- tant to determine the beginning of the term. Apparently, when the appointment is entirely subject to the will of the appointing power, and there is no fixed term, the expression "during his continuance in office" could under no conditions be stretched to include a time before he has accepted the official responsibilities. Likewise if the word term be found in the prohibition against changing the pay, the pro- hibition would not hold as against an office held at pleasure. But where the appointment is made annually and the law does not state when the term shall begin, there may be some considerable doubt as to whether or so Weeks v. Texarkana, 50 Ark. 32 Smith v. Waterbury, 54 Conn. 81; Smith v. Waterbury, 54 Conn. 174. 174. 33 Larew v. Newman, 81 Cal. 3i State v. Hudson County, 44 588. N. J. L. 388. OFFICERS 441 not a given increase was voted within the term of the officer. The word "annually" implies that there is a fixed term. The fact that the appointing officer delays making an appointment does not increase the term of the incumbent, but in effect, the old officer is serving in the place of his successor. Thus, where the con- stitution of the state provides that an officer shall hold over until his successor is chosen and qualified, and an officer accepts an incompatible office, his continuance in performing the duties of the first office will not serve to oust him from the second. 34 His own term had ended, and that of his successor had practically begun, though he was not qualified, nor perhaps selected. The law does not permit a vacancy. One term begins when another leaves off, with the exception of such cases as those for which the statute provides for the length of term, but does not state when the term shall begin. 35 In such cases the officer holds for the full period of time after entering upon the discharge of his duties. But where an appointment is to be made annually, if the appointment for a certain office be delayed, and in the meantime the salary be increased, it would prob- ably be held that the increase was made during the term of the new appointee. Certainly, following the interpretation of the Attorney General in the case of Love, 36 that the term begins when the appointment is made, an increase in salary made after the appoint- ment, but before the acceptance of the office as shown by qualification, the increase would be held to be in vio- lation of such provision. It must be remembered, how- 34 State v. Somers, 96 N. C. 36 39 N. J. L. 476. 467. 3BHaight v. Love, 39 N. J. L. 14; State v. Chapin, 110 Ind. 272. 442 PUBLIC HEALTH ADMINISTRATION ever, that this prohibition, when found, is against the change of the compensation for officers only, and does not apply to the pay of employees, and that a large proportion of those engaged in the health service would be held to be simply employees, and not public officers. § 326. When compensation may be fixed after appointment. The general prohibition against changes in an officer's compensation, made during his term of service, has been held not to apply when there was no previous compensation provided. Thus, in Pennsyl- vania the statute imposed upon the court of quarter sessions the duty of fixing the compensation for the sheriff in payment for the board of prisoners. The court had never permanently fixed that amount, though in settling the account of the former sheriff it had allowed a certain rate. A new rate was fixed by an order of the court after the term of the sheriff had begun. The new rate was lower than that allowed to the predecessor. It was held that this was not a vio- lation of the prohibition against raising or diminish- ing an officer's compensation. 37 Where the compensa- tion of municipal officers had not been determined before they took office, it was held that the ordinance granting them certain salaries did not violate the pro- hibition. 38 Also, where a change in the compensation was provided by the city council before the beginning of the term, though the change could not be effective until later in the term, on account of the necessity of making certain publication of the ordinance, it was 37 Peeling v. York County, 113 Rucker v. Supervisors, 7 W. Va. Pa. 108. 661; Wheelock v. McDowell, 20 38 State v. McDowell, 19 Neb. Neb. 160. 442: Purcell v. Parks, 82 111. 346; OFFICERS 443 held not to be a violation against the change of com- pensation. 39 The Kentucky statutes provided, 40 among other things, "That the local board shall receive such compensation for such services as the county court, in which the local board is established, shall, in their discretion, determine." This section refers to the compensation for the members of boards of health. One John R. Allen had been duly appointed and qualified as a member of the board of health for the county of Kenton, and he was chairman of the board. After serving for two years, he brought action against the fiscal court of the county, for the payment for his services. This amount, having been adjudged to him, the fiscal court, which had refused to allow anything for his services, appealed. The court of appeals said, 41 "The Legislature intended that the members of the local board of health should be fairly compensated for the services they are required by law to render. The discretion of the fiscal court with refer- ence to the compensation to which such board is en- titled, is not an arbitrary one, but it is a sound judicial discretion, and one that can be controlled. If the fiscal court has an arbitrary discretion in the matter, they could refuse to allow any compensation, however valuable and meritorious might be the services of the members of the local board of health." The fact, therefore, that no previous compensation had been arranged for by the fiscal court, did not preclude the recovery for services. The fact that the statutes directed that such compensation be provided was suffi- 39 Stuhr v. Hoboken, 47 N. J. L. *i Stephens v. Allen, 44 S. W. E. 147. 386. See also Adams Co. v. Aik- 40 Sec. 2055. man, 52 So. 513. 444 PUBLIC HEALTH ADMINISTRATION cient to remove all suspicion that the position had been removed from the status of honorary to that of lucra- tive, contrary to the spirit of our institutions. So, where the state statute authorized the village trustees to make an annual appropriation to pay the members of the Board of Health for their services, it was held 42 that although no appropriation had been made at the time of his appointment a member does not accept such appointment without compensation. On the other hand, the act of 1891 in Nebraska provided for the establishment of a state board of health, and it further provided that the compensation for the serv- ices of the secretary should be paid from fees received ; and there was no provision for either requiring that such fees be accounted for, nor that they be paid into the state treasury. It was held 43 that although such provision for the compensation of the secretary was void, the statute as a whole was not void. Practically therefore, such a condition makes certain duties oblig- atory upon the officer, though he may not be paid therefor. §327. Effect of increased duties. An officer who accepts an office is expected to perform all the duties naturally falling to that position, and for the com- pensation which is provided. There being no contract in the case, there is nothing to prevent the legislative authorities from increasing the duties of the office. 1 ' The limit of compensation cannot be transgressed by the county by extra allowance without statutory authority. The basis of this rule is that the officer 42 People v. Village of Haver- 43 Munk v. Frink, 75 Neb. 172 ; straw, 43 N. Y. 135, 11 App. Div. Walker v. MeMalm, 75 Neb. 179; 108. State v. Walker, 75 Neb. 177. OFFICERS 445 has, by taking the office, agreed to perform all the duties of the office, whether prescribed at the date of his induction, or subsequently added by statute, for the compensation fixed by law, and that these include all the services performed in the line of his official employment." It has accordingly been held that pub- lic corporations cannot lawfully allow extra compensa- tion to attorneys, physicians, and other county officers, for extraordinary services rendered by them in the line of their professional and official duty, though they were not foreseen or contemplated at the time of induc- tion into office. 44 Thus in Iowa a statute was passed providing for the creation of boards of health, and the mayor was made a member of such board, and its chairman. It was admitted that additional duties were thus imposed upon the mayor, while no addition was made to his official salary. "This he knew when he accepted the office, and he is bound to perform the duties of the office for a salary fixed, and cannot legally claim additional compensation for additional services, even though they be subsequently imposed upon him; and it matters not that the salary was inadequate." 45 Therefore, ' ' an officer can recover no compensation for services rendered unless it was provided for by law at the time the office was accepted." 46 This prohibition against extra pay is a necessity. Duties of officers are often indefinite at the best, and were it not for this prohibition it would often occur "Ingersoll, Pub. Corp. 25, 84. U. S. v. Clough, 55 U. S. 373 45 State v. Olinger, 72 N. W. E. People v. Vilas, 36 N". Y. 459 441. Mayor v. Kelley, 98 N. Y. 467 46 Cooley, Cons. Lim. 276. Other Marshall County v. Johnson, 127 eases upon this important point Ind. 238; Pierie v. Philadelphia, are: Swan v. Buck, 40 Miss. 268; 139 Pa. 573; Garvie v. Hartford, People v. Morrell, 21 Wend. 563; 54 Conn. 440; Buck v. Eureka, 109 446 PUBLIC HEALTH ADMINISTRATION that claims of special service would be made and per- mitted. Therefore it is, that when a statute possibly allowing extra compensation admits of two interpreta- tions, it should be construed strictly against the officer. 47 The correctness of diagnosis must be the base for all quarantine regulations. It is upon that act that the health official must depend for his jurisdiction and defense. If the disease be infectious he may quaran- tine; if not infectious quarantine would not be jus- tifiable. Whether specifically so stated by statute or not, the official diagnosis depends, in the absence of statement to the contrary, with the health officer. To make that diagnosis is part of his official duty, and it is as much official duty when he finds that the disease is not one for the use of his authority, as when it proves to be infectious. A health officer therefore is not entitled to compensation for going in consulta- tion, for diagnostic purposes, to see a patient afflicted Cal. 504; Debolt v. Cincinnati Tp., Bush, 304; People v. Supervisors, 7 Ohio, 237; Preston v. Bacon, 4 1 Hill, 362; Poughkeepsie v. Conn. 471; Heslep v. Sacramento, Wiltse, 36 Hun, 270; Council 2 Cal. 580; Eeif v. Page, 55 Wis. Bluffs v. Waterman, 86 Iowa, 688; 496; State v. Nashville, 15 Lea, Coleman v. Elgin, 45 111. App. 64; 697;Gilmore v. Lewis, 12 Ohio, Barteh v. Cutler, 6 Utah, 409; 281; Evans v. Trenton, 25 N. J. L. Gordon Co. Com. v. Harris, 81 Ga. 766; Detroit v. Eedfield, 19 Mich. 719; Stiffler v. Delaware, 1 Ind. 376; Waterman v. New York, 7 App. 368; Beard v. Decatur, 64 Daly, 439; Albright v. County of Tex. 7; Stockwell v. Genesee Co.. Bedford, 106 Pa. 582. (In this 56 Mich. 221; In re Parsons, 54 case the matter involved expenses N. Y. 451; Glavie v. TJ. S., 182 incurred in performing duties, U. S. 595; Pilie v. New Orleans, which the county, by long usage, 19 La. Ann. 274; Hatch v. Mann, had been accustomed to bear.) 15 Wend. 44; Hobbs v. Yonkers, White v. Polk Co., 17 Iowa, 413; 102 N. Y. 13; Memphis v. Brown, Ludlow v. Eichie, 25 Ky. 1581; 20 Wall. 289. Sidway v. Commissioners, 120 111. ^ L T . S. v. Clough, 55 U. S. 373. 496; Covington v. Mayberry, 9 OFFICERS 447 with a disease dangerous to the public health. 48 Neither is a health officer entitled to extra compensa- tion in Michigan for disinfecting and fumigating houses in which cases of infectious disease have occurred, as this is one of the duties prescribed for health officers by the statutes. 49 §328. Payment of substitute for extra services not permissible. The Court of Appeals of Kentucky had before it a case which covers several questions relative to extra services for a health office. The facts were substantially as follows: The county board of health for Hickman County was legally organized, and in ac- cordance with the law it appointed one Dr. Scar- borough to act as secretary and health officer, and fixed his salary at $50.00 per annum. The said Dr. Scar- borough refused to perform the duties of the office for such a sum, and the board therefore engaged one Dr. McMorris to perform the needed services. It was ad- mitted that acting under the orders of the board the said McMorris had established a number of quaran- tines for smallpox and for scarlet fever, and had fumi- gated premises therefor, because of epidemics. It was admitted that the bill rendered was reasonable and just. The circuit court concluded that the circum- stances were sufficient to justify the board of health in hiring a substitute to do the work which the health officer had refused to do. It therefore allowed the bill of McMorris. The court of appeals reversed this deci- sion. The court of appeals agrees with the circuit court that the evidence was sufficient to show that the par- ticular services for which an allowance was claimed 48 Brown v. Livingston Co., 85, 49 Tabor v. Berrien Co., 120 N. W. 745. N. W. 588. 448 PUBLIC HEALTH ADMINISTRATION were authorized by the county board. It also con- cludes that services rendered in fumigating premises of those afflicted with contagious diseases and estab- lishing quarantines, even though the persons afflicted with the disease were solvent, were services for which the county was liable, as such measures are not taken for the individual benefit of the particular patient, but to prevent the spread of the disease, and are therefore for the benefit of the public generally. May the county board of health, while there is a regularly appointed health officer in office, who refuses to perform the duties of the office, impose the performance of his duties upon another physician, and make the county liable for the payment of the latter 's services'? Mani- festly not. When Dr. Scarborough resigned as health officer, on the ground that he was unwilling to perform the duties of that office for the compensation fixed by the fiscal court, the county board of health should have accepted his resignation. It had no right to let him continue in office and delegate his duties to an- other; nor did Dr. Scarborough have the right to hold the office, and at the same time refuse to perform the duties thereof. Even if he had not resigned, it was the duty of the county board of health to remove him and appoint another in his place, who would perform the duties of the office. The statute plainly provides that the fiscal court shall fix the salary of the health officer at the time of or immediately after his election, and that in no state of case shall such health officer claim or receive from the county any compensation for his services other than the salary fixed by the fiscal court. This provision of the statute cannot be evaded by letting the health officer remain in office without per- OFFICERS 449 forming the duties of the office, and then delegating to another the performance of those duties, and allow- ing him compensation therefor. "But it was claimed that under this view of the law, the fiscal court may fix the salary of the health officer so low that no one will perform the duties of the office, and thus defeat the very purposes for which the county boards of health are established. This court has held, however, that the salary fixed for the health officer must be reasonable, and that from an order of the fiscal court fixing the salary an appeal lies to the circuit court, and thence to this court. Under these circumstances the court thinks that there will be no difficulty in securing the services of a competent health officer, even though the fiscal court should make the salary unreasonably low, for, on making this fact appear, the necessary relief will be afforded either in the circuit court or this court. If it be argued that, owing to the uncertainty as to the amount of salary the health officer is to receive, no one will undertake the duties of the office, it is sufficient answer to say that the members of the fiscal court are charged with the duty of fixing a reasonable compensation for the health officer, and no doubt the fact that for a failure in this respect, resulting in an epidemic in the community, they will be answerable to their constituents, who will not continue in office men who are so unmindful of the health and welfare of the people, will be a sufficient reason why they should act justly and properly, aside from the fact that their action will be reviewed by a higher court. As $213 of the amount of Dr. McMorris' claim was for services rendered while Dr. Scarborough was the health officer it follows that he was not 450 PUBLIC HEALTH ADMINISTRATION entitled to recover that sum. Nor was he entitled to recover the remainder of $69 for services performed after his appointment as health officer, as his claim for the latter sum will be included in whatever salary the fiscal court may have fixed for his services. If no salary has heretofore been fixed, the fiscal court will fix the salary at a reasonable sum. " 50 It must be remembered that, if made, an appeal from the action of the fiscal court in fixing the salary must be made immediately. Otherwise a change would be held to violate the principle that the salary may not be changed during the incumbency of the holder. There are important deductions to be made from this decision which is evidently sound. First, it is the duty of those who fix the salary of health officials to determine upon a reasonable sum, and if through their failure to do so harm results to the community they are responsible to their constituents for the harm pro- duced. Secondly, this salary, or other compensation must be such as to produce an efficient sendee. Thirdly, having fixed the salary it is incumbent upon the health officer so appointed to actually do the work for the sum thus provided. It is very questionable whether, having fixed the salary at such a sum that the chosen official cannot properly do the work, because it is necessary for him to engage in other business, as in the ordinary practice of his profession, the authorities have either the moral or the legal right to evade the spirit of the law by providing that some part of the officer's work shall be done by other employees; and it is questionable whether a municipality has the authority, under such circumstances, to create addi- 50 Hickman County v. McMorris, 147 S. W. B. 768. OFFICERS 451 tional officers to do a portion of the work regularly belonging to a health officer. By this it must not be concluded that there is reasonable objection to appoint- ing additional help in an office which uses the full time of the health officer, or commissioner, where his official business will not permit him to do the whole work; but it does apply to such offices as are presided over by a commissioner, or health officer, who, owing to the smallness of his official compensation, devotes much of his time to private practice, even though he do devote more time to his office than a reasonable estimation of the services show that he is really paid for. § 329. Extra official duties. Incidentally, and not as a portion of his official duties, an officer may be called upon to perform other services. Thus, though it may be no part of the health official's duties to treat cases of illness, during an epidemic, as of small-pox, it may be advisable for him to also take the treatment of cases, as a precautionary measure, especially when he finds that it be necessary to remove the patients from their homes. Under ordinary circumstances such a course is not advisable, for it tends to produce friction between the private practitioners and the office. Such service, if rendered by the official, should be the result of a special arrangement, in the nature of a contract. Sometimes the law may provide for such extra service, by fixing the amount of fees, but not stating by whom the fees shall be paid. In such cases it is the general rule that the fees shall be paid by the person at whose request the service is rendered, and the officer may collect them from such person. 51 But the officer may si Baldwin v. Kansas, 81 Ala. 272; People v. Harlow, 29 Ind. 43; Ripley v. Gifford, 11 Iowa, 367. 452 PUBLIC HEALTH ADMINISTRATION not collect more than is specifically thus provided, even on the ground of extra service and though prom- ise be made of extra compensation. 52 A contract or agreement to pay more than the legal fees is void as being opposed to public policy. 53 In some instances the claim for extra compensation for officers has been sustained, in the absence of express provision, where the law has required an officer to perform a duty, attended with extra trouble and expense, and clearly outside of his regular official duties. 54 § 330. Compensation for two offices. An officer who holds two distinct offices, not incompatible with each other, is entitled to recover the stipulated compensa- tion for each office. 55 He can not, however, recover a per diem compensation for the same day from two or more independent sources. 56 Where the offices are in- compatible, or the holding of the two is prohibited by law, it is clear that with the office forfeited the officer also forfeits his pay therefor. 57 52 Wileoxon v. Andrews, 66 Mich. wood Co., 23 Kas. 281; Butler v. 553; Peek v. Bank, 51 Mich. 353; Neosho Co., 15 Kas. 178; Leaven- Burk v. Webb, 32 Mich. 174; worth V. Brewer, 9 Kas. 307; Vandereook v. Williams, 106 Ind. White v. Polk Co., 17 Iowa, 413, 345; Fort Wayne v. Lehr, 88 Ind. 479;Goud v. Portland, 96 Me. 125; 62; Willemin v. Bateson, 63 Mich. Finley v. Territory, 12 Oka. 621; 309. Clooman v. Kingston, 37 Misc. 53 Hatch v. Mann, 15 Wend. 44; Per. 322; Niles v. Muzzy, 33 Mich. Vandereook v. Williams, 106 Ind. 61; McBride v. Grand Eapids, 47 345; Fort Wayne v. Lehr, 88 Ind. Mich. 236. 62. 55 U. S. v. Saunders, 120 U. S. s* People v. Supervisors, 12 126; In re Conrad, 15 Fed. Rep. Wend. 237; Bright v. Supervisors, 641. 18 Johns. 242; Mallory v. Super- 56 Montgomery County v. Brom- visors, 2 Cowen, 531; Detroit v. ley, 108 Ind. 158. Kedfield, 19 Mich. 376; MeBride 57 state v. Comptroller General, v. Detroit, 47 Mich. 236; s. c. 49 9 S. C. 259. Mich. 239; Huffman v. Green- OFFICERS 453 §331. Compensation depends upon actual service. In order to recover his salary an officer must show that he has been duly elected or appointed, and that he has properly qualified, that is, that he is in truth an officer de jure. An officer holding over lawfully is entitled to the regular salary until his successor has qualified. 58 An officer is entitled to his salary during the time he is actually serving, 59 even though he may not have filed his official bond before beginning service. 60 An officer nominated for promotion, on condition of his passing an examination, is not entitled to the new salary until he has actually passed the examination. 61 An officer removed from office is entitled to recover only for that portion of his salary which he has earned; and if the salary be paid quarterly, and he be removed during the quarter he is not entitled to the entire sal- ary for the quarter. 62 Neither is an officer entitled to his pay during the time that he may stand suspended from office. 63 But if he had been unlawfully removed he is entitled to recover the salary which he had been thus prevented from earning, 64 even though the salary had been paid to one thus unlawfully appointed to the supposed vacancy created by his removal. 65 So long as an officer is permitted to retain his office, sick- ss Hubbard v. Crawford, 19 Kas. S.), 68; White v. Mayor, 4 E. D. 570. Smith, 563; Chisholm v. Coleman, 59Farrell v. Bridgeport, 45 43 Ala. 204. Conn. 191 ; Throop, Pub. Off. 473 ; 63 Steubenville v. Culp, 38 Ohio, Dillon, Munie. Corp. 235, citing 18; Smith v. Mayor, 37 N Y. 518; Queen v. Atlanta, 59 Ga. 318 ; Attorney General v. Davis, 44 Mo. Auditors v. Benoit, 20 Mich. 170. 131; Westberg v. Kansas City, 64 so U. S. v. Flanders, 112 U. S. Mo. 493. 88. 64 Fitzsimmons v. Brooklyn, 102 ei Crygier v. U. S., 25 Ct. of N. Y. 536. CI. 268. en Andrews v. Portland, 79 Me. 62 U. S. v. Smith, 1 Bond (U. 484. 454 PUBLIC HEALTH ADMINISTRATION ness will not prevent him from recovering his salary. 06 Also, where an officer de jure has been prevented from entering npon the discharge of his duties by the wrongful refusal of other officers to recognize his authority, he is entitled to recover the full amount of the perquisites of the office, 67 and the plaintiff need not deduct the amount which he earned while illegally kept out of his office. 68 Where the salary has been paid to an officer de facto, the officer de jure cannot recover from the government, 69 but he may recover from the officer de facto. Opinions are somewhat con- flicting as to the amount which may be recovered thus from the de facto officers. In some cases the officer de facto has been permitted to retain certain fees, on the ground that the officer de jure had not made for- mal demand for the surrender of the office. In others, the officer de facto was permitted to retain expense of the office. 70 Where the salary has been voluntarily paid to an officer de facto the public can not recover. 71 An officer de facto cannot recover for his services. 72 A physician having been employed to treat the poor of the county later engaged another to do the work for him. Held, that though the first physician was entitled to recover for services up to the time of employment of the second physician, and for the drugs esO'Leary v. Board of Educa- 69 Mechem, Pub. Off. 332, with tion, 93 N. Y. 1. -ist of cases. 67 Matthews v. Supervisors, 53 7 o Mechem, Pub. Off. 333, 334; Miss. 715; MeCue v. Wapello Co., Throop, Pub. Off. 522, 523. 56 Iowa, 698; Darby v. Wilming- 7i Diggs v. State, 49 Ala. 311; ton, 76 N. C. 133. State v. Long, 76 N. C. 254; N/eale «8 People v. Miller, 24 Mich. v. Overseers, 5 Watts, 538; State 458; Fitzsimmons v. Brooklyn, 102 v. Goss, 69 Me. 22. N. Y. 536 ; Andrews v. Portland, 72 Mechem, Pub. Off. 331, citing 79 Me. 484. eases. OFFICERS 455 actually used in the matter by the second physician, he could not recover for the services of the second physician. 73 §332. Second term presupposes old rate. Accord- ing to the rule of private agencies, where a person is engaged at a fixed compensation per annum, "the con- tinuance of the service will presuppose the same rate of pay, in the absence of other arrangements. 74 So with public officers, at the expiration of the term for which they were appointed, in the absence of a new agreement, if retained in position the officer can recover only according to the former arrangement, and he can not claim greater pay on a quantum meruit. 75 §333. Abolition of office stops compensation. If there be no office there can be no service; and there being no service, there can be no pay therefor. There- fore, when an office is abolished the incumbent is entitled only to that portion of the salary earned, 71 *' even though money was appropriated to pay the salary for a year. 77 But where the salary is payable at so much per annum, though the services may be irregular, it was held in one case that upon the abolition of the office the incumbent was entitled to the full year's salary. 78 § 334. Dissatisfied officer may resign. There is in the United States no tendency towards compelling a person to take and keep a public office against his will, unless the jury system be an exception, though in 73 Chapman v. Muskegon Coun- 76 Jones v. Shaw, 15 Tex. 577 ; ty, 134 N. W. 1025. State v. Gaines, 2 Lea, 316. 7* Mechem on Agency, 212, 608. 77 Hall v. State, 39 Wis. 79. 75 Capps v. Adams Co., 43 N. W. 7S e x parte Lawrence, 1 Ohio, R. 114. 431. 456 PUBLIC HEALTH ADMINISTRATION times of special stress an officer may be called upon for services far beyond what his compensation calls for, and far more than he may feel able to give. He may not claim extra compensation, but he may resign. 79 There is a well recognized hesitancy about resigning "under fire," and a health official, especially, who does so exposes himself to very unfavorable criticism, but such a course is sometimes the only one to bring the community to realize the injustice which it is working. The officer who, either because of inade- quate salary, or for other reason, cannot give the serv- ice which the office demands, should resign. In one instance a health official's efforts were blocked by the inactivity, and perhaps hostility of the legal depart- ment. There had been much extra work due to the presence of an epidemic, which was still raging. The health official's resignation, coupled with a plain state- ment of the facts, resulted in an investigation. The health department was freed from the restraints of the legal department, and with certain added work the pay of the officer was increased, in the place of accepting the resignation, which had been given in good faith. § 335. Original bond covers extra duties. When the law increases the duties of an officer during his incum- bency, his original bond is held to cover the new duties, though the same be not specifically stated in the bond. 80 § 336. Officer cannot pay self. Because the making of contracts by boards with one of the board members, 79 Evans v. Trenton, 4 Zabr. so Bd. of Auburn v. Quick, 99 N. 766; Decatur v. Vermilion, 77 111. T. 138; People v. Vilas, 36 N. Y. 315. 451. OFFICERS 457 or by officers with fellow officers, opens the door for fraud and jobbery, such arrangements are contrary to public policy and should be prohibited. It is true that in Cedar Creek v. Wexford County, 81 for example, the court recognized such an agreement, even without a specific contract. It seems to us that the court rather stretched the point. Be that as it may, such contracts are frequently prohibited, either by the state constitu- tion, or by statute. Upon this point the Minnesota supreme court has said : 82 * l Contracts with public officers are forbidden by Section 5032 of the Revised Laws of Minnesota, and are void. The rule that such contracts are void and cannot be enforced rests on a wise public policy, and it must be enforced without reference to the merits of the contract, the intention of the parties, or the hardship of exceptional cases. Nor does the court agree with the contention that the statute and the rule do not apply to a board of health, and that it may employ one of its members as its health officer for the purpose of controlling and suppressing an epidemic of contagious or infectious disease. As to the suggestion that the board was confronted by an emergency which justified it in making the contract in question, the court answers that an emergency con- fronts a board of health in every case of an epidemic of contagious or infectious disease ; but this affords no reason why such cases should be exempted from the statute by the court, for the board may employ, when the emergency justifies it, a physician other than one of their own members to render the extra medical service. ' ' si 135 Mich. 124. saBjelland v. Mankato, 127 N. W. 397. 458 PUBLIC HEALTH ADMINISTRATION The public have a right to know what is transpir- ing in its name. Everything which is proper for the citizens to know relative to public affairs should be easily ascertained. There are matters of government, such as the diplomatic service, which may be efficient for the common good, very nearly in pro- portion to the degree with which, during the transac- tion, they are kept private. As an example of how the business of a department should not be done, we may instance the Illinois State Board of Health. By a series of enactments this somewhat anomalous body was entrusted with two general classes of duties. As a board of health, proper, it received general appro- priations from the state. As a board entrusted with the regulation of the practice of medicine and of under- takers, it received fees for licenses and fines collected for violations of the practice acts. As a board of health, because all appropriations were easily traced it was an easy matter to audit its accounts, and this was for years done by the state auditor. As a license board it audited its own accounts, paid money on its own vouchers, and rendered such accounts to the Gov- ernor as it thought proper. These accounts were filed in the Governor's office, and only a summary was pub- lished. Because the itemized accounts were not published, and easily accessible for any interested citi- zen, it would have been very easy so to "juggle" the statements as to fail to account for very much of its receipts. It employed a private attorney, contrary to the law of the state, but in accord with a long estab- lished practice. Though not clearly within the law, it was understood that the board provided for the pay of its members for making the license examinations OFFICERS 459 from amounts received in this branch of its work. Without intimating that there was any intentional dis- honesty in this proceeding, it is easy to see that such a practice is contrary to public policy. A public officer is entitled to pay for his services from the public treasury, unless it be distinctly stated in the law that he may retain fees received for the transaction of the business, and all fees, or fines, collected should be paid into the public treasury. This subject was very clearly treated in a case arising in New Orleans. The wharfinger of the city was ex offi- cio collector of levee dues, which he retained for his services. The court said: 83 "His duties were to col- lect the moneys due to the city in the department in which he held office; his obligation was to deposit the money so collected in the city treasury. His salary was to be paid as the salaries of other officers of the city were paid, to wit: out of the common treasury. There is no place for the plea of compensation in a case of this kind. Compensation takes place of right between individuals when the debts due by the respec- tive parties are equally due and demandable, and where the character of the debts is the same. It can- not be opposed by a fiduciary acting in the line of his duty. There is no such thing as compensating a debt due by an agent for moneys collected by him in the performance of his duties, by a debt due by the prin- cipal to the agent. No officer of a government, state or municipal, is empowered to pay himself his salary, or plead in compensation a demand made against him for moneys collected by him in his official capacity, by 83 New Orleans v. Finnerty, 27 La. Ann. 681. 460 PUBLIC HEALTH ADMINISTRATION an amount due him on account of his salary. His duty- is to discharge the obligations of his office according to the terms of his acceptance thereof and to get his pay as other officers get theirs. In other words, he cannot pay himself." The Illinois statute relative to the State Board of Health provides 84 that the secretary of the board shall receive a certain salary, but that other members of the board shall receive no pay, but they shall be allowed their traveling expenses while in the discharge of their duty. There is nothing in the chapter, 85 which defines the duties of the board as license examiners, providing for other pay to any member of the board for those services. There is nothing which provides for the appointing of two boards, but the provisions as to making the appointments are all found in the one chapter. 86 Apparently, therefore, the prohibition in Sec. 11 of Chapter 126a against members, other than the secretary, from receiving compensation applies also to their work as license examiners. Neither was there for many years any general appropriation made by the legislature for this work. Any resolutions, ordinances, or other provisions made by the board to pay members for such work must therefore be con- sidered as unconstitutional infringement of the legis- lative power. Though the acts do not so specifically state, it seems, therefore, that all funds collected by the board in its license capacity, or fines collected, should have been paid into the treasury of state. The Game Law of Illinois provided for the appoint- ment of a Game Commissioner and his deputies, 87 and 84 Chap. 126a, See. 11. »« 126a. 86 91. 87 in. Statutes, Chap. 61. OFFICERS 461 defined their duties, and stated what salaries they should receive. The act further provided for a game protection fund which was to be accumulated by licenses, and collection of fines, etc. It further pro- vided that the salaries should be paid from this fund. It was for some time the custom of this office to keep this fund within the office and pay therefrom the offi- cial salaries. In an opinion handed in February 13, 1911, by Attorney General Stead it was held that this practice was contrary to the statutes. The state con- stitution provides: 88 "Bills making appropriation for the pay of members and officers of the General Assembly, and for the salaries of the officers of the government, shall contain no provision on any other subject." And in another section 89 the constitution provides : ' ' No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title." The title of the game act says nothing about the appropriation of moneys to pay salaries, and the act, insofar as it can be considered an appropriation act, contains two distinct subjects, and therefore inso- far it is unconstitutional. The constitution further provides: 90 "No money shall be drawn from the treasury except in pursuance of an appropriation made by law and on presentation of a warrant issued by the auditor thereon." An appropriation, we are told, "is an authority from the legislature given at the proper time and in legal form, to the proper officers, to apply designated sums of money out of that which may be in the treasury in a given year to specified objects and demands against the state. While it must be express, 88 Art. IV, See. 16. »o Art. IV, Sec. 17. so Art. IV, See. 13. 462 PUBLIC HEALTH ADMINISTRATION it may not be in any set form of words, and the fund out of which it is payable need not be specified." 91 The Attorney General, therefore, held that the long continued practice of the department was illegal; that moneys received should be paid into the treasury of the state, and that all payments for salaries, and for office expenses, must be provided for by legislative appropriations. Although this opinion was only rela- tive to one department its effect was far reaching, and for a time it did much towards demoralizing the administration of several departments. A statute determining the amount of salary to be paid for services, is not an appropriation for such pay- ment. Though the statute may not, specifically, state that fines, fees, and other receipts of a department must be paid into the general treasury, both policy and law indicate that they should be so paid into the treasury, and that all salaries be paid only on legal warrant from moneys properly appropriated. A contrary course opens the way to misuse of funds, and the employment of the office for private gain. §337. Unearned salary not assignable. Since there is no contract in an officer's position, and he is liable to removal from office at any time, there is no certainty that he will earn more salary than that already earned. The assignment of unearned salary therefore might lead to complications. The assignee would naturally desire to keep the officer in his posi- tion, and assignment of salary might serve as a bribe for that purpose. In most American cases, following 91 See Clayton v. Berry, 27 Ark. 129; State v. Moore, 50 Neb. 88; People v. Brooks, 16 Cal. 11. OFFICERS 463 the decisions of the English courts, it has been held that such assignment of future salaries was contrary to public policy, and therefore void. "Salaries are by law payable after work is performed and not before, and while this remains the law, it must be presumed to be a wise regulation and necessary, in the view of the lawmakers, to the efficiency of the public service. The contrary rule would permit the public service to be undermined by the assignment to strangers of all the funds appropriated to salaries. It is true that, in respect to officers removable at will, this evil could in some measure be limited by their removal when they were found assigning their salaries; but this is only a partial remedy, for there still would be no means of preventing the continued recurrence of the same difficulty. If such assignments are allowed, then the assignees, by notice to the government, would, on ordi- nary principles, be entitled to receive pay directly and to take the place of their assignors in respect to the emoluments, leaving the duties as a barren charge to be borne by the assignors. It does not need much reflection or observation to understand that such a condition of things could not fail to produce results disastrous to the efficiency of the public service." 92 In this opinion most of the American courts concur. 93 The one dissenting opinion in this country was based upon the idea that the English decisions were not applicable to the conditions of society in this country. 94 To such a dictum it is not probable that many students of English and American jurisprudence would agree, 92 Johnson, J., in Bliss v. Law- Webb v. McCauley, 4 Bush, 10; rence, 58 N. Y. 442. Field v. Chipley, 79 Ky. 260 ; Story, 93 Bangs v. Dunn, 66 Cal. 72; Eq. Jur., 1040 e; Story, Contr. 709. Beal v. MeVicker, 8 Mo. App. 202; 94 State v. Hastings, 15 Wis. 75. 464 PUBLIC HEALTH ADMINISTRATION and in Bliss v. Lawrence, 95 Mr. Justice Johnson says with regard to the Hastings case: ''We do not under- stand that the English decisions really rest on any grounds peculiar to that country, although sometimes expressed in terms which we might not select to express our views of the true foundation of the doc- trine in question. The substance of it all is the necessity of maintaining the efficiency of the public service, by seeing to it that public salaries really go to those who perform the public service. To this extent, we think, the public policy of every country must go to secure the end in view." Though in Massachusetts some cases were decided without regard to public policy, sustaining the assign- ment of officer's future salaries, 96 the majority of American courts have followed the English decisions and Bliss v. Lawrence. In one American case the conditions were peculiar. An officer had entered into a partnership agreement, one clause of which provided that any salaries or other income received from the professional work of either of the partners, from any office or employment should be the property of the firm. Such a condition may easily be found in the municipal health service of our smaller cities, where the services of the office occupy only a portion of the officer's time. Such an agreement, as respects the salary of the officer was held to be valid, the court holding : ' ' The case in hand is not that of an assignment of an unearned salary, where all control over the expected funds, even to their 95 58 N. Y. 442. See also, Adams v. Tyler, 121 Mass. 96 Brackett v. Blake, 7 Met. 335; 380; Walker v. Cook, 129 Mass. Mulhall v. Quin, 1 Gray 105; Ma- 577; Dewey v. Garvey, 130 Mass. comber v. Doane, 2 Allen, 541. 86. OFFICERS 465 reception in the first instance, is passed over to another. It is but an agreement as to the manner in which the salary shall be employed or disposed of, when earned and paid. The agreement did not take away from the parties the right to receive their salaries, at such periods as the law appointed for payments. Its effect was not to impair their obligations as public officers, or to present inducements to inefficiency or unfaithfulness in the performance of their public duties. " 97 It seems very probable that a general partnership agreement, by which two physicians agreed that their professional earnings should belong to the firm, would also be held to include the salary which one of them might earn in a public office. If, therefore, one of such a firm be appointed to such a public office, where his services would be of a professional nature, he should have the partnership dissolved, in case he did not wish to share his salary with his partner. It is generally agreed that salaries already earned are subject to assignment. 98 § 338. Officers' salaries are not subject to garnishee. "It is well settled that the public, whether it be the United States, state, or municipal government, such as that of counties, townships, cities, and school districts, cannot be charged in garnishment or attachment for the compensation due to its public officers. This exemption is based upon public policy, and is not for the benefit of the officer but for that of the public that the latter may not be harassed or inconvenienced by suit against it, and that the efficiency of its servants be 97 Thurston v. Fairman, 9 Hun, 442 ; Birkbeek v. Stafford, 14 Abb. 584, following Sterry v. Clifton, 9 Pr. 285; Stephenson v. Walden, 24 C. B. 110. Iowa, 84. 98 Bliss v. Lawrence, 58 N. Y. 466 PUBLIC HEALTH ADMINISTRATION not interfered with by any uncertainty as to their pay- ment. ' ' " For this reason it is common that by statu- tory enactment such proceedings are prohibited. "It is also well settled that a public officer, who has money in his hands which is due from him in his official capacity to a third person, cannot be charged as the garnishee of such person on account of such indebted- ness. * * * But if the officer does not hold the money and owe a duty to disburse it in his official capacity, but merely as the agent, bailee, or debtor of the third person, it may be reached by garnish- ment." 100 § 339. Termination of official relation. Official rela- tionship may be terminated in any one of several ways. First, there is the cause of nature, the death of the incumbent. Then there are causes originating in leg- islation, as by the expiration of the legal term, the abolition of the office, or the failure to provide for the necessary expenses of the service. There are also causes originating within the action, or will of the incumbent, such as the refusal to accept the office, the failure to attend to the duties of the office, the accept- ance of an incompatible office, the abandonment of the office, or resignation. Finally, there are causes orig- inating external to the incumbent, as by removal, either with, or without trial, or by the court upon the finding that the incumbent is not properly possessed of his position. § 340. Death. The death of an officer creates an absolute vacancy. The constitutions, statutes, and ordinances generally make provision for such an emer- 99 Meehem, Pub. Off. 875, citing ioo Mechem, Pub. Off. 876, cit- eases. ing cases. OFFICERS 467 gency. Perhaps this provision may be found only in the general provision of authority to fill vacancies. Death, then, creates a vacancy. 1 In the absence of pro- visions to the contrary, the office of the deputy expires with that of the principal upon which the deputy depends, 2 but in the absence of express provision of this nature, which is generally found, even common law provides that an officer holds over after the expira- tion of his term, until his successor has been appointed and qualified. 3 "When the law gives him power to appoint a deputy, such deputy, when created, may do any act that the principal might do. He cannot have less power than the principal." 4 In the case of the death of the principal, therefore, the deputy may continue to do the work of the office until a new prin- cipal shall be appointed. He may do any acts which the principal may do, and clearly his authority would be commensurate, and not exceed that of the principal while he was living. Where, however, the deputy is a special deputy, appointed for a specific service, he is regarded not as a public officer, but as a private agent. 5 While, as a matter of public policy, such a special deputy might be permitted to continue his special work, his authority might be open to question, and it would cease on the appointment of a new principal. The power to make a deputy, if not expressly given i Yonkley v. State, 27 Ind. 236; Ellison v. Stevenson, 6 T. B. Mon. Hedley v. Commissioners, 4 Blackf. 275; Triplett v. Gill, 7 J. J. Marsh, 116; State v. Jones, 19 Ind. 516. 444; Commonwealth v. Arnold, 3 2 Banner v. McMurray, 1 Dev. L. Littell, 316; Hope v. Sawyer, 14 218; Greenwood v. State, 17 Ark. 111. 254. 332. s Meyer v. Bishop, 27 N. J. Eq. 3 People v. Oulton, 28 Cal. 44. 141 ; Meyer v. Patterson, 28 N. J. 4Abrams v. Ervin, 9 Iowa, 87; Eq. 239. Parker v. Kett, 1 Ld. Raym. 658; 468 PUBLIC HEALTH ADMINISTRATION by enactment, may be open to question. Generally speaking, an officer with discretion may not delegate his authority. 6 But ministerial duties may be so dele- gated. 7 In so far as a health officer's duties are minis- terial, such as the recording of vital statistics, for example, those duties may be delegated. So far as they are judicial, and dependent upon the exercise of reason, the health official's duties may not be per- formed by a deputy. Employees are not deputies. Neither are subordinate officers deputies. If there be subordinate public offices in the department, the act providing for the office also defines the duties of the officer, and the death of his superior would then make no difference with the duties of the subordinate. Unless, therefore, there be a specific provision for the continuance of the work of the health office in the case of the death of the health officer, or provision for the appointment of a deputy, all authority vested with discretion in the office would cease until the appoint- ment of a successor. When the deceased officer was one of two or more officers holding a joint authority, though the death creates a vacancy to be filled, the whole office is not vacant, and the survivors may continue to exercise the authority, and perform the duties of the office, unless it be expressly required by the law that the joint action of all is needed. 8 § 341. Abolition of office. Since there is nothing in the nature of a contract in an office, it follows that the e State v. Patterson, 34 N. J. L. » People v. Palmer, 52 N. Y. 84; 163. Dowling v. Rugar, 21 Wend. 178. 7 Abrams v. Ervin, 9 Iowa, 87 ; Edwards v. Watertown, 24 Hun, 428. OFFICERS 469 legislative body which created the office may at any time abolish the same. If there be no office, there can be no duties, and no services may be rendered. Since the compensation depends upon the rendition of ser- vices, there can be no compensation. There being no office, there can be no officer, and the retirement of the incumbent under such circumstances produces no vacancy. This is true whether the office be abolished directly, by repeal of the enactment creating the office, or indirectly, as by the abolition of the office upon which the subordinate office depends, or possi- bly by failure to make appropriation for the support of the office, as has been mentioned in a preceding section. Mechem says: 9 "So the legislature may declare the office vacant, 10 or may transfer its duties to another officer, 11 although the effect may be to remove the officer in the middle of his term, or to abolish his office by leaving it devoid of duties. ' ' This entire paragraph is unfortunately misleading. The first case cited has to do with the result of the canvass of election returns. By the general constitutions and statutes the legislatures are the judges of the validity of the rights of their own members to their seats. As such they are not strictly legislatures, but are vested with the judicial determination of certain questions. It is only in such cases that the legislature may declare an office vacant, and then not as an act of legislation, but of legal decision, there having been no valid elec- tion. To grant to the legislature such power to directly remove an officer would be to interfere with the executive right of appointment. Since legislative 9 Pub. Off. 465. ii Attorney Gen. v. Squires, 14 io Prince v. Skillin, 71 Me. 361; Cal. 13. State v. Davis, 44 Mo. 129. 470 PUBLIC HEALTH ADMINISTRATION officers are within the appointing power of their own bodies, so in such cases also the legislature would have the authority to remove the appointee. So as to the power to practically abolish an office by transfer- ring its duties, the abstract statement may be open to question. 12 If it be the intention to abolish an office that intention should be clearly, and indubitably ex- pressed by the direct act of abolition. If the duties be simply transferred to another office, leaving the old office without duties, it might readily be claimed that it was the intention of the legislature to assign to the old office other duties ; otherwise, why did it still per- mit the office to exist? It is therefore probable, though not certain, that if an office be left with a salary attached, even though there be no services to be per- formed in the line of duty, the incumbent might still retain his office and draw his salary. It has even been held that the legislature may not abolish an office by a reduction in the salary or other compensation, 13 nor remove an officer by shortening his term. 14 Unless forbidden by the constitution, or where the matters are denned in the constitution, the legislature may make such changes in the terms of officers as it may think proper, but it must not attempt to evade con- stitutional limitations by subterfuge. If, therefore, the legislature determines to abolish an office, the rights of the incumbent cease. §342. Expiration of term. The duration of the term of office is ordinarily expressed in the commis- sion. The constitution or the statutes define the term 12 Warner v. People, 2 Denio, i3 Conner v. Mayor, 2 Sand. 355. 272; People v. Albertson, 55 N. Y. instate v. Wiltz, 11 La. Ann. 50; Hoke v. Henderson, 4 Dev. 1. 439. OFFICERS 471 of office, if there be a term, including thus under the word ''statutes" all enactments subordinate to the constitution. The term may be fixed according to cer- tain days, as the "first of January," or it may be simply defined as to duration. The commission should state the time during which it is good. Whenever there may be question as to the legal interpretation of the enactments defining the term of the officer, that interpretation will be adopted which fixes the shortest time. 15 The date from which a term is to be reckoned is always exclusive. 16 At the expiration of the term of office, authority, and with it the rights, duties, and privileges of the office cease. 17 Sometimes the statutes expressly forbid the continuance in office after the expiration of the term for which appointed or elected, as in the case of Treasurers. When the term is fixed in the constitution the legislature may not provide that an incumbent shall hold over until his successor qual- ifies. 18 It is, however, generally true that either in the constitutions or the statutes provision is made that an officer once qualified shall hold over until his suc- cessor has qualified. This provision does not apply when a successor cannot be legally chosen to fill the position, as to an office in a municipality which has been dissolved. 19 An officer holding over, under authority of the constitution or the statutes, is an offi- cer de jure, and not de facto. In such a case, if the appointment is to be made by the Governor, by and 15 Wright v. Adams, 45 Tex. 134. laBeckwith v. Eacine, 7 Biss. is Best v. Polk, 18 Wall. 112. 142; Barkley v. Levee Commis- i7 Badger v. U. S., 93 U. S. 599; sioners, 93 U. S. 258. People v. Tieman, 30 Barb. 193. i 8 State v. Brewster, 44 Ohio, 589. 472 PUBLIC HEALTH ADMINISTRATION with the consent of the senate, there is no such vacancy as would permit of the appointment in case the senate was not in session. 20 In the absence of a law permit- ting the incumbent to hold over, he may continue in office, pending the qualification of a successor, as an officer de facto, if not de jure. An officer thus holding over will be entitled to the compensation for the ser- vice, where his holding over may be through no fault of his. 21 §343. When an officer may not hold over. There are certain cases in which, in spite of a general pro- vision empowering an officer to hold over his official term, he is not entitled thus to lawfully remain in office. Where an officer is a candidate as his own suc- cessor, and after being elected he fails to qualify, it has been held that he is not entitled to hold over under the general provision, but that his right has ceased, and that there is a vacancy. 22 However, it has also been held to the contrary, that the incumbent is en- titled to remain under exactly similar conditions. 23 Where the incumbent has been duly reelected, and has qualified after the issuance of his commission, but it has later been legally determined that the election was void, a vacancy results, and the failure of the elec- tion does not revive the prior right to hold over. 24 In such a case, the second qualification serves as a renun- ciation of rights under the old election, and the incum- bent is by his own action estopped from setting up a claim based on former occupancy. However, it has 20 People v. Forquer, 1 111. 104; 23 Bath v. Reed, 78 Me. 276; People v. Bissell, 49 Cal. 407. State v. Berg, 50 Ind. 496. 21 Hubbard v. Crawford, 19 Kas. 24 Handy v. Hopkins, 59 Md. 157 ; 570. Ex parte Smith, 8 S. C. 495; Ex 22 Scott v. Ring, 29 Minn. 398. parte Norris, 8 S. C. 408. OFFICERS 473 also been held under such circumstances that the incumbent may still hold over. 25 Since a person may not profit from his own misdeeds, an officer is not entitled to hold over, when by his action he prevents his successor in office from qualifying. 26 §344. Abandonment of office. Failure to qualify, It is possible that an appointee may voluntarily relin- quish his right to the office at any time from the mo- ment of his appointment, to the close of his official term. The laws stipulate certain things which an offi- cer must do before he may lawfully be considered an officer de jure, such as taking the official oath, filing an acceptance, furnishing an official bond, and the like. Clearly, if an officer neglect or refuse to do the acts thus specified, he thereby expresses his refusal of the office, and his embryo official relations thereby cease. A refusal to perform the duties imposed by law upon the office works a forfeiture of the official right. 27 The laws generally state that these preliminary steps must be taken before the appointee takes the office, or within a stipulated time. It is generally agreed that these directions are directory, rather than mandatory, and that a failure to comply with the exact letter of the law in this regard does not work a forfeiture. 28 Cer- tainly, when the failure to thus qualify was due to no fault of the appointee, such failure can not be said to 25 Forrestal v. People, 3 111. App. Watts, 538 ; Olney v. Pearce, 1 R. 470; Stadler v. Detroit, 13 Mich. I. 292. 346. 28 Chicago v. Gage, 95 111. 593; 26 State v. Steers, 44 Mo. 223. People v. Holley, 12 Wend. 481 ; 27 State v. Allen, 21 Ind. 516; State v. Churchill, 41 Mo. 41; State People v. Kingston, T. R. Co., 23 v. Porter, 7 Ind. 204; State v. Col- Wend. 193; People v. Hartwell, 67 vig, 15 Ore. 57; State v. Peck, 30 Cal. 11; Neale v. Overseers, 5 La. Ann. 280. 474 PUBLIC HEALTH ADMINISTRATION work a forfeiture. 29 Thus, where the giving of a bond was delayed pending a contest, and doubt as to who is entitled to the office results, such delay does not work a forfeiture. 30 If the officer finally files his bond, takes the oath, and does the other preliminary acts demanded, and those charged with the duty formally accept the bond, etc., any default is thereby waived, and the officer thereby becomes de jure. 31 §345. Abandonment after qualification. In the case of the Earl of Shrewsbury, 32 Lord Coke defined three causes of forfeiture of office; Abuser, Nonuser, and Refusal. §346. Malfeasance. Malfeasance in office works a forfeiture. 33 This forfeiture is not immediate and self operative, but it requires the action of the court or the appointing power to make the effect complete. Mal- feasance is a willful perversion of official conduct. It is necessary to draw a distinction between the charac- ter of the officer, and the character of the man who occupies the office. 34 It has been held that intoxica- tion is not within a constitutional provision providing for the removal of an officer for malfeasance in office, and a statute pronouncing it malfeasance, and thus providing for the removal of the officer, was unconstitu- tional. 35 So where a police justice was charged with intoxication it was held that he was entitled to show 29 Ross v. Williamson, 44 Ga. Common-wealth v. Chambers, 1 J. J. 501; State v. Hadley, 27 Ind. 496. Marsh, 160; State v. Leach, 60 so People v. Potter, 63 Cal. 127; Mo. 58. Pearson v. Wilson, 57 Miss. 848. 34 Commonwealth v. Barry, Har- 3i Chicago v. Gage, 95 111. 593; din, 229; Commonwealth v. Cham- Ross v. Williamson, 44 Ga. 501; bers, 1 J. J. Marsh, 160. Cronin v. Gundy, 16 Hun, 520. 35 Commrs. v. Williams, 79 Ky. 32 9 Coke, 50. 42. 33 Minkler v. State, 14 Neb. 181 ; OFFICERS 475 in defense that he performed his official duties hon- estly, impartially, and otherwise competently. 36 It was held in another case that the officer might be removed if he was intoxicated while attempting to perform official duties, but not for intoxication at other times. 37 All of these cases are based upon a true interpretation of the law. The private character, as such, has nothing to do with the official character. But, as a physiologic fact, and from a psychologic stand- point, these decisions may be open to question, for it may well be doubted whether the mind which is at times benumbed by the effects of alcohol may be able to perform its official acts with normal precision. Therefore it is that we find other cases, in seeming con- flict with the foregoing citations, in which officers have been removed from office for intoxication even when off duty. 38 There is no necessary conflict between these two lines of cases. In one the stress is laid upon the distinction between the private and the public life of the officer, and in the other the greater importance is given to physiologic facts. Secondly, malfeasance does not mean simply a mis- taken action, or an error in judgment. Such an error may be serious in its results, and work great harm. It may further demonstrate the fact that the officer is not qualified for the position which he holds, but it is not malfeasance. It is rather misfeasance. An officer vested with discretion may do anything within that discretion, and it will not be deemed that he has been guilty of malfeasance. But, as we have heretofore 36 In re Grogan, 24 N. Y. St. R. 38 MeComas v. Krug, 81 Ind. 327; 473; 5 N. Y. Supp. 499. People v. French, 102 N. Y. 583; st People v. Police Commrs., 20 People v. Partridge, 13 Abb. N. C. Hun, 333. (N. Y.) 410. 476 PUBLIC HEALTH ADMINISTRATION shown, discretion does not include arbitrary decisions. Discretion implies the use of knowledge and reason. Within discretion, the action is lawful. In the case of ministerial duties only that must be done which is prescribed, and none of that demanded in the law can be omitted. It is presumed that the officer knows what his duties are, and therefore a failure to do that which the law requires, or a doing of that which the law does not permit, would be a willful perversion of official position. That is malfeasance, even though there was no malicious motive, nor corrupt cause. 39 "When an officer acting in his official capacity, and under his official signature does an act which has rela- tion and refers to matters belonging to his department, and under his particular charge, and he acts know- ingly, designedly, falsely, and the act is one calculated to mislead, and one that in its nature may be used for purposes of fraud or imposition, it is misconduct in office within the intent of this statute. And this, although no actual corruption by bribery or otherwise is proved. ' ' 40 Clearly, if coupled with the willful mis- deeds there be a corrupt motive, or if they arose from a malicious intent, there could be no question as to the fact of malfeasance. Arbitrary use of power, espe- cially with corrupt, or malicious intention is mal- feasance. Where a health department is used, as dur- ing the reign of the Tweed ring in New York, for the collection of blackmail, or for intimidation for political or other purpose, it is malfeasance, and should receive the strongest punishment, by immediate forfeiture of office, coupled if possible with criminal prosecutions. sa Minkler v. State. 14 Neb. 181. 40 State v. Leach, 60 Mo. 58. OFFICERS 477 §347. Nonuser as cause of forfeiture. The simple fact that an officer fails to perform the duties of his office, even possibly for some considerable time, would not be considered to work a forfeiture of office, espe- cially when such nonuse of the office may be a matter beyond the will of the officer. The fact of his being detained by personal sickness will not be deemed a surrender of the office, even though he thus remain from his duties for more than fifty days. 41 Absence from office may be a cause for removal from office, even though it be not in itself a forfeiture. 42 For the absence to work a forfeiture, there must be a clear in- tent of the holder to relinquish his position. 43 In this case the office had been relinquished under a mistaken opinion that another had been elected, and for a period of two years there was no attempt to perform the duties of the office. On the other hand, in Turnipseed v. Hudson, 44 the office was relinquished to a successor who had been elected under a new law, which was later declared unconstitutional. It was claimed by the court that the relinquishment under such conditions, in accord with the act which was in force at the time, did not work a forfeiture when the act was wiped out. When an officer enlisted in the volunteer army, to serve for a term of three years, or until the close of the war, it was held that such an act was clear declaration of intention to abandon the duties of the office. 45 When the law requires that an officer shall reside in his district, a removal from the district will work a for- feiture. 46 But if the removal be clearly temporary, 4i State v. Baird, 47 Mo. 301. 45 State v. Allen, 21 Ind. 516. *2 Page v. Hardin, 8 B. Mon. 648. 46 Yonkley v. State, 27 Ind. 236 ; 43 People v. Hartwell. 67 Cal. 11. Curry v. Stewart, 8 Bush, 560; 44 50 Miss. 429. Prather v. Hart, 17 Neb. 598. 478 PUBLIC HEALTH ADMINISTRATION and with no intention to abandon the office, no for- feiture will be held to have been worked. 47 Where there has been a complete abandonment of the office by the officer, it cannot again be resumed by him, 48 and no accidental, or forcible reoccupancy can give him title thereto. 49 §348. Refusal to perform the duties of the office. "After once accepting an office, refusal to serve is a cause of forfeiture, if without good reason; but how- ever general and absolute, it is not a forfeiture, per se." 50 The refusal to act may not rest within the officer's discretion. So, where an officer is in posses- sion, the question whether or not he has forfeited his right thereto cannot be tested collaterally. 51 Neither may a new appointment be made to fill the vacancy, until after a judicial determination of the fact of forfeiture. 52 Although for an officer de jure to refuse to act is a cause of forfeiture, for the officer de facto it con- stitutes the forfeiture itself. If he still claimed the office and attempted to do other portions of the duty of the office, but refused to do some particular portion, and harm thereby resulted, he could be held personally liable for his negligence, or malfeasance. 53 So long as he claims the position he may be forced by mandamus to perform the duties of the office, 54 but when the offi- *7 State v. Graham, 26 La. Ann. 62 State v. Bryce, 7 Ohio, Part 568; McGregor v. Allen, 33 La. II, 82. Ann. 870. 53 Longacre v. State, 3 Miss. 637. 48 Yonkley v. State, 27 Ind. 236. 54 Runion v. Latimer, 6 Rich, *s State v. Allen, 21 Ind. 516. 126; Kelly v. Wimberly, 61 Miss. so Van Orsdall v. Hazard, 3 Hill, 548. 243. si McKim v. Somers, 1 Penn. 297. OFFICERS 479 cer de facto disavows authority, and refuses to per- form the duties, he can incur no personal liability thereby, 55 nor subject himself to punishment under the statutes. 56 Receiving neither the honor of the trust, nor pecuniary compensation, manifestly no man can be blamed if he refuses to do the work of an office for which he can receive no reward. § 349. Acceptance of incompatible office. It is con- trary to law that a man should attempt to hold at the same time two offices whose duties conflict. As a gen- eral proposition the acceptance of an incompatible office vacates the first without any other act or proceed- ing. 57 Without judgment of ouster all compensation attached to the first office is forfeited from the moment that the second office is accepted. 58 According to the common law, therefore, the office may be immediately filled, by election or appointment, as provided, and without quo warranto or other proceedings. 59 It must be remembered that there are certain exceptions to the general rule relative to the forfeiture of the former office. This subject has been discussed under the qualifications of officers, and these variations in the general rule will not here be further considered than simply to say that if there be a question whether the former office be vacated by accepting a second, or to oust from the second office, leave should be asked for permission to file information in the nature of quo war- ssOlmstead v. Dennis, 77 N. Y. 1229; State v. Goff, 15 E. I. 505; 378. People v. Hanifan, 96 111, 420. so Bentley v. Phelps, 27 Barb. ss State v. Comptroller General, 524. 9 S. C. 259. 67 State v. Brinkerhoff, 66 Tex. 59 state v. Buttz, 9 S. C. 156 ; 45; Pooler v. Reed, 73 Me. 129; Shell v. Cousins, 77 Va. 328. State v. Dellwood, 33 La. Ann. 480 PUBLIC HEALTH ADMINISTRATION ranto. In other words, the acceptance of a second office, incompatible with the first, may, ipso facto, for- feit the first office, or it may simply be a cause of vacat- ing either the first or the second office, according to conditions. The choice as to which office shall be con- sidered vacant does not rest with the holder after he has made his choice by accepting the second position, and even when he finds that his claim upon the second position is worthless, through defect of election or appointment, the forfeiture of the first position is com- plete. 60 § 350. Resignation. He who so acts as to forfeit his office has impliedly resigned. Since a man may not accept an incompatible office without forfeiting his former position, the fact of the second acceptance is, per se an expression of willingness to be relieved of the duties and responsibilities of his former service., Essentially he has resigned. In form he has not resigned, and since there may be some question as to his legal ability to hold the two offices, if it be his wish to retire from the first office he should resign formally, to remove all doubt. A resignation implies three distinct actions : 1. The office is handed back from the holder to the state as represented by some proper officer of superiority. 2. The office is received by such representative officer. 3. The responsibilities of the office are accepted by the superior officer, for transmission to a subsequent holder. Until the third of these steps has been com- pleted, the incumbent is not free from the duties of his position. It therefore happens that an officer may not resign his position without the consent of the eo Rex v. Hughes, 5 B. & C. 886. OFFICERS 481 appointing power, either expressed, or implied, for example, by an appointment made to an incompatible office. 61 It has, however, been repeatedly held in the United States that any officer has the unqualified right to resign an office, 62 and in one case it was held that this right existed, and the resignation took effect, although the appointing power expressly refused to accept the resignation. 63 There may possibly be some question as to whether the appointing power is bound to accept an absolute resignation, but according to the common law an office is a public duty which it is the duty of citizens chosen to accept. 64 Penalties are some- times provided for refusal to serve, and officers who are thus negligent of their public duties may some- times be proceeded against by criminal trial. 65 As a general statement, the office is not relinquished until the resignation is formally accepted and a successor appointed and qualified. The resignation need be in no special form, unless that form be prescribed by law. When so prescribed the exact form must be observed. 66 The resignation may be oral, but it should be definite in form, and pref- erably in writing. There can then be no question as to what was intended. It should be given to the officer or body authorized by law to receive the same ; or in the absence of such a statutory provision, to the officer or body having the appointive power over the ei Edwards v. U. S., 103 U. S. 64 Edwards v. U. 8., 103 IT. S. 471; Van Orsdall v. Hazard, 3 471. Hill, 243. er> Rex v. Mayor, 4 Doug. 14; «2 People v. Porter, 6 Cal. 26 ; Rex v. Leyland, 3 M. & S. 184. Leech v. State, 78 Ind. 570; Gates go Barbour v. U. S., 17 Gt. of CI. v. Delaware County, 12 Iowa, 405; 1499; Van Orsdall v. Hazard, 3 Olmsted v. Dennis, 77 N. Y. 378. Hill, 243. 63 State v. Mayor, 4 Neb. 260. 482 PUBLIC HEALTH ADMINISTRATION position. So also, the acceptance of the resignation should be so clear and unmistakable that no possible question may subsequently be raised. Sometimes the acceptance is shown simply by the appointment of a successor. The appointment of the successor, how- ever, is a transaction between the appointive power and the party appointed, and does not of itself touch the predecessor. It is really only an evidence of the acceptance of the resignation, and not an acceptance itself. It would be far better that the acceptance be formal, and in writing, and that it further direct to whom the resigning officer shall transfer all moneys, books, and other property in his possession. Even the acceptance of the resignation is not sufficient to release an officer until his successor has been duly qualified in many offices of trust. 67 A resignation once made may only be withdrawn with the consent of the superior, though it has been held that a prospective resignation is not a real resig- nation, but rather is it a notice of intention to resign ; and if it be so regarded it is subject to withdrawal at any time, unless new rights have arisen by the appointment of a successor. 68 On the other hand, it has repeatedly been held that a resignation once offered cannot be withdrawn, even with the consent of the superior, 69 unless, possibly, where the power to accept the resignation rests in the same hands as the power to fill the vacancy. 70 Resignation to an office made while in a state of unsound mind, when 67 Badger v. U. S., 93 U. S. 599 Jones v. Jefferson, 66 Tex. 576 People v. Barnett Tp., 100 111. 332 69 Yonkley v. State, 27 Ind. 236 ; State v. Hauss, 43 Ind. 105. to Pace v. People, 50 111. 432; U. S. v. Green, 53 Fed. Rep. 769. Gates v. Delaware Co., 12 Iowa, es State v. Boeeker, 56 Mo. 17. 405; State v. Fitts, 49 Ala. 402. OFFICERS 483 accepted, and a successor had been appointed, was regarded as a valid resignation, and the loss was held to be upon the officer resigning. 71 In this case the resignation was accepted in ignorance of the fact that it was given while insane, but the office is not property, and the holder had no property right therein. On the other hand, public interest demands that only sane men shall hold offices, and the fact of such mental condi- tion would seem a sufficient justification for removal, even though no resignation be offered. Sometimes the resignation may be made provisional upon some future act or event. Such a resignation is not effective until such stipulated act or event, and the acceptance before such event is void. 72 Only an officer who has been duly elected or ap- pointed, and who has qualified, may resign. 73 An officer who has been illegally elected or appointed, and who resigns, does not create a vacancy. 74 He cannot give up that which he never really had. That a resignation may be complete it is ordinarily necessary that the resignation be formally accepted, but this may be done by a corporation making an entry of the same in the public books, or by appointing some person to fill the place, thus treating the office as vacant, 75 but it has sometimes been held that the resig- nation takes effect without any formal acceptance. 76 § 351. Power of removal is incidental to that of appointment. It has been the recognized practice in 7i Blake v. U. S., 14 Ct. of CI. 75 Edwards v. U. S., 103 U. S. 462. 471. 72 State v. Boecker, 56 Mo. 17. 76 Keiter v. State, 51 Ohio, 74; 73 Miller v. Supervisors, 25 Cal. People v. Porter, 6 Cal. 26; State 93; In re Corliss, 11 E. I. 638. v. Lincoln, 4 Neb. 260; Bunting 74 In re Corliss, 11 E. I. 638 ; v. Willis, 27 Gratt. 144. Queen v. Blizard, L. E., 2 Q. B. 55. 484 PUBLIC HEALTH ADMINISTRATION our system of government to grant to the appointing power the right to remove those whom it has appointed, especially where the appointment is made without stip- ulating any particular term of office. (§127.) As was stated in an early case before the Supreme Court, it is "a sound and necessary rule to consider the power of removal as incident to the power of appointment. ' ' 77 The arbitrary power of removal is limited to such offices as may have no definite terms fixed by law, 78 and it is not granted to the appointing power, where the officer appointed is to hold his office at the pleasure of some other officer or board than that which appoints. 79 In a case in California it was held that the legislature may not limit the power of removal except by fixing the term of the incumbent, where the constitution grants to the legislature the authority to fix the term, but stipulates that if the legislature has not fixed the term, the office shall be held during the pleasure of the appointing power. 80 In all these cases where the office is held during the pleasure of the appointing power, that pleasure is the absolute guide, and the power for removal may be used for political or other reasons. For offices having definite terms, either according to the constitution or the statutes, the power of removal is ordinarily defined in the statutes, and the causes and methods are also defined. Manifestly, it is essential that there be harmony in the administration of govern- mental business. The power of removal is essentially an executive function, and it is to be used to promote 77 Ex parte Hennen, 13 Peters, Keenan v. Perry, 24 Tex. 253 ; 230; Newsome v. Cocke, 44 Miss. State v. Chatburn, 63 Iowa, 659; 352; People v. Commissioners, 73 People v. Hill, 7 Cal. 97. N. Y. 437. " Carr v. State, 111 Ind. 101. 78 Collins v. Tracy, 36 Tex. 546; so People v. Hill, 7 Cal. 97. OFFICERS 485 harmony and efficiency in administration. That an officer is removed from his position need be no reflec- tion upon either the officer removed, or upon the officer making the removal. It does not necessarily imply that the officer removed has been either dishonest or inefficient. Bules or statutes, which limit the discharge of officers during term to malfeasance may very seriously interfere with good government and efficient administration. For this reason democratic govern- ments are between two dangers. Where the power of appointment and removal is unlimited there is great tendency to make the government unstable in char- acter. With every election there is a danger that all offices shall change, and it will take time for the new holders to become acquainted with their new duties. Appointments are apt to be made purely for political reasons, and to build up political machines. On the other hand, under strict civil service regulations the tendency is to keep men of mediocre ability in office. They may be entirely lacking in originality of idea, with poorly developed judicial capacity, and slow of comprehension, thus utterly unfitted for their posi- tions ; but so long as they do their work honestly it will be difficult to remove them. They are blocking prog- ress, but are secure in their positions. The removal of such obstacles is evidently for the common good, but any such attempt would be immediately decried as political in motive, and hostile to the spirit of civil service. In a monarchial government it is much easier to build up a permanent and efficient corps of adminis- trative officers in any department. § 352. Conditions for removal fixed in the Constitu- tion. When the term of office, conditions under which 486 PUBLIC HEALTH ADMINISTRATION an officer may be removed, or method of removal are fixed in the constitution, the legislature may not enact laws changing the constitutional provisions. 81 Thus, when the constitution mentions certain kinds of offence for which an officer may be removed, the legislature may not by statute name other offences for which removals shall be made, nor attempt to classify other offences under the constitutional provisions. 82 A con- stitutional or statutory fixing of the term of office by implication withholds from the governor the power to remove the incumbent, 83 unless that power be dis- tinctly granted. 84 Constitutional provisions relative to removal may be self-operative. Thus, where it is provided that officers of the courts may be removed for specific causes, "upon the cause thereof being set forth in writing, and the finding of its truth by a jury," it was held that it was self operative, and may be exe- cuted without legislation. 85 "And where the constitu- tion provides for the removal of an officer by sentence of the court, upon conviction of willful neglect of duty, or misdemeanor in office, the court, upon the conviction of a person indicted for either offence, has no discre- tion with respect to that part of the sentence." 86 A constitutional provision empowering the governor to remove any officer whom he may appoint includes his power to remove such officers as he may appoint by and with the advice and consent of the senate, and even those cases for which other specific remedies are provided. 87 "Where such a provision specifies the si Lowe v. Commissioners, 3 Met. 84 Field v. People, 3 111. 79. 237; State v. Wiltz, 11 La. Ann. 85 Trigg v. State, 49 Tex. 645. 439 ; Eunnels v. State, 1 Miss. 146. se Throop, Pub. Off. 342, citing 82 Commiss. v. Williams, 79 Ky. Shattuck v. State, 51 Miss. 575. 42. 87 Wilcox v. People, 90 111. 186. as People v. Jewett, 6 Cal. 291. OFFICERS 487 causes for which such removal may be made, but does not specify how the power shall be exercised, the gover- nor may determine whether the cause exists upon such evidence as he may think proper. 88 It is not necessary that the governor should specify the cause. 89 It has, however, sometimes been held that the officer must have notice of the ground for removal, and a reason- able opportunity to be heard in self defense, but the judicial decision must rest with the governor. 90 § 353. Statutory requirements for removal. In the absence of constitutional limitations the legislature may make such regulations relative to removal from office as it may deem proper. It is a common provision in national, state, and municipal governments that the power of removal for cause shall be operable over elec- tive as well as appointive officers. Such a provision is indispensable to the proper exercise of the functions of government, and is clearly within sovereign author- ity. 91 Such a power of removal, under suitable restric- tions is much to be preferred to the newer proposal of recall by election, for it is far less likely to be abused. Where removal is for cause the proceedings are essentially judicial in their nature, and must there- fore be before officers clothed with judicial authority. 92 This tribunal may be a court of law, 93 or a court of impeachments, 94 but this judicial power may be con- ferred upon the governor, mayor, or other officer, or ss Wilcox v. People, 90 HI. 186. 672; State v. Pritchard 36 N. J. 89 Keenan v. Perry, 24 Tex. 253. L. 101 ; Evans v. Populus, 22 La. so Dullam v. Willson, 53 Mich. Ann. 121. 392. 93 Page v. Hardin, 8 B. Mon. 9i People v. Whitloek, 92 N. Y. 648. 191. 94 State v. Pritchard, 36 N. J. 92 Dullam v. Willson, 53 Mich. L. 101. 392; Page v. Hardin, 8 B. Mon. 488 PUBLIC HEALTH ADMINISTRATION board of officers. 95 In the absence of power expressly given by the constitution, the legislature may not, either directly or indirectly, remove an officer in an- other branch of government. 96 Where a city officer has been appointed under a gen- eral statute, which authorized the governor, after notice and hearing, to remove him, a statute providing for his removal by the mayor for "any cause deemed sufficient by himself," is valid, and the mayor may remove him without notice or hearing. 97 Such a re- moval is ministerial, and need not comply with the general rules as to judicial proceedings. 98 If the removal be of the nature of judicial proceedings, it will be necessary that the records of a board, before whom the case is tried, shall show fully the nature of the charges, and the result of the determination. In other words, the record must show all the facts necessary to give the power of removal. 99 The records must further show that the action was legally taken. Where a two-thirds vote was necessary to remove, the vote of a less number will not be valid for removal. 100 According to the common law no person may sit as a judge in any case to which he is a party, or in which he is interested. A proceeding before a township board for the removal of an officer of a school district, where one of the board is interested in the subject of the complaint, violates the general prohibition of the common law, and is therefore void; and if the pres- 95 Dullam v. Willson, 53 Mich. 98 See also, Donahue v. Will 392. County, 100 111. 94; Stern v. Peo- 96Cotten v. Ellis, 7 Jones, L. pie, 102 111. 540. 545; Hoke v. Henderson, 4 Dev. 1; 99 McGregor v. Supervisors, 37 State v. Wiltz, 11 La. Ann. 439. Mich. 388. 97 People v. Whitlock, 92 N. Y. ioo People v. College, 62 How. 191. Pr. 220. OFFICERS 489 ence of the officer be necessary for a quorum, the action is void. 1 In the absence of constitutional restrictions the legis- lature (or city council, where the state law does not prohibit), may make such restrictions as it deems best as to cause for removal. A provision which prohibits removal for political reasons only is valid. 2 If it grants the general power to remove "for cause," this cannot be construed as a permission to remove at pleasure. 3 The removal can only be for the causes specified. 4 Since an office is not a contract in itself, and any contract which might be made with reference to tenure of office might very likely be to the disadvantage of the community, it follows that any agreement made between the appointing power and the officer appointed may at any time be nullified by the removal of the appointee. Thus an arrangement which was made between the mayor and a health officer did not pro- hibit the removal of the health officer from office. 5 In the cities and towns of Massachusetts there is no power to remove public officers except that which is given by the statutes. Public officers, even when elected by the electors of a town to perform statutory duties which involve the expenditure of money which is raised by local taxation, are not the agents of the town. The members of a board of health for a town cannot be removed by a vote of the inhabitants of a town. 6 A health officer is entitled to his pay until he i Stockwell v. Township Board, * Dubue v. Voss, 19 La. Ann. 22 Mich. 341. 210. 2 State v. Board, 17 Atl. Bep. 5 Young v. City of Ashland, 125 112. S. W. B. 737. a Mead v. Treasurer, 36 Mich. « Attorney General v. Stratton, 416. 194 Mass. 51. 490 PUBLIC HEALTH ADMINISTRATION shall have been removed, irrespective of whether or not he had properly discharged his duties. 7 Where the removal is absolute, within the power and pleasure of the superior officer, it is not subject to review by any court, further than to determine that the removing officer had authority for his action. If that be doubted, it may be tested by information in the nature of quo warranto? But if he have the authority, the action of a governor in removing an officer cannot be reviewed by quo warranto. If there be question as to irregularity of method, or improper conclusion, the case may be brought into court by certiorari, which will also cover the question of authority. (§§ 379, 380, 383.) §354. What is not removal. Exclusion from office because of failure to qualify is not a removal from office. 9 Discharge of an officer, either because the work was finished, or appropriation was exhausted, is not removal from office. It is rather an abrogation of the office. 10 Neither is the discharge of an officer for the purpose of reducing expenses, or reducing the size of the force, a removal. 11 A transfer to an inferior class is not a removal. 12 But if the officer thus transferred makes no protest, and signs the weekly pay roll, he is thereby estopped from making future objection there- to. 13 The fact that an officer is discharged for the purpose of cutting down the expense of the service is in no way prevented because the appropriations are 7 People v. Sipple, 96 N. Y. « People v. French, 25 Hun, Supp. 897. Ill; People v. Health Department, s State v. Lupton, 64 Mo. 415. 24 Week. Dig. 197. a Hyde v. State, 52 Miss. 665. 12 state v. Police Comms. 40 N. 10 Phillips v. Mayor, 88 N. Y. J. L. 175. 245; People v. 'French, 25 Hun, is Eeilly v. Mayor, 48 N. Y. Sup. 111. Ct. 274. OFFICERS 491 sufficient to provide the pay for the entire force. 14 But the power given to discharge subordinates in order to reduce the force, or reduce the expenses, does not give authority to remove an officer for the purpose of creat- ing a vacancy to be filled. 15 The revocation of a com- mission illegally executed is not a removal, whether the irregularity be due to the ineligibility of the ap- pointee, the absence of a vacancy, or other defect. 16 § 355. Power to remove does not include the power to suspend. Although in a few cases it has been held that the power to remove includes the power to sus- pend, 17 the general consensus is that unless the power be distinctly granted the power to suspend does not exist. 18 A suspension creates no vacancy, and gives no power to assign some person to fill the position. And a person who assumes the responsibilities of an office, whose holder is under suspension, has only minis- terial authority. 19 § 356. Impeachment. There is one other form of removal provided under the Anglican system of gov- ernment, which might perhaps be well used more fre- quently than it is. We refer to impeachment. It might be well if the statutes were more explicit as to this proceeding, defining liberally the conditions under which an officer may be impeached, and also providing for impeachment under less expensive, and more uni- i* People v. French, 25 Hun, 111. Shannon v. Portsmouth, 54 N. H. is State v. Sehumaker, 27 La. 183; State v. Police Commrs., 16 Ann. 332. Mo. App. 48. is People v. Police Commrs. 102 is Metsker v. Neally, 41 Kas. N. Y. 583 ; People v. Fire Comms. 122 ; State v. Jersey City, 25 N. J. 114 N. Y. 67; Gulick v. New, 14 L. 536; Gregory v. New York, 113 Ind. 93; State v. Capers, 37 La. N. Y. 416. Ann. 747. 19 State v. Herron, 24 La. Ann. "State v. Lingo, 26 Mo. 496; 432. 492 PUBLIC HEALTH ADMINISTRATION versal conditions than at present for the minor offices. At present, the custom is for the House of Representa- tives, either of state or nation, to formulate the charges, which are tried before the Senate. Any civil officer, generally speaking, is subject to impeachment; but much of the time the legislative body is not in session, and minor officers, shielded by their superiors, are permitted to mismanage, and pervert their posi- tions with absolute impunity. The difficulty and ex- pense involved in impeachment restricts its use to flagrant cases. The punishment inflicted is limited to removal from, and disqualification for holding office. With the exception of impeachment and certain possi- bilities, like that of quo warranto, which are not gen- erally known, all the power for removal of incompetent, or dishonest officials, so long as they abstain from com- mitting statutory crime, is in the hands of a few superior officers. As a consequence, it is possible for an entire administration to be honeycombed with a form of corruption. Because statutes are not explicit in directions, public officers are slow to take up the prosecutions of fellow officers. There should be some provision for the trial of charges under conditions re- sembling impeachment before certain courts for minor officers, upon the petition of private citizens, under clearly defined conditions. Such removal should always be judicial in method, rather than a yielding to the unreasoning whim of the populace. An officer should be removed for willful neglect of duty, or for perver- sion of authority to the public harm, or for malfeasance in office; but an officer having the confidence of his superior, should not be punishable for the performance of his duty according to his judgment, nor for adher- OFFICERS 493 ence to duty when such adherence may make him unpopular for the time being. According to constitu- tional provisions, Congress, or the legislative branches of the individual states, may impeach officers, but they do not specify when the power shall be exercised. The legislative body is therefore the sole judge as to the time when the power shall be exercised as well as rela- tive to the grounds for impeachment, free from control by the executive or the courts. Hence, the impeach- ment of the governor by the general assembly while in extraordinary session is valid, although the consti- tution provides that no subject shall be acted upon in such a session except such as the governor recom- mends, and the governor had not recommended his own impeachment. The provision of the constitution restricting action in extraordinary session clearly refers to legislative efforts. Impeachment is a judicial procedure, and must be free from the control, either active or negative, of the other branches of govern- ment. 20 20 People ex rel. Eobin v. Hayes, 143 N. Y. Supp. 325. CHAPTER XI LIABILITIES § 357. State can not be sued. § 358. Duplex character of the mu- nicipality. § 359. Liability of officers judged by duties. § 360. Officers are such only when complying with the law. § 361. Unconstitutional law no de- fense. § 362. Discretionary or ministerial authority. § 363. Officers with discretion not ordinarily responsible. § 364. Cases showing liability or non-liability of quasi- ju- dicial officers. § 365. Officer is liable if he exceed his jurisdiction. § 366. Officer is liable for acts not covered by duty. § 367. Superior officer not liable for torts of subordinates. § 368. When superior officer is liable for subordinate. § 369. Liability as to contracts. § 370. Officer not ordinarily liable on implied authority. § 371. When officer is liable on contract. § 372. Application to health of- ficers. § 373. Liability of employees. § 374. Liability of city for per- formance of public duties. § 375. Liability for municipal duties. § 376. Municipal contracts, liabil- ity on. § 377. Respondeat superior. § 357. State cannot be sued. It is axiomatic that the State cannot be sued, except with its own consent. In proportion as the body represents the sovereign power it must be free from this danger. As we have shown the government is conducted by three branches which are coordinate. These branches together represent the State. It would be impossible, therefore, for the State to be attacked before a part of itself, unless it granted the permission. Further, because the branches 494 LIABILITIES 495 are coordinate, neither one has authority over the others in actual operation. While the courts may scrutinize complaints that the legislative or executive branches have exceeded their authority, on the other hand, they will not interfere with the legislature, nor the executive, in their own proper work. In the discharge of governmental duties the nation, the state, the county, and smaller divisions of the state are all protected from suit for damages which some portion of the community may have sustained. Such injury must occur occasionally. The common good may demand something which works against some private interest; but to protect that private interest it would be necessary that many be harmed. § 358. Duplex character of the municipality. Most municipalities have been incorporated at the request of their own citizens. As a portion of the state, and doing the governmental work of the state within their borders they share with the state freedom from court action. But as corporations they come into commer- cial competition with individuals and other corpora- tions. In that character the city must be under the same rules and laws as those which regulate the con- duct of the private persons or corporations. In other words, cities are liable to individual citizens for any harm which may come from the corporate deeds or mis- deeds, and for their negligences, just as are ordinary persons. § 359. Liability of officers judged by duties. Officers may be considered the personification of government. It is impossible to conceive of government except through the instrumentality of officers. Since the officer is a portion of the government, he partakes with 496 PUBLIC HEALTH ADMINISTRATION the government its immunity from prosecution. So long as a state officer strictly adheres to the law in the execution of his duties, the state will protect him from attack in transacting its business. On the other hand, the purely municipal officer, one looking after some corporate interest rather than a governmental duty, is not shielded by the state any more than he would be in working for a private corporation. An officer whose duties are partially governmental and partially cor- porate will be shielded or exposed in proportion as the particular matter under consideration may be govern- mental or corporate. §360. Officers are such only when complying with the law. "All officers of the government, from the highest to the lowest are creatures of the law and are bound to obey it. " * The law provides offices and pre- scribes the duties of the officers. It further directs how certain work shall be accomplished. The author- ity for the act must therefore be found in the law. If the person do that which the law does not provide, he is not acting with the authority of the law, and in so far he is not an officer, nor the representative of the state or city. (§ 270.) He is simply a private individ- ual, and as such is liable for any harm which may result. " Action in accordance with legal authority is legal, and the official so acting will always be justified, and action without warrant of law is illegal, and the official so acting will always be considered a private wrong doer." 2 "The criminal law regards as a crime almost every act of an officer, which, if committed by i U. S. v. Lee, 106 U. S. 196, per 2 Wyman, Ad. Law. 3. Miller, J. LIABILITIES 497 an individual, would be a crime, ' ' 3 and the law of the United States declares, "any act or omission in dis- obedience of public duty, as by one who has accepted office, when of public concern" to be a crime. 4 "Before the law of the land, therefore, the public officer stands as a private person; and the result is startling; every act by every public officer may be subject of suit against the officer as an ordinary per- son. More than that, unless the officer can show an exact legal justification for the precise act which he has done, he has done nothing more or less than a legal wrong by his interference, for which he must answer just as any private wrong doer must answer for his wrongs. In this view every action of administration is subject to the law of the land, in that some officer of the administration must answer in his own person if anything be done by it without authority of positive law." 5 It will be noted from the foregoing that the officer must do nothing which the law does not direct, but that he must do all that the law directs; in other words, he must answer for his sins of omission, as well as for those of commission. §361. Unconstitutional law no defense. A statute is law only when it is passed in conformity with the Constitution. The fact that the legislature has exceeded its authority, and has placed upon the books a statute which is unconstitutional, or that a city has passed an ordinance which is contrary to, or exceeds 3 Goodnow, Priii. of Ad. Law, * Bishop, Crim. Law, I, 459. 298, citing Bishop, Crim. Law, II, s Wyman, Ad. Law, 7. 982; McKenzie v. Boyal Dairy, 35 Wash. 390; Aaron v. Broiles, 64 Tex. 316. 498 PUBLIC HEALTH ADMINISTRATION its powers, is no justification for an executive officer who thus commits an injury. 6 It matters not that the act may be performed in good faith, with good inten- tions, and with scientific accuracy of knowledge, if the act is not within the provisions of true law, it is a private wrong, and the doer is liable. It is therefore of the greatest importance for the executive officer to be thoroughly posted as to his legal rights and duties; and because the powers of a municipality are less than those of the state, and liability may exist against the city where the state would be protected by its sover- eignty, it is doubly important that the officer who holds his position under a city government shall be especially careful. §362. Discretionary or ministerial authority. In determining the personal liability of an officer, whether he be in the service of the nation, state, or city, and in deciding as to the liability of a city if he be upon the municipal pay roll, it is important to distinguish between the quasi- judicial services which imply the use of reason, and those duties which are purely ministerial. If his authority is discretionary in nature, the officer may do anything which is within the bounds of that discretion, and so long as it is the result of a judicial determination, and the use of his reason in making a decision, the act will be considered as within the law. But if his duties be ministerial, he must do that which the law specifies, no more, and no less. If he fail in the strict compliance with the law, e Fisher v. McGirr, 1 Gray, 1; 196; Cunningham v. Macon E. K. Ely v. Thompson, 3 A. K. Marsh, Co., 109 U. S. 446; Poindexter v. 70; Osborn v. Bank, 9 Wheat. 783; Greenhow, 114 U. S. 270; Sumner Norton v. Shelby County, 118 U. v. Beeler, 50 Ind. 341; Board v. S. 442; U. S. v. Lee, 106 U. S. MeComb, 92 U. S. 531. LIABILITIES 499 his act will be deemed void, and illegal. 7 It frequently happens that an executive officer is vested with minis- terial duties, commingled with discretionary powers. In such cases in so far as the authority is vested with discretion he will be permitted to do anything within that discretion. 8 § 363. Officers with discretion not ordinarily respon- sible. "It is a general rule that judicial officers acting within their jurisdiction cannot be held personally responsible for the improper, or erroneous perform- ance of their duties. This rule embraces all officers exercising discretionary powers. ' ' 9 This rule refers simply to errors in judgment, and by no means applies to a case in which the officer has been actuated by cor- rupt or malicious motives, nor when he has practiced fraud upon the injured party. 10 Public officers are also liable in a criminal action for negligence in the per- formance of their duty, and this is particularly true of police officers; 21 and it must be remembered that essen- tially the health administration is a portion of the police. Although officers with discretionary duties are thus protected, it is the general rule that in the per- formance of merely ministerial duties an officer is liable to third parties for any injury suffered as the 7Wyman, Ad. Law, 83. io McTeer v. Lebow, 85 Tenn. s Wall v. Trumbull, 16 Mich. 121; Wilkes v. Dinesman, 7 How. 228; Weaver v. Devendorf, 3 89; Hoggatt v. Bigley, 6 Humph. Denio, 117. 236; Elmore v. Overton, 104 Ind. 9 Ingersoll, Pub. Corp. 90 ; Moss 548 ; City of Oakland v. Carpenter, v. Cummings, 44 Mich. 359; Jor- 13 Cal. 540; Roper v. McWorter, dan v. Hanson, 49 N. H. 199; 77 Va. 214; Whidden v. Cheever, Lange v. Benedict, 73 N. Y. 12 ; 69 N. H. 142, 44 Atl. 902 ; Seavey Mostyn v. Fabrigas, 1 Smith, v. Preble, 64 Me. 120. Lead. Cas. 1027; People v. Bender, « People v. Diamond, 76 N. Y. 36 Mich. 195; Wamesit Power Co. Supp. 57; People v. Foody, 79 v. Allen, 120 Mass. 352. N. Y. Supp. 240. 500 PUBLIC HEALTH ADMINISTRATION result of nonfeasance, misfeasance, or malfeasance; 12 and this rule applies not only to those officers whose duties are purely ministerial, but also to the perform- ance of ministerial duties by those who may also have discretionary duties. 13 But he will still be protected in his discretionary duties. 14 §364. Cases showing liability, or nonliability of quasi- judicial officers. The public health service is an important portion of the police. Its officers must have a degree of latitude in their operations. Their duties may be mandatory, and to a degree ministerial; but essentially their duties are quasi- judicial, and govern- mental. In determining the sources of disease, in hand- ling epidemics, and in deciding upon the existence or nonexistence of nuisances much must be left to their discretion. In such cases, so long as they are within their discretion, health officials are not liable to parties who may sustain injury as the result of the action taken. 15 Inspectors are not liable for errors committed in determining the fitness or quality of provisions; 16 but such officers are liable for failure to perform their ministerial duties. 17 However, "Where a public offi- cer other than a judicial one, does an act directly inva- sive of the private rights of others, and there is other- 12 Amy v. Supervisors, 11 Wall. 228; Jenkins v. Waldron, 11 Johns, 136; Nowell v. Wright, 3 Allen, 114; Henderson v. Smith, 26 W 166; Hover v. Barkhoof, 44 N. Y. Va. 829. 113 ; Allen v. Commonwealth, 83 is Baymond v. Fish, 51 Conn Va. 94. 80; City of Salem v. Eastern E isEobinson v. Bohr, 73 Wis. E. Co., 98 Mass. 431. 436 ; Bounds v. Mumf ord, 2 E. I. is Fath v. Koeppel, 72 Wis. 289 154; Grider v. Tally, 77 Ala. 422; Seaman v. Patten, 2 Caines (N. Y People v. Bush, 40 Cal. 344; 312). Thompson v. Holt, 52 Ala. 491; "Hayes v. Porter, 22 Me. 371 People v. Provines, 34 Cal. 520. Niekerson v. Thompson, 33 Me i4 Wall v. Trumbull, 16 Mich. 433. LIABILITIES 501 wise no remedy for the injury, such officer is personally liable without proof of malice and an intent to injure. ' ' 1S Whereas the McCord case was one relative to highway officers, it is practically on all fours with health administration. In that case the learned judge was influenced in his decision by the fact that action could not be brought against the road district, the township, nor the county. In health administration action could not be brought against an incorporated township, county, nor the state ; and it is very doubtful if action could be sustained against a municipality for the reason that health administration is strictly governmental in its character, rather than corporate. Clearly, the fact that a man holds an office should not shield him in sins of omission or of commission. If an officer of health be manifestly careless in the perform- ance of his duty he should be held personally liable, for his position presupposes due care in execution, and if he fail to use such care to that extent he is not an officer. 19 (§360.) So, too, when because of personal benefit to himself, a health officer neglected to prevent the sale of disease-producing milk, it was held that he was personally liable for the harm resulting. 20 Such omission in the performance of duty was evidently the result of corruption; and it did not greatly matter whether the motive originate in the receipt of a bribe from the owner of the dairy, or in his profits as a part- ner in the dairy business, though as a partial owner of the business such an officer would be doubly liable. When the president of a board of health does no 18 Dillon, Ch. J., in McCord v. 20 McKenzie v. Eoyal Dairy, 35 High, 24 Iowa, 336, 350. Wash. 390. 19 Aaron v. Broiles, 64 Tex. 316. 502 PUBLIC HEALTH ADMINISTRATION more than to see that the requirements of the board are carried out with regard to quarantine he is not personally liable. 21 So also, a health officer acting under statutory provisions vesting him with discre- tionary powers as to the removal of patients, and the quarantine of exposed persons, is not liable in damages to the owner of a house for refusing to remove a tenant with small-pox, who lived in a part of the house, to the pest house, nor for quarantining the owner in his house. There being no evidence of bad faith, or impu- tation thereof, it would be assumed that, in the opinion of the health officer, the life of the patient would have been endangered by his removal. 22 As to the quaran- tining of the owner there might be some possible doubt. According to present information, if he had been recently vaccinated, or if he had ever had small- pox, it is difficult to see how he would be a source of danger in the community, unless possibly through some business relationship, as in the conduct of a milk dairy. Vaccination is a reasonably sure defense against small-pox, and it is exceedingly doubtful if the disease may be communicated by a third person. Although health officers are not ordinarily liable for damages caused in the performance of their duty in the enforcement of quarantine, 23 city officers enforcing an ordinance to prevent the spread of contagious disease act at their peril, and are liable for damages caused if the ordinance is void. A city is not liable for damages sustained by the enforcement of a void ordinance. 24 (§ 374.) Neither are health officers liable 21 Kirby v. Harker, 121 N. W. 23 Forbes v. Escambia County 1071. Board of Health, 28 Fla. 26. 22Whidden v. Cheever, 44 Atl. 2 * Verdon v. Bowman (Neb.), 902, 69 N. H. 142. 97 N. W. 229. LIABILITIES §03 for errors in diagnosis where they are acting in good faith. 25 § 365. Officer is liable if he exceed his jurisdiction. Every officer has his proper jurisdiction, as to terri- tory, as to persons, and as to subject matter. In the course of his lawful duty he may pass beyond the bounds of that jurisdiction. If he do so, and injury to a third person result, he will be held liable. 26 Judge Cooley has defined jurisdiction as the authority of law to act officially in the matter in hand. 27 That the offi- cer may have complete immunity from the results of his errors, therefore, he must have jurisdiction over the person or thing, and the subject matter involved in the question to be determined by his judgment. 28 But even if he exceed the limits of his jurisdiction he may not always be liable. If there be a mistake of fact which has led him to go outside of his jurisdiction, if it be through the ignorance of certain facts or circum- stances applicable to the particular matter before him, which he had neither knowledge of, nor means of knowing, that error of fact due to such ignorance, will be an excuse. 29 But simple ignorance, where the means of information were at hand, will be no excuse. It is the duty of certain officers to lay out, construct, and keep in repair, public roads, bridges, and water 25 Valentine v. Englewood, 76 son, 61 N. Y. 420 ; Brown v. Mur- N. J. L. 509; Beeks v. Dickinson dock, 140 Mass. 314. Co., 131 Iowa, 244. 27 Cooley on Torts, 417. 26 Freeman v. Kenney, 15 Pick. 28 Lange v. Benedict, 73 N. Y. 44; Gage v. Currier, 4 Pick. 399; 12. Suydam v. Keys, 13 Johns. 444 ; 29 Clarke v. May, 2 Gray, 410 ; Mygatt v. Washburn, 15 N. Y. Vaughn v. Congdon, 56 Vt. Ill; 316; Hays v. Steamship Co., 17 Pike v. Carter, 3 Bing. 78; Low- How. 596; Williams v. Weaver, 75 ther v. Earl of Kadnor, 8 East, N. Y. 30; Goetcheus v. Matthew- 113. 504 PUBLIC HEALTH ADMINISTRATION ways. "The discretion which protects such an officer as the road supervisor stops at the boundary where the absolute rights of property begin. ' ' 30 The importance of the knowledge of the legal rights in such a matter is well set forth by Mr. Justice Cooley in a case where the highway officers had cut private drains. 31 "High- way authorities have no more right than private per- sons to cut drains, the necessary result of which wil] be to flood the lands of individuals. This was shown in Ashley v. Port Huron, where many authorities are referred to. 32 The highway officer, no doubt, has a dis- cretion in deciding how and where he will expend highway labor; but it is a discretion limited by the rights of individuals, and when he invades those rights he becomes liable. 33 And when he is liable for a law- less act, all his assistants are liable with him for the consequent injury. 34 This rule sometimes, when the agent has acted in good faith, and without knowledge of the want of legal authority, may seem to operate oppressively, but it is a necessary and very just rule notwithstanding, and full protection of the citizen in his legal rights would be impossible without it. Absence of bad faith can never excuse a trespass, though the existence of bad faith may sometimes aggravate it. Every one must be sure of his legal right when he invades the possession of another. ' ' By way of contrast we may mention an English case, in which, though private grounds were entered the action so Dillon, Ch. J. in MeCord v. Brown v. Howard, 14 Johns. 119 ; High, 24 Iowa, 336. Coventry v. Barton, 17 Johns. 142; si Cubit v. O 'Dett, 51 Mich. 347. Fielder v. Maxwell, 2 Blatch. 3235 Mich. 296. (U. S. C. C.) 552; Tracy v. Swart - 33 Tearney v. Smith, 86 HI. 391. wout, 10 Pet. 80 ; Smith v. Colby, 34 Story on Agency, 311, 312; 67 Me. 169. LIABILITIES 505 was within the sovereign power of the state. Six Lords Commissioners of the admiralty had entered the property of one Raleigh to survey for a naval col- lege, preliminary to compulsory purchase. 35 In this decision the judge said: "In other words, to sum up shortly the result of the above by the use of convenient phraseology, the plaintiffs in respect of the matters they are now complaining of could sue any of the defendants individually for trespass committed or threatened; but they could not sue the defendants offi- cially or as an official body. ' ' § 366. Officer is liable for acts not covered by duty. The foregoing cases are illustrative of questions which directly interest health officials. It is frequently neces- sary for the officer of health to invade private prop- erty. Whatever he may do there in the line of his official duty would be considered as done by the state, and the officer would therefore be held not liable for any damage which might accrue. But if taking advantage of his official position, while being thus within private property, he should do any act not in the necessary line of his duty, and harm result there- from, in that extra official act he would not be the rep- resentative of the state, but a private trespasser, and a wrong doer, and as such would be held liable. To give another view of the same problem an illus- tration might be taken from the writer's personal experience. Several members of a family were taken seriously ill immediately after their noonday meal. It was found that only one member of the household had escaped, and that he was the only one who had not drunk tea; those who drank the tea most freely were 35 Ealeigh v. Goschen, 1 Ch. 73. 506 PUBLIC HEALTH ADMINISTRATION those most severely ill; there was no other peculiar cir- cumstance which seemed to be associated with the cases. It was found that this was the first brew from a new package of tea; and inquiry at the store developed the fact that only a few pounds had been sold from that newly received shipment, which was the first of the kind received in the city. The health officer was perfectly justified in his official duty in stopping the sale of the tea until he could make further investiga- tion. He suspected that some deleterious chemical had been used in the preparation of the tea, but after full investigation he failed to find evidence of harmfulness in the particular package which had been suspected. Had he published his suspicions, and thereby injured the later sale of that brand, the officer would have exceeded his authority, unless by no other means could the sale have been temporarily checked, pending the investigation. Again, having decided in the first place that the tea was at fault, had he simply told the family his suspicions, but made no further investigation, and had the family then spread the report, thus injuring the sale, it is quite likely that the officer would have been held liable. Having given voice to his suspicions it was his duty to make further investigation. That duty was mandatory upon him, though it might not be found in the written law of the state or city. Under the circumstances, had he failed to make the further investigation, he would have gone without the bounds of his authority as truly as though he had invaded the territorial jurisdiction of a neighbor. § 367. Superior officer not liable for torts of subor- dinates. The superior officer is not liable for wrongs committed by, or negligences of, his subordinates. 36 36 Robertson v. Sichel, 127 U. S. 507, a case involving the loss of a LIABILITIES 507 § 368. When superior officer is liable for subordinate. When the fault of the subordinate, either officer or employee, is due to the connivance or negligence of the superior, the superior will be held responsible, and liable for the torts of his subordinate, though the sub- ordinate may also be held. If the superior employs incompetent, or improper aids, or so carelessly con- ducts his office as to open the way for defaults and mis- deeds, or if he has authorized or cooperated in the wrong, the superior must be held liable. 37 A minis- terial officer is under obligation to perform certain duties in the specified way. His responsibility cannot be delegated to another. If he have deputies, either officers or employees, it is his duty to see that they perform the work in the specified manner. If, then, the deputy under the seeming compliance with law, and under color of authority, be guilty of misfeasance, malfeasance, or nonfeasance, the superior officer will also be held liable. 3S "No case has been discovered in which an action for damages has been sought to be maintained against the governor for his neglect or refusal to perform such an act (ministerial), but if he is amenable to mandamus, no satisfactory reason is apparant why he may not be compelled to respond in damages." 39 Because the executive is independent of the judicial branch of gov- ernment, no legal attempt to control the discretion of trunk while in the care of a cus- 3 § VanSchaick v. Sigel, 60 How. toms officer; Dunlop v. Munroe, 7 (N. Y.) Pr. 122; Draper v. Ar- Craneh, 242, a letter lost by ear- nold, 12 Mass. 449; Hazard v. rier. Israel, 1 Binn. 240; State v. 37 Bishop v. Williamson, 11 Me. Moore, 19 Mo. 369; Flanagan v. 495; Dunlop v. Munroe, 7 Cranch, Hoyt, 36 Vt. 565; Prosser v. Coots, 242; Ford v. Parker, 4 Ohio, 576; 50 Mich. 262. Ely v. Parsons, 55 Conn. 83. so Mechem, Pub. Off. 610. 508 PUBLIC HEALTH ADMINISTRATION the governor would be entertained by the court. While, therefore, the higher officers of government might be technically liable for misfeasance, malfeas- ance, or nonfeasance, the responsibility of such high officers would need to be very apparent before the courts would so determine. §369. Liability as to contracts. The only way in which a governmental body may deal with individuals is through its officers. An officer may, in the course of his official duty, have occasion to make contracts for the government which he represents. For making such contracts he must have a clear authorization. As a general proposition this authority, in the case of an executive officer, must be found in some act of legis- lation. The contract may be made in writing, or by word of mouth; it may be formal, or by implication. In any case where it is intended to make a contract for the governmental body this fact should be clearly understood, and the written contract should so state. If the officer has not the distinct authority to make the contract, the contract will be null and void. In such a case the question naturally arises, Can the offi- cer be held personally liable on such a void contract, especially when the other party has acted in good faith, and has sustained injury thereby? In such cases there is a well denned distinction between one who is acting as an agent for a private person or concern, and one who claims to represent the public. 40 The public offi- cer must act under authority if he presumes to make a contract, and because the matter is public the party with whom he is dealing may easily learn from other sources whether or not such authority for contract *° Mechem on Agency, 426. LIABILITIES 509 exists, and the terms of the authority. In dealing with the agent of a private concern such knowledge of authority is more difficult, and for that reason he may be the more easily imposed upon. It is never presumed that the public officer intends to personally assume the obligation. 41 If such personal liability is intended to be assumed by the officer that must be clearly stated, and when so stated he will be held liable, and personally bound to assume the obligation. 42 If, therefore, under such circumstances one dealing with an officer seeks to hold him personally liable he must show that, though a public officer, the officer was dealing with him as a private individual. 43 If he is acting as a public officer, and "his authority to act is denned by public statute, all who contract with him will be presumed to know the extent of his authority, and cannot allege their ignorance as a ground for charging him with act- ing in excess of such authority, unless he knowingly misled the other party.' ' 44 Therefore, persons dealing with a public officer or agent are charged with know- ing the extent of the authority of such agent. 45 "It is much against public policy to cast the obligations that justly belong to the body politic upon this class of officials." 46 "The natural presumption in such cases 4i Knight v. Clark, 48 N. J. L. 45 Mayor v. Eschbach, 18 Md. 22; Hodgson v. Dexter, 1 Cranch, 283; Mayor of Baltimore v. Beyn- 345; Crowell v. Crispin, 4 Daly, olds, 20 Md. 1; Lee v. Munroe, 7 100; Tippits v. Walker, 4 Mass. Craneh, 366; State v. Bank, 45 595; Pine v. Huber Mfg. Co., 83 Mo. 528; State v. Hastings, 10 Ind. 121. Wis. 518; The Floyd Acceptances, 42 Cahokia v. Bautenberg, 88 111. 7 Wall. 680 ; Clark v. Des Moines, 219; Wing v. Glick, 56 Iowa, 473. 19 Iowa, 199; Whiteside v. U. S., 43 Ogden v. Baymond, 22 Conn. 93 U. S. 247. 379. 4c Beardsley, Ch. J. in Knight v. 44 Newman v. Sylvester, 42 Ind. Clark, 48 N. J. L. 22. 112. 510 PUBLIC HEALTH ADMINISTRATION is that the contract was made upon the credit and responsibility of the government itself, as possessing an entire ability to fulfill all its just contracts, far beyond that of any private man; and that it is ready to fulfill them not only with good faith, but with punc- tilious promptitude, and in a spirit of liberal cour- tesy." 47 § 370. Officer not ordinarily liable on implied author- ity. ' ' When the public agents, in good faith, contract with parties having full knowledge of the extent of their authority, or who have equal means of knowledge with themselves, they do not become individually liable, unless the intent to incur a personal responsi- bility is clearly expressed, although it should be found that through ignorance of law they may have exceeded their authority. * * * In this, as in other cases, the intention of the parties governs, and when a per- son, known to be a public officer, contracts with refer- ence to the public matters committed to his charge, he is presumed to act in his official capacity only, although the contract may not in terms allude to the character in which he acts, unless the officer by unmis- takable language assumes a personal liability or is guilty of fraud or misrepresentation. Being a public agent with his powers and duties prescribed by law, the extent of his powers is presumed to be as well known to all with whom he contracts as to himself. When, therefore, there is no want of good faith, a party contracts with such an officer with his eyes open, and has no one to blame if it should afterwards appear that the officer had not the authority which it was sup- posed he had. ' ' 4S *7 Story on Agency, 302. Neal, 4 Minn. 126. Also, McCurdy 48Emmett, Ch. J. in Sanborn v. v. Rogers, 21 Wis. 197; Murray v. LIABILITIES 511 § 371. When officer is liable on contract. Where an officer fraudulently or deceitfully conceals or misrep- resents the facts as to his authority; or makes repre- sentations as to his authority as matter of fact, rather than of law, he will be held personally liable. 49 So a public officer who denies to his government that he made a given contract, and by such denial prevents the other party from recovering from the government, thereby disavows the fact of his acting as a public agent, and makes himself personally liable. 50 So, also, an officer may be held liable where, concealing the fact of his agency, he makes a contract as the real prin- cipal. 51 Where the officer knows that he has no author- ity to make the contract, but the other party may not easily know the condition, as when the authority has ceased, or where the authority must depend upon facts not within the knowledge of the other party, it is quite likely that the officer may be held liable. 52 § 372. Application to health officers. In the course of a health officer's work it may sometimes happen that attempt is made to hold either his government, or himself, for the value of animals killed, or goods destroyed, or for time lost through quarantine. Especially when newly appointed, officers through ignorance of the law may sometimes promise to the interested parties that compensation will be given ; or such compensation may be demanded. Thus, a horse was killed by order of a board of health, and the owner Carothers, 1 Mete. 71; Perry v. so Freeman v. Otis, 9 Mass. 272. Hyde, 10 Conn. 329; New York, si Mechem on Agency, 554. Etc. Co. v. Harbison, 16 Fed. Kep. 52 McDonald, v. Franklin Co., 2 688. Mo. 218; McClenticks v. Bryant, 1 49 Mechem on Agency, 542, 543, Mo. 598 ; Buggies v. Washington 544, 545; Mechem, Pub. Off. 810, Co., 3 Mo. 501. 811, 814, citing cases. 512 PUBLIC HEALTH ADMINISTRATION sued the members of the board. The board had decided that the horse was suffering from glanders, but the court decided, after listening to evidence, that the horse did not have glanders, and held the members of the board liable. 53 Though this case did not hinge upon a claim of contract, such an implied contract may some- times be claimed. This was a case of summary abate- ment, and had the owner been permitted to prove be- forehand that his horse was not a nuisance, that it was sound from the public health standpoint, the decision would probably have been different. Practically the supreme court of Massachusetts decided in this case that the destruction of sound property without com- pensation was contrary to law. The act of the board could not bind the government, for there was no authority for such an implied liability. Under the general rule the board should not have been held liable for an error of their judgment, an error in the use of their discretion. But their discretion implies careful- ness in its application, and a true examination into the conditions. If there were question as to the correct- ness of the diagnosis, that doubt should if possible have been cleared before summary action was taken. For failure to use such caution the board was held liable. In a similar manner a health officer was held personally liable for destruction of cattle which were in fact not a nuisance nor a cause of sickness endangering public health, but were mistakenly adjudged by him so to be. He had exceeded his authority. Had he acted wisely the municipality could not have been held liable, for under rightful use of police power there is no assump- ss Miller v. Horton, 152 Mass. 540. LIABILITIES 513 tion of liability. Having committed an ultra vires act the officer could not claim immunity under police power. The only way in which abuse of power can be prevented is by the imposition of a penalty for harm done. Because the health officer's official duties did not include this act, the municipality could not be held liable. The health officer himself, the man who com- mitted the wrong, though with apparently honest inten- tions and poor judgment, was the only one who could be held liable for the act. 54 Property destroyed under the proper use of police power requires no compensation according to the com- mon law. 55 It is not a taking of property for the pub- lic use, as in eminent domain, but the prevention of its use to the public detriment; not its taking because it is useful to the public, but because it is harmful, and "the property itself is the cause of the public detriment." 56 Ex parte condemnations of property are not conclusive. 57 On the other hand, it is not always necessary to prove that the property destroyed was in fact a nuisance. During a cholera epidemic a board of health, without formal notice to the owner, had condemned his property as a nuisance, and by order of the members of the board the property was destroyed. In his suit for trespass the plaintiff was not permitted to prove that the property had not in fact been a nuisance, and the board's decision was held conclusive. 58 But in this case the owner had previously 54 Lowe v. Conroy, 97 N. W. E. Stock Commrs., 115 Mich. 488; 942; 120 Wis. 151. Lowe v. Conroy, 97 N. W. E. 942; ss Freund, Police Power, 517. Waye v. Thompson, L. P. 15, Q. se Davidson v. New Orleans, 96 B. D. 342. XL S. 97. 58 Van Wormer v. Mayor of Al- 57 Salem v. Eastern E. Co., 98 bany, 15 Wend. 262. Mass. 431; Shipman v. State Live 514 PUBLIC HEALTH ADMINISTRATION appeared before the board with reference to this same property, and he had therefore had sufficient notice. It is not unlikely that the imperativeness of the emer- gency may have been taken into account by the court. Summary action, when taken unnecessarily, may very properly be considered such an abuse of discre- tion as to take from the officer the ordinary protection accorded to such officers in the use of their discre- tionary authority. While this personal liability thus imposed may sometimes work a hardship upon the officer, and possibly subject him to hampering annoy- ances, yet this protection is necessary for the public, for without it abuse of the discretion by incompetent, or corrupt, officials would be very hard to prevent. A case settled without suit well illustrates this pos- sibility. The keeper of a general store, chiefly groceries, lived with his family above the store. The family were much of the time in the store. The chil- dren had scarlet fever, and not only were they quar- antined, but the entire stock of groceries was ordered destroyed. Now it would be very difficult, or impos- sible, to prove that the stock of goods had been suffi- ciently exposed to render them dangerous, especially as most of them were in sealed packages. The clos- ing of the store and the destruction of the goods effec- tually drove the proprietor out of business and gave the trade to his competitors who had previously not been successful to the same degree. Such a case demonstrates how great would be the danger were health officials permitted thus to use summary action in connection with their discretion. § 373. Liability of employees. Much of the work of every governmental body is done by employees, rather LIABILITIES 515 than by officers. In a health department, except as there be a statute, or ordinance of a city establishing such offices and denning their duties, all of the work of the laboratory, the inspections, the fumigations, and the policing, which is performed by subordinates, is done by employees, rather than by officers. Most of the work of mosquito reduction, or of rat extermina- tion, is done by employees. Employees have no official discretion. It is their duty to obey the law and their superiors. So long as they keep within the law, and within the line of their duty as prescribed by their superiors, they will share the immunity of their superior officers in matters of tort : but if in obedience to the commands of the officer they commit some ultra vires act, through which injury may result to a third person, they will be individually liable, 59 and when the employee does that which is not lawful he cannot seek to shield himself under the immunity of his superior. 60 §374. Liability of city for performance of public duties. An incorporated city stands before the law like an individual officer. As some official duties are discretionary in their operation, while others are minis- terial or mandatory, so some of the duties of the city are vested with discretion, and others are compulsory. The city is not liable to individuals for injury in the performance of duties vested with discretion in the line of purely governmental action. 61 Prominent 59 Story on Agency, 311, 312; Harrington v. Fuller, 18 Me. 277; Brown v. Howard, 14 Johns. 119; Sheldon v. Payne, 7 N". Y. 458; Coventry v. Barton, 17 Johns. 142; Eobertson v. Siehel, 127 U. S. Fielder v. Maxwell, 2 Blatch. 507; Dunlop v. Munroe, 7 Cranch, (U. S. C. C.) 552; Tracy v. 242; Keenan v. Southworth, 110 Swartwout, 10 Pet. 80; Smith v. Me. 474. Colby, 67 Me. 169; Cubit v. si Verdon v. Bowman, 97 N. W. O'Dett, 51 Mich. 347. 229; Kempster v. Milwaukee, 79 60 State v. Moore, 19 Mo. 369; N. W. 411. 516 PUBLIC HEALTH ADMINISTRATION among these duties we find the preservation of the public health. Thus Ingersoll says: 62 "Nor is a city liable for the misconduct of its health department, or any of its health officers, since sanitation is a public rather than a municipal duty." 63 "In carrying out the laws for the preservation of the public health the city is performing a duty which it owes to the whole public as distinguished from a mere corporate duty. It is a duty which it is bound to see performed in pursuance of law as one of the governmental agencies, but not a duty from which it derives special benefits or peculiar advantages in its corporate or private' capacity. It is like the administration of the fire and police departments. It is well settled that a city may indemnify its officers against liabilities incurred in the discharge of their duties where the city had a right to defend, or had a pecuniary or corporate interest in the discharge of such duty, but not where the officer was acting simply as an official performing a public service, such as the preservation of the public health. If the city cannot legally agree to indemnify such officer, it plainly cannot be liable without agreement. If the common council was guilty of an actionable tort in maliciously encouraging the prosecution of the plaintiff, its members must answer therefor in their individual capacity; there would be no corporate lia- bility." 64 The municipality cannot be held liable for the mistakes of its officers in the diagnosis, quarantine, 62 Pub. Corp. 137. 402; Whitfield v. Paris. 84 Tex. 63 City of Dalton v. Wilson, 118 431. Ga. 100; Summers v. Board, 103 64Kempster v. Milwaukee, 79 Ind. 262; Love v. Atlanta, 95 Ga. N. W. 411, citing: Lawrence v. 129; Ogg v. Lansing, 35 Iowa, McAlvin, 109 Mass, 311; Uren v. 495; Bryant, v. St. Paul, 33 Minn. Walsh, 57 Wis. 98; Bobinson v. 289; Brown v. Vinalhaven, 65 Me. Bohr, 73 Wis. 436. LIABILITIES 517 or care of cases of infectious diseases. 65 In general it may be stated that a municipal corporation is not civilly liable for the nonfeasance, malfeasance, or misfeasance of its officers or agents while engaged in the governmental duties of the corporation. 66 Con- trary to the above, and we believe not in accord with present methods of interpretation, is the case of Sumner v. Philadelphia, 67 as published in a Public Health Bulletin of the IT. S. Public Health Service, 68 in which it was- held that "When a vessel is in a con- dition of cleanliness and freedom from malignant dis- ease, which entitles her owners to take her to sea, the purely arbitrary detention of the vessel by a board of health entitles her owners to- a recovery for the dam- ages suffered, and the city is liable therefor. ' ' Excep- tion is here taken only to the last clause. All arbitrary action is not "with discretion," and is not counte- nanced in law. Officers acting arbitrarily are in so far not officers, but private wrong doers, because they exceed their authority. Such officers, are therefore per- sonally liable for the torts committed. (§§ 273, 363 and following.) Because they are not in such acts officers of the municipality, and because the detention of a vessel in quarantine is a public, rather than a corporate duty, it does not seem that in such a case the munici- pality should be held liable. Since all this is true, and esBeeks v. Dickinson Co., 131 leans, 9 La. Ann. 461; Dargan v. Iowa, 244; Valentine v. Engle- Mobile, 31 Ala. 469; Keardon v. wood, 76 N. J. L. 509 ; Ogg v. St. Louis, 30 Mo. 555 ; Martin v. Lansing, 35 Iowa, 495; Richmond Brooklyn, 1 Hill, 550; Western v. Long's Adm'r, 17 Grat. 375; College v. Cleveland, 12 Ohio, 375; Kolloek v. Stevens Point, 37 Wis. Richmond v. Long's Admr., 17 348; Having v. Covington, 78 S. Grat. 375. W. 431. 67 9 Phila. 408. ee Sherburne v. Yuba County, es No. 62. (1914.) 21 Cal. 113; Stewart v. New Or- 518 PUBLIC HEALTH ADMINISTRATION the citizens have no recourse against an incompetent health officer, though his powers are great, it follows that the citizens are especially interested in seeing to it that the health officer selected shall be both compe- tent and efficient. A municipal corporation is not liable for the value of property destroyed by mistake on the order of its health officers. 69 Neither is a city liable for the trespass of its mayor, police officers, and city physician in quarantining and detaining a body of yellow fever suspects in a hotel. 70 As we have already said, according to the common law there is no liability, either for officers or the cor- poration, for property destroyed as a nuisance. As a matter of policy, and of equity, statutes are sometimes passed by the state, or ordinances by the city, provid- ing for some compensation. A cow afflicted with tuber- culosis may still have considerable pecuniary value. Her milk may be deprived of its danger by efficient pasteurization. She may be used for breeding pur- poses, and her calf may be free from disease. In other words, although she may be a danger in the community, still it is possible so to care for her that the danger will be controlled, and her value preserved. Manifestly her value is not that of a perfectly sound animal. It may be for the public good that she be killed. Because the nuisance is so vitally connected with the property of value, to thus abate the nuisance would deprive the owner of his property without compensation. It is therefore very proper,, as many of the states have enacted, that some compensation be given for such animals destroyed. (§§ 206 to 211.) 69 Lowe v. Conroy, 97 N. W. ™ City of San Antonio v. White, 942; Creier v. Town of Fitzwil- 57 S. W. B. 858. liam, 83 At, 128. LIABILITIES 519 In a similar manner, if it be for the public good that healthy persons who have come in contact with infec- tious diseases be deprived of their liberty by quaran- tine and thus prevented from earning their usual wage, while at the same time they must live, it is very proper that by legislation some provision should be made for their support at least. Not only is such a course justi- fiable as a matter of equity, but it seems often to be good policy, especially in dealing with the laboring- class, for it takes away a very potent excuse for hiding cases of infection. Every health officer has known of numerous instances where infectious disease has spread through the fear that if a physician be called, the entire family would be quarantined and thus prevented from attending to their usual avocations. Nor is this only true of the laboring classes, but those higher in the financial scale not infrequently manage to keep their cases hidden from the health department. While it is probable that owing to the advances made in sani- tary science, such rigid quarantine may soon be a thing of the past, it still remains true that some pro- vision should be made for the support of those thus restrained. (See § 415.) § 375. Liability for municipal duties. When we come to the purely municipal duties of a city, those depend- ent upon the corporation, the conditions are very dif- ferent. It is a duty of the city, oftentimes, to provide pure water for the citizens. "The contrary cannot be maintained unless we hold that a municipal corpora- tion may by mere implication bargain away its duty to protect the public health and safety, as they are involved in supplying the people with sufficient water. Nothing can be more important or vital to any people 520 PUBLIC HEALTH ADMINISTRATION than that they should be supplied with pure, whole- some water." 71 Among the earliest of governmental activities none was more important than this form of public utility. We still find the remains, often in good preservation, of old aqueducts constructed for the pur- pose of supplying cities with water. In modern times it has been a common custom for a few capitalists to combine for the purpose of deriving a profit from the business of thus supplying water. Municipal owner- ship of a water plant is not an innovation. It is rather the private company which is modern in origin. But whether the city furnishes water through municipal ownership, or through the instrumentality of a private corporation, the responsibility is still upon the city to provide its citizens with a bountiful supply of pure water. If it make a contract with a private corpora- tion, through franchise, the city does not shirk its duty thereby. The corporation must understand that it is its duty under the contract to supply, not water simply, but pure water. 7 la Since public ownership of public utilities comes into commercial competition with private enterprises, to that extent the municipality is, and must be legally regarded as a business corporation, 72 and as such it is subject to the same principles of legal application as govern the quasi-public corporations. 73 If the city provides water for its citizens free, so that it is acting purely in its public capacity, and deriving no profit therefrom, the city may not be charged with damages 7i Vieksburg v. Vicksburg Water 73 Bailey v. New York, 3 Hill, Works Co., 202 U. S. 453. 531; Thayer v. Boston, 19 Pick. 7ia Mayor of Jersey City v. 511; Western Sav. Fund Soc. v. Flynn, 74 N. J. Eq. 104. Philadelphia, 31 Pa. 185. 72Baily v. Philadelphia. 184 Pa. 594; Aldrich v. Tripp, 11 E. I. 141. LIABILITIES 521 by a private citizen. 74 But when it charges for the water supplied it is then acting in its corporate capacity, and it is liable for the injury. 75 Thus, where a city furnishes water contaminated with typhoid germs, it may very properly be held liable for the damages accruing. 76 As Chief Justice Nelson said, 77 relative to the power of a municipality to construct and maintain water works: "If the grant is for the purpose of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands upon the same footing as would any individual or body of persons upon whom the like special franchise had been conferred. ' ' A similar rule applies to cemeteries owned by the city, and from which it may derive an income. 78 (§§ 430-436.) There seems to be some difference of opinion whether or not the city should be considered as a governmental body, or as a corporation, in its care of sewers. (§§ 440- 443.) (It is proper to state that the basis for this discussion of liability of cities for construction and maintenance of sewers is to be found in Ingersoll on Public Corporations, Sec. 144.) There is a general agreement that a city is exercising governmental dis- cretion in deciding whether or not to build sewers, and in selecting its plans for construction, and it therefore t* Danaher v. Brooklyn, 51 Hun, 76 Milnes v. Huddersfield, L. E. 563. 10 Q. B. Div. 124; Keever v. Man- 75 Chicago v. Selz, 202 111. 545; kato, 113 Minn. 55. Augusta v. Lombard, 99 Ga. 282; 77 Bailey v. Mayor, 3 Hill, 531. Whitfield v. Carrolton, 50 Mo. 78 City of Toledo v. Cone, 41 App. 98; Bailey v. Mayor, 3 Hill, Ohio, 149. 531 ; Stock v. Boston, 149 Mass. 410; Aldrich v. Tripp, 11 R. I. 141. 522 PUBLIC HEALTH ADMINISTRATION incurs no liability for the negligence or errors of its officers and employees in these matters. 79 Having adopted a plan the city is not liable for injuries result- ing because adequate means have not been provided for carrying off the accumulated waters. 80 Neither is a city responsible for the condition of its sewers, though bound to use reasonable care in keeping them in repair. 81 Although there is governmental discretion in decid- ing on the plans for a sewer system, the preponder- ance of judicial opinion recognizes the liability of a city for damages resulting from its neglect to properly discharge its ministerial duty to exercise reasonable care in the construction and maintenance of its sewers, 82 and the fact that the sewer was originally constructed by the state does not affect the question as to the liability of the city for the care. S3 Municipal ownership is not essential to liability; municipal con- trol will be sufficient. 84 On the other hand, municipal 79Benthan v. Philadelphia, 196 402; Donahoe v. Kansas City, 136 Pa. 302; Pressman v. Dickson Mo. 657; Clay v. St. Albans, 43 W. City, 13 Pa. Super. Ct. 236; Burger Va. 539; Baltimore v. Schnitker, v. Philadelphia, 196 Pa. 41 j 84 Md. 34; Flori v. St. Louis, 69 Bealafield v. Verona, 188 Pa. 627; Mo. 341; Stock v. Boston, 149 King v. Kansas City, 58 Kas. 334; Mass. 410; Rochester White Lead Champion v. Crandon, 84 Wis. Co. v. Rochester, 3 N. Y. 463 405; Cummins v. Seymour, 79 Ind. Kranz v. Baltimore, 64 Md. 491 491; Mills v. Brooklyn, 32 N. Y. Detroit v. Corey, 9 Mich. 165 489; Perry v. Worcester, 6 Gray, Montgomery v. Gilmer, 33 Ala 544; Johnston v. Dist. of Col., 118 116; Semple v. Vicksburg, 62 Miss U. S. 19 ; Child v. Boston, 4 Allen, 63 ; Gilman v. Laconia, 55 N. H 41. 130; Bates v. Westborough, 151 so Stevens v. Muskegon, 111 Mass. 174; Judge v. Meriden, 38 Mich. 72; Cooper v. Scranton, 21 Conn. 90. Pa. Super. Ct. 17. 83 Chalkley v. Richmond, 88 Va. siWeldman v. New York, 84 402. App. Div. 321. 84 Taylor v. Austin, 32 Minn. 82 Chalkley v. Richmond, 88 Va. 247. LIABILITIES 523 ownership of the land over which the drain or sewer runs is not sufficient to cause liability; municipal con- trol is essential. 85 A sewer constructed chiefly along the public streets had its lower portion and its mouth located on private grounds. This location was im- proper, and the city had not used reasonable care in exercising its discretion. As a result the property of the plaintiff received the discharged sewage, and the city was held liable. 86 In other cases the city has been held liable for the damage resulting from the flooding of property by the discharged sewage, where the flooding was the natural result of the plan adopted, 87 or from the deposit of sewage. 88 The true rule in such cases seems to be that the city is not liable for the original error in the plans, unless the results could have been foreseen ; but it is the continuance of the nuisance after it has been found to exist. In one case the court said: 89 "We are also of the opinion that the exercise of a judicial or discretionary power by a municipal corporation, which results in a direct and physical injury to the property of an individual, and which from its nature is liable to be repeated and continued, but is remediable by a change of plan, or 85Kosmak v. New York, 117 N. Cir. Ct. E. 610; Owens v. Lancas- Y. 361. ter, 182 Pa. 257; Bacon v. Boston, 86 Stoddard v. Saratoga Springs, 154 Mass. 100; Magee v. Brook- 127 N. Y. 261: See Beach v. lyn, 18 App. Div. 22; Boston Belt- Elmira, 58 Hun, 606. ing Co. v. Boston, 149 Mass. 44; 87 McCartney v. Philadelphia, 22 Ft. Wayne v. Coombs, 107 Ind. Pa. Super. Ct. 257; Semple v. 75; Attwood v. Bangor, 83 Me. Vicksburg, 62 Miss. 63; Imler v. 582; Nashville v. Comar, 88 Tenn. Springfield, 55 Mo. 119; Ashley v. 415; Stoddard v. Saratoga Port Huron, 35 Mich. 296; Stanch- Springs, 127 N. Y. 261. field v. Newton, 142 Mass. 110. 89 Seifert v. Brooklyn, 101 N. Y. 88 Bennett v. Marion, 119 Iowa, 136. 473; McBride v. Akron, 12 Ohio 524 PUBLIC HEALTH ADMINISTRATION the adoption of prudential measures, renders the cor- poration liable for such damages as occur in conse- quence of the continuance of the original cause after notice, and an omission to adopt such remediable meas- ures as experience has shown necessary and proper." A difference may very justly be made between the care of storm water, and sewage. A city is not liable because the storm water runs from the street onto adjoining lots, 90 So the city has a right to construct drains to carry such street water into natural water- courses, so long as reasonable care be exercised. 91 But it may be held liable if the water contain sewage which pollutes the stream so as to render the water unfit for use by the riparian owner or occupier ; 92 and such pollution of a running stream has been called a public nuisance ; 93 and for that reason in some cases the city has been enjoined from emptying its sewage into a running stream, where such nuisance was created. 94 The sewage problem is one of the greatest among the sanitary questions for city governments. Especially for our large cities it is a question which must be met. There seems to be no question as to the soundness of the decisions which hold cities liable for the pollution of running streams by untreated sewage. But with so Jordan v. Benwood, 42 W. 93 Mayor of Birmingham v. Va. 312; Sievers v. San Francisco, Land, 137 Ala. 538; Mansfield v. 115 Cal. 648. See Denver v. Duns- Balliett, 65 Ohio, 451; Owens v. more, 7 Col. 328; Smith v. New Lancaster, 182 Pa. 257. York, 66 N. Y. 295. 94 Haskell v. New Bedford, 108 si Miller & Meyer v. Newport Mass. 208 ; Peterson v. Santa Rosa, News, 101 Va. 432. 119 Cal. 387; People v. San Luis 92 Pettigrew v. Evansville, 25 Obispo, 116 Cal. 617. Wis. 223; Gould v. Rochester, 105 N. Y. 46; Inman v. Tripp, 11 R. I. 520. LIABILITIES 525 the advances made in sanitary engineering gross pollu- tion of waters is unnecessary. In a recent case in Eng- land the court appointed no less a person than Sir William Eamsey to make the investigation of the results of turning treated sewage into a stream, and he found that chemically and bacteriologically the water of the stream was better below than above the outlet of the sewer. 95 §376. Municipal contracts, liability on. There could be no question as to the liability of a municipality upon contracts, formally made, and legal in form, where the contract is within the power of the corpora- tion; but because it is a corporation, and may thus engage in enterprises not strictly governmental, the opportunity for contracts, either formal or implied, is much greater than in ordinary governmental bodies. Further, because its officers and employees may some- times bind the city without direct authority, in munici- pal business proper, questions as to liability may more frequently arise. Thus, where the party contracting with the officers of the city has in good faith performed his part of the contract, the city will be estopped from pleading the faults or shortcomings of its own officers or agents in all cases which are within the corporate powers. 96 But if the contract is ultra vires, that fact may be pleaded whether the action be by, or against the city. 97 Where a portion of the contract is within the powers of the corporation, and another portion is ultra ss Attorney General v. Birming- 73 N. Y. 238 ; London, &c Land ham, Tame & Eea Dist. Drainage Co. v. Jellico, 103 Tenn. 320 ; Board, L. R. Chan. Div. 1910, Vol. Sharp v. Teese, 9 N. J. L. 352. 1, 48. 97 Thoma3 v. R, R. Co., 101 U. S. no Hitchcock v. Galveston, 96 71 ; Keen v. Coleman, 39 Pa. 299 ; U. S. 341; Thomas v. Richmond, Hodges v. Buffalo, 2 Denio, 110; 12 Wall. 349; Moore v. New York, Ellis v. Cleburne, 35 S. W. R. 495. 526 PUBLIC HEALTH ADMINISTRATION vires, the city may not seek to get out of the entire contract on account of the terms made. That portion which is within the authority of the city will be held binding, and the ultra vires portion will be annulled. A contract which was within the power of the city to make will not be set aside because it was stipulated in the contract that the payment was to be made in bonds, though the officers of the city had no power to issue the bonds. 9S A city may be bound by an implied contract, just as an individual may thus bind himself." An action in assumpsit will lie to recover, quantum meruit, or quantum valebant, where no fixed compensa- tion has been agreed upon, or where no express con- tract has been made. 100 A city which retains benefits under a contract which it had power to make, though the contract was void because of irregularity in its execution, is still bound, "not from any contract en- tered into on the subject, but from the general obliga- tion to do justice which binds all persons, whether natural or artificial. ' ' 1 A distinction has sometimes been made in such mat- ters between the use of money or property, and the receiving the benefit of personal services. ' ' The money must have gone into her treasury, or been appro- priated by her; and, when it is property other than money, it must have been used by her or been under her control. But with reference to services rendered, as Hitchcock v. Galveston, 96 ioo Fox v. Richmond, 40 S. W. E. U. S. 341; 111. Trust & Savings 251; Lincoln Land Co. v. Village Bank v. Arkansas City, 76 Fed. of Grant, 57 Neb. 70. 271. i Marsh v. Fulton Co., 10 Wall. 99 Austin v. Bartholomew, 107 676; Lincoln Land Co. v. Village Fed. 349; Wentick v. Passiac Co., of Grant, 57 Neb. 70. 66 N. J. L. 65. LIABILITIES 527 the case is different. Their acceptance must be evi- denced by ordinance, or express corporate action to that effect. If not originally authorized, no liability can attach upon any ground of implied contract; the acceptance, upon which alone the obligation to pay could arise, would be wanting. ' ' 2 Such a distinction seems unjust, and other authorities have not agreed to that dictum. 3 Money and property are but the product of labor, and the capital of a professional man is gen- erally more in his knowledge and ability, than in the accumulations which he has made in the bank. The man who assists in determining the plans to be fol- lowed in constructing a sewer system, or in finding the condition of a city water supply with reference to methods to be used for purification, thereby puts the city as truly under obligation to him as he who advances the money for the construction of the works ; and if his services have been requested by an officer of the city, and reports made to him, the city has as truly accepted the services as where the treasurer, without corporate action accepts money for the use of the city. So where a Commissioner of Public Works finds a necessity for the doing of certain work, and he asks a suitable person to do that work, the city as truly accepts his services when rendered, as if it had taken the amount of the man's ordinary wage in money. But in these matters a distinction must be kept in mind between the purely governmental duty and authority of the city, and those activities which are strictly corporate. 2 Argenti v. San Francisco, 16 Mayer v. Chicago, 38 111. 266 ; Cal. 255. Peterson v. Mayer, 17 N. Y. 450. 3 Dillon, Munic. Corp. 464; 528 PUBLIC HEALTH ADMINISTRATION § 377. Respondeat superior. "To determine whether there is municipal responsibility, the inquiry must be whether the department whose misfeasance or non- feasance is complained of is a part of the machinery for carrying on the municipal government, and whether it was at the time engaged in the discharge of a duty primarily resting on the municipality. ' ' 4 The city is not responsible for the acts of civil officers of government, even though they be appointed and paid by the city. But when the corporation is under an absolute duty to perform those services, or where the city derives a profit or income from their service, in its corporate capacity, it is then liable. 5 The city may thus be liable for the acts of officers appointed by the state for it. 6 Note. For the liability assumed by private persons or corporations for the spread of infection to other per- sons see Section 418, Chapter XIV. *Pettingill v. Yonkers, 116 N. e Bailey v. Mayor, 3 Hill, 531. Y. 558. s Sievers v. San Francisco, 115 Cal. 648. CHAPTER XII LEGAL REMEDIES § 378. Civil and criminal actions. § 382. Writ of prohibition or in- §379. Quo warranto. junction. § 380. Quo warranto not to restrain § 383. Certiorari. official excesses. §384. Mandamus. § 381. Kecovery of books and prop- erty, mandamus or re- plevin. § 378. Civil and criminal actions. According to the usages of the common law, revised to some extent by statutory enactments, there are certain legal remedies which have especial relation to the holders of public offices, and to their methods of conducting their offi- ces and transacting the business imposed upon them. While the practices vary slightly in the several states, as prescribed in the statutes, there is in each a gen- eral similarity of usage. It will not be attempted here to give a full discussion of each, but rather to give a general statement of when each is to be used, and by what method. Our concern is particularly with execu- tive officers whose duties involve the preservation of the public health. In the discharge of their duties it may frequently become necessary for them to pro- ceed, either criminally or civilly, against violators of the laws pertaining to health. Such actions do not spe- cially differ from ordinary criminal or civil proceed- ings, and do not need special attention here. Such 529 530 PUBLIC HEALTH ADMINISTRATION actions should not be brought in doubtful cases, unless it be desired to get a legal interpretation of some statute or ordinance. When there may be some doubt as to the legality of an ordinance or statute, or some question as to the extent of powers conferred under the statute, such doubts and questions should be settled by bringing them before the proper court. It may often seem best to assume that the enactment is legal, and that the desired power is granted, leaving the question to be raised by some presumably injured party, but it must be remembered that this course exposes the officer to a possible liability for exceeding his lawful authority. On the other hand, especially when an interpretation of the law is desired, it should be remembered that the scientific basis for the enact- ment must be properly presented to the court, or at least be prepared for presentation. It is not sufficient to show that there was a technical evasion of the letter of the law. The defendant will probably attempt to show that the operation of the requirement is unneces- sary, and that it works a hardship upon him. Ordi- nances have been passed specifying that milk must have at least three and a half per cent of cream. The facts that certain milk is sold as it came from the cows, and that the average percentage of cream from an entire herd was below the required standard would, as they have in the past, be put forward to show that such a standard is arbitrary and unreasonable. The prosecutor must therefore be prepared to show what the variations are in the percentage of cream found in cow's milk. It must further be remembered by the prosecutor that cattle may be bred for gross yield of milk, without regard to quality, or they may be bred • LEGAL REMEDIES 531 for a maximum of butter fat or for casein content. He must also remember that by feeding brewery slops the gross yield of milk may be increased by dilution, and that not infrequently this alteration in quality may be essentially an evidence of disease. For these facts the prosecutor must naturally depend upon the health administrator. Consequently it is the duty of the health administrator to be fully prepared with the scientific data which may be needed. Violation of the regulations of borough boards of health may not be punished by indictment; the proper procedure is a civil suit for the penalty. 1 Summary convictions had in such cases will be set aside upon appeal. The authority to preserve the health of the inhabitants is lodged in the municipality, and the members of the board of health are officers of the city. It is for this reason that suits to enforce orders of a board of health are uniformly brought in the name of the city or town. 2 A borough board of health is not a corporation; it can neither sue nor be sued. 3 The court of common pleas has no jurisdiction to hear an appeal from the judgment of a police justice in a suit for a penalty for violating an ordinance of a board of health. 4 "A sufficient answer to the argument about the right of appeal being arbitrarily burdened with oppressive and unnecessary conditions is that the right of appeal is neither a natural nor a constitutional right, but a statutory one which the legislature may give or not in its discretion, and if it gives the right i Commonwealth v. Clark, 14 3 Commonwealth v. . Olyphant Lane. L. Rev. 41 (1896). Borough, 2 Lack. L. N. 181. 2 Winthrop v. Farrer, 11 Allen, « Holzworth v. Newark, 21 Vr. 398; Trowbridge v. Tupper, 96 85. N. E. 1096. 532 PUBLIC HEALTH ADMINISTRATION it may give it on such conditions as it may deem proper. 5 The provision in the Massachusetts Statutes of 1897, Chapter 510, Section 4, giving to persons aggrieved by an order passed by the state board of health the right of appeal applies only to the quasi- judicial acts, and does not apply to rules, regulations, and orders of a quasi-legislative nature. 6 § 379. Quo warranto. The only proceeding by which title to office may be determined is quo warranto, or information in the nature of quo warranto. (§ 281.) Originally this was a prerogative writ ; later it became of more general application, and was criminal in form. Now as used either by information, or according to the revised practice prescribed in enactments, it has lost most of its criminal character, and is practically an action by which an imposter may be ousted from office. Quo warranto will not lie where there is any other remedy applicable. 7 So where by statute some other method is provided to test title to office, that method must be pursued. Quo warranto proceedings are ordinarily brought in the name of the common- wealth, and properly by the attorney general or a state's attorney. The person asking leave to file the information must show that he has some interest in the matter to be decided, when the action originates in a private citizen, 8 and if that interest is the claim to the office, he must show by prima facie evidence that he has a title thereto ; 9 but the interest of a citizen as s McMillan Co. v. Minnesota s Commonwealth v. Fowler, 10 State Board of Health, 110 Minn. Mass. 290; Commonwealth v. Wal- 145. ter, 83 Pa. 105. 6 Nelson v. State Board of 9 State v. Dahl, 65 Wis. 510. Health, 186 Mass. 330. 7 State v. Marlow, 15 Ohio, 114; State v. Wilson, 30 Kans. 661. LEGAL REMEDIES 533 a taxpayer is sufficient. 10 What the court desires is to be assured that the relator is asking in good faith, that he has responsibility, and that his own conduct has been such that he has not become disqualified from making the complaint. Aside from such cases in which the action has been brought by the attorney general, acting for the state, the issuance of the writ is discre- tionary with the judge having jurisdiction. 11 Quo warranto is the proper method to determine the title of public officers only. 12 Right to employment must be tried by other means. 13 Judge Cooley ex- pressed a doubt whether the proceedings be applicable to any office not created by the state. 14 Very evidently, the proceeding is not proper to oust a federal officer, although the office be filled under the power of the state. 15 And the courts will be adverse to granting the writ when the term of the officer has nearly ex- pired, 16 or when the court is satisfied that if seated the relator could, and would be immediately removed. 17 It is necessary that the party against whom the information is filed shall be in actual possession of the office, 18 though the taking of the oath of office may be sufficient grounds, and action will be admissible where the officer has abandoned his office. 19 10 Commonwealth v. Meeser, 44 i± Throop v. Langdon, 40 Mich. Pa. 341; State v. Hammer, 42 N. 673. J. L. 435; State v. Martin, 42 N". " State v. Bowen, 8 S. C. 400; J. L. 479. Territory v. Lockwood, 3 Wall. ii People v. Waite, 70 111. 25; 236. People v. Moore, 73 111. 132 ; State is People v. Sweeting, 2 Johns, v. Tolan, 33 N. J. L. 195; State v. 184; State v. Jacobs, 17 Ohio, 143; Smith, 48 Vt. 266 ; Commonwealth State v. Tudor, 5 Day, 329. v. Jones, 12 Pa. 365. 17 Ex parte, Richards, 3 Q. B. 12 State v. Hixon, 27 Ark. 398; Div. 368. Cleaver v. Commonwealth, 34 Pa. i 8 King v. Whitwell, 5 T. R. 85. 283. 19 State v. Graham, 13 Kans. is State v. North, 42 Conn. 79; 136; People v. Callaghan, 83 111. Eliason v. Coleman, 86 N. C. 235. 128. 534 PUBLIC HEALTH ADMINISTRATION Quo warranto lies to oust from office one who has set up an office without warrant of law, 20 or when the statute under which he holds is unconstitutional, 21 or where the officer has failed to file his bond, or to take his oath. 22 It is also applicable against any officer who by his acts has forfeited his office, and in such cases it is not necessary to show that any other person has a legal title thereto. 23 "If the alleged ground for ousting the officer is that he has forfeited his office by reason of certain acts or omissions on his part, it must then be judicially determined, before the officer is ousted, that these acts or omissions of them- selves work a forfeiture of the office. Mere miscon- duct, if it does not of itself work a forfeiture, is not sufficient. The court has no power to create a for- feiture, and no power to declare a forfeiture where none already exists. The forfeiture must exist in fact before the action of quo warranto is commenced." 24 Where the action is to oust the respondent, and install the relator, the court will not grant the application if the relator has concurred in the holding, acquiesced in the irregularities of which he complains, or delayed unreasonably the presentation of his claims to the office. 25 20 Eex v. Boyles, 2 Stra. 836. laghan, 83 111. 128; Griebel v. State, 2i Atty. Gen. v. Holihan, 29 Mich. Ill Ind. 369. 116; Dullam v. Willson, 53 Mich. 24 Commonwealth v. Walter, 83 392. Pa. 105; Cleaver v. Commonwealth, 22 In re Mayor of Penryn, 1 Stra. 34 Pa. 283 ; Brady v. Howe, 50 582. Miss. 624; State v. Graham, 13 23 State v. Collier, 72 Mo. 13 ; Kas. 136 ; State v. Allen, 5 Kas. Comm. v. Walter, 83 Pa. 105; State 213. v. Graham, 13 Kas. 136; People v. 25 Reg. v. Green, 2 A. & E. 460; Bingham, 82 Cal. 238; Osgood v. State v. Tipton, 109 Ind. 73; Dor- Jones, 60 N. H. 543 ; Hyde v. sey v. Ansley, 72 Ga. 460 ; Eeg. v. State, 52 Miss. 665 ; People v. Cal- Anderson, 2 A. & E. 740. LEGAL REMEDIES 535 The exact steps in quo warranto proceeding differ in the different states. In general, the petition is filed by, or in the name of, the attorney general or the prose- cuting attorney, and the petition should show with definiteness the name and existence of the office, and that the incumbent holds the same without warrant of law. "The people are not required to show any- thing. " 26 " The state is bound to make no showing. ' ' 27 The burden of proof is upon the respondent. "The state has always a right to demand of any one assum- ing a public office or franchise to show his author- ity." 28 It is not enough that the respondent shall show that he originally held the office rightfully, but he must show that he still has a clear title thereto. 29 But if the proceedings be to oust the incumbent, and to seat the relator, the burden of proof is shifted to the relator, and he must show his lawful title to the office. In such cases the information should clearly state the fact that he was eligible, and properly elected or appointed. 30 So if it be claimed that the respond- ent has forfeited his right to the office the burden of proof is shifted to the state. 31 Unless it be provided by the statutes of the indi- vidual state, trial by jury is not a matter of right in quo warranto proceedings, 32 though under certain cir- cumstances the contrary has been held. 33 The judgment may simply oust the incumbent, or 26 People v. Kidgely, 21 HI. 67. si People v. Thacher, 55 N. Y. 2T People v. Mayworm, 5 Mich. 525. 146, 32 State v. Johnson, 26 Ark. 281; 28 People v. DeMill, per Cooley, State v. Lupton, 64 Mo. 415; State J., 15 Mich. 164. v. Vail, 53 Mo. 97. 29 State v. Graham, 13 Kans. 136. 33 State v. Allen, 5 Kas. 213 ; so State v. Stein, 13 Neb. 529 ; White v. Doesburg, 16 Mich. 133. State v. Boal, 46 Mo. 528. 536 PUBLIC HEALTH ADMINISTRATION in addition to the ouster it may install the relator. Unless the matter be covered by statutes the judgment will not include the assessment of damages against the usurper. Action for damages is ordinarily an inde- pendent proceeding. 34 § 380. Quo warranto not to restrain official excesses. Quo warranto is practically restricted to the determina- tion of title to office, or right to franchise. It will not lie to restrain a lawful officer from official excesses, for the reason that there are other actions applicable. The person injured may bring civil suit against the officer or corporation. If the officer acts without legal warrant he will be held personally liable. "If that officer, it may be proved, has deviated ever so little from his legal authority, if with the best of intention, or with the best of intelligence, he makes a mistake of fact in applying the law to a particular case, he is by the principal doctrine, if applied to its logical con- clusion, liable as a private wrong doer and responsible in such damages as may be proved." 35 Also, in many cases the law provides for appeal, and such right of appeal would take the preference over other proceed- ings, and as we have said in Chapter IV, it would be well if the right to appeal within executive depart- ments be more generally provided in statutory enact- ments. But if there be no right of appeal, by which official excesses could be restrained, and if the injury worked would be irreparable, and where no other ade- quate remedy is applicable, an injunction will lie. 36 § 381. Recovery of books and property, mandamus or replevin. Where the title to the office is decided, 34 People v. Miles, 2 Mich. 350. se Mobile v. Louisville, &c. K. R. ssWyman Ad. Law, 15. Co., 84 Ala. 115. LEGAL REMEDIES 537 the newly installed officer may recover the possession of the books, records, seals, and other property through mandamus? 1 Eeplevin will not ordinarily lie against a public officer, but replevin will lie in favor of a public officer against one who has wrongfully taken posses- sion of the property of the office, though he may claim possession as having been duly elected or appointed. 38 Also when the action is brought by a private citizen claiming title for books or other property deposited in his office, the only remedy is mandamus, not re- plevin. 39 Title to the office cannot be tried either in mandamus, nor in replevin proceedings. The title must have been previously decided. 40 § 382. Writ of prohibition, or injunction. The writ of prohibition is probably never applicable to a health executive. (§ 281.) The writ of prohibition is an extraordinary judicial writ, issuing from a court of superior jurisdiction "to prevent the exercise, by a tribunal possessing judicial powers, of jurisdiction over matters not within its cognizance, or exceeding jurisdiction of matters of which it has cognizance. " 41 It is applicable to officers having quasi-judicial powers, as distinguished from discretionary powers. 42 It does not lie to restrain executive or ministerial action, even where such action requires the use of judgment with discretion. 43 It does not lie where there is other 37 People v. Head, 25 111. 325; *i Thomson v. Tracy, 60 N. Y. McGee v. State, 103 Ind. 444; 31. Stone v. Small, 54 Vt. 498. *2 Ex parte Braudlacht, 2 Hill, 38Phenix v. Clark, 2 Mich. 327; 367; Smith v. Whitney, 116 U. S. Fletge v. Priest, 53 Mo. 540. 167; LeConte v. Berkley, 57 Cal. 39 People v. Treasurer, 24 Mich. 269. 468 ; Brent v. Hagner, 5 Cranch *3 Seymour v. Almond, 75 Ga. C. C. 71. 112; State v. Columbia, 16 S. C. *°Hallgren v. Campbell, 82 412; LaCroix v. Fairfield County Mich. 255. Commissioners, 50 Conn. 321 ; 538 PUBLIC HEALTH ADMINISTRATION remedy, as by appeal, or certiorari* 4 Nor will it take the place of quo warranto to restrain a person from attempting to assume an office. 45 It is therefore diffi- cult to conceive of any way in which it could apply to a health official, though it might be used with ref- erence to a court which is attempting to pass upon some problem of the health administration, but there only where the court has no jurisdiction, or where it is attempting to exceed its authority, and without a pos- sible remedy by appeal or otherwise. An injunction, on the other hand, is applicable to executive officers particularly, to prevent excesses in action. Because of the independence of the judiciary from the executive branch of government, the injunc- tion is not intended in any way to restrain legal execu- tive action. 46 It will not be used to direct, nor to restrain the exercise of discretionary authority. It may be used to restrain action which will destroy prop- erty rights, where the injury is irreparable. 47 It may be used to prevent the taking of property, or impair- ment of property, as in the draining of swamps, 48 or in the creation of nuisances. 49 It may also be used to prevent illegal expenditures of money. 50 In no way can it take the place of quo warranto to try the Burch v. Hardwieke, 23 Gratt, 51 ; 48 Belknap v. Belknap, 2 Johns. Manhattan v. Hassin, 105 Pac. 44. Ch. 463. 44 Shell v. Cousins, 77 Va. 328; 49 Upjohn v. Eiehland, 46 Mich. Smith v. Whitney, 116 U. S. 167. 542 ; Merrill v. Humphrey, 24 Mich. 45 Buckner v. Veuve, 63 Cal. 304. 170. 46 Whitman v. Hubbell, 20 Abb. 50 Cooley on Taxation, 2nd Ed., N. Cas. 385; Sage v. Fifield, 68 764; State v. County Court, 51 Mo. Wis. 546. 350; Drake v. Phillips, 40 111. 389; 47 Mobile v. Louisville, &c, R. E. Leitch v. Wentworth, 71 HI. 147. Co., 84 Ala. 115; City Council v. Louisville, &c, R. R. Co., 84 Ala. 127. LEGAL REMEDIES 539 right to office, neither to prevent qualification, 51 nor entering the office, 52 nor to prevent the payment of salary. 53 § 383. Certiorari. Because of the independence of the judicial and the executive and legislative branches, it is not the province of the courts in any way to inter- fere with the legal execution of the duties of the other branches. (§281.) Certiorari therefore does not lie to correct errors in the use of discretionary power, though it may lie against an executive officer holding quasi- judicial powers to see that the legal forms have been properly observed. 54 It will not lie to control the exercise of ministerial, purely executive, or legis- lative duties. 55 As in the case of the other writs, this will not lie when there is other remedy available. § 384. Mandamus. A duty which is ministerial must be performed. The function of the ancient preroga- tive writ of mandamus is to compel the performance of ministerial duties, whether they be purely so, or the ministerial portion of discretionary authority. (§ 281.) To a great extent it has lost its prerogative character. In many regards it is the exact antithesis of the injunc- tion. "An injunction is essentially a preventive remedy; mandamus a remedial one. The former is usually employed to prevent future injury, the latter to redress past grievances. The functions of the injunction are to restrain motion and enforce inaction; BiMoulton v. Reid, 54 Ala. 320. 388; St. Charles v. Rogers, 49 Mo. 52 Beebe v. Robinson, 52 Ala. 66. 530. 53 Stone v. Wetmore, 42 Ga. 601 ; 5 5 Atty. Gen. v. Northhampton, Tappan v. Gray, 9 Paige, 507. 143 Mass. 589 ; In re Wilson, 32 s* People v. Burnap, 38 Mich. Minn. 145 ; People v. Walter, 68 350; French v. Barre, 58 Vt. 567; N. Y. 403; Supervisors v. Aud. Miller v. Supervisors, 88 111. 26; Gen., 27 Mich. 165. McGregor v. Supervisors, 37 Mich. 540 PUBLIC HEALTH ADMINISTRATION those of mandamus to set in motion and compel action. In this sense an injunction may be regarded as a con- servative remedy; mandamus, as an active one. The former preserves matters in statu quo, while the very object of the latter is to change the status of affairs, and to substitute action for inactivity. The one is, therefore, a positive or remedial process, the other a negative, or preventive one. ' ' 56 Mandamus does not create a duty; its only purpose is the enforcement of a duty already existing. 57 It cannot, therefore, be used to enforce a doubtful right, nor to compel the performance of a duty which is not clear and certain. 58 For the purposes of the writ it is presumed that he who occupies an office does so legally, and mandamus will therefore lie to compel action by an officer de facto, 5 ® but by disclaiming possession of the office, and resigning all pretentions thereto, he will be under no criminal or civil liability for his refusal to act. 60 The writ will not lie to com- pel the performance of an illegal act, 61 nor one which is impractical. 62 Neither will it lie to control discre- tionary authority. 63 "But though the officer vested se High, Extra Legal Kennedies, eo Olmsted v. Dennis, 77 N. Y. 6. 378; Bentley v. Phelps, 27 Barb. 57 Meadows v. Nesbit, 12 Lea, 524. 489; People v. Hatch, 33 111. 9. ei state v. Sneed, 9 Baxt. 272; ss People v. Solomon, 46 111. 415; People v. Hyde Park, 117 111. 492; People v. Mayor, 51 111. 17; People Ex parte Fleming, 4 Hill, 581. v. Hayt, 66 N. Y. 606 ; Cook v. 62 People v. O 'Keef e, 100 N. Y. Peacham, 50 Vt. 231. 572. 59 Kelly v. Wimberly, 61 Miss. 63 U. S. v. Boutwell, 3 Mac- 548; State v. Fortenberry, 56 Miss. Arthur, (D. C.) 172; People v. Du- 286 ; State v. McEntyre, 3 Ired. laney, 96 111. 503 ; People v. Knick- (N. C.) 171; Runion v. Latimer, 6 erbocker, 114 111. 539; Stanley v. Rich. 126. Monnet, 34 Kas. 703. LEGAL REMEDIES 541 with discretion will thus not be compelled to reach any particular conclusion, he cannot refuse, in viola- tion of his duty, to act at all, and if he does, mandamus may be resorted to to compel him to act, — to take what- ever action is necessary as a preliminary to the exercise of his discretion, as to hear a claim, or entertain the petition, or pass upon the bond, or meet to confer, or pass upon the matter, as the particular case may require. ' ' 64 In other words, it is the province of the courts only to see that the laws are complied with, that execu- tive officers do not exceed their authority, either in manner or matter, but that they do that which is their official duty. There is in such judicial regulation no attempt to control the proper exercise of any executive action. The obligation and authority for such matters rests entirely with the executive officers; but this also implies that the executive officers shall in all cases restrict themselves to legal methods and steps. It implies further, that they shall do their full duty, for the sins of omission may be quite as harmful as excess of activity. 64 Mechem, Pub. Off. 946, citing cases. CHAPTER XIII VITAL STATISTICS § 385. An index of healthfulness. § 390. The physician a witness. §386. National control? §391. Confidential relationships. § 387. State organization. § 392. Morbidity reports. § 388. Completeness of returns. § 393. Tentative reports. § 389. Eecords as legal evidence. §385. An index of healthfulness. Vital statistics have sometimes been called the bookkeeping of a health department. The death rate of a community is its index of health. Where a community has an unus- ually high death rate, it generally shows that there is something wrong in the health administration. This is particularly true if the excess rate is among the infectious diseases. Not only the death rate, but the amount of sickness in a community is an important indication as to the efficiency of the guardians of pub- lic health. The death rate of infants can not be accu- rately gauged unless there be given the statistics as to birth rate. In these considerations it is the collec- tive statement of all similar individual records which is the basis of judgment. Individual records of birth, or of death, or of illness, have little independent value for the health department except in cases of infectious disease. To say that vital statistics is the bookkeeping of a health department, therefore, obscures the import- ant fact that the records upon which such statistics 542 VITAL STATISTICS 543 are based are of great value in entirely different spheres of governmental action. § 386. National control? As stated in Chapter IX, (§ 216-227.) it has been customary to leave all legis- lation relative to vital statistics to state governments, though there seems to be a good reason for at least suspecting that congress may have jurisdiction over the matter. Statistics are of value in proportion to their quality; and quality includes the idea of extent of territory, lack of omissions, and completeness and accuracy of individual reports. Such quality cannot be attained unless the control of the matter be cen- tralized as much as possible. If one state adopts a certain classification of diseases, differing from that used by the others, it makes comparisons indefinite and unsatisfactory. In death reports, some states ask the last occupation of the deceased; others, as favored by the bureau of census, simply inquire as to his occupa- tion. There is no object in giving the: occupation unless that occupation may possibly have some bear- ing upon the cause of the illness. A stone-cutter, or a bookkeeper, is very liable to contract consumption; and not infrequently, having contracted the disease, the patient changes his occupation and seeks employ- ment where he will be out-of-doors, as in farming, gar- dening, grocery or milk delivery. If the death report gives simply the general occupation as stone-cutter or bookkeeper, that helps to show the causative rela- tion between the occupation and the disease. If, on the other hand, the last occupation only be given, and that be farming or gardening, it is difficult to see of what possible value this item may be. A report of tubercular illness, giving the occupation which 544 PUBLIC HEALTH ADMINISTRATION requires the handling of food material, as in the gro- cery or milk business, would, of course, be a valuable pointer for an efficient health officer. But in a death report the item would be misleading under the sup- posed circumstances, and practically valueless. In order to secure widest uniformity, therefore, if it be legal to leave the control of vital statistics to national legislation, that would be evidently desirable. §387. State organization. In the state control of vital statistics, it is important that registration dis- tricts be made sufficiently small so that they may be administered with the greatest accuracy and the least hardship. If districts be too large, reports will be slow in getting into the local registration office; and the local registrar will be unable of his own knowledge to judge as to the completeness of the returns. The local registrars should be appointed by, and respon- sible to, the state registrar. Otherwise it will be impos- sible for the state registrar to guard the local effi- ciency. If local registrars be appointed by, and receive their pay from, municipalities, though the state reg- istrar may be satisfied that they are negligent in the performance of their duty, unless there be a gross malfeasance in office, it will be practically impossible to enforce efficiency. The state registrar though nom- inally the head of the department, becomes practically only a clerk, collecting and combining the reports from different sections of his territory. Unfortunately, local self-government is so important in the minds of many citizens, that such surrender of local registra- tion is frequently violently opposed. § 388. Completeness of returns. The law requiring reports should not permit a body to be removed from VITAL STATISTICS 545 the place of death, buried, cremated, or otherwise dis- posed of, without the issuance of a permit from the local registrar. Absolute completeness of the returns is essential for the value of mortuary statistics; and if it be permitted even to remove a body from a hospital where the patient died, it opens the way for neglect in making a final report. In this insistence upon the issuance of a permit by the registrar there is an effi- cient check upon this portion of the work. In birth certificates, on the other hand, no such check is pos- sible, but the law should insist upon an immediate report to the registrar's office. The chief duty of making these reports must of necessity fall upon phy- sicians ; and physicians as a class do not appreciate the importance of this service. The consequence is that if too much time be allowed the report will be delayed always "for a more convenient time" until the phy- sician forgets the matter entirely. Such reports should be rendered by the physician certainly within six days even though the report be incomplete. There is another reason for insisting upon this early report of cases of birth. In certain sections, in the practice of certain physicians, and among cer- tain classes of patients it becomes necessary for the health department to be on its guard against possible ophthalmia neonatorum, and puerperal septicaemia. If the report be not promptly made, serious harm may occur before proper precautions are taken. Clearly, this extra supervision on the part of the health depart- ment need not be in cases in which the physician is both careful and competent; but, in order to catch other cases it is necessary to insist upon the prompt report by all physicians. Death reports sometimes are 546 PUBLIC HEALTH ADMINISTRATION important guides for the health executive in that they point out the presence of infection previously unsus- pected. It therefore is apparent that there is a decided advantage in having the registrar connected with the local health service. This does not preclude the appointment by, and responsibility to, the state regis- trar of vital statistics, especially if the local health officer be regarded as a portion of the state service. In practice it is probable that appointment by the state officer, rather than by local government, will not inter- fere with the appointment and retention of competent men selected from the immediate neighborhood and in harmony with local sentiment. §389. Records as legal evidence. There is a pos- sibility that connecting vital statistics with a health department may work for inefficiency. As previously intimated, the individual records of births and deaths have their chief value not as guides in sanitation, but as evidence. Eecords of death or copies thereof may be needed to prove heirship, title to property, right to life insurance ; they may also be needed in criminal trials : for example, a man may be charged with bigamy, and the record of the death of his former wife in another state may be all that is necessary to acquit or convict him. Records of birth also are needed to prove heirship, title to property, citizenship, and such various rights as may be dependent upon age, such as the right to enter a profession, to vote at elections, to be married, to labor, or to attend school. These records may also be needed in criminal trials to prove the responsibility or irresponsibility of the participant in a crime. The record of a girl's birth showing that she has or has not reached the age of consent may VITAL STATISTICS 547 send a man to prison or may free him. This use of the certificates of birth and death as evidence is becoming more and more important every year. In the city of New York, the registrar 's office is annually called upon for more than forty thousand certificates of birth to be used for various purposes. In some countries the copy of the birth certificate is absolutely requisite before a person may be legally married. Official certificates of birth and death are the only evidence satisfactory in probate proceedings in some nations. In conse- quence of our former carelessness in this matter, our citizens have sometimes been put to great inconven- ience, and even financial loss. After the death of a father and of the physician who was in attendance at the birth of a girl in Indiana, a relative of the father died in Switzerland, leaving property to which this little Indiana girl was the heir. But the Swiss govern- ment demanded in proof of heirship official copies of birth and death reports. Such reports had not been made nor recorded, and in consequence the child was left in poverty, and the property went to more distant heirs. Because the physician in attendance was dead, it was impossible to get his testimony, and therefore it was impossible to get evidence satisfactory to the Swiss government. In another case in Indiana, a grandfather died, leaving his property to the grand- daughter to be acquired when she was of age, pending which time it was to be in charge of her father, who did not have the reputation of being a good manager of funds. When the young lady claimed her property, her father denied her claim, stating that she lacked as yet two years of being of legal age. There was no official record of her birth; that page from the family 548 PUBLIC HEALTH ADMINISTRATION Bible had been torn out. No other item of record directly connected with the birth of the young lady was obtainable. At last one of the neighbors remem- bered that upon the same day that the little girl was born a valuable cow belonging to the grandfather had dropped a calf; and remembering the old gentleman's methodical care, search was made in his farm books, and the birth of the calf was there found recorded. Upon this record of the birth of a calf the court awarded the young lady her property. Such a round- about proof would not always be either possible to obtain, nor acceptable in judicial proceeding. It is possible that because of the ordinary connec- tion between the records in vital statistics and depart- ments of health even judges may have been misled in decisions. Many of the items in a birth report, for example, have little or no value for the health admin- istrator. The name and occupation of the child's father, as well as his age, are only of indirect interest, but in proof of heirship those records are of greatest importance. The certificate of birth must positively identify the child by sex and color. As soon as pos- sible the name of the child should be recorded. The record should further give the ordinary residence of the mother and the place of the child's birth, the date of the birth, the name of the father, his nativity, occu- pation, and age, the mother's age, her maiden name, and nativity. It should also state the number of previ- ous children which this mother has borne and how many of them may still be living. Not a single item can be omitted from such a report without weakening- it as documentary evidence in probate proceedings. A state law in Ohio providing for registration of births VITAL STATISTICS 549 directed that the physician in attendance upon the birth of the child, must make such a full report as above indicated, and if any item be omitted without satisfactory explanation being given, the physician should be deemed guilty of a misdemeanor and pun- ished accordingly. The supreme court held 1 that the act was unconstitutional and void, being an unreason- able and arbitrary exercise of police power. As a use of police power it clearly would be arbitrary, but as legislation providing for the presentation and preser- vation of evidence it is neither unnecessary, unreason- able, nor arbitrary. This use of the certificate appar- ently did not occupy the attention of the court. In order to appreciate the importance of birth and death records as evidence, let us suppose a case. John Doe and his wife came to Chicago from England, with their infant son George, only a few months old. Arriv- ing in Chicago in 1866, both parents were soon fatally stricken by the cholera; their baby was taken by Rich- ard Roe and wife, who had previously lost all of sev- eral children in infancy. Shortly thereafter another boy, whom we will call Charles, was born into the Roe family. This, we will suppose was their last child : and soon after his birth, George Doe died. Some forty years afterward Richard Roe and his wife also die, leaving considerable property. Whether honestly or with malice, in order to obtain this property, brothers of Richard Roe set up the claim that the man who claims to be the real son of Richard Roe was, in fact, George Doe, and not Charles Roe; and that the last child of the Roes died like his brothers and sisters in i State v. Boone, 95 N. E. 924, 84 Ohio, 346. 550 PUBLIC HEALTH ADMINISTRATION infancy. The death of the Doe parents, leaving a helpless babe, would naturally impress neighbors; while the death of a babe would be less likely to attract their attention and memory. Their testimony would therefore aid the contestants. George Doe, having been born in England, was there properly recorded, so that it would be easy to prove from legal record that there was one George Doe. Neither birth nor death records having been recorded in Chicago in 1866, no such records would be available in this case; and we will presume that any records which the family might have had were destroyed by the fire of '71. The most important witness as to the birth of the Roe children and as to the deaths in question would be the physician. Who that physician might have been, Charles Roe would probably not know, and the probabilities also would be that he too was dead before his testimony was needed. The fact that his birth was not legally recorded would therefore work great injury upon Charles Roe, and possibly deprive him of his property. On the other hand, exactly the same conditions might enable this Roe heir to unjustly claim property in England, to which George Doe might have been entitled, had he lived. § 390. The physician a witness. When a physician accepts the care of a case he thereby enters into a con- tract with the parties interested to use reasonable and ordinary care in the treatment of the case committed to him. 2 It is particularly those who are unable to protect their own interests, for whom the state assumes responsibility. Now the care of a confinement case 2 Barnes v. Means, 82 111. 379; Quinn v. Donovan, 85 111. 194. VITAL STATISTICS 551 naturally includes making a legal record of the birth of the child, thus protecting its possible interests. This certainly is true in states providing for such legal reg- istration by returns made by the attending physician. He is the most important witness in the case because, though disinterested, he is in the best position for knowing the facts. This is one of the reasons why a physician is employed in such cases, and the statement of a New York court, though made with a different point in view, is equally applicable here, when it held that the physician ''will use reasonable and ordinary care and diligence in the exercise of his skill and the application of his knowledge to accomplish the pur- pose for which he is employed." 3 Physicians have sometimes objected to making reports of births and deaths unless they be paid fees therefor, and such fees are sometimes provided by the state statute. In the absence of such statutes appar- ently there is no ground for such contention; and the provision for fees may interfere with securing such reports because, as in Illinois where the statute pro- vides that the fee should be paid by the county, appro- priations may not be made to cover the expense. Where the statute provides for such fees and no appropria- tion is made by the county board, whose duty it is, physicians may with more justice feel reluctant about making reports. However, the statute makes it the duty of the physician to report. The failure of the county board to make the appropriation does not in the least lessen this duty of the physician. If he be not s Carpenter v. Blake, 10 Hun, 86 Main, 414; McNevins v. Lowe, 358; see also Kuhn v. Brownfield, 40 111. 209; Craig v. Chambers, 17 34 W. Va. 252; Cayford v. Wilbur, Ohio, 253. 552 PUBLIC HEALTH ADMINISTRATION paid, he is entitled to a recovery of fees earned, by proper legal action. It may very properly be held that the physician is paid for these reports when he receives his pay for attending the case. The fact that he may not have been paid by his patient does not decrease his responsibility in the matter. Mr. Justice Pryor, in a suit for malpractice, made this statement: 4 "It appears that the plaintiff was a charity patient; that defendant was treating her gratuitously. But I charge you that this fact in no respect qualifies the liability of the defendant. Whether the patient be a pauper or a millionaire, whether he be treated gratuitously or for reward, the physician owes him precisely the same duty and the same degree of skill and care. He may decline to respond to the call of a patient unable to compensate him; but if he undertakes the treatment of such a patient, he cannot defeat a suit for malprac- tice, nor mitigate a recovery against him, upon the principle that the skill and care required of a physician are proportionate to his expectation of pecuniary recompense. Such a rule would be of the most mis- chievous consequence; would make the health and life of the indigent the sport of reckless experiment and cruel indifference. Even though, therefore, the de- fendant was not to be paid for his attendance, he was still bound in law to treat the plaintiff with the requi- site skill and requisite care." In McNevens v. Lowe, 5 it was also held that the fact that services are gratui- tous in no respect qualifies or diminishes the degree of care due in the treatment of the case. In making reports of sickness, birth, or death, for * Becker v. Janiski, 27 Abb. N. s 40 HI. 209. C. 45. VITAL STATISTICS 553 legal record, the physician is simply giving his testi- mony for the benefit of society. As in the case of infec- tious diseases it may be for the protection of the com- munity in general as a health measure. Certificates of birth and death are chiefly of value as evidence in various forms of legal procedure and for the interest of individual citizens, many of whom will be absolutely unknown by the physician. Such evidence very fre- quently is of great financial importance many years after the event recorded has taken place, and often after the death of the physician witness. It seems, therefore, best that a little space be given to the con- sideration of this most important duty on the part of physicians. Dean Wigmore, in his "On Evidence," says, 6 "For three hundred years it has been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man's evidence. We may start in examining the various claims of exemption, with the primary assumption that there is a general duty to give what testimony one is capable, of giving, and that any exemptions which may exist are distinctly excep- tional and are so many derogations from a positive general rule." Willes, J., in Ex parte Fernandis, says, 7 "Every person in the kingdom, except the sovereign, may be called upon and is bound to give evidence to the best of his knowledge upon any ques- tion of fact, material and relevant to an issue in any of the Queen's courts, unless he can show some excep- tion in his favor." Also Chief Justice Tilghman said: 8 "The general welfare will be best promoted by 6 2192. sBaird v. Cochran, 4 S. T. E. v 1 10 C. B. N. S. 339. 397, 400. 554 PUBLIC HEALTH ADMINISTRATION considering the disclosure of truth as a debt which every man owes to his neighbor, which he is bound to pay when called on, and which in his turn he is entitled to receive. ' ' Physicians are called upon by the statute to give their testimony as to the facts within their knowledge by making legal returns of vital statistics. This knowledge is not their private property, but it is the property of the community which the physician is simply holding in trust. In an early case in Wiscon- sin, Mr. Justice Smith made this statement : 9 "Inno just sense can the requisition upon a citizen of his attendance upon court to testify as a witness be con- sidered as a taking of private property for public use within the meaning of the Constitution." In an Illi- nois case, 10 under this general reasoning, the court forced execution of a new deed by the heir of the grantor to replace one which had been lost. Physicians are citizens and members of the community, and as such owe certain duties to the community. Again quoting Mr. "Wigmore : " "In the first place, it may be a sacrifice of time and labor, and thus of ease, and of profits, of livelihood. This contribution is not to be regarded as a gratuity, or a courtesy, or an ill- requited favor. It is a duty, not to be grudged or evaded. Whoever is impelled to evade or resent it, should retire from the society of ordinary civil com- munities, and become a hermit. He is not a desirable member of society. He who will live by society must let society live by him, when it requires to." And further, "Prom the point of view of society's right to our testimony it is to be remembered that the s West v. State, 1 Wise. 209-233. « Loc. Cit. io Bennett v. Walker, 23 111. 97. VITAL STATISTICS 555 demand comes, not from any one person or set of per- sons, but from the community as a whole — from jus- tice as an institution, and from law and order as indis- pensable elements of civilized life. ' ' §391. Confidential relationships. In several states statutes have been passed making the relation between physician and patient confidential. How far such statutes may operate to prevent physicians from mak- ing the returns in vital statistics may be a matter of question. Apparently such a relationship would excuse physicians from making reports of infectious diseases, or possibly from making reports of deaths, unless the vital statistics statute expressly waived the operation of the general statute of privilege. ' The same might possibly be held relative to the returns of certain birth reports under peculiar circumstances. If our interpretation be correct that the statutory requirement of birth and death reports forms a part of the necessary care of the patient and his interests, it would seem probable that the general privilege should not operate to prevent making such reports ; for the interests of the heirs of the deceased, or of a child born of a parturient woman, would legally be considered as the same as those of the principle in the case. § 392. Morbidity reports. Morbidity reports are of interest almost solely for health administration. (§ 410.) Industrial accidents have a close relationship with commercial activities, and though they may be of interest in health administration, they are more likely to be collected by other departments of government. General morbidity reports are extremely difficult to get under our plan of government, and as a rule they 556 PUBLIC HEALTH ADMINISTRATION are inaccurate. For many years the Michigan state board of health weekly received reports from cor- respondents in different parts of the state, giving lists of the diseases prevalent and their relative prominence. Of necessity, such reports must be made largely from the impression of the reporter. Nevertheless, even these imperfect records were of value as showing the relationship of individual diseases to atmospheric and other conditions. Such reports and records must depend upon the voluntary cooperation of those inter- ested rather than upon statutory enactment. In order that a health department may be able to take the necessary steps to protect the community from infectious disease it is necessary that it be given notice of an infection at the earliest possible moment. (§§32, 410.) It is therefore quite customary that statutes and ordinances require physicians in attend- ance upon such cases to make such reports. In this day of the telephone it would be best that such reports be made at once by telephonic communication, or that the physician call personally at the health department. There should also be a notice in writing as by post card unless the physician have evidence that a verbal notice has been properly received, recorded, and acted upon. Unless the report be made promptly it may not be received in time to be of service. A delay of eight days, by the attending physician in making a report of a case of diphtheria to the proper health offi- cer is unreasonable. 12 It seems to us that a delay of twenty-four hours after making a diagnosis in such a case should be regarded as unreasonable, unless the means of communication be difficult. 12 People v. Brady, 90 Mich. 459. VITAL STATISTICS 557 Statutes requiring reports of infectious diseases generally specify certain diseases and add a blanket provision, such as, ' ' or other disease dangerous to pub- lic health." In such a statute it was held that the clause includes and covers cases of consumption, if consumption is in fact a disease dangerous to the pub- lic health. 13 To make such a decision effective the health department would be required to show that con- sumption is dangerous to the public health. Now in one case the court might be satisfied with evidence showing that that individual case was dangerous in fact to the neighbors. In another case, the court might desire evidence that consumption generally is a menace to the community. In still another, the court might be satisfied with nothing less than proof that consump- tion is always a menace to the community, as is yellow fever. Consumptives may be considered as nuisances in posse. Those who have dealt much with the dis- ease know that the danger to the community lies not so much in the seriousness of the illness as in the care and habits of the patient. Many of these cases are not themselves of serious menace to the community because of the intelligent care with which the patients destroy all their discharges. Even such cases should be reported to the health department in order that the office may be able to trace doubtful cases and make sure that necessary precautions are taken. The respon- sibility for guarding the community must rest with the health department ; it cannot be shifted to private indi- viduals. On the other hand, the health department should not be held responsible if it be not furnished 13 People v. Shurley, 131 Mich. 177. 558 PUBLIC HEALTH ADMINISTRATION either the direct evidence or sufficient funds to employ adequate aid to make frequent inspections of every person in the community, and thus not miss a single case. Because of its lessened degree of infectiousness, it is not necessary that reports of such a disease as con- sumption be made so promptly as should be expected, for such diseases as diphtheria, scarlet fever, yellow fever, and other acute infections. Statutes should therefore stipulate a very short limit of time for report- ing cases of acute infections, though they might allow a longer period for those less acute. There is no common law obligation upon any class to report cases of infectious diseases to the officers of government. The duty, and the manner in which it must be executed must be specified either by statute, or under the statute by ordinance, rule, or regulation. This duty is generally imposed upon physicians, and an ordinance so providing was held valid in Connecti- cut. The unequality of burden of which the defend- ant complains is only in seeming. Persons offering their services to the public as healers of disease, and requiring pecuniary compensation therefor, thereby assert their ability to detect the presence of it when the great mass of the people can not. The people accede to the truth of their assertion, and in the matter of life surrender themselves to their keeping. Of course an ordinance in the interest of life must detect the presence of a fatal contagious disease at the earliest possible moment. Therefore, with impartial action it compels that member of the community who is the first to have sight and knowledge of it to give note of warning to others from whom its presence is hidden. It would be idle to require, indeed it would VITAL STATISTICS 559 be dangerous to accept, this service from those who can not see or do not know. The burden is made to rest upon every member of the only class which is in a condition to contribute anything to the accom- plishment of the purpose of the ordinance. 14 "This is his duty as a surgeon, and is imposed as an obliga- tion by the ethics of the useful and honorable profes- sion of which he is a member," as well as by the statute of the state of Iowa. 15 In a case in the Dis- trict of Columbia it was held that a physician in charge of a charitable dispensary at which contagious diseases were not treated, who, after examining a child brought to the hospital for treatment, diagnosed the case as one of diphtheria, re- fused to prescribe but suggested that the child be taken home and isolated and that a physician be called, was not obligated to report such case of sickness to a degree that he was punishable for neglect- ing so to do. 16 This decision is unfortunate. The law of the District provides, 29 Stats. 635, Sec. 2, " Every physician attending on or called in to visit, or exam- ining any case of contagious disease in the District of Columbia, shall immediately" isolate and report the case. It would seem that this wording would cover the case in question. It is just such cases which espe- cially need to be detected. The patrons of dispen- saries are very apt to keep infectious diseases hidden as long as possible, in order not to run a risk of exclu- sion from ordinary occupations. The fact that he was in charge of a dispensary should indicate that the i4 State v. Worden, 14 At. 801. ie Johnson v. District of Colum- 15 Robinson v. Hamilton, 14 N. bia, 27 App. D. C. 259. W. 202. 560 PUBLIC HEALTH ADMINISTRATION doctor was unusually well versed upon the legal requirements of such cases. While he was under no obligation as to treatment, it seems that he should have been held very strictly responsible for the prompt reporting of the case, in order that it might be prop- erly watched. In the state of Missouri it was held that a christian scientist believing that disease is a delusion of the mind, and teaching the sick such theory is not a physician who can be subjected to the penalty for failing to report a contagious disease. 17 In State v. Boone, 18 although it was held that a vital statistics statute was unconstitutional because it was an un- necessary and arbitrary use of police power, in that it required the physician to secure and file certain infor- mation relative to births purely for statistical pur- poses, or for governmental record, the court expressed a doubt whether the statute could be considered uncon- stitutional simply because it failed to provide for com- pensation to the physician making the report. §393. Tentative reports. It should be understood and even provided according to law, that cases of acute infections be promptly reported as soon as sus- pected without waiting for confirmation of a diagnosis. Two forms of reports should be provided — one tenta- tive and the other positive. The very early reports in an explosive epidemic are of immense importance, and the very fact of receiving simultaneously a num- ber of suspect notices will often in effect make the diagnosis sure. It is impossible, for example, for a physician to make a definite diagnosis of scarlet fever at his very first call, or of diphtheria, until after he 17 Kansas City v. Baird, 92 Mo. is 84 Ohio, 346. App. 204. VITAL STATISTICS 561 lias had a bacterial examination of a throat smear. An explosive epidemic is generally due to a contamina- tion of food or water supply: the morbific agents have generally been at work for a few days before a case is discovered. A delay of twenty-four hours in arousing the suspicion of the health department will probably result in a large increase in the number of cases. By statutory enactment it is customary to impose the duty of making reports of births, deaths, and cases of infectious diseases, not only upon physicians, but in varying degree that duty devolves upon heads of fami- lies and others having responsibilities relative to the particular case. They may even make such demands upon keepers of boarding houses or lodging houses in which a case of infectious disease may be discovered. Since this duty of making reports is general, no fee or other compensation need necessarily be provided by the governmental body. 19 Primarily in all these cases the duty of making the report falls upon the physician if one be employed. Other requisitions sim- ply become effective in the failure of the physician to act. is Sears v. Gallatin County, 20 Mont. 462, 40 L. E. A. 405. Part II Special Subjects PROLOGUE § 400. Heretofore we have discussed general prin- ciples pertaining to the governmental restraint upon the spread of disease, and the prevention of mortality. In the remainder of the book attention will be devoted to special subjects, with notations upon judicial deci- sions. Because of the fact that the science of pre- vention really may be said to have begun in 1898, it very naturally follows that in these special subjects many decisions will be found under the old regime which would hardly be applicable under our revised ideas, but those decisions still stand of record, and divergence from the principles therein laid down must be based upon definite facts of science. Not only has the science changed but the industrial and commer- cial conditions have changed also. That which would not have been specially dangerous a hundred years ago, even according to present scientific knowledge, would now be potent for harm, because of the socio- logic, industrial, and commercial changes. On the con- trary, things which a hundred years ago were regarded with dread, our advanced science has taught us are more annoyances than dangers. The odor of sewer gas is offensive, and the gas itself was supposed to be very dangerous, but more recent critical examinations and investigations have tended to show that in itself the gas is not dangerous. 565 566 PUBLIC HEALTH ADMINISTRATION It is therefore hoped that Part I may remain a safe guide for the future, though it is expected that much of Part II will sooner or later need to be revised; but the changes will, and should, depend largely upon advanced legislation. It may not be inappropriate here to glance at how the change in methods has been brought about, and at the commercial consequences. Dr. Findlay at Havana had long been maintaining that yellow fever was spread by mosquitoes. When the United States found that it had Cuba on its hands it became important, if possible, to determine the cause of that disease which was always present around Havana, and which was spread, from time to time, to our shores. Surgeon General Sternberg, of the United States Army, there- fore, detailed four surgeons to make the investigation. They made the study, and to prove the correctness of the hypothesis Surgeon Carroll first offered himself as a subject to be bitten by an infected insect. He had the yellow fever, and it left his heart in such a dis- eased condition that he was never again strong. Lazear was bitten and died. Major Reid, the chair- man of the commission lived only a few years, having been seriously impaired in health through his sojourn in that sickly clime. Agramonte alone came out from the siege unharmed. As the result of the dis- coveries then made, with the studies by Major Eoss of the British Army relative to malaria, the tropics are no longer ' ' the white man 's grave. ' ' Ports which were formerly regarded as pestholes are now the seats for immense commerce. The digging of the Panama Canal was made possible only through these investigations. The commercial profits for this country alone as the PROLOGUE 567 result of the studies have been far greater already than the entire cost of the army for the whole period of our national history. And what reward has been given by a grateful country to these noble martyrs of science? Carroll, weak and sick, was no longer able to do his full duty as an army surgeon. He tried to support himself in making further investigations, but before he died he was permitted by his noble country to pawn his miscroscope — his means of support — in order to get bread to keep himself and his family from starving. He was no beggar, but he suffered, and died in silent poverty, leaving his home heavily mortgaged, and a family to be supported on a meagre pension. It was brother physicians, whose possible income he had reduced by showing how to eliminate sickness (not the commercial kings who had profited by his sacrifice) who paid off the mortgage and pro- vided for the education of his children. Carroll, who enlisted as a common soldier, re-enlisted as a hospital steward, pursued his studies, graduated in medicine while still enlisted, and won his commission, gave his life literally to save others: yet those who have profited financially by the work which resulted in his untimely death have done nothing to show their appre- ciation, or to encourage further advances. They have permitted the patent medicine harpies to block all efforts towards obtaining a national health service equal to the dignity of the nation. "While a few commercial kings have endowed research institutions, it is still true that the commer- cial world is constantly opposing sanitary advance- ment. They are profiting by the benefits received, but are unwilling to share even a very small percentage of 568 PUBLIC HEALTH ADMINISTRATION those profits with the noble men who have devoted both time and strength to the advances. It is time that the business men see to it that trained men are encour- aged to seek official positions in the health service of every part of the country, and that the service be made a vocation, rather than a diletanti avocation for those who hold the offices. As a commercial proposi- tion (for that is the only language which some Ameri- cans can understand) it will pay the mercantile world to assist in advancing scientific health administration, by aiding in legislation, and by securing the best men possible for the service. The open way for advances is obviously through intelligent legislation. Science is universal; it knows no "schools," and those who honestly block advances through fear of school dom- ination, are but the dupes of sectarian schemers. An obstacle to progress is found in the altruistic efforts of misguided enthusiasts who are not thoroughly edu- cated, and perceiving some error which should be cor- rected, hasten with reform, or misnamed ' 'progres- sive' ' legislation. If sterilization of defectives is to be a real advance in governmental methods, it must be based upon minute examination of the problem, by those who are scientifically competent to weigh all evidence. The legislation for the prevention of indus- trial disease must be the product of close analysis of conditions rather than the emotional reaction from a few observations. For reasons such as these it must occur that if knowledge of science and familiarity with legal methods are united in the necessary legislation of the future, the subjects in this second part will show a continued advance to a higher level. If, on the con- PROLOGUE 569 trary, legislation rests upon emotional altruism alone, or upon biologic investigations without recognition of legality of methods under our system, then these spe- cial subjects must reflect a degree of uncertainty and confusion. Before a change shall be attempted it is necessary to be certain as to what the present condi- tion may be, and the relationship of present science to legal status. Next, the point aimed at must be deter- mined. Finally (and this is all important though often ignored), the bearing of proposed legislation upon other matters must be considered, and the product of other forces upon the change must be measured. CHAPTER XIV QUARANTINE AND ALLIED SUBJECTS. § 401. Origin of quarantine. § 410. Morbidity reports. § 402. Meaning of quarantine. § 411. Inspection. § 403. Mechanics of quarantine. § 412. Eemoval of cases. § 404. Quarantine is a defensive § 413. Pest houses, procedure. § 414. Disinfection. § 405. Quarantine does not depend § 415. Expense of quarantine, upon statute. § 416. Vaccination. § 406. What diseases are quaran- § 417. Control of insects and other tinable ? carriers. § 407. Diagnosis. § 418. Personal liability for com- § 408. Quarantine powers, nation, municating disease, state, municipality. $ 409. Quarantine versus Com- merce. §401. Origin of quarantine. The word "quaran- tine" was originally used to designate the forty days of Lent. Then it was applied in English law to the forty days after the death of her husband, during which a widow had the privilege of remaining in her husband's mansion house, and during which her dower was to be assigned. Next we find the term employed with reference to the forty days during which a vessel might be detained without intercourse with the shore, after arrival from an infected port. When it was found that forty days isolation was not invariably necessary the original signification was dropped, and the term denoted simply the isolation of the vessel. The same idea governed the use of the term in the 570 QUARANTINE AND ALLIED SUBJECTS 571 protection of land frontiers, and the isolation of per- sons or houses in the presence of infectious diseases. It is interesting to note that during the earlier years in Europe syphilis was a subject for land quarantine. § 402. Meaning of quarantine. Essentially quaran- tine is the method used to confine disease within the person in whom it is detected, or to prevent the healthy person from contracting the infection. With this definition it is apparent that true quarantine must include something more today than the separation of the sick from the well. The diseased person may be confined within a certain building, and thus the disease germs be also confined; but the mere confinement of the individual will not be effective quarantine if the germs be permitted to escape. So far as known today, the disease germs are not able to travel through the air unaided. They are carried by insects, by lower animals, in food, or on the hands of careless attend- ants. Effective quarantine must therefore be not so much the isolation of the person as the prevention of the communication of germs from the sick to the well. Thus in the case of yellow fever or malaria, effective quarantine may be maintained even in spite of per- mitting free access of the friends to the sick room, and the free movements of those friends among outsiders. On the other hand, in the case of typhoid fever effec- tive quarantine must include very strict restrictions upon the movements of nurses and others who in any way come in contact with the sick person or his dis- charges. In the case of malaria or yellow fever, effec- tive quarantine may be maintained even though little care be taken of the evacuations, either from the stom- ach by emesis, from the bladder, or from the bowels. In 572 PUBLIC HEALTH ADMINISTRATION the case of typhoid fever effective quarantine must in- clude the destruction of the bacilli in all of these, and in cloths used to wipe the mouth of the patient. The quarantine of yellow fever or malaria consists in pre- venting any mosquito, capable of conveying the dis- ease, from coming in contact with an individual. A town may be effectually quarantined against the yel- low fever by preventing the breeding or importation of stegomyia mosquitoes. This is done by nature in many localities, or sections of the country. Since such absolute protection is uncertain, even in naturally protected locations one would be justified in screening all imported cases — imported, because in such a com- munity no case could occur except by importation. There would be no violation of rational quarantine if the nurse of a yellow fever patient should spend a por- tion of her time in the milk business. Such an activity on the part of the nurse of a typhoid patient would be a most serious infraction of quarantine regulations. Quarantine, therefore, is not a definite and uniform measure, but it must vary according to the subject. A vessel which has simply been prohibited from landing passengers is not in quarantine. Quarantine is "a term of surveillance, under prescribed regula- tions, to be performed and finished with a result." * §403. Mechanics of quarantine. Under the old ideas relative to the spread of infectious diseases it was customary to build a fence around the infested house, and station a guard to prevent persons from passing the bounds. It is now recognized that such a method is unnecessary and inefficient. For yellow i Gibson v. Steamer Madras, 5 H. 109. QUARANTINE AND ALLIED SUBJECTS 573 fever or malaria, in the place of the fence, we now use screens at the windows and doors, and netting over the bed of the patient. Effective quarantine for the plague does not so strongly require such measures, as it demands that the building be made rat-proof, and that the house be freed from the presence of all rodents as well as fleas and other insects capable of carrying the bacillus. The mechanics of quarantine must there- fore be variable, and determined by the character of the infection to be restrained. A common resource in the administration of health departments is to make known the presence of an infec- tious disease by placarding the premises upon which it is, or by displaying flags. Such marks should be distinctive, giving notice to others who might be endangered, but the former fear inspiring signals are no longer justified by science. It is presumed that the officer making use of such placards will have due regard to the rights of others. By the general author- ity to take such measures as are deemed necessary for the safety of the inhabitants, it is not intended to con- fer unlimited authority on the board to control persons and property at its discretion. 2 When placards are used they should only be removed on the order of the proper officer. However, when the authorities wait to placard a house until after the mistake in diagnosis has been discovered by the reporting physician, their action is not justified, according to the Tennessee court, and a person is not subject to punishment for destroying a placard upon his premises after he has warned the authorities that no case of communicable 2 Brown v. Murdock, 140 Mass. 323. 574 PUBLIC HEALTH administration disease exists in his house. 3 As an abstract proposi- tion this decision does not seem to be good public health law, though in the specific instance the decision was just. The fact is that the decision as to whether or not the original report was well founded should •rest with the health office, and if the placard be used it should only be removed when the health office becomes convinced that there is no further danger. In view of the policy which requires communities to take at their own expense the necessary measures for the preserva- tion of the public health within their limits, and under their general powers, a town is liable for the payment of the services of guards employed by a health officer to keep a quarantine effective. 4 § 404. Quarantine is a defensive procedure. It will be noted from the foregoing that quarantine is a method of defense against the inroads of disease. But defense is possible in some cases without any restric- tions upon the person of the patient. Vaccination is a safe, and practically sure defense of the person so treated against small-pox. If the entire community be successfully vaccinated there would be no need for restricting the freedom of a small-pox patient. Vaccin- ation might therefore be considered as a species of quarantine. So are antityphoid inocculations. A less effective measure is illustrated by the use of the spray of the lactic acid bacilli as a protection against diph- theria. It is less effective simply because in its use we cannot be sure that it reaches every possible hiding place of the bacteria of the disease. The use of diph- s Memphis v. Smythe, 58 S. W. Atl. 571. But see New Decatur v. 215. Berry, 90 Ala. 432. ■* Keef e v. Union, (Conn.) 56 QUARANTINE AND ALLIED SUBJECTS 575 theria antitoxin, on the other hand, is a protection of the individual against the disease, but it is not a pub- lic health measure, because it is possible that, even without producing evidence of illness in the person, the diphtheria bacilli may still be able to grow and multiply, and the person will therefore be a source of danger in the community. Effective quarantine against diphtheria should therefore include some such measure as the use of the lactic spray upon all persons who are coming in contact with the patient. Since these bacilli may be expelled into the air by the cough- ing of the patient, or perhaps in his ordinary breath- ing, and thus gain entrance to the nose or throat of attendants, "contact" in the case of diphtheria must include all who have come into the room with the patient. Since the essential feature of quarantine is protec- tion against the spread of infectious diseases, it fol- lows that it is quite proper, under this heading, to con- sider also such measures as tend to the destruction, or prevention, of the carriers of infection. This includes the draining or oiling of places in which mosquitoes are bred; the prevention of the breeding of flies; the destruction of rats and other rodents capable of con- veying the bacillus pestis, even the supervision of food supplies, such as milk, which often act as carriers of disease ; and the protection of the purity of water sup- plies. To show how broad a field these considerations may be made to cover, it is interesting to note that the Rocky Mountain spotted fever is communicated by a species of tick. It has been found that one effective means of eradicating the tick is by putting sheep to graze upon the land. 5 s Public Health Eeports, Vol. XXVIII, No. 32, Aug. 8, 1913. 576 PUBLIC HEALTH ADMINISTRATION § 405. Quarantine does not depend upon statute. As there is no department in government in which the power for good or evil is greater than that which guards the health of the people, so there is no govern- mental activity in which more depends upon the intelli- gent judgment of the officer than in matters pertain- ing to quarantine. Each case must be considered by itself, and without delay. On the one hand, the officer must protect the community, and by instant action; on the other, the interests of individuals must not be unnecessarily restrained. From the nature of the case this judgment cannot depend entirely upon knowledge of enacted statutes. The statutes cannot well be suffi- ciently exact to answer all of the questions. At their best, statutes are but the crystallization of accepted practice and information. In many cases the practice must antedate the enactment. The validity of quarantine regulations made by state health authorities is a question for the state courts to decide. 6 "Where a special law authorizes a city to take, in case of epidemic disease, such measures as are in the opinion of the authorities demanded by the public health, the city board of health is not bound by the provisions in the general statutes regulating the establishment of quarantine, and were justified in requiring the whole of a double frame house to be quarantined when small-pox occurred in one-half of it. 7 The orders of a board of health must be reason- able. An order of the State Board of Health of Mississippi prohibiting all persons from getting off from trains or boats at any point in the state, predi- « Louisiana v. Texas, 176 U. S. 1, 7 Highland v. Schulte, (Mich.) 82 N. W. 62. QUARANTINE AND ALLIED SUBJECTS 577 cated on the fact that there is yellow fever at several places along the coast, and reported suspected cases at various points in the state, is unreasonable and void. 8 Regulations with respect to quarantine against yellow fever, providing for an exception in the case of "ves- sels bound for ports in the United States north of the southern boundary of Maryland, with good sanitary condition and history, having had no sickness on board at ports of departure, en route, or on arrival, provided they have been five days from last infected or sus- pected port," were held not to constitute a discrimina- tion within the meaning of the statute. 9 The orders of boards of health are not like general laws, which all may be supposed to know. To obtain a conviction of a person charged with going upon the street in vio- lation of a quarantine order, it must be shown that the accused had previous knowledge of the order. 10 A regulation, prohibiting Asiatic persons from leaving the city without first submitting to inoculation with a preventive serum, in view of the presence of the bubo- nic plague, is illegal and void, as being an unconstitu- tional invasion of personal rights. No evidence was submitted to show that Mongolians were more subject to the disease than other persons. 11 While it is customary to provide by statute that the board of health, or sanitary officers shall quarantine communicable diseases, that power is implied by their appointment. It was primarily such duties which caused health departments to be organized. "The power to remove and quarantine persons who have s Wilson v. Alabama, G. S. Ry. " State v. Butts, 9 L. R. A. 725. Co., 28 So. 567. " Wong Wai v. Williamson, 103 9 1896, 21 Op. Atty. Gen. 446. Fed. 1. 578 PUBLIC HEALTH ADMINISTRATION been infected with communicable diseases, or exposed to contagion, need not, however, be conferred on sani- tary authorities in express terms, but may be implied from the general power to preserve the public health, or to guard against the introduction or spread of con- tagious diseases. * * * Under powers similar to those which authorize the disinfection not only of prop- erty that has actually been exposed to contagion, but of all articles liable to convey infection, especially where it is impossible to ascertain their history or the place from which they originally came. * * * It is no defense to an order for disinfection that the owner has already caused the property to be disinfected on his own account, where the authorities regard such previous disinfection inadequate." 12 It is the duty of the health officer to prevent the spread of an infection by such quarantine as is reasonable. Though quaran- tine may be independent of legislation, the directions of existing statutes must be strictly observed. Thus the laws of 1894 in Mississippi provided that the pres- ence of three members of the executive committee of the State Board of Health is necessary to make a valid quarantine and under that restriction two mem- bers could not act. 13 Authority granted by the statutes to a board relative to the care and responsibilities in an epidemic can not by the board be delegated to a health officer and so create in such officer any right or authority not previously existing. 14 In an epidemic of small-pox in Kentucky, acting under the suggestions of the State Board of Health, 12 21 Cyc. 394, 395. « Taylor v. Adair Co., 119 Ky. is Wilson v. Alabama G. S. E. 374; Hickman v. McMorris, 149 Co., 77 Miss. 714. Ky. 1, 147 S. W. 768. QUARANTINE AND ALLIED SUBJECTS 579 another physician was employed by the County Board of Health to take charge of the cases. The county contested his claim for compensation, basing its objec- tion upon the fact that there was a regular health officer, whose duty it was to take charge of such epi- demics; and alleging that neither the county board of health, nor the fiscal court had authority thus to employ another physician. The court of appeals said: 15 "It is clear that the ordinary duties of the county health officer, for which he is paid a yearly salary, are largely executive and supervisory in seeing that the rules and regulations provided by law, and the rules and regulations of the state board of health are enforced. As was well said by the chancellor, it is his duty under the statute to take general superin- tendence of all contagious diseases and to institute quarantine and fumigate premises, and to carry out these general purposes, the county board of health has power, under the law, to employ such other physicians and nurses, guards, and attendants as may be neces- sary to administer treatment and stamp out the dis- ease. ' ' Such employment is not a delegation of author- ity, and in the case in question it was shown that the health officer retained his supervision of the case. Rules, regulations, and orders, to be effective should be in writing, or printed, and the rules or ordinances of a board should be duly passed at a meeting of the board, and properly recorded in the meetings of the board. Unless they be thus recorded they can be of no effect except in emergency. Furthermore, to be fully effective they should be so published that all is Breckenridge County v. Mc- Donald, 150 S. W. 549. 580 PUBLIC HEALTH ADMINISTRATION interested may have opportunity to learn what the rules may be. Otherwise the ' ' due process ' ' would be violated, in that the victim has no sufficient notice and opportunity to be heard. 16 Under the statutes of North Dakota it is provided that meetings of local boards of health shall be held after three days notice. It is also provided that when it shall come to the knowledge of the board that there is a case of infectious or contagious disease within its jurisdiction, the board shall "immediately" examine into the facts of the case ' ' and, if such disease appears to be of the character herein specified, such board shall adopt such quarantine and sanitary measures as in its judgment tend to prevent the spread of such dis- ease, and may immediately cause any person infected with such disease to be removed to a separate house, ■ ' etc. A physician having reported to the clerk of the board that the children and hired man in a certain family were ill with scarlet fever, the clerk called up the other members of the township board of health by telephone and discussed the situation. After such dis- cussion the president of the board called up the clerk of the board by telephone and directed him to post a quarantine notice upon the infected farm. The valid- ity of this quarantine was attacked by the owner of the farm on the ground that three days notice was not given before the action of the board. The supreme court of the state held 16a that the provision relative to the three days notice did not apply to such an emer- gency as the establishment of quarantine. The fact that the statute provided that examination should be ie People v. Tait, 103 N. E. E. iea Plymouth Township v. Klug, 750. 145 N. W. 130. QUARANTINE AND ALLIED SUBJECTS 581 "immediate," and that removal was authorized im- mediately indicated that it was the duty of the board to thus act, and it was therefore the duty of the clerk to thus act without waiting for the formality of a three days notice of meeting. § 406. What diseases are quarantinable? Generally speaking, all diseases which are of such a nature that they may be restrained by quarantine are subject to it. It is well to have such diseases distinctly specified in the statutes. Such a provision relieves the executive officers of responsibility in the matter of decision, and may possibly avoid annoying legal delays in the course of administration — delays, which may be fatal to efficiency. Still, under the general authority other diseases than those specified may be quarantined, and they often are so controlled. It must be remembered, however, that in such cases the health officer assumes a personal liability. It devolves upon him, in case of legal contest, to prove to the court that such quaran- tine is necessary for the protection of the public health. i i It follows that boards of health may not deprive any person of his property or his liberty, unless the depri- vation is made to appear, by due inquiry, to be reason- ably necessary to the public health." 17 It is not enough that the health official shall determine this necessity for himself. If he deprive a person of his property or liberty unnecessarily the officer in that act is not regarded as an officer, but as a private wong-doer. 18 Under the general powers to quarantine contagious diseases the legislature grants authority to so restrict those diseases which are thus recognized. An attempt "Kirk v. Wyman, 65 S. E. E. isWyman, Ad. Law, 15. (S. C.) 387. 582 PUBLIC HEALTH ADMINISTRATION to extend the operation of the law to diseases of ques- tionable character would in effect be an act of legisla- tion, and without authority. If the health officer attempts to quarantine a disease which is truly infec- tious, though unspecified by the statute, and he be haled into court, he must prove to the court that the disease in question is really covered by the general term. For this proof he should not depend merely upon the statement of physicians that in their opinion the disease is really infectious. The other side will doubtless be able to obtain contrary "evidence" from prominent members of the medical profession. What the court desires is not opinions but facts. Those facts the health officer should have in convincing form. If the question be relative to the confinement of a case of malarial fever the officer should have upon a slide samples of the blood of the patient showing the speci- fic protozoal cause. That slide properly submitted as evidence, with other slides from different sources, may properly be shown to the "expert" witnesses before the court, and be a basis for questions which will go far towards distinguishing fact from theory. Unfor- tunately, because the specific germs are not fully deter- mined, such a basis of evidence is not always possible; but at least the reasons for considering the disease dangerous to public health can be clearly and con- vincingly stated. If the court cannot be thus con- vinced the probability is that the disease should not be quarantined. It is not sufficient to show that the dis- ease is caused by a specific germ, and that that germ when introduced into the body of a healthy person will produce the disease. The means must be demonstrated by which the germ is transported, and the possibility QUARANTINE AND ALLIED SUBJECTS 583 for the spread of the disease must be explained. If the probability of such spread is very small it is doubt- ful if quarantine would be upheld. It must be shown that the deprivation of liberty is necessary. In deter- mining the validity of the acts of boards of health the courts are disposed to be very liberal in their con- struction of authority considering the public good to be accomplished. 19 In the absence of a statute the quarantine powers of a board of health are conceded, 20 but they must not unreasonably interfere with the lib- erty, property, and business of the citizens. 21 Although a liberal construction should be given to the rules and regulations adopted by boards of health, 22 whether such regulations are reasonable, impartial, and consis- tent with the state policy, is a question for the court to decide. 23 State policy is expressed sometimes in enactment and if so the wording of the enactment is binding. The law as it is worded must govern. So, where the state law provided that quarantine was to be established by a local board of health when a written notice was given by a physician, it was held that in the absence of such written notice quarantine might not be so established. 24 If the statute name the diseases for which quarantine may be established, quarantine of other diseases might be of doubtful legal authority. § 407. Diagnosis. Properly speaking, diagnosis or confirmation of diagnosis is within the discretion and authority of the health official. An infectious disease "Perth Amboy v. Smith, 19 N. 22 Wong Wai v. Williamson, (C. J. L. 52; Hengehold v. Covington, C.) 103 Fed. 1. 108 Ky. 752. 23 state v. Speyer, 67 Vt. 502. 20 Iowa v. Kirby, 120 Iowa 26. 24 state v. Kirby, 120 Iowa, 26. 21 Commonwealth v. Patch, 97 Mass. 221. 584 PUBLIC HEALTH ADMINISTRATION is a nuisance. "The determination that a thing is a nuisance is final under the Pennsylvania statute, and in a suit to collect expenses, or abate the nuisance, the defendants could not offer evidence to show that there was no nuisance." 25 Speaking of the action of a health officer, a court said: "If there was any case for his judgment, or any fact, or appearance, or symp- tom, as to which a question of small-pox could arise, his determination was final as to the legality or propriety of removal. " 26 In other words, the opinion in Brown v. Purdy practically affirms that the diagnosis of the health officer being within his discretion is law ; and it is not subject to judicial review except in extreme cases. This has been more definitely stated in other cases. In Hawaii, "upon habeas corpus questioning the legality of the detention of a leper suspect, the only issue is the regularity of the proceedings under the statute, and the existence or non-existence of lep- rosy will not be determined collaterally, as this would enable every person regularly pronounced a leper to have the decision of the board of examining physicians reviewed by the court, which is not the tribunal des- ignated by the legislature. ' ' 27 In this case the court further held that a leper suspect in custody, whether arrested under a warrant, or voluntarily surrendered, having selected a physician to make an examination under the statute, and having been forced without legal cause to select another physician, cannot be held to have forfeited or waived his rights, and proceedings with the second physician are void. Neither are county boards of supervisors in Michigan authorized 25 Kennedy v. Board of Health, 2 26 Brown v. Purdy, 8 K T. 143. Pa. 366. 27 in re Kaiahua, 19 H. 218. QUARANTINE AND ALLIED SUBJECTS 585 to substitute their judgment in place of the board of health as to whether a person has a dangerous com- municable disease. 28 It is the official duty of a health officer to make a diagnosis, and he is not entitled to compensation when called in consultation to make a diagnosis in a case of disease dangerous to the public health. 29 In the light of present knowledge as to infec- tious diseases, a positive diagnosis can only be made in some cases by means of bacteriologic examinations. These examinations require laboratory facilities, and not infrequently they occupy much time. Best results are obtained when the bacteriologist devotes most of his time to the laboratory. It is therefore becoming more common to appoint municipal bacteriologists. Ordinances, therefore, providing for bacteriologic investigation and research have a just and reasonable, not to say necessary, relation to the health and safety of communities. By the state statute in Alabama municipal corporations are given power to adopt ordi- nances not inconsistent with the laws of the state, to carry into effect or discharge the powers and duties conferred, and to provide for the safety, health, pros- perity, morals, order, comfort, and convenience of the inhabitants of the municipality. The court found in this sufficient warrant for the municipal ordinance pro- viding for the appointment of a city bacteriologist; and it did not find any conflict between this ordinance and the state health and quarantine law. It regarded the bacteriologist as an aid to the health officer, and not as a rival. The ordinance was therefore sus- tained. 30 Large discretion is vested in state and 28 Thomas v. Ingham Supervis- 30 State ex rel. Sholl v. Duncan, ors, 142 Mich. 319. 50 So. 265. 29 Browne v. Livingston Co., 85 N. W. 745. 586 PUBLIC HEALTH ADMINISTRATION municipal authorities; but their action is not final. They may not arbitrarily interfere with private busi- ness, nor impose unnecessary and unusual restrictions ; but the court will not ordinarily undertake to review the finding of the proper officers that the disease exists, and that the quarantine is necessary. 31 The diagnosis of the health officer may properly be brought before the court for a determination of the fact whether it be made really under discretion, or arbitrarily. Any action which is unnecessarily severe must be considered as arbitrary. If property be seized and destroyed summarily, that is, without giving the owner an oppor- tunity to prove whether or not it be dangerous, the court might very likely declare the action arbitrary. Thus, where a horse was ordered killed by a board of health for glanders, the court held the members of the board liable to the owner of the horse for its value, evi- dence having been presented that the horse did not have that disease. 32 § 408. Quarantine powers, nation, state, municipal- ity. Although the general public health powers of the nation, state, and city were discussed in Chapter IX, it seems best here to recapitulate somewhat as to matters pertaining to quarantine. We may epitomize by say- ing that the nation has authority over quarantine mat- ters between states, or between any state and a foreign country. The state has all authority over quarantine within its limits, and the authority of the city, village, or county is subject to state authority. The inspec- tion of maritime quarantines, state and local, as well as national, may be the proper subject of Treasury regula- 31 Jew Ho v. Williamson, 103 32 Miller v. Horton, 152 Mass. Fed. 10, relative to plague. 540. QUARANTINE AND ALLIED SUBJECTS 587 tions. 33 "While it is true that the power vested in Congress to regulate commerce among the states is a power complete in itself, acknowledging no limits other than those prescribed in the Constitution, and that where the action of the estates in the exercise of their reserved power comes into collision with it the latter must give way, yet it is also true that quaran- tine laws belong to that class of state legislation which is valid until displaced by Congress, and that such legislation has been expressly recognized by the laws of the TJnited States almost from the beginning of the government. Even if Congress had remained silent on the subject, it would not have followed that the exercise of the police power in this regulation, although necessarily operating on interstate commerce, would therefore be invalid. Although, from the nature and subject of the power to regulate commerce, it must be ordinarily exercised by the national government exclu- sively, this has not been held to be so where in relation to the particular subject matter different rules might be suitable in different localities. At the same time, Congress could by affirmative act displace the local laws, substitute laws of its' own, and thus correct any unjustifiable and oppressive exercise of power by state legislation." 34 The larger the United States becomes and the more that it involves sections of the world widely different as to climate and population, the less likely is it to attempt to displace state laws relative to the direct restriction of infectious diseases. Still it must be remembered that Congress has that power, 33 20 Op. Atty. Gen. (1893) 645. 3* Louisiana v. Texas, 176 U. S. 1. 588 PUBLIC HEALTH ADMINISTRATION and because it has that power the federal courts also have power to check the unjustified attempts of states, in the interest of health, to interfere with interstate or foreign commerce. In the federal quarantine regula- tion authorizing the placing in quarantine of vessels arriving between May 1 and November 1 from "a tropical American port," the word "American" is to be construed as meaning the continent of America, or the "Western Hemisphere, and not the United States. 35 The "port of departure" referred to in the act of Congress of 1893 at which a merchant ship bound for the United States must procure a bill of health from the consul or consular officer of the United States, is the port of clearance, and obtaining such bill of health at the last port at which a vessel stops before reaching the United States is not sufficient, unless that is the port of clearance. 36 But, the fullest respect is required by the federal laws from public and private vessels for local quarantine regulations adopted under the pro- visions of state laws. 37 The detention and disinfection of immigrants by order of a state board of health with the purpose of prevention of disease is not a regulation of foreign commerce by a state, within the measure of constitu- tional prohibitions. The right of the several states to establish and enforce quarantine regulations is not limited by any existing treaty. In enforcing its quar- antine regulations a state may detain immigrants from noninfected places who have traveled with others from infected places. The enforcement of the quarantine regulations of a state against immigrants cannot be 35 Gow v. Gans S. S. Line, 174 36 The Dago, 61 Fed. 986. Fed. 215. 3 7 The Dago, loc cit. QUARANTINE AND ALLIED SUBJECTS 589 restrained by injunction in a federal court, although the persons detained have been examined and passed by federal health officers. The costs and charges of quarantine inspection under state laws may be law- fully imposed upon the carrier which brings the sus- pected passengers into the country, as being incident to the business in which it is engaged. 38 In spite of the above citation, it is not probable that today such a decision would be given, for example, with reference to passengers from a yellow fever district seeking admission to a state like North Dakota. Such detention and disinfection would there be unnecessary and arbi- trary, being based upon an old prejudice, rather than upon science. There is no evidence that the disease is carried by the fomites, such as the clothing, so that disinfection would be unjustifiable ; and it is not likely that the stegomyia could be found in sufficient quanti- ties in the Dakotas to make any danger to the com- munity, were cases of yellow fever actually planted in their midst. While, therefore, the federal authority in such matters has never in recent years been ques- tioned, such power has been allowed to remain in abey- ance, doubtless in view of the different requirements of different climates and localities, and of the difficulty of framing a general law upon the subject, and Con- gress has elected to let the several states regulate the matter of protecting the public health as to themselves seemed best. 39 The authority of the states to enact such laws, even though interfering with interstate or foreign commerce, is beyond question, but it cannot be made to cover discriminations and arbitrary enact- 38 Minn., St. Paul & S. S. M. By. »» Bartlett v. Loekwood, 160 U. Co. v. Milner, 57 Fed. 276. S. 361. 590 PUBLIC HEALTH ADMINISTRATION ments. 40 So a rule made in Michigan requiring the inspection of all baggage, without regard to whether or not it came from an infected district, aside from exceed- ing the statute under which the board was acting, was unreasonable and arbitrary. 41 On the other hand, so long as the officer keeps within his discretion he may not properly be resisted. Thus, a health officer who has authority to pass on the sufficiency of the health cer- tificate of a passenger on a railroad train, to entitle the latter to enter a city under quarantine regulations, has also, by necessary implication, authority to prevent him from entering such city, if the certificate, under the health regulations in force, was not such as to entitle him to do so. The conductor is not bound to contest with the health officer the propriety or legality of the exercise of his power and authority in the partic- ular instance, as the sufficiency of the health certificate is a question for the health officer and not for the con- ductor. 42 The authority for interstate quarantine, in so far as it does not rest with the nation, is solely within the power of the state. In Kentucky it was held that though the county had authority under the statutes to establish quarantine against other parts of the same state, it had no such power to establish or maintain quarantine either against another state, or any portion thereof, unless that power be distinctly given by the state legislature. 43 But the right of a state through its proper officers to place in confinement, and to sub- 40 Simpson v. Shepard, (U. S.) *2 Baldwin v. Seaboard Air Line 33 Sup. Ct. 729; Hannibal, etc., R. R. R. Co., 128 Ga. 567. R. Co. v. Husen, 5 Otto, 465. « Allison v. Cash, 143 Ky. 679, 4i Hurst v. Warner, 102 Mich. 137 S. W. 245. 238. QUARANTINE AND ALLIED SUBJECTS 591 ject to treatment those who are suffering from a con- tagious or infectious disease, on account of the danger to which the public would be exposed if they were permitted to go at large, is so free from doubt that it has rarely been questioned. 44 "The health of the inhabitants of the city is still a matter of concern to the state, and of such vital concern that the general assembly (of Ohio) has not thought proper to commit it exclusively to the control and discretion of men who may not have any particular ability or experience in sanitary affairs. The loss of a single life is a direct economic loss to the state, and, therefore, it wisely refrains from committing to inexperienced people final discretion as to the means and methods of preserving the life and health of its citizens, but aside from the concern of the state for the health and comfort of the residents of any one city, its vigilance seeks to serve a larger purpose. Cities are no longer enclosed by stone walls and separate and apart from the balance of the state. The sanitary condition existing in any one city of the state is of vast importance to all the people of the state, for if one city is permitted to maintain sanitary conditions that will breed contagious and infectious diseases, its business and social relation with all other parts of the state will necessarily expose other citizens to the same diseases." 45 A statute delegating to a city the power to make quarantine regulations is not unconstitutional. 46 "A municipality has no implied power to establish quaran- tine regulations, and is not liable for the compensa- « State v. Berg, 70 N. W. 347. « Metealf v. St. Louis, 11 Mo. 45 State Board of Health v. 102. Greenville, 86 Ohio, 1. 592 PUBLIC HEALTH ADMINISTRATION tion of an officer employed to enforce quarantine regu- lations against a neighboring town in which an epi- demic occurs." 47 A municipal ordinance is void if it conflict with state quarantine laws. The public health is doubtless an interest of great delicacy and im- portance. Whatever power is in fact necessary to preserve it will be cheerfully conferred by the legisla- ture and carried into full effect by the courts. But it can never be permitted that, even for the sake of the public health, any local inferior board or tribunal should repeal statutes, suspend the operation of the constitution, and infringe all the natural rights of the citizens. 48 Cities, villages, towns, and counties are parts of the state, and as such must use the general police power for the protection of the citizens. It is customary by the enactment of general statutes, not only to give these political divisions of the state authority to appoint health officials and to care for such matters locally, but also to impose a duty upon them to make such appoint- ments and do such public service. ' ' The obligation and the power of a city council to act as a board of health and prevent the spread of contagion is not lessened by their omission to create a separate board of health. Their power is a police power and commensurate with their board of health." 49 A county board of health may charge a vessel for quarantine services where proper provision has been made therefor by statute. 50 But a county board of health cannot require a vessel to deviate six miles from its course to reach a quarantine 47 New Decatur v. Berry, 90 Ala. 49 R ae v . Flint, 16 N. W. 887. 432. so Ferrari v. Escambia County 48 People v. Eoff, 3 Park Crim. Bd. of Health, 24 Fed. 390 ; Harri- Eep. 216. son v. Baltimore, 1 Gill, 264. QUARANTINE AND ALLIED SUBJECTS 593 station for inspection. If a vessel is not liable to quar- antine, after the determination of that fact, any deten- tion thereof, or any interference with the passage of the United States officers to and from the vessel is unreas- onable. An existing and lawfully established quaran- tine is necessary to the validity of regulations made by a board of health restricting visits to vessels which enter a port, especially in the case of United States officers. 51 § 409. Quarantine versus commerce. Contrary to what is ordinarily considered to be the fact, quarantine is an aid to, rather than an opponent of, commerce. It may sometimes become necessary to restrain the pas- sage of persons, animals, or goods from one section to another; but that is in order that the wider intercourse between localities may thrive and prosper. It some- times becomes necessary to draw a strict line of inter- pretation between commerce and quarantine. The Idaho Sheep Law of 1897 made it unlawful to bring sheep into that state without having them dipped. This general provision was in order to prevent the importation of certain infectious diseases among the sheep. The dipping of sheep had no necessary con- nection with the presence of disease. A flock of sheep, absolutely free from disease and without any suspicion of exposure to an infectious disease, if imported into the state must be dipped, perhaps at great expense. This expense added to the cost of the sheep would nat- urally raise their price, and the law would therefore tend to restrict importation from other states. By cutting down the importation, thus decreasing the si Forbes v. Escambia County Board of Health, 28 Fla. 26. 594 PUBLIC HEALTH ADMINISTRATION supply, while the demand remains the same, the value of sheep within the state is increased. This law was therefore considered, not as a sanitary precaution sim- ply, but as a restraint upon interstate commerce, and consequently infringing upon the rights of Congress and violating the Constitution of the United States. 52 (§ § 250, 251.) The Missouri statute prohibiting the importation of cattle from certain territory which might possibly be infected with the cattle fever, was set aside on the same ground. 53 Likewise the Minne- sota statute, which prohibited the sale of meat which had not been inspected within the state previous to slaughter, was declared unconstitutional. 54 On the other hand, where the act was clearly in the interest of quarantine, as requiring restrictions when in fact cattle came from a diseased territory, 55 or requiring an inspection of sheep before permitting them to be upon the highways, 56 it has been upheld. By the Idaho Act of March 13, '99 provision was made for quarantine of sheep upon a proclamation to be issued by the governor. The governor issued such a proclamation on account of the scab. The court held, however, that this proclamation was a restraint of commerce because in fact there was no disease epidemic. 57 It is some- times necessary to establish a quarantine though it interfere with commerce even with foreign countries, 58 and even though there be no disease in such foreign countries. When a boat undertook to land in Louisiana 52 State v. Duckworth, 51 P. 456. 56 Easmussen v. State of Idaho, 53 E. B. Co. v. Husen, 5 Otto, 181 U. S. 198. 465. 57 Smith v. Lowe, 121 Fed. 753. 54 Minnesota v. Barber, 136 U. 58 Morgan Steamship Co. v. Lou- S. 313. isiana Board of Health, 118 IT. S. 55 Smith v. St. L. & S. W. Ey. 445. Co., 181 U. S. 248. QUARANTINE AND ALLIED SUBJECTS 595 with passengers who had sailed from European ports free from disease, and though they came in accordance with treaties made with European nations, they were refused permission to land because yellow fever was prevalent at the points at which they wished to land. The passengers were themselves free from all suspicion of infectious disease. This refusal of the state author- ities was upheld in the United States Supreme Court. 59 It may be necessary to temporarily suspend the mer- cantile transactions of a single establishment in order that the community may be able to conduct its busi- ness. This is really not a restraint of commerce, for if the local restrictions should be removed, the chance would be that so many persons in the community might become sick, as to effectually check all business. Such restriction of individuals or such a ban placed upon an individual business concern is for the benefit of the community as a whole ; and for that general good every citizen is bound to contribute when called upon. "It seems to be well settled that a health officer, who by statute is authorized to take action for the prevention of the spread of disease, is not liable for injuries result- ing from such reasonable and customary measures as he may in good faith adopt or direct for that purpose with regard to persons or matters subject to his juris- diction." 60 In nearly all health and quarantine laws some are put to inconvenience and annoyance, and many, to a certain extent, are deprived of their liberty and free- 59 Compagnie Francaise de Nav- citing 21 Cyc. 405 ; Seavey v. igation a, Vapeur v. Louisiana Preble, 64 Me. 120; Whidden v. State Board of Health, 186 U. S. Cheever, 69 N. H. 142, 44 Atl. 908, 380. 76 Am. St. Eep. 154; Beeka v. oo Allison v. Cash, 143 Ky. 679; Dickinson Co., 131 la. 244. 596 PUBLIC HEALTH ADMINISTRATION dom of action. But, if the public necessity requires it, the convenience or even liberty of the individual citizen must give way for the welfare of the greater number. * * * The good of the many must be preferred to the convenience or supposed welfare of the few. 81 The right of a person to a berth or passage on a sleeping car is not an unlimited right, but it is subject to such reasonable regulation as the company has pre- scribed for the due accommodation of the passengers, and for their safety and comfort. A rule to the effect that persons known to be insane, or afflicted with any contagious or infectious disease will not be permitted in the use of the cars of a company, it would seem was adopted by the company for the safety and comfort of the company's patrons or passengers, and, whether the company is to be treated as a common carrier or other- wise, the rule is a wise one and the court has no diffi- culty in reaching the conclusion that it is a reasonable one. 62 If it should be ascertained that a passenger was suffering with small-pox, the carrier might not only cause him to leave the train before arriving at the destination pointed out in his ticket, but, under its duty for the protection of its other passengers, it might become necessary to compel him to do so. 63 But, a town ordinance, for example, prohibiting any person from entering the town from a certain place described as infected with small-pox is valid, but it does not apply to those who left the infected place before the passage of the ordinance, according to a North Caro- lina case. 64 ei Laubaugh v. Bd. of Educa- «3 Central Ga. E. E. Co. v. Mad- tion, 66 111. App. 159. den, 69 S. E. 165. «2 Pullman Co. v. Krauss, 40 So. 64 Salisbury Commissioners v. 398. Powe, 51 N. C. 134. QUARANTINE AND ALLIED SUBJECTS 597 §410. Morbidity reports. The exact usage in dif- ferent states relative to the discovery and care of infec- tious diseases must vary according to the laws. It must be remembered that statutes are but the crystallization of pre-existing usages, although the statute may carry the usage beyond its former limits. In the absence of specific legislation the health authorities must depend upon their own judgment, and must be prepared to defend the reasonableness of their conclusions before the courts. As has previously been intimated such a course leaves the health department liable to be seri- ously hampered at a critical period. It seems far better that the conditions should be foreseen, and that full preparations be made by the enactment of suitable statutes. It is quite customary that the statutes pro- vide for the prompt report of every case of infectious disease by the attending physician; and to guard against any possibility of omission members of the family are usually required by law to see that such reports are made. (§ § 32, 392, 393.) These reports are moral obligations upon citizens. In order that each citizen may be protected from outside harm he must also assist in protecting others. Since this duty of notification is general, no compensation is due. 65 Statutes and ordinances requiring physicians to report cases of infectious diseases to the proper officers have generally been upheld. 66 Whether or not the expression "or any other disease dangerous to the public health" covers the particular case at bar is a question for the jury to decide. 67 Eight days after the discovery of a es Sears v. Gallatin County, 20 67 People v. Shurly, 91 N. W. Mont. 462, 40 L. R. A. 405. 139, 131 Mich. 177. ee State v. Wordin, 14 AtL 801 ; Robinson v. Hamilton, 14 N. W. 202. 598 PUBLIC HEALTH ADMINISTRATION case of diphtheria is not a reasonable time in which to make the report. 68 In the District of Columbia it was held that a physician in charge of a dispensary where infectious diseases were not treated, although he had examined a patient, and had diagnosticated the case as one of diphtheria, was not violating the local require- ment in failing to report the case, since he declined to treat it, and suggested that the child be taken home, isolated, and a physician called. 69 This decision does not seem to be in the interest of general protection of health, because such cases are frequently kept hidden from the authorities in order to avoid the restrictions of quarantine. In the state of Missouri we get another exception. A Christian Scientist believing that disease is a delusion of the mind, and teaching the sick such theory, is not a physician who can be subjected to the penalty for failing to report a case of contagious disease. 70 We may remark that the particular delusions of no person should be permitted to injure the public health. Either infectious diseases are realities, and are transmitted through the agency of visible objects, or our sense of vision (through the microscope) and all logic are unsafe guides about anything in this life. If the law permits a person to attempt to heal the sick, or to treat such sick person, it should be sufficiently explicit to demand from any such healer a prompt report of all infectious disease. § 411. Inspection. In spite of these requirements relative to reports of infectious disease, there are cases which demand official attention. There may be an hon- es People v. Brady, 90 Mich. ™ Kansas City v. Baird, 92 Mo. 459, 51 N. W. 537. App. 204. «9 Johnson v. District of Colum- bia, 27 App. D. C. 259. QUARANTINE AND ALLIED SUBJECTS 599 est question as to diagnosis, or there may be the attempt to hide disease on the part of those who are fearful of the effects of quarantine. Not seldom famil- ies delay or neglect to call physicians on account of the fear of financial loss through quarantine. Any course, therefore, which tends to lighten the restric- tions of this procedure is to be desired. It is frequently necessary that the health inspector shall enter upon private property for the purpose of discovering infec- tious diseases. "The power of inspection is exercised as an incident to regulations for the prevention of disease, accident, or fraud. It operates almost exclu- sively on buildings and machinery or other apparatus, and on articles exposed for sale. The power of inspec- tion is distinguishable from the power to search. The latter is exercised to look for property which is con- cealed ; the former, to look at property which is exposed to public view if offered for sale, and in nearly all cases accessible without violation of privacy. Hence inspec- tion does not require affidavit, probable cause, or judi- cial warrant. The right to inspect may be reserved as a condition in granting a. license. The constitutional aspect of inspection is, however, different where it is extended to interior arrangements of private houses, or personal property kept therein in private custody. It appears that health authorities often claim the right to enter private houses, to inspect sanitary arrange- ments, in some cases by express legal authority." 71 It is competent for the state to provide for inspection to ascertain if nuisance exists, and even to provide that 7i Freund, Police Power, 47 ; also, Chapin Municipal Sanitation, 112. 600 PUBLIC HEALTH ADMINISTRATION the reasonable cost of such inspection shall be paid by the property owner. 72 The inspector has an unques- tioned right, under such circumstances, to enter the premises. 73 But the law will not allow the right of prop- erty to be invaded under the guise of a police regula- tion for the preservation of health when it is manifest that such is not the real purpose of the regulation. 74 While this abstract right of entrance may be unques- tioned, the right of entrance at unusual hours would be deemed unreasonable except in extreme emergen- cies. In other words, where the patient is not far dis- tant from the health office, it would be deemed unrea- sonable for an inspector to insist upon entering the premises at night to discover a case of scarlet fever or measles. On the contrary, so serious may the plague become in a community that even unusual hours of inspection might be justified. In the ordinary case of infectious disease the cost of inspection is not assessed against individuals nor the owners of property. The inspection of a dairy district may be as strictly a quarantine measure as is the inspection of an ordinary city house suspected of containing a case of diphtheria. But the inspection of the dairy district is partially a commercial proposition and in the interest of the dairy company. If infection be permitted to get into a dairy territory so that the milk becomes dangerous for con- sumption, it may result in the total prohibition of that article of commerce on the part of the usual customers. T2 C. W. & V. Coal Co. v. Peo- « Commonwealth v. Carter, 132 pie, 181 111. 270; St. Louis Cons. Mass. 12. Coal Co. v. Illinois, 185 U. S. 203; ?* Austin v. Murray, 33 Mass. Railway v. Ala., 128 U. S. 96; (16 Pick.) 121. Morgan v. Louisiana, 118 U. S. 255; Train v. Boston Disinfecting Co., 144 Mass. 523. QUARANTINE AND ALLIED SUBJECTS 601 The inspection is a sort of health insurance; it is a commercial proposition for the company; it is insurance for the consumer. Very properly, therefore, the ordinance relative to the license of the dealer may require periodical inspection, and may charge that inspection up to the dealer. He will naturally and properly add the cost of inspection with the other expenses of milk production and receive full liquida- tion from his customers in the usual course of business. § 412. Removal of cases. Under the direction of the mayor of Bangor in Maine a police officer and a city physician took a child sick with small-pox out of its mother's arms, and carried it to the pest-house. Action for trespass was brought against them, and dismissed by the court because the statute permitted the health officer of the town to make such removal of a person dangerous to public health. But the court called atten- tion to the fact that the action would not have been dismissed except for the fact that this specific author- ity was given in the statutes. 75 In an early case in Maryland the court held that the officer must send the patient to a hospital if in his opinion such a course were necessary, and it further held that the health officer alone could tell how much it was necessary to do, and the captain of the boat on which the small-pox had been found, must pay the bill. 76 In State v. City of New Orleans, 77 the legislative power of the state to decide where its small-pox patients were to be treated was upheld. In Hengehold v. Covington, 78 the court of appeals upheld the right to remove patients, and in "Haverty v. Bass, 66 Me. 71. " 27 La. 521. 76 Harrison v. Mayor of Balti- 78 108 Ky. 752. more, 1 Gill, 264. 602 PUBLIC HEALTH ADMINISTRATION Twyman's Administrator v. Frankfort, the same court, 79 found that the city was not liable for the death of a patient from small-pox as the result of being taken "from a comfortable home to the pest-house used for small-pox patients, which was badly crowded, poorly ventilated, and wholly unfit for the purpose, for which it was used. ' ' According to the general principles any- thing which is done by the state or a portion of the state in its purely governmental capacity may not be the subject of an action in tort. (§§ 357-359.) "The municipal corporation in all these and like causes rep- resents the state or the public. The police officers are not the servants of the corporation, and hence the prin- ciple of respondeat superior does not apply, and the corporation is not liable unless by virtue of the statutes expressly creating the liability. ' ' 80 Unquestionably this is correct law, and so long as the health officials use due care and diligence they would be exempt from any action. On the other hand, it would seem that a health officer, who so far lost his head as to take a small-pox patient from a "comfortable home to a crowded, poorly ventilated pest-house," might very properly be liable for any damages which might accrue. But such unwholesome conditions should be proven by professional testimony rather than by lay opinion. We know, for example, today that plenty of fresh air is far more important in the treatment of pneumonia and other diseases than would be a warm house. According to lay opinion a case might have been exposed to dan- ger, when in fact he is put in the best circumstances 79 117 Ky. 518. cambia Co. Bd. of Health, 28 Fla. so Taylor v. City of Owensboro, 26, 13 L. E. A. 549. 98 Ky. 271; also Forbes v. Es- QUARANTINE AND ALLIED SUBJECTS 603 for recovery. A statement made in a New York case seems to be very important, even though permission for removal be found in the statutes. 81 The court said: "A person sick of an infectious, or contagious disease in his own house, or in suitable apartments at a public hotel or boarding house" is not a nuisance. In other words, necessity for removal must be found in the danger of spread of infection. A board of health may be enjoined from removing tenants and closing up houses where it is not justified by the existence of a pestilential disease. 82 It was held that under the Iowa statutes a local board of health is not justified in removing a case of infectious disease into the jurisdiction of another board, even onto prop- erty owned by the first mentioned corporation. 83 In Texas, on the other hand, it was stated that the right of a city council, acting under legal authority, to enact an ordinance providing for the removal from the city limits of persons with contagious diseases, is not to be questioned. If the continuance of such persons in the city is incompatible with the safety of the inhabitants, the city or its agents may remove them, but every rea- sonable provision must be made for their safety. If the city authorities cause the removal of a person with contagious disease, and in doing so fail to exercise the care and precautions the circumstances demand, and death results, they are responsible, even though acting under a city ordinance. 84 The time has passed for the hysterical fear of infec- 8i Bloom v. Utiea, 2 Barb. 104. §4 Aaron v. Broiles -et ah, 64 82 Eddy v. Board of Health, 10 Tex. 316. Phila. 94. 83 Warner v. Stebbins, 82 N. W. 457. 604 PUBLIC HEALTH ADMINISTRATION tious disease. There is, in the light of present knowl- edge, perhaps less justification for the removal of the patients, if they may be in favorable surroundings, and if the regulations of the health department will be observed. Vaccination offers a safe and sure protec- tion against small-pox, and there are measures which at least aid in the protection against other diseases. If the case be protected from stegomyia mosquitoes there would be no excuse for the removal of a yellow fever patient. It must be remembered that there is always a possibility that an infectious disease may be carried to healthy persons through the agency of insects, such as flies, mosquitoes, bedbugs, lice, fleas, ticks, etc. It may therefore be true, that even if the patient be in what would ordinarily be considered good surround- ings, isolation might be more perfectly obtained else- where, and the public health be thus more perfectly guarded. § 413. Pest-houses. Sometimes conditions are such that it may be necessary for the health officer either to remove the patient to some house especially provided or else to take possession of the home, and thus estab- lish a temporary hospital. In the state of Washington it was held that a qualified health officer of a county would have power to seize a private building in which to confine a small-pox patient without express author- ization from the county board of health. 85 It has been held that a board of health has no authority to take possession of a dwelling without consent of the owner and occupant and to use such house as a hospital for the care of a person found sick with an infectious dis- ss Brown v. Pierce Co., 28 Wash. 345. QUARANTINE AND ALLIED SUBJECTS 605 ease. 86 The house may be seized under eminent domain and all persons therein put under police regulation, but being under eminent domain presupposes compensation from the health department to the owner or occupant. (§ 171). The difference between taking property under police power and under eminent domain is that in the first case the governmental body is seeking to abate the nuisance; in the second, to use the property for the public good. In a similar manner where a small-pox hospital was established on property adjoining the plaintiff's premises, and a rope was placed around his doorway without his permission, use being made of the plaintiff's property for the passage of ambulances, etc., it was held that the board were liable. 87 A city board of health is not authorized to transfer one infected with a dangerous disease within the juris- diction of another board. 88 The code of Iowa provided that cities might acquire and hold grounds outside of the city limits for use as a hospital ; but a township in which such grounds may be located may restrain such action for the reason that the city was about to create a nuisance when it was about to use the property for the establishment of a pest-house. 89 A county board of health is entitled to the custody of the county pest- house, in which small-pox patients are confined. 90 A case arising in Wisconsin illustrates conditions which are frequently met by health authorities. A 86 Spring v. The Inhabitants of so Warner v. Stebbins, 111 la. Hyde Park, 137 Mass. 554; Hersey 86; Summit Township v. Jackson, v. Chapin, 162 Mass. 176; Dooley 117 N. W. 545. v. Kansas City, 82 Mo. 444. so Henderson County Board of " Barry v. Smith, 191 Mass. 70. Health v. Ward, 107 Ky. 477. ss Warner v. Stebbins, 111 la. 86. 606 PUBLIC HEALTH ADMINISTRATION domestic servant, employed in a hotel, was stricken with the small-pox, died and was buried from the hotel. Some of the respondent's goods, supposedly infected, were removed and destroyed, at the instance or with the consent of the respondent. The general law gave to the board of health authority to remove the patient to a separate building, but it also provided that if the patient be too sick to be moved the board shall make like provision where he is. When removed the patient is to be provided with nurses and other necessaries, ''which are to be a charge to him, or the parent, or other person liable for his support." The case arose over the attempt of the respondent, the owner of the hotel, to collect from the city damages for loss of busi- ness, and for property destroyed, etc. Plainly there was no attempt in the statute to shift the responsibility for the expense in caring for such a case. "We cannot sanction the notion which seems to have prevailed here, that a domestic servant, as such, may be regarded as a pauper or an outcast. The deceased was a member of the respondent's household, entitled to consideration and protection as such. She was not ejected in life from the respondent's house; and it is not a question here whether she could have lawfully been so ejected, as she surely could not have been humanely, in her extremity. * * * We hold, and it is enough for this case, that the appellant did not confiscate the respondent's household goods which were burned, and is not liable to her for them, or for other damages accruing to her by reason of the sickness of the deceased." 91 In Illinois it was held that a city has no 9i Kollock v. Stevens Point, 37 Wis. 348. QUARANTINE AND ALLIED SUBJECTS 607 authority in its corporate character to maintain a hos- pital. Its conduct of a hospital was therefore in its governmental capacity, for charitable purposes, and it could not therefore be held liable for the negligence of its employees. If the hospital were conducted for profit, those so conducting it were exceeding their law- ful authority, and the city could not be held liable for negligence on the part of those conducting it, or their employees. 92 A municipal corporation having power to "remove or confine persons having infectious or con- tagious diseases," has power to rent a building for small-pox patients. 93 So also, in Missouri it was held that a city ordinance giving the board of health gen- eral supervision over the health of the city includes the power to rent a building to be used as a hospital, to protect the city from an infection of cholera. 94 But in New York it was held that the authority of a board of health to "procure" suitable places for the reception of persons with contagious diseases does not extend to the purchase of land for that purpose. 95 In Iowa it was held that in order to isolate a patient he may be re- moved to a separate house. If no suitable house may be had, or if a temporary pest house may be erected at less cost than the rent of such house, the board of health, in the exercise of wise discretion may provide such a building, and the expense thereof is a part of the expense incurred in rendering effective provision for the safety of the inhabitants, and it is charge- able to the county. 96 In Massachusetts the general sa Tollefson v. Ottawa, 81 N. E. 94 Aull v. Lexington, 18 Mo. 401. 283. See also Having v. Coving- 95 People v. Monroe County, 18 ton, 78 S. W. 431. Barb. 567. a 3 Anderson v. O 'Conner, 98 Ind. 96 Staples v. Plymouth County, 118. 17 N. W. 569. 608 PUBLIC HEALTH ADMINISTRATION statutes authorize the taking of land for a hospital, and the statute was upheld as constitutional. "A statute authorizing a city to take land for a hospital for the treatment of contagious diseases, although an exercise of the right of eminent domain so far as it affects the owner of the land taken, is in its general purpose an exercise of the police power for the protection of the public health. In this Commonwealth a city has authority without special legislation to erect a hospital for the treatment of contagious diseases on land pur- chased for that purpose. ' ' Such a hospital is under the supervision of the board of health, and in the absence of proof it will not be presumed to be a nuisance, pub- lic or private. 97 Boards of health have no authority for converting vessels into hospitals, nor to assume control and possession of them to the exclusion of the owner, and therefore cities are not liable for damages caused through such taking of possession by city offi- cers. 98 The placing of a woman afflicted with leprosy in a private house of a laborer who is not an officer of the city does not amount to establishing a hospital for the isolation and treatment of contagious diseases as permitted by the statutes. The power to erect and maintain hospitals does not justify the making of a contract for keeping such patients at a private house located on city land in a settled district, since this would tend to facilitate the spread of the disease instead of protecting the community. 99 Since our scientific views of the contagiousness of leprosy are 97 Manning v. Bruce, 186 Mass. Spring v. Hyde Park, 137 Mass. 282. 554. ss Mitchell v. Rockland, 41 Me. 99 Baltimore v. Fairfield Imp. 363; 45 Me. 496; 52 Me. 118; Co., 39 Atl. 1081. QUARANTINE AND ALLIED SUBJECTS 609 being materially modified, the value of this decision is open to question. 100 Hospitals are not per se nuisances, though they may become such and be subject to injunction. 1 But in emergency the city should not be enjoined from using a park building for a pesthouse. 2 A pesthouse in close proximity to a public school is a nuisance, and the authority vested in the county authorities to maintain a pesthouse does not authorize them to maintain a nuisance. 3 Persons who have not had small-pox, such as those sick with typhus, may be sent with small-pox patients to a hospital, in the reasonable discretion vested in the health officer. 4 It was held in a Massachusetts case that the members of a board of health, acting in a quasi-judicial manner in the location of a small-pox hospital, could not be held personally liable for error in judgment; but if by rea- son of their neglect, if the hospital became a nuisance, by virtue of their malfeasance or misfeasance, as dis- tinguished from nonfeasance, they might be held per- sonally liable for such injury as might appear. 5 No action can be brought against a city or town for the illegal taking possession of a house, to be used as a pest house; 6 and where a house was so taken, because there was a case of small-pox therein, and then a lease was made out, and rent paid, the owner was estopped 100 See Kirk v. Wyman, 65 S. W. 3 Thompson v. Kimbrough, 57 S. 387. W. 328. i Barnard v. Sherley, 135 Ind. * Harrison v. Baltimore, 1 Gill, 547; Manning v. Bruce, 186 Mass. 264. 282; Stotler v. Bochelle, 109 Pac. 5 Barry v. Smith, 77 N. E. 1099. 788; State v. Trenton, 63 Atl. 897. e Lynde v. Rockland, 66 Me. 309; 2 Manhattan v. Hessin, 105 Pac. Bloom v. Utica, 2 Barb. 104. 44. 610 PUBLIC HEALTH ADMINISTRATION from claiming damages to property; 7 but where mort- gaged property was leased for a pest house the holder of the mortgage might reasonably recover for the amount that the property was decreased in value. 8 The Massachusetts statutes are not intended to give the health officials authority to take possession of prop- erty without the consent of the owner, but it is expected that if a case of small-pox occurs which cannot safely be moved, a contract will be made for the patient's care and comfort where he is; if so, others may be moved, and suitable precautions taken. 9 The failure of a city to provide a small-pox hospital does not prevent it from recovering in an action against another city, for expenses incurred in caring for a small-pox patient having a settlement in the defendant city. 10 In Massachusetts we find a decision to the effect that the owner of a vessel under quarantine regulations is not liable for the expenses of a seaman at a hospital, to which he had been transferred by order of the board of health of a town, and which was under their care. 11 This is contrary to the classical case of Harrison v. Baltimore, 113, and also to Board of Health v. Loyd. llb § 414. Disinfection. After the conclusion of a case of infectious disease it has been customary to use some variety of disinfection of the premises, furniture, and clothing, and of anything else which may have come in contact with the case. This disinfection may be accom- 7 Sallinger v. Smith, 192 Mass. " Provineetown v. Smith, 120 317. Mass. 96. s Delano v. Smith, 92 N. E. 500. "•» 1 Grill, 264. a Brown v. Murdock, 140 Mass. n b 1 Phila. 20. 314. i° Haverhill v. Marlborough, 187 Mass. 150. QUARANTINE AND ALLIED SUBJECTS 611 plished by fumigation, by the use of dry heat in spe- cially constructed machines, by live steam, by exposure to light and fresh air, or by destruction. Sanitarians are becoming convinced that far too much dependence has in the past been put upon fumigation. As popu- larly conducted it is worse than useless, for its gives a false sense of security. A quarter of a pound of sulphur burned in a room containing one thousand cubic feet makes considerable discomfort, but it is prac- tically useless in its germicide effect. Eight pounds should be used in such space — four at the very least, yet the smaller amount is more likely to be burned by lay disinfectors. There is no doubt as to the fact that sulphur fumes, or formaldehyde vapors, will kill disease germs when in an active state; but when bacteria are in the spore stage they are more resistant. Besides, the vapor in a room may not easily enter the cracks in the floor and wall, which often serve for the admission of fresh air. Moreover, it is well known today that the disease germs may be kept alive and communicated by means of insects. Formaldehyde does kill bacteria, and is very often used by health officials for disinfection; but it frequently simply stupifies insects in the disinfected room. For such reasons there is a tendency on the part of sanitarians not to put so much stress upon fumigation, especially of rooms, unless it be for the destruction of vermin with the sulphur dioxid. More stress is being put upon the use of hot soap and water. However, fumigation is still a recognized measure, and its use should not be forcibly resisted when ordered by the proper authority. It would seem that if a statute or ordinance call for "disinfection" simply, in view of 612 PUBLIC HEALTH ADMINISTRATION the present state of knowledge no variety of fumiga- tion could be forced upon the officer. His discretionary- judgment should determine the form of disinfection to be used. Fresh air and sunshine are bactericidal, and clothing may sometimes be thus effectually disinfected by hanging out of doors, in a place not exposing others. For washable goods, boiling is the best disinfection. Live steam may be used to disinfect such articles as bales of rags. Dry heat under proper precautions is useful for many other articles. Often destruction is the simplest and best method of dealing with infected articles, especially clothing. When in the judgment of the proper health official disinfection, as by fumigation, was advisable, even though no quarantine had been established, it was clearly within the discretion of the officer so to order, and (in Iowa) the county is bound to pay for such service, though the amount to be paid may be left to a jury for determination as to what is a reasonable amount.* 2 But a health officer is not himself entitled to extra compensation for fumigation, as it is a part of his official duty. 13 The health authorities cannot be held liable for damages, as to store goods accidentally injured in fumigation. 14 Where the public health and human life are concerned, said the Maine court, the law requires the highest degree of care, and those in charge of dangerous diseases like small-pox are not entitled to experiment to see how little disinfection will do; 15 but soon after that the same court also said that the failure of a health officer to properly disinfect persons exposed 12 Sawyer v. Wapello County, i* Allison v. Cash, 137 S. W. 245; 133 N. W. 104. 143 Ky. 679. 13 Tabor v. Berrien County, 120 is Seavy v. Preble, 64 Me. 120. N. W. 588. QUARANTINE AND ALLIED SUBJECTS 613 to small-pox does not make the community liable for damages caused to a third person who claims he con- tracted the disease through contact with the exposed person. 16 There is no conflict between these cases. If the officer violates his discretion he is personally liable, not the community. In the light of present knowledge, as to the latter case, it is exceedingly doubtful whether a person may contract small-pox from a person who may have come in contact with a case, but who is not himself ill with the disease. When it comes to interfering with interstate or for- eign commerce there is not so much liberty for local officials as to disinfection. The authority in such mat- ters must rest either in the state government, or some- times in the nation. The president of a board of health, acting without authority of the law or of the board, except under a general authority to act in emergencies, is personally liable for damages caused by his action in ordering the fumigation of a cargo of fruit, where the vessel had a clear bill of health and came from a port in the West Indies where no sickness was known to exist. 17 It was held in Florida that a county board of health cannot require a vessel to be fumigated or disinfected unless it is subject to and put in quaran- tine. 18 Seasonable and fair expenses for fumigating an infected vessel may be charged against the vessel. 19 "When the health authorities have furnished proper materials for fumigating a vessel, and distributed them around the steerage quarters, and given proper instruc- tions before leaving the vessel, the duty devolves upon is Brown v. Vinalhaven, 65 Me. is Forbes v. Escambia Co. Bd. 402. of Hth., 28 Fla. 26. it Beers v. Board of Health, 35 is Harrison v. Baltimore, 1 Gill, La. Ann. 1132. 264. 614 PUBLIC HEALTH ADMINISTRATION the captain and his subordinates to attend to the removal of the disinfecting apparatus and see that the passengers are not exposed to danger from this source. The captain may be held liable for negligence in leav- ing unprotected poisons within reach of a child. " 20 As to the necessity for the fumigation of ships it must be remembered that those vehicles of travel are generally infested with rats, and that rats are particularly active in spreading the bubonic plague. Effective fumiga- tion with the sulphur dioxid kills the rats, even when it may not kill disease spores. Captains often protest that their ships do not need fumigation for that pur- pose because they have an exceptionally good cat. Such was the case with the British steamship Ethelhilda, arriving at New Orleans March 18, 1914, from West Africa. Nevertheless the government surgeon ordered fumigation. When the vessel was again entered, dead rats were found in every part of the ship. By the irony of fate the cat had been forgotten, and she was found in the cabin with twenty-four dead rats. 21 Certain cargoes of rags arriving at the city of New York were, by direction of the collector, sent to certain warehouses. The rags were disinfected, and the charge for lighterage and disinfection was demanded from the owners. Held that the charges for lighterage and dis- infection were not brought within the statute, as they had not the official sanction of the health officer; that therefore the warehouse firm had no lien therefor, and were not entitled to recover. 22 The Eevised Statutes of the United States gave no authority to the collector 20 Kennedy v. Ryall, 67 N. Y. 22 Lockwood v. Bartlett, 130 N. 379. Y. 340. aiKeprint 182, Public Health Eeports. QUARANTINE AND ALLIED SUBJECTS 615 to take possession of the goods, and retain possession of them: his seizure of the goods, and causing them to be sent to the Baltic stores, was an unauthorized act. If he caused them to become disinfected, he became liable in damages. But it was held that the collector simply sent them for disinfection if the health officer so ordered — for such action as the health authorities might see fit to take, and his action was therefore proper. Since the health officer had not ordered the disinfection, the company had assumed the responsibil- ity, and had no claim. Whether the health officer had, or had not, issued such order was a question solely within the jurisdiction of the state courts. 23 In the case of clothing, or furniture, for example, which have come in contact with a case of small-pox, the real nuisance is not the clothing, nor the furniture, but the contaminations which they may have acquired. The real nuisance must be abated, and if the abatement requires the destruction of the property, since that destruction is under the police power, in the absence of specific statutory enactment it would seem that the offi- cials assume no responsibility for themselves, nor for their respective governmental body, as to compensation for the goods destroyed. Such destructions, except as to minor articles, would seldom be deemed necessary, and the health official should not let a hysterical activ- ity force him to disregard the employment of judicial discretion. Whether or not the burning of wearing apparel was necessary is a question for the determina- tion of the jury if it is to be reviewed, and then only tq determine whether the officer exceeded his authority. 23 Bartlett v. Lockwood, 160 U. S. 368. 616 PUBLIC HEALTH ADMINISTRATION A city can no more destroy property in stamping out an epidemic than to check a fire, but to the same extent, and with exemption from liability in proper cases. The measure of damages for property wrongfully destroyed is the market value ; where the property has no market value, the measure of damages is its value to the owner, not what it would cost him to replace it. 24 In a Mass- achusetts case the judge instructed the jury that the plaintiff was entitled to recover what the property was worth at the time it was taken, without taking into account how much the value had been affected by the exposure. 25 However, if the property be lawfully destroyed, in the absence of statutes allowing compen- sation, because it is an exercise of police power, not of eminent domain, no compensation is due the owner, and no recovery can take place from a city, and much less from a county. 26 In the state of North Carolina we are told, "Under authority to make rules and regulations to prevent the spread of communicable diseases, county authorities have no power to burn a dwelling house to prevent the spread of small-pox; and this act, being outside of their corporate powers, they would not be liable in their corporate capacity to an action therefor ; nor have town commissioners such power under authority to have destroyed or disinfected furniture or other articles believed to be tainted. " 27 So far as known a house may be cleansed from small-pox by the local use of dis- infectants, but when it comes to dealing with the bu- bonic plague we have another element to deal with. 24 Dallas v. Allen, 40 S. W. 324. Trustee, 109 Va. 229; Creier v. 25 Brown v. Murdoek, 140 Mass. Fitzwilliam, 83 Atl. 128. 314. -7 Pritchard v. Morgantown, 36 2« Louisa County v. Yancey 's S. E. 353. QUARANTINE AND ALLIED SUBJECTS 617 That disease is spread by the partnership between the flea and the rat, and disinfection must there- fore include the extermination of both members of the partnership. This is often a practical impos- sibility without destroying the buildings. This impossibility is found particularly where the buildings are of small value, and poorly con- structed. Well constructed buildings may be rat- proofed and fumigated. It therefore follows that in such cases the health department may order such buildings, so infested with the plague, destroyed by the fire department, or by any other body or person. 28 ' i In an action on a policy of fire insurance for loss caused by spread of a fire started by order of the Board of Health, for the purpose of destroying, as being infested by plague, certain previously condemned buildings sit- uated some distance from the insured building, an ex parte unexecuted resolution of the board adopted after the commencement of the fire, that all buildings in the block, which included the insured building, were so insanitary and infected by plague as to require destruc- tion, is not even prima facie evidence that the building in question was so insanitary, or so much of a nui- sance as to be absolutely valueless in the eye of the law, so as to entitle the defendant insurance company to a judgment." 29 The city council has no exclusive jurisdiction to determine what constitutes a nuisance, and in destruction of a house they are limited to the abatement of that which is in fact a common nuisance. 30 The mayor and town of Des Arc were sued for destruc- 28 Ahana v. Ins. Co. of North 29 Akwai v. Royal Tns. Co., 14 America, 15 Hawaii, 636; Kwong Ha. 533. Lee Yuen Co. v. Manchester Fire 30 Hennessy v. City of St. Paul, Assurance Co., 15 Ha. 704. 37 Fed. 565. 618 PUBLIC HEALTH ADMINISTRATION tion of a building where within the specified time after the house had been condemned the owner had failed to abate the nuisance. Held, that the officers were within their rights. 31 But a house must be shown to be a nui- sance before it can be destroyed. 32 The city may order a building infested with disease destroyed if that is the only method for preventing the spread of the dis- ease. 33 § 415. Expense of quarantine. As a general proposi- tion it may be stated that in as much as quarantine is a public affair, and for the benefit of the community, all the reasonable expenses which may be incurred by the officers are chargeable upon the public. In practical application there are many problems in the determina- tion between public and private duty, and as to limits of authority. Many of these questions are settled by enactment, and they may be differently ordered in different states. This difference must be remembered in looking through the special decisions. For example, according to different usages certain of the expenses are paid by the city, or the county, or by the state. Because it is a public duty, and not a corporate privi- lege, a city cannot be held liable for any injury result- ing through quarantine, as a result of any act of its officers. 34 If there be any liability it must be a per- sonal one. The necessary expenses of quarantine are a public charge. 35 The discovery of a contagious disease, like 3i Harvey v. Dewoody, 18 Ark. 44 Mo. 479 ; Barbour v. Ellsworth, 252. 67 Me. 294; Beeks v. Dickinson 32 Cole v. Kegler, 19 N. W. 843. Co., 131 la. 244. 33 Sings v. Joliet, 86 N. E. 663. 35 Bardstown v. Nelson County, 34 Bichmond v. Long's Admr., 17 78 S. W. 169; Bellows v. Seneca Grat. 375; Murtaugh v. St. Louis, Co., 133 N. Y. 586. QUARANTINE AND ALLIED SUBJECTS 619 small-pox in a thickly settled community, creates an immediate necessity for action on the part of those charged with the duty of preventing its spread, and creates a liability on the part of the town to pay any necessary expense incurred by its health board, or in the absence of an order of its health board, the expense incurred by its " health officer" under such an emer- gency. 36 The requirement that there shall be a board of health in every township and an examination of the law indicates that its duties cannot be discharged with- out expenditure of money. It is therefore the duty of a town meeting to raise funds to meet such expendi- ture. 37 In Iowa it was held that the county is respon- sible for the expenses incurred in disinfecting build- ings, even when no quarantine has been maintained. 38 In Tennessee medical assistance rendered to persons quarantined by the board of health is a county charge. 39 In Oklahoma it was said that ' ' One member of a board of county commissioners cannot bind the county to pay for services of a physician without first having been authorized thereto by a majority of the board while in session. ' ' 40 The expense of caring for quarantined patients in North Carolina is a county charge, even though the patient be not in a county pest house, but in a private concern. 41 The liability of a county to pay for nurses, medical attendance, etc., in cases of quarantine does 36 Knightstown v. Homer, 75 N. *o Mahr v. Pottawatomie County, E. 13. 110 Pae. 751. 37 Allen v. Bernards, 28 Vr. 303. a Copple v. Davie County, 50 S. 38 Sawyer v. Wapello County, E. 574. 133 N. W. 104. 39 Allen v. DeKalb Co., 61 S. W. 291. 620 PUBLIC HEALTH ADMINISTRATION not depend upon the action of the town, in Minnesota. That the town has in fact so provided them is all that is necessary. 42 Counties in that state are by statute liable to townships for necessary expenses incurred for medi- cal treatment, and for maintaining quarantine of a resi- dent family sick with contagious disease. 43 "The employment of physicians was within the authority conferred by the act, and that subsequent ratification made such claim a valid charge against the county. ' ' 44 Similarly, when in the state of Texas a county failed to appoint a county physician after the incumbent had resigned, and a rauchman furnished a physician, medi- cines, and provisions to employees who were quaran- tined for small-pox, it was held that under the statutes the county was liable to the ranchman for his expen- ditures, having apparently consented to this provision. The services of the ranchman were not entirely volun- tary, but were forced upon him by the failure of the county to supply the needs of the men through its phy- sician. 45 "The county board can, when acting within the jurisdiction conferred on it by statute, bind the county. But the health officer has no such power. He is merely a ministerial officer, a creature of the board, charged and instructed with carrying out its orders. His duties are defined and fixed by the statute, and it is only when he acts under the order and direction of the county board that the county is responsible for expenses incurred or made by him. Not only so, but *2 Montgomery v. LeSuer Coun- 44 Schmidt v. Stearns County, 34 ty, 32 Minn. 532. Minn. 112. 43 Louriston v. Chippewa Coun- 45 King County v. Mitchell, 71 ty, 93 N. W. 1053 ; Appeal of Bd. S. W. 610. of Hth. Buffalo Lake, 95 N. W. 221; Iosco v. Waseca County, 100 N. W. 734. QUARANTINE AND ALLIED SUBJECTS 621 he must have the authority, in each case, in advance of any action on his part looking toward establishing quarantine, or doing any other act for which a claim is to be made against the county." 46 In the absence of statutory authority, or of action by the board, the secretary of a county board of health cannot bind the county for the expense of abating a nuisance. 47 There is no common law liability of counties to care for the poor, nor to meet the expenses of quarantine. All authority of the county must be found in the statutes. When the statutes impose the care of quarantine upon "the proper board of health," since there is no statu- tory authority for a county board of health it neces- sarily follows that the county has no liability in the matter. 48 In Kentucky, according to section 2059 of the state statutes it is the duty of every city having a population of over 2,500 inhabitants, to appoint a city board of health. Construing this section with section 3490 it is the opinion of the court that it is incumbent upon all cities of over 2,500 inhabitants to care for and maintain all cases of contagious disease and of such other matters as come within the jurisdiction of the city board of health, 49 and the expenses must be borne by the city and not by the county. In the absence of statutory provisions cities are not entitled to be reimbursed by the state for expenses incurred in quarantine, even if this be done under the direction of the state authorities. 50 A theatrical troupe ♦6 Hickman County v. Sear- 49 Bell County v. Blair, 50 S. borough, 149 S. W. 1116. W. 1104; Pulaski Co. v. Somerset, 47 Martin v. Montgomery Co., 27 98 S. W. 1022. lnd. App. 98. so Geneva v. New York State, ♦a Martin v. Fond du Lac 128 N. Y. S. 470. County, 106 N. W. 1095. 622 PUBLIC HEALTH ADMINISTRATION came to the city, in this case, and on the state board of health being notified, the state officials advised vac- cination and quarantine. In doing this the city did only that which it was expected to do for the general good. "A minor whose legal residence was in another town was infected with small-pox in the town of Brat- tleboro. The select men furnished him with physi- cians, nurses, and necessaries, he being unable to pay for them, but his father sufficiently able to do so. Held, in an action brought by the town of Brattleboro against the other town to recover said expenses, that the latter town was primarily liable to the town of Brattleboro for whatever sum they had actually expended." 51 A city having made an arrangement with the county by which the city cases are taken and treated at the county pest house, and having paid therefor its pro- portion for the maintenance of the pest house, the city will not be relieved from the payment of its propor- tionate expense on the ground that the arrangement is void, because it tended to create a debt extending beyond the present year, and to bind successors in office of the city. 52 "Under statutory provisions, the con- version of a patient's residence into a hospital by the city authorities, without consultation with him, exempts the patient from liability for medical services, the taking of his house by the city being tantamount to assuming responsibility for his care in compliance with the provisions of the law." 53 A health officer, appointed by a local board of health, si Brattleboro v. Stratton, 24 Vt, 53 Smith v. Hobb, 45 S. E. 963. 306. 52 Macon v. Bibb County, 75 S. E. 435. QUARANTINE AND ALLIED SUBJECTS 623 is required to keep supervision of a case of infectious disease, seeing to it that the case is properly isolated and cared for. This involves expense, and implies the authority for the health officer to contract for medical care and nursing in an emergency which requires im- mediate action. 54 In a case in which a physician was called to treat a case of diphtheria and to quarantine the family, because he was called by the attending physician of the family, not by the legal authorities, it was held that the county was not legally liable, though it was so morally. 55 It is quite common to provide that the expense of treatment of cases of infectious disease shall only J)e borne by the community when the patient is unable to pay them himself. 56 "It is the undoubted duty of a board of health created for the purpose of preserving the public health to take immediate steps in case of an epidemic, not only to furnish care and treatment to the afflicted, but to protect residents of the town, and to this end they may incur any reasonable expense. ' ' 57 The town is therefore liable for the pay of guards employed by the health officer; 58 but (Miss.) a claim against the county as a quarantine guard is not maintainable by suit, unless the minutes of the board of supervisors disclose an order establishing a local quarantine, and s* Hawthorne v. Cherokee Coun- N. W. 908 ; Farnsworth v. Kal- ty, 79 Kas. 295. kaska Co., 56 Mich. 640; Kellogg ss Dykes v. Stafford County, 121 v. St. George, 28 Me. 255; Marsh Pae. 1112. Co. v. Eosen Co., 101 N. W. 164; 56 Thomas v. Mason, 39 W. Va. Dodge County v. Diers, 95 N. W. 526; Laurel County Ct. v. Pening- 602; Mclntire v. Pembroke, 53 N. ton, 26 Ky. L. 124; Jay County v. H. 462; Merty v. Columbus, 27 O. Fertich, 46 N. E. 699; Tweedy v. Cir. Ct. Rep. 822. Fremont Co., 68 N. W. 921 ; 57 People v. Eno, 82 N. Y. 520. Walker v. Boone Co., 97 N. W. ss Keefe v. Union, 56 Atl. 571. 1077; Gill v. Appanoose Co., 25 624 PUBLIC HEALTH ADMINISTRATION also show that a contract for such services was made. The record must also show that the claim founded on such a contract was presented to the board of super- visors and was disallowed. 59 In Michigan it is not necessary that when expenses are incurred in the care of indigent persons sick with contagious diseases the municipality shall first pay the claim and then present it to the board of supervisors, but the claimant may take his claim direct to the county board. Boards of supervisors have no power to reject a claim for serv- ices rendered by order of a board of health without giving the claimant an opportunity to be heard and to present proof in its support. 60 "The auditing of bills incurred by the public in case of communicable dis- eases is lodged by law in the board of supervisors of the county. The local board of health is required to keep an itemized and separate statement of expenses, and render the same to the board of supervisors by filing the same with the county clerk. The entire responsibility then rests on the board of supervisors to pass on the necessity of such expenses, the services performed, the justice and reasonableness thereof, and to allow such parts thereof as the board shall deem just." 61 Under the Oklahoma law creating boards of health it becomes the duty of the board to audit and allow, or reject or modify, charges incurred against the county by the board, and certify them to the county commissioners. Individual members of the board have no power to certify to county commissioners. 62 In determining what is a reasonable amount to allow ss Marion County v. Woulard, 27 si Dawe v. Board of Health of So. 619. Monroe, 146 Mich. 316. so Bishop v. Ottawa Supervisors, 62 Cooke v. Board of County 140 Mich. 177. Commissioners, 13 Okla. 11. QUARANTINE AND ALLIED SUBJECTS 625 for such services in the care of patients sick with con- tagious disease, the rule has been laid down, ''that the plaintiffs were entitled to the value of their serv- ices according to the market value for such labor in other fever cases. ' ' 63 The matter of treatment is distinct from quaran- tine. 64 The act of quarantine is essentially keeping the person under arrest until danger of his further spreading the disease has passed. The treatment, in that it may tend to cut short that period of isolation, and directly reduce the contagiousness of the poison, may be a means of restriction, and so be a part of quarantine. Besides this, the attending physician may be a very great aid in keeping the patient under full control. It may, therefore, be important to the health service to have the case in the medical care of a proper person. In some sections the health officer may also treat the case. This is hardly an ideal arrange- ment, for the reason that health preservation and med- ical practice are essentially widely separated, and the same man is seldom proficient in both branches. The fact that a city council provided another officer to fur- nish medical attendance in the execution of the power of quarantine was held to show that the furnishing of such attendance was not committed to the health offi- cers. 65 Under statutory provisions requiring the estab- lishment of local quarantine by the county physician when proclaimed by the county commissioners, and authorizing him to select the necessary attendance, the county physician is not authorized to employ another 03 Marion County v. Bonds, 99 Co., 136 Mich. 425; Stroye v. Glad- S. W. 532. win Co., 136 Mich. 425. «* Cedar Creek v. Wexford Co., 8S Congdon v. Nashua, 72 N. H. 135 Mich. 124; Pierce v. Gladwin 468. 626 PUBLIC HEALTH ADMINISTRATION physician to render medical service to small-pox patients at the county's expense, until quarantine is actually declared by the commissioners. 66 In Iowa a written order for the performance of the service, issued before the service is actually furnished, is a mandatory requirement, and unless the physician has such a written order it is a complete bar to his recov- ery of charges for his services. 67 So in Maine it was held that in the absence of an express contract for such service by a proper officer in behalf of the town a physician cannot recover for medical services ren- dered to the inhabitants while they were sick with the small-pox; 68 but in Michigan it was held that an express agreement is not necessary for the health offi- cer to enable him to recover for his services in treat- ing patients sick with contagious diseases, if the board knew that the services were being rendered and after- ward allowed his bill. 69 The board, having made a contract with a physician to furnish medical attend- ance and medicines for the indigent of the district at a stipulated amount, cannot be compelled to pay more for extra services due to an epidemic, although these extra services were ordered by the board of health, and the board of health allowed the bill. 70 Neither can a physician, after he has presented his bill, his bill has been audited, and he has received without pro- test the amount allowed, claim balance as service ren- dered according to statute. His acceptance acts as an ee Barrett v. Hill County, 74 S. «9 Cedar Creek v. Wexford Co., W. 811. 135 Mich. 124. 67 Euan v. Mahaska County, 137 70 Zimmermann v. Cheboygan N. W. 1003. County, 95 N. W. 535. 68 Childs v. Phillips, 45 Me. 408. QUARANTINE AND ALLIED SUBJECTS 627 estoppel. 71 In Kentucky the employment of the physician, guards, nurses, etc., for a pest house rests with the board of health. The authority to fix the com- pensation of such employees, and of the board of health itself, rests with the fiscal court. Neither have the right to act in an arbitrary manner, and the physician having been rightly appointed, the fiscal court should allow reasonable compensation for the work rendered, or to be rendered. 72 There is no public right which permits the officer to interfere with the privilege of citizens to employ such regularly authorized practi- tioners of medicine as they may choose, nor to inter- fere with the right of regularly licensed practitioners to practice when they are so employed. 73 A board of health cannot employ one of its own mem- bers to render medical services in an epidemic of con- tagious or infectious disease. 74 Neither can a health officer without the approval of a board, in Wisconsin, bind a town by the employment of a physician to attend a case of contagious disease. 75 It is manifestly impossible for the health officer him- self to be personally with a case of infectious disease all of the time. It has therefore been generally agreed that the public may employ guards. A nurse may be a most efficient guard, and therefore the employment of nurses for service in the care of cases of infectious disease is a recognized aid. A county may not attempt to avoid payment of obligations for the employment 7i Browne v. Livingston County, 74 B jelland v. Mankato, 127 N". 85 N. W. 745; but see State v. W. 397. Steele, 57 Tex. 200. 75 Collier v. Town of Scott, 102 72 Walker v. Henderson County, N. W. 909 ; also Jacobs v. Elmira, 65 S. W. 15. 132 N. Y. Sup. 54. 73 Trabue v. Todd County, 125 Ky. 809. 628 PUBLIC HEALTH ADMINISTRATION of nurses, destruction of infected clothing, etc., on the ground that the patients were able to pay, or that some of the taxpayers thought that the charges were too high. 76 The authority to prevent the spread of infec- tious disease implies authority to employ a nurse. 77 A city has been said to be liable for the expense of nurs- ing a case of contagious disease, when the nurse was employed by a physician who was not the regular health officer, acting under the direction of the secre- tary of the state board of health, the emergency jus- tifying the measure. 78 The fact that the Michigan statutes provide for the employment of "nurses" in these cases does not compel the employment of a nurse, nor of more than one if any be employed. The matter is left to the discretion of the officers. 79 In a case in New Hampshire a man attempted to recover for the services of his wife as nurse in caring for a boarder who had the small-pox. The claim was disallowed as she was not employed by the health officer in the case. 80 Since a city has power to provide for the care of a case of infectious disease, it has the power to create a debt; it may therefore be compelled by mandamus to provide the funds for its payment; 81 but though legal provisions make all necessary expenses for local sanitation a public charge, and though they authorize local boards of health to compel by mandamus proper action by the city, they do not confer upon the board 76 Elliott v. Kalkaska County, 58 79 Rohn v. Osmun, 106 N. W. Mich. 452. 967. 77 Frankfort v. Irwin, 72 N. E. so Creier v. Fitzwilliam, 83 Atl. 652; Labrie v. Manchester, 59 N. 128. H. 120. 81 Thomas v. Mason, 20 S. E. 78 Monroe v. Bluffton, 67 N. E. 580. 711. QUARANTINE AND ALLIED SUBJECTS 629 of health an unrestricted power to determine how much money it should spend in any one year, the amount being determined according to law by the mayor and council. 82 The acts of both the council and the board of health are subject to the court review to determine as to their reasonableness. Under the Michigan law the county is charged with the expense of all indigent persons afflicted with con- tagious disease, and villages are entitled to recover from the county expenses incurred ; 83 but the village cannot bind the county over and above the charges preferred by the health officer for specific services ; 84 and it is mandatory for the board of health to keep an itemized account of the expense for each person. So also in Minnesota it was held that when the county physician refused to attend and treat a person sick with an infectious or contagious disease, a city health officer was justified, for the purpose of restricting the disease, in employing a physician, and the expense incurred may be recovered from the county. 85 On the other hand in New Jersey it was held that though the patients were paupers, the city, and not the county, was responsible for the care of patients sick with con- tagious diseases. 86 A family under quarantine is prevented from earn- ing the usual income. Since they are kept in restric- tion for the common benefit it has sometimes been claimed that the community is in duty bound to pro- 82 State v. New Orleans, 27 So. 85 Mankato v. Blue . Earth 572, 52 La. Ann. 1263. County, 92 N. W. 405. 83 St. Johns v. Supervisors, 70 N. 86 Kockaway Township v. Morris W. 131. County, 52 Atl. 373. 84 Durand v. Shiawassee Super- visors, 132 Mich. 448. 630 PUBLIC HEALTH ADMINISTRATION vide for all their necessities. The legislature might make such provision, but ordinarily it is expected that the head of the household will care for all the mem- bers. In the same way a vessel is liable for the expense of all passengers held in quarantine, and not those only who are infected. 87 There is no reasonable excuse for a person being afflicted with the small-pox as vaccination gives ample protection. The same may be true relative to typhoid fever, though the preven- tive inoculation for that disease is of recent accept- ance, and by no means general as yet. There is little call for sympathy for families afflicted with those dis- eases; but with scarlet fever, for example, conditions are very different. The cause is not yet definitely known, and no sure protection has been discovered. Innocent persons may be victims to such a malady, and perhaps the community might reasonably share in the expenses of the misfortune. Such has been the view taken by the courts in some cases. Thus in Iowa it was said that when quarantine is established the cost of bedding, food, and clothing to supply the place of that which had been destroyed, should be pro- vided for those not actually sick, and the expense therefor may properly be included in the county's liability. 88 Likewise a Pennsylvania court recognized a certain degree of liability for the care of all those in quarantine, aside from the patient. 89 There is another reason why there is justice in pay- ing for the keep of the well persons who may be in 87 Peterson v. Carter, 6 Ha. 283 ; 89 Borger v. Borough of Alliance, see also Minister of Interior v. 28 Pa. Sup. Ct. 407. Haekfield & Co., 4 Ha. 420. 88 Clinton v. Clinton County, 16 N". W. 87. QUARANTINE AND ALLIED SUBJECTS 631 quarantine with the sick — there may ultimately be some question as to the right of the health department to keep healthy individuals in quarantine. Physicians have less confidence today that disease may be carried from one person to another by a third party. That lessens the scientific basis for the confinement of such persons. In State v. Rackowski 90 it was said that un- der section 2549 of the General Statutes of New Jersey, giving authority to quarantine the patient sick with scarlet fever, "Before the health officer can order quarantine he must have reasonable grounds to believe that the person or persons ordered into confinement are infested with a contagious disease." Though another section gave authority for the confinement of those exposed the case illustrates what may easily happen. At the best statutes are imperfect, and if it be desirable, as it certainly seems to be necessary at present, to quarantine all of those exposed to certain diseases, the statute providing for quarantine should also cover those exposed. All exposed persons should be subject to quarantine, though in many cases the strict confinement of all persons may not be necessary, nor advisable. An interesting case arose in Michigan touching the obligation of a landlord to a patient sick in his build- ing. The patient was not a member of his family; she was not his tenant, nor in his employ. She was living with the janitor, and was not confined to her bed. She had erysipelas, and the physician warned the tenants of the danger of having the patient in the building. The landlord's duty was to his tenants, and he ordered her out of the building. She sued for injury, 90 86 Atl. 606. 632 PUBLIC HEALTH ADMINISTRATION as the result of being forced to leave. The court found for the defendant, as he was guilty of no legal wrong. 91 § 416. Vaccination. Few diseases have been more subjected to judicial inquiry than small-pox. It was a loathsome disease, inspiring great dread on the part of the people, and its contagious character was early recognized. Under modern methods it has lost much of its disagreeable features, and it is strange that the old hysterical fear still persists among the lay people. "Whereas, when formerly it made its appearance in a community it found numerous victims, and left each badly disfigured for life, now its victims are few, and mutilation is slight. The chief change relative to the disease is due to the protective influence of vaccina- tion. The scientific demonstration of the protective value of this slight operation is clear to any unprej- udiced observer and investigator, and has been repeatedly recognized by the courts. Since the police power for the protection of the inhabitants of a state resides in the state government it naturally follows that the legislature may take such means as seem to it reasonable for utilizing such power. Thus we find the state of North Carolina saying: 92 "Statistics taken by governmental authority show that while 400 out of every 1000 unvaccinated persons, exposed to the con- tagion, are attacked by it, less than two in a thousand take the disease when protected by vaccination within a reasonable period. There are those, notwithstand- ing these well established facts, who deny the efficacy of vaccination, as there are always some who will deny any other result of human experience, however well 9i Tucker v. Burt, 115 N. W. ^ State v. Hay, 126 N. C. 999. 722. QUARANTINE AND ALLIED SUBJECTS 633 established, but the legislature, acting on their best judgment for the public welfare upon the information before them, has deemed vaccination necessary for public protection, and their decision being within the scope of their functions must stand until repealed by the same power." A portion of the prejudice against vaccination is based upon the evils of its earlier use. When the virus was taken from the arm of one patient and directly inserted into another victim, without any precaution- ary measures, it was quite possible that other diseases aside from the cow-pox might be thus communicated. Except in extreme emergency it is no longer justifiable to make use of the humanized virus. The supply is now taken from carefully selected calves, after scien- tific observation, and under strict aseptic precautions. The virus is most carefully guarded from contamina- tion, and tested before being issued for human use. Any intelligent physician uses like aseptic methods in performing the operation of vaccination. He is expected to cleanse, antiseptically, the surface where he is to operate, and after introducing the virus he should dress the surface aseptically until nature has sealed the wound. The antiseptic cleansing kills dis- ease germs which may be upon the surface of the skin; the aseptic dressing prevents the entrance of germs into the open wound. After the pustule has been pro- duced it is no longer considered necessary that the various septic germs should have undisputed sway. Unfortunately, there are those who pose as physicians, and are so recognized by the community, though they so far neglect their duty to their patients that they have failed to keep up with the advances of science. 634: PUBLIC HEALTH ADMINISTRATION Any legitimate objection that may still exist against vaccination must largely be chargeable to these negli- gent practitioners and their ancient methods. The fact remains that there is opposition to the practice, and to some degree this opposition is responsible, not only for a difference in legislation, but also for differ- ences in interpretation. Granting the fact that vaccination does protect against small-pox, and the further fact that this opera- tion is of negligible danger as compared with the dis- ease which it is intended to prevent or modify, it naturally follows that the legislature of the state may enact such statutes as seem reasonable in the matter. Thus the Georgia court said: 93 "With the wisdom or policy of vaccination, we have nothing to do. * * * The legislature has seen fit to adopt the opinion of those scientists who insist that it is efficacious, and this is conclusive upon us." This legislative authority of the states in the matter has been frequently upheld, and may reasonably be considered settled. 94 Before the Jacobson case came before the Supreme Court of the United States it had committed itself upon this subject in an obiter dictum in the case of Lawton v. Steele, 95 saying that a state might order the compul- sory vaccination of children. In a number of cases ss Morris v. Columbus, 102 Ga. 110 Pac. 137, 143 Cal. 658; Bis- 792. sell v. Davidson, 65 Conn. 183; In s* Jacobson v. Massachusetts, re Smith, 146 N. Y. 68 ; Viemeister 197 U. S. 11; Commonwealth v. v. White, 179 N. Y. 235; Field v. Pear, 183 Mass. 242; Common- Eobinson, 198 Pa. 638; Stull v. wealth v. Jacobson, 183 Mass. 242; Eeber, 215 Pa. 156; Blue v. Beach, Osborn v. Eussell, 64 Kas. 507; 155 Ind. 121, 56 N. E. 89, 50 L. State v. Hay, 126 N. C. 999 ; State E. A. 64; Harris v. Cox, D. C. v. Shorrock, 55 Wash. 208; Abeel Law, No. 53015; McSween v. v. Clark, 84 Cal. 226; State Board School Board, 129 S. W. 206. of Health v. Board of Trustees, 95 152 U. S. 136. QUARANTINE AND ALLIED SUBJECTS 635 the right of the state thus to order was not properly before the court, and for that reason it was not given special consideration, the cases being decided upon the basis that the state had not so ordered through legis- lative enactment. 96 It has been claimed in some cases that the state may delegate this authority to local gov- ernmental bodies, like the board of health, or the school board ; 97 and in other cases this authority has been hinted, though not affirmed. 98 In the absence of express delegation, it has generally been held that the local authorities have full power to enforce vaccina- tion in the presence of the disease in an epidemic form ; but there has been a divergence of opinion as to the local power in the absence of an emergency, and when no express delegation of authority has been made by the state. The local power has been sustained in many states; 99 though it may be that those states are more nearly correct in which the right to delegate such authority, except for emergent use, is questioned or denied. 100 Evidently the local governmental body may not use such power if the state has distinctly pro- hibited it. Thus after the decisions above mentioned, the states of Minnesota, South Dakota, and Utah 96 Jenkins v. Board of Educa- ss Blue v. Beach, 115 Ind. 121 ; tion, 234 111. 422; Potts v. Breen, Duffield v. School Disk, 162 Pa. 167 111. 67; State v. Burdge, 95 476; State v. Board of Education, Wis. 390, 37 L. E. A. 157. 21 Uta. 401; McSween v. School 97 Commonwealth v. Pear, 183 Board, 129 S. W. 206; Auton v. Mass. 242; In re Smith, 146 N. Y. School Board, 83 Ark. 431; State 68; Morris v. Columbus, 102 Ga. v. Cole, 220 Mo. 697; State v. Zim- 792; State v. Board of Education, merman, 86 Minn. 353, 58 L. E. A. 81 N. E. 568. 78, 90 N. W. 783 ; Hutchins v. 98 Jenkins v. Board of Educa- Durham, 137 N. C. 68; Glover v. tion, 234 111. 422; Mathews v. Board of Education, 14 S. D. 139; Board of Education, 127 Mich. State v. Beil, 157 Ind. 25. 530; Osborn v. Eussell, 64 Kas. ioo p tts v. Breen, 167 111. 67; 507. Laubaugh v. Board of Education, 636 PUBLIC HEALTH ADMINISTRATION passed statutes forbidding compulsory vaccination. However, as Professor Freund well remarks, 1 if the protection of the public health allows quarantine, it is difficult to see why it should not justify compulsory vaccination. The difficulty of enforcing measures of personal compulsion is a strong, and, generally speak- ing, an adequate safeguard against an abuse of legis- lative power in this direction. A town ordinance requiring vaccination will not be considered invalid because it makes no exception of persons whose physical condition would make vaccina- tion dangerous to them. 2 "We are of the opinion that the school boards of Missouri have the right to enact and enforce rules of the character here in question, (i.e. excluding unvaccinated children from schools), at all times whenever there is either a small -pox epi- demic in the district, or whenever there is a threatened small-pox epidemic. The very purpose of such regu- lations might be thwarted were we to actually await the epidemic itself." 3 As was remarked in Jenkins v. Board of Education, 33 there is nothing in the nature of an emergency when occasional cases of small-pox occur in a large city like Chicago. The time for vac- cination is not when the danger has become urgent, but before the case has occurred. There may be some question concerning the relative powers of school authorities and boards of health. In an Ohio case the order was originally issued by the 177 111. 572 ; Jenkins v. Board of * Police Power, 447. Education, 234 111. 422; Mathews 2 State v. Hay, 126 N. C. 999. v. Board of Education, 127 Mich. 3 state ex rel. O'Bannon v. Cole, 530; Osborn v. Russell, 64 Kas. 220 Mo. 697. 507; State v. Burdge, 95 Wis. 390; sa 234 111. 422. Morris v. Columbus, 102 Ga. 792. QUARANTINE AND ALLIED SUBJECTS 637 board of health, in the form of an ordinance. This the school board considered and decided to enforce. The court held that the board of health did not have authority to enact such an ordinance, but that the school board, being authorized to make such rules as were deemed necessary, had the authority under the circumstances to order all children attending school to present evidences of vaccination. In effect the board of health simply advised such action, and the school board practically made the ordinance its own. 4 Legis- lative provisions making vaccination a condition for admission to schools do not conflict with other provi- sions, even when these are in the constitution, provid- ing for the education of all children above a certain age. 5 If the physical condition of a child is such that she cannot safely be vaccinated she should be excluded from school for the time. 6 In Pennsylvania it is the duty of school directors to see that the school teachers exclude children who do not produce certificates of examination, but such directors may not be compelled by mandamus to do so. 7 A certificate given by a duly licensed practitioner of medicine is conclusive upon school authorities, though they may take steps to determine its genuineness. 8 It seems to us that such certificates should not be considered final; neither should they be accepted by the school authorities fur- ther than for transmission to the proper health office, and that the health officer should have the power to 4 Carr v. Board of Education, i Commonwealth v. Rowe, 218 Vol. 13, Ohio Dec. 10 N. P. Rep. Pa. 168. 1903, 430. s Cousins v. Burgie, 13 D. R. s Stull v. Reber, 215 Pa. 156. 368. c Hutchins v. Durham, 137 N. C. 68 ; Hammond v. Hyde Park, 80 N. E. 650. 638 PUBLIC HEALTH ADMINISTRATION accept or reject such certificates, subject to further proof. In other words, the certificates should be taken as evidence, not as proof. In the state of Alabama we find a peculiar condition. By the Code of 1907, as amended in 1911, section 698 makes the State Medical Association the State Board of Health, and section 700 in like manner makes the county medical societies, affiliated with the state society, the county boards of health. The legality of this arrangement may be questioned, (See Sec. 284) and apparently the state supreme court doubts its legality. 9 The county medical society of Perry County claimed the sole right to employ persons to vaccinate people, fumigate premises, and take such other meas- ures as seemed fitting for stamping out the contagion of small-pox. The court, without deciding as to the statutory powers of the medical society did decide that it had no interest whatever in the disposition the con- stituted authorities make of the county funds. The distinction between the treatment of small-pox cases and vaccination was made in a New Hampshire case, where it was held that the select men of the town had no authority to pay for the treatment of a family who were able to pay for themselves, but that the town must pay for the vaccination. 10 A similar distinction was made in Kentucky. 11 In Maryland it was also held that the county must pay for vaccina- tion. 12 Such obligation is recognized even where the authority was merely to prevent the spread of small- 9 Commissioners ' Court of Perry n Pusey v. Meade, 64 Ky. 217. County v. Medical Society, 128 12 Commissioners of Alleghany Ala. 257. County v. McClintock, 60 Md. 560. in Wilkinson v. Albany, 28 X. H. 9. QUARANTINE AND ALLIED SUBJECTS 639 pox. 13 Where the amount to be paid is fixed by law, and that amount is a ridiculously small amount, the authorities cannot be forced to pay more. 14 The local board of health may not properly employ one of their number to perform the vaccination. 15 There is good reason for believing that there is an essential unity between small-pox and cow-pox. In the place of using the virus of cow-pox for the protec- tive inoculation, the attenuated virus of the small-pox is itself sometimes used. Before the days of vaccina- tion it was customary to inoculate the virus of small- pox for protection, and this new method is but an improved technique upon the old custom. This method was declared not to be vaccination in a Pennsylvania case. 16 Though in some of the lower courts in the state of Iowa a different conclusion has been reached, it may perhaps be questioned whether this administra- tion of variolinum is advisable, or whether it is a legal method of vaccination. Successful vaccination has been legally denned as being indicated when the typical reaction follows the introduction of the virus of the vaccine disease. 17 In recent times other diseases have been met by pro- ceeding similar to vaccination. Antityphoid inocula- tion, with the killed bacilli of the disease, is being largely and successfully used to prevent typhoid fever in the army and navy, and it is also being used in civil life. Its use may be justified in health administra- tion. Diphtheria antitoxin has been used, not only foi- ls Hazen v. Strong, 2 Vt. 427. i«Lee v. Marsh, 230 Pa, 351. 14 Mathias v. Lexington Count)', ii State v. Shorock, 55 Wash. 60 S. E. 970. 208. is Ft. Wayne v. Rosenthal, 75 Ind. 156. 640 PUBLIC HEALTH ADMINISTRATION curative action, but also for preventive purposes. At present this use of the substance may not be unreserv- edly indorsed, for the reason that there are indications that it may simply serve to mask an infection, and to permit the bacilli to grow undetected. The use of antiplague serum is not entirely without danger, though in the condemnation of the measure in a case before the federal court more stress was laid upon the fact that the regulation in question was limited in its operation to Mongolians. 18 § 417. Control of insect and other carriers. In the light of our modern knowledge restriction of disease has taken on an entirely new character. In the place of paying so much attention to persons diseased, the chief warfare for many diseases must be against the insect and other animal carriers. (§§27, 28.) So far as has come to our knowledge, these new methods have not been the subject of many decisions in the higher courts, probably because the evidence is so over- whelmingly conclusive as to the necessity of such a warfare that no one has seen fit to make determined opposition. A breeding place for mosquitoes or rats is a nuisance, and as a nuisance old methods of proce- dure are sufficient for abatement. A house infested with rats is a nuisance in posse in a community, and in the presence of the bubonic plague, it becomes a nui- sance in esse, by virtue of harboring the nuisance per se, rats, which in the presence of the disease may become exceedingly dangerous. As to the power of a city to require rat-proofing of buildings under con- struction there would probably be no question; but is Wong Wai v. Williamson, 103 F. 1. QUARANTINE AND ALLIED SUBJECTS 041 after a building has been constructed, enforcement of such a regulation would depend upon the evidence of real necessity. Mosquitoes are nuisances, and may well be the subject of warfare under ordinal*} 7 condi- tions. In the presence of malaria or yellow fever there is a positive obligation upon the health office to make an uncompromising fight. Under such conditions the communal sentiment would support a health officer in doing things which would not otherwise be tolerated. For example, the last time that the yellow fever made its entrance into New Orleans, Surgeon White of the public health service gave orders that any gutter upon a building found containing water be immediately punctured for complete drainage. This summary measure was necessary to save time. In the same con- test an unscreened barrel of water was emptied and cisterns found containing wigglers were treated with oil. This oil treatment spoiled the water for domestic use. It was thus a destruction of property without compensation, other than the general compensation of protection against the disease. In all of these cases the authority for action and methods of procedure must be found in the well recognized principles for abatement of nuisances. All efforts to abate these nuisances must be reason- able. An ordinance passed by a county in California declared ground squirrels to be a public nuisance, and required all owners of land within the county to exter- minate all such ground squirrels upon their own prop- erty within ninety days. The ground squirrels. have been regarded as a nuisance on account of their destruction of growing crops; but more recently they have assumed a more dangerous role. The bubonic 642 PUBLIC HEALTH ADMINISTRATION plague has been communicated from human beings to rats, and from rats to ground squirrels through the agency of fleas, and by the ground squirrels it has again been communicated to the human species. Pre- viously these rodents were a commercial nuisance : now they are found to be also sanitary nuisances. Admit- ting, therefore, the necessity for their extermination still the ordinance in question was deemed by the supreme court of the state as arbitrary and unreason- able in form, and therefore void. 19 There can be no question as to the power of the state to compel the filling or clearing and drainage of lands which might otherwise create malaria or other dis- eases. 20 The only way that such lands can have a causative action relative to malaria is by the breed- ing of mosquitoes. So a corporation may be liable for malaria produced by mosquitoes bred upon the company's property. 21 The instrumentality of the fly as a carrier of various forms of infection, particularly those of the intestinal tract, is being recognized. Not only may we prohibit the maintenance of places in which the fly breeds, but we may also protect such food as is eaten without further cooking from the pos- sibility of becoming contaminated in the shops by insects walking over it. The Minnesota ordinance requiring the screening of fruits exposed for sale was attacked on the ground that it worked a hardship. The court said that properly construed it was not burden- some, and it should not prevent the exhibition of goods in the open by the dealers. 22 The ordinance was is Ex parte Hodges, 87 Cal. 162. 22 Ex parte Bacigalupo, 132 N. 20 Kude v. St. Marie, 99 N. W. W. 303. 460. 21 Towaliga Falls Power Co. v. Sims, 65 S. E. 844. QUARANTINE AND ALLIED SUBJECTS 643 upheld. So too the New Hampshire statute requiring the wrapping of bread was sustained, 23 the entire court concurring. §418. Personal liability for communicating dis- ease. An extragovernmental aid for the preserva- tion of the public health is found in the assessment of damages against those who are guilty, through their carelessness, of causing sickness in others. This form of litigation is not new, but it may well be expected to be more frequent in the future. This is true because the science of medicine is more definite than formerly, and knowledge of sanitary matters is more general. On the other hand precedent may not be depended upon, perhaps, as confidently as it once might have been. For example, an old case is the English one in which it was held that a person might be indicted for carrying a child infected with small-pox along a pub- lic highway. 24 Truly one should not be oblivious to the rules of quarantine, but the danger to others in the simple carrying of the child along the highway would be slight, unless there were flies or other carriers of the virus present. An early case in Illinois, though not pertaining to human disease, still has its bearing upon the subject. A farmer had a flock of sheep infested with the scab. The sheep were turned into a pasture. Owing to a defect in the portion of the fence which it was the duty of the owner of the sheep to keep up, the sheep broke through and communicated the disease to neighbors' sheep. The owner of the first flock was held liable. 25 23 State v. Normand, 76 N. H. 25 Herriek v. Gary, 65 111. 101. 541. 24 Rex v. Vantandillo, 4 M. & S. 73. 644 PUBLIC HEALTH ADMINISTRATION A person having small-pox is duty bound to keep where he will not expose others. 26 So an innkeeper who receives a guest after he knows that there is small- pox in the house is liable to the guest so received if the latter contract the disease. 27 A landlord who leases a dwelling knowing that it has recently been infested with small-pox or diphtheria is liable to his tenant should any of the family of the latter contract a disease, even though the house has been fumigated. 28 A railroad company may be held liable to passen- gers who contract small-pox from the ticket agent. Since the ticket agent had reason to believe that he had the disease, the company was informed, and therefore liable. 29 But when there was doubt as to the nature of the disease, and the testimony failed to show actionable negligence on the part of the father when he put his child in a section house, the road should not be held. 30 Neither is the road liable for the communi- cation of small-pox from its ticket agent if neither the agent nor his superiors had any knowledge that he had the disease. 31 So when there was very slight evidence that a man had the small-pox, and none that he knew, or had reason to believe that he had it when he went upon the streets, the court should have peremptorily instructed the jury to find him not guilty. 32 The lia- bility of a physician to a man who took the small-pox 26 Franklm v. Butcher, 129 S. 29 Mo., Kan. & Texas Ey. Co. v. W. 428 ; Hendricks v. Butcher, 129 Raney, 99 S. W. 589. S. W. 431. 30 Mellody v. M., K. & T. Ey. 27 Gilbert v. Hoffman, 66 Iowa, Co., 124 S. W. 702. 205. 31 Long v. Chicago, K. & W. Ey. 28 Minor v. Sharon, 112 Mass. Co., 15 L. E. A. 319. 477 ; Cutter v. Hamlin, 147 Mass. »2 Lawrence v. Commonwealth, 471; Snyder v. Gorden, 46 Hun, 127 S. W. 1013. 538; Cesar v. Karutz, 60 N. Y. 229. QUARANTINE AND ALLIED SUBJECTS 645 when sent to whitewash a house in which both knew that a patient had recently died from the small-pox, depends upon the physician's negligence, and the man's contributory negligence, which were questions for the jury, where the physician assured the man that there was no danger because the house had been thor- oughly disinfected. 33 But a city is not liable when small-pox is contracted by a man employed to tear down an infected building that had been used as a small-pox hospital, though the building had not been disinfected, nor the man warned of the danger. Even in case of his death the city cannot be held liable for the errors of its officers who were acting in a govern- mental capacity. 34 A hospital is liable if a nurse con- tract diphtheria from a patient, where cultures have been made and the diphtheria bacillus was found, but the nurse was not informed. 35 Likewise a lodger is liable who takes children afflicted with the whooping cough into a boarding house, knowing that they have the disease, if in consequence of her act others contract the disease. 36 The Missouri, Kansas, and Texas railway company established a small-pox camp in which to treat employees who had the disease. This camp was near to the house of one Wood who himself contracted the disease of small-pox, as did also his wife and child, and the child died. The said Wood thereupon sued the railway company for damages. In defense the railway company put in the claim that Wood was guilty of contributory negligence in that neither he, nor his 33 Spa v. Ely, 8 Hun, 256. 36 Hewett v. Woman 's Hospital 34 Nicholson v. Detroit, 129 Aid Assn., 64 Atl. 190. Mich. 246. so Smith v. Baker, 20 Fed. 709. 646 PUBLIC HEALTH ADMINISTRATION family were vaccinated. The court held that the evi- dence does not show contributory negligence on the part of appellees in failing to have themselves or their child vaccinated. 37 This is an unfortunate precedent, for it but aids those who, as the court of North Caro- lina remarked : 3S ' ' will deny any other f esult of human experience, however well established. ' ' The supreme court of the state of Washington sus- tained the assessment of damages against a physician for communicating gonorrhoea to a patient by the use of unclean instruments. 39 This was a civil damage suit, and when contrasted with the next to be men- tioned illustrates how such actions brought by pri- vate parties may easily be more efficient than govern- mental methods. Under statutory provisions prescrib- ing a penalty for wilfully and knowingly importing into the state or into any county of Texas any infec- tious disease, or for inoculating for infectious diseases after they may have been introduced, except as pro- vided by law, an indictment that the defendant, hav- ing an infectious disease known as gonorrhoea, did wilfully, knowingly, and unlawfully inoculate a cer- tain person by means of sexual intercourse, charges no offense. 40 There is another class of cases where this form of litigation promises to be still more efficient. It is found where the disease is communicated more or less indirectly, and often without the victim noting any suspicious warning. The city of Mankato, Minnesota, was assessed damages for communicating typhoid 37 Mo., K. & T. E. R, Co. of 39 Helland v. Bridenstine, 104 Texas v. Wood, 68 S. W. 802. Pae. 626. 38 State v. Hay, 126 N. C. 999. *<> Austin v. State, 56 So. 345. QUARANTINE AND ALLIED SUBJECTS 647 fever in its water supply. 41 There are other similar cases 42 In the Engineering News, Ap. 28, 1910, p. 506, there is an account of an English case in which the owner of a dairy was assessed damages to the amount of five hundred pounds by the civil court at the Liver- pool Assizes for selling typhoid in the milk. It was shown that there was a case of typhoid on a dairy farm. For a time the patient was in a hospital, but after he returned home typhoid fever appeared in eight out of the twenty-five households supplied. Out of 200 adults using the milk, thirteen, or 6.57 per cent were infected. Out of forty-two children, eleven, or 26 per cent were infected. In 1905 there was a similar case in which substantial damages were as- sessed and sustained. 43 This dairy company took par- ticular pains to emphasize the care which was taken to prevent infection. It might, on account of these adver- tisements, perhaps have been held a little more strictly to account than it would have been otherwise. It gave as a defense that it was difficult to make bacteriologic examinations which would detect the presence of the typhoid bacillus, on account of the length of time which must necessarily be consumed therein. Here also the disease was traceable to a typhoid case upon the farm, and as a result out of 430 customers at Ealing, 23 be- came infected; and out of 179 at Acton, 21 were infected. There is still another class of cases in which delin- 4i Keever v. Mankato, 113 Minn. *3 Frost v. Aylesbury Dairy Co., 55. 74 L. J. K. B. 386. is Milnes v. Huddersfield, L. E. 10 Q. B. D. 124; McGregor v. Boyle, 34 la. 268. 648 PUBLIC HEALTH ADMINISTRATION quents may be assessed for damages as the result of breeding insects which are disease carriers. Here the recent scientific advances may cut an important figure. The owner of a tannery was sued for damages as the result of the death of a patient from malaria. It was alleged that the tannery odors weakened the patient and that she contracted the disease from the insanitary condition of the place. It was shown that there were many flies around the tannery yard, but it was not shown that there were mosquitoes. The court held that the evidence showed that malaria could not be communicated by miasm, nor through the agency of flies; and that it was not shown that there were anopheline mosquitoes bred in the yard; and that evidence showed that the disease could only be com- municated by those mosquitoes. 44 On the other hand, in a Georgia case it was held that a liability was incurred as the result of maintaining a breeding place for mosquitoes which could carry the malarial infec- tion. 45 A somewhat novel issue was raised in a Texan case. The mother of certain children was dead, and the father, after a second marriage, sought the custody of his children. The aunt contested, offering to show that the mother of the second wife was living in the family of the father, and was afflicted with tubercu- losis. In their father's house, therefore, the children would come into close association with one suffering from a dangerous communicable disease. The lower court refused to receive this evidence, and awarded the custody to the father. Upon appeal, the Court of ** Cohen & Co. v. Rittman, 139 « Towaliga Falls Power Co. v. S. W. 59. Sims, 65 S. W. 844. QUARANTINE AND ALLIED SUBJECTS 649 Civil Appeals set aside the finding, holding that the lower court erred in refusing this testimony. What is for the best interest of the children is the question of prime importance in questions of this kind, and any evidence tending to show that their welfare would not be best subserved by placing them in the custody of a contending party should be admitted and consid- ered. 46 46Kirkland v. Matthews (Tex.), 162 S. W. 375. CHAPTER XV Licenses § 420. License under taxing or po- § 424. How license is granted. lice power distinguished. § 425. Medical licensure. § 421. License under police power. § 426. Medical reciprocity. §422. Permits. §427. What is medical practice? § 423. Size of fee. § 428. Eevocation of license. §420. License under taxing or police power dis- tinguished. The license system may be used as a means of collecting special taxes, or for regulating and controlling certain occupations. The authority for the one must be sought in the taxing power, while the other is an exercise of police power. In case the object sought is purely the raising of revenue, the conduct of the business or occupation may be prohibited until the license fee or tax shall have been paid, and the license is in effect simply an evidence of the payment of the tax. 1 In some states, such as Ohio and Michigan, a sharp distinction is made between an occupation tax and a license; and where the licensing of certain occupations, the liquor business, for example, is pro- hibited by the constitution of the state, a law prohibit- ing the conduct of the business until the tax be paid, or a bond be executed, and making a failure to pay the tax or to execute the bond punishable as a misde- i License Cases, 5 Wall. 462; Banta v. Chicago, 172 111. 204. 650 LICENSES 651 meanor, was held to be in reality a license, not a tax, and therefore unconstitutional. 2 If the tax be regarded as a precedent to the right to conduct a business, it is considered as a license, 3 but when no executive act is required as a preliminary to entering upon the business it is a tax. 4 Ordinarily it is not necessary to draw the distinction between the taxing and regulative features of an act, and to a degree we may find the two com- bined. 5 §421. License under police power. To justify a statute or an ordinance establishing a license require- ment upon any business or occupation under police power it is essential that there be something in the nature of the vocation or calling which might prove detrimental to the health, peace, or morals of the com- munity. The liquor business tends to have such an injurious effect, and it is therefore a frequent subject for license. The milk trade is frequently instrumental in spreading infectious diseases. It must be regulated, and to insure its regulation under police power it is licensed. In each of these employments a constant supervision is advisable. An unqualified person attempting to practice medicine may do great harm, and even cause death through his ignorance in dealing with disease. This profession is therefore a suitable subject for control by license. In this case the object sought is to guard against ignorance — hence it is required that the applicant present evidence of his qualification before the license shall be issued. After the license has been once issued further control is sel- 2 State v. Higgs, 38 Ohio, 199. 539 ; Anderson v. Brewster, 44 s Youngblood v. Sexton, 32 Mich. Ohio, 576. 406; State v. Sinks, 42 Ohio, 345. s Boston v. Sehaffer, 9 Pick, 415. * Adler v. Whitbeck, 44 Ohio, 652 PUBLIC HEALTH ADMINISTRATION dom attempted. Itinerant venders have more oppor- tunities to defraud than they would have as local store- keepers. To discourage such uncertain commercial ventures it is quite common that the fee demanded for the license be large and the size of the fee is the chief restraining power, though it may be advisable to require evidence of honesty. Pawnbrokers may easily be fences for thieves. In order to prevent this dishon- est practice it is usual to forbid the business unless a license be obtained, and in that manner all thus engaged may be listed and kept under observation. Each of these uses of the license system depends for its authority upon police power. § 422. Permits. A temporary license, or one which covers a single act, is ordinarily called a "permit." As an instance of the use of a permit as a means for the collection of a tax we may mention the permit fre- quently issued for shows on payment of the fee. As is true relative to peddlers, there is also a slight excuse for this license under police power; but the amount of the tax obtained by the city is the important ele- ment. Under police power strictly the permit may be used to regulate one act, the result of which may be lasting in effect. For example: a house improperly constructed may be a constant source of danger in the community. If electric wires be not properly insu- lated, or if chimney flues be constructed with thin walls and close to combustible material, there is constant risk of fire. If plumbing be defective harm may result to occupants of the house. Lack of sufficient light or ventilation may also have an injurious effect upon all subjected to its influence. Such defects may be more easily detected during the construction of the building. LICENSES 653 Under their police power, therefore, cities frequently require by ordinance that no building shall be erected until a permit shall have been secured. The permit is only granted after an examination of the plans, and it demands compliance with specified regulations. After the construction has once been completed there may be some question relative to the authority of the city to insist upon changes which might more properly have been arranged before. To demand that such altera- tions be made might be considered as taking property without due process of law. However, a new use for the building, especially when preceded by alterations in the arrangements, very properly reopens the oppor- tunity of the city to demand that a permit be secured. So it was a valid use of police power when the state enacted a statute providing that no building subse- quently constructed as, or altered into, a tenement- house, should be occupied in whole or in part for human habitation until after the issuance of a certifi- cate (permit) by the health department, or such other department as had been designated for that purpose by a municipal ordinance, stating that the building conforms in all respects to the requirements of the act relative to the light, ventilation, and sanitation of tenement houses. The conditions and restrictions im- posed relate to motives affecting public health, safety, and the public welfare. 6 In this case which was heard before the District Court of Appeals, Second District, California, the court said that legitimate busi- ness, as well as those things which are nuisances in and of themselves, is subject to control if control be <* Ex parte Stoltenberg, 132 Pac. 841. 654 PUBLIC HEALTH ADMINISTRATION necessary for the preservation of the public health and welfare. Nor does the fact, that the section above referred to gives to certain officials authority to deter- mine questions relative to compliance with the law, render the act invalid. It will not be presumed that authority will be exercised wantonly or for purposes of profit or oppression. Under police power licenses may be granted by the state or by the municipality. As to the authority of the city to regulate by license, it has been said: "It is undoubtedly the law that the right to license must be plainly conferred, or it will not be held to exist. The power to make by-laws relative to specified lawful occupations, or the general power to pass prudential by-laws in reference to them, would not as a rule authorize the municipal corporation to exact a license from those carrying on such a busi- ness." 7 Practically the license system is frequently the most effective means for controlling occupations. With the license requirement it places the burden of proof upon the proprietor of the business to be con- trolled. He must demonstrate that he is in fact com- plying with all of the requirements. Without the license check a man may conduct a doubtful business without exciting the suspicion of the authorities; and when their suspicions have been aroused investigation may be greatly hampered, and the burden of proof is wholly upon the authorities. "A man's house is his castle." Among Anglican peoples there is a strong hereditary reverence for the sanctity of private rights, which is well illustrated by Chatham's speech on Gen- eral Warrants. "The poorest man may in his cottage 7 State v. McMahon (Minn.), 72 X. W. E. 79. LICENSES 655 bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; but the king of England may not enter; all his force dares not cross the threshold of the ruined tenement. " Following out the same idea, there is a prevalent impression that, except after the issuance of a warrant, no governmental officer has the right to enter private property without the permission of the owner. Though this abstract statement is con- trary to fact, the underlying feeling of Anglican peo- ples is thus expressed. As shown in the previous chap- ter, the right of entry must frequently be used by health inspectors, but under the license system the entry may be distinctly granted by the holder of the license as a portion of the contract. See § 411. § 423. Size of fee. The amount of license fee which can be required as a police measure varies according to the nature of the occupation which is licensed. If the amount be unreasonably large for the purpose for which it is required, it would be deemed a violation of the principle of license, and an ordinance making such requirement would probably be declared void. s But when the amount of the license fee is determined by the state through legislative enactment its reasonable- ness cannot be determined by the courts. 9 A license fee might be raised to such a figure as to be prohibitive for the occupation. Authority for such a rate could not be found in "authority to regulate." A fee of twenty dollars for a peddler's license was considered unreasonable in State Center v. sLittlefield v. State, 42 Neb. 9 State v. Harrington, 63 Vt. 223; North Hudson Co. E. Co. v. 622. Hoboken, 41 N. J. L. 81. 656 PUBLIC HEALTH ADMINISTRATION Barrenstein, 10 and two hundred dollars was considered an unreasonable license fee for a butcher. 11 Sometimes the amount of fee must be gauged by the work required of the governmental officers in issuing a license; some- times, by the necessary expense of supervision of the business; and sometimes more than a nominal charge would defeat the very object of the requirement. Where a business is of such nature that it might be easily conducted surreptitiously, but a certain degree of police surveillance is desirable, the conduct of the business may be prohibited under heavy penalty except under authority of license for which a nominal charge would be made. In this way such places of business may be easily catalogued. However, if the charge for license amounted to any considerable sum the keeper of the place would be very likely to run all the risks of conducting his business without legal authority, and hence, without registration. In the case of the milk business, which is a frequent sub- ject of license, one must consider in determining upon the fee to be paid, not only the clerical work of making out the papers, but also the probable cost of such inspections as might reasonably be expected in carry- ing out the general terms of the enacted statutes, ordi- nances, rules, and regulations. The city of Asheville, North Carolina, passed an ordinance which required all dealers in milk to pay a license tax of one dollar per head of cattle in their herds. Payment of this tax was opposed as unreason- able and excessive. The contesting dairyman set forth the fact further that he sold to only one customer, a 1066 la. 249. n St. Paul v. Coulter, 12 Minn. 41. LICENSES 6. r >7 creamery. The court upheld the ordinance, on the ground that a refusal to pay the fee, if sustained, would seriously interfere with taking such sanitary precau- tions as were necessary for the city; and it was not material whether the dealer had one or many cus- tomers. Of course the products of the creamery would eventually be sold to other customers. If the fee charged were unnecessarily large for the purpose for which it was imposed, it was the dealer's privilege to set forth the facts before the proper city officers; and under such circumstances if the city authorities failed to reduce the fee the dealer might have recourse to the courts to compel such reduction. The size of the fee is primarily a matter to be decided by the discretion of the city. The ordinance requiring the license could not be set aside because of error in the use of the municipal discretion relative to the size of the license fee. 12 It is customary at the present time to require state licenses from all who desire to practice medicine in any of its branches, pharmacy, or dentistry, for example, in order that the citizens may be protected from the venality of unqualified tyros. In such a case it is the fact of license which protects; it is not the fee which protects ; neither is it any supervision of the conduct of the business. It is not customary today for the state authorities to accept diplomas as evidence of fitness. It is required that competent men shall examine can- didates and thus determine their fitness. Such an examination may take several days. There is neces- sitated not only the expense of ordinary clerical work, but also there should be provision for the employment i2Asheville v. Nettles, 80 S. E. 236. 658 PUBLIC HEALTH ADMINISTRATION of examiners who are really qualified for their work. There is a further necessity that suitable rooms be engaged for the holding of such examination, and it frequently happens that justice to the citizens of a state demands that such examinations be held at widely separated points. Very evidently in such a case more of a fee may reasonably be asked than where all that is desired is the registration of a pawn-broker's shop. Sometimes, too, the amount of fee itself is an import- ant factor in the regulation of the business, as only the better equipped concerns can afford to pay a large fee. It occasionally happens that this factor arouses the protest of the small dealer, but as a rule the small dealer is the man who needs the closest watching because he is likely to employ incompetent help and himself to lack sufficient education to appreciate the necessities. Take the milk business again, for an example. (§§8, 443.) A suitable plant today must have its sterilizers for bottles and for cans, its bottling machines, its pasteurizers, and other expensive machinery. The small dealer cannot afford such lux- uries; the large dealer can run them economically. The small dealer under the circumstances is likely either to buy cheap or secondhand machines which work imper- fectly, or to entirely neglect observing certain pre- cautions. His very means of obtaining his supply is less likely to be sanitary. He gets a can or two of milk brought down by each of several farmers in a wagon which is used for various other purposes. The writer has often seen such a wagon bring down milk in the morning and carry back a load of manure. A large milk firm cannot afford to run such risks. It must LICENSES 659 require that while being transported to the bottling plant the cans be carried in specially prepared wagons, and that the milk must be kept cool by ice in the sum- mer time. The large company finds it a matter of economy to employ special inspectors to go from farm to farm and make frequent investigations as to condi- tions, keeping score cards upon their observations. The large company is also likely to employ a veterinarian to make frequent visits, and keep watch of the health of the cattle. This extra supervision is practically impossible for the small dealer. It is a very serious matter for a large company when an infection gets started through its dairy products. For the small man it may simply mean the loss of trade for a short time. It is seldom that a small dealer has a suitable appar- atus in which to sterilize milk cans before returning them to the farmers; and the farmers practically never have such sterilizers. The consequence is that the cans passing from the farmer to the small dealer and back again may be the means of spreading infection in both directions. This was most graphically illustrated in an epidemic of typhoid fever which broke out at Stam- ford, Connecticut, in April, 1895. Between April 15 and May 28 three hundred and eighty-six cases living in one hundred and sixty houses had been reported. 13 Ninety-one and two-tenths per cent of these cases lived in houses taking milk from one dealer. Sixteen others got milk from the same source indirectly, as at a cafe, making a total of 95.3 per cent of the cases directly traceable to one dealer, who obtained his supply from is Hygienic Laboratory Bulletin, 56 U. S. Pub. Health Service, p. 30. 660 PUBLIC HEALTH ADMINISTRATION several farmers. These same farmers also supplied milk to other parties, and each one had one or more cases upon his private routes. Only four cases out of the total showed no relationship with dealer B. The infection in this epidemic was traced to the rinsing of the milk cans, after washing, with water from an infected source at B 's place. Such illustrations show a reasonableness under modern conditions in forcing the small man out of business, unless he be prepared to carry out in full sanitary provisions. Sometimes the license fee is regarded as an occupa- tion tax, although the prime reason for the requirement of the license may be for police regulation. A license requirement is sometimes attacked in the court on the ground that the fee charged has no relationship to the expense involved in its issuance. The Supreme Court of the United States thus deals with the matter: "The payment required as a preliminary to the license is in the nature and form of a tax, and is due to the state which may demand and exact from every one of its citizens who either will or must follow some business or avocation within its limits, to the pursuit of which the assessment is made precedent. It is an occupation tax, for which the license is merely a receipt, and not merely as incident to the general police power of the state, which, under certain circumstances and condi- tions, regulates certain employments with a view to the public health, comfort, and convenience. " 13a So a license fee of one hundred dollars required by a city ordinance of dealers in cigarettes was upheld. 13b § 424. How license is granted. The police power is under the jurisdiction of the state, and the state may isa Eoyall v. Virginia, 116 U. S. «b Gundling v. Chicago, 177 U. 572. S. 183. LICENSES 661 therefore make such provision for license under its authority as may seem best. Where a business or establishment affects several communities it is mani- festly fairer that the state at large shall use its con- trol, than that the proprietor or practitioner shall be subject to the diverse demands of separate municipal- ities. On the other hand, where the business is essen- tially local, as in the conduct of a pawn-shop, the license may better be left to immediate local control. Therefore it is that the state legislature provides in some cases for the issuance of the license by state offi- cers, and at other times it empowers municipalities or other local governmental bodies to make such regula- tions as seem necessary, including the authority to issue licenses. This issuing of license must not be arbitrarily exercised. There must be no discrimina- tion between residents and non-residents, nor between different persons engaged in the same business, either by charging larger fees for some, or otherwise. 14 Where authority is granted to the city to issue licenses it cannot leave to the mayor the power to determine the district within which a business may be licensed. 15 A city cannot delegate to the mayor the power to grant licenses, 16 though it may delegate the ministerial duties of making out licenses and issuing the same when cer- tain general regulations have been complied with. ' ' It is undoubtedly the law that the right to license must 14 Indianapolis v. Better, 138 « State v. Cantler, 33 Minn. 69 ; Ind. 30 ; Clement v. Town of Cas- In re Wilson, 32 Minn. 145. per (Wy.), 35 Pac. E. 472; Muh- i6 Kinmundy v. Mayor, 72 III. lenbriek v. Com., 44 N. J. L. 365 ; 463 ; State v. Bayonne, 44 N. J. L. State v. Orange, 50 X. J. L. 389'; 114; Trento v.. Clayton, 50 Mo. 541. Borough of Sayre v. Phillips, 148 114; Trenton v. Clayton, 50 Mo. Pa. 482; State v. Ocean Grove App. 535. C. M. A., 55 N. J. L. 507. 662 PUBLIC HEALTH ADMINISTRATION be plainly conferred or it will be held not to exist. The power to make by-laws relative to specified lawful occupations, or the general power to pass prudential by-laws in reference to them, would not as a general rule authorize the municipal corporation to exact a license from those carrying on such business. But in view of the very important bearing which the scaven- ger business has upon the public health, and the imper- ative necessity, from sanitary considerations, that such work should be entrusted only to those who are com- petent and properly equipped to perform it, we are of the opinion that the grant of power to make such regu- lations and to ordain such ordinance as may be neces- sary and expedient for the preservation of health and to prevent the introduction of contagious diseases, conferred authority on the common council, as one means of regulating the scavenger business, to require a license from those carrying it on, and to prohibit any- one from doing so without a license." 17 When the city ordinance leaves to the mayor, or other officer, the issuance of the license, under conditions laid down in the ordinance, there is no prohibited delegation of power; neither does it violate the Fourteenth Amend- ment to the federal Constitution; neither does it confer upon the mayor arbitrary power. 17a §425. Medical licensure. It has long been cus- tomary to put certain restraints upon the practice of medicine. Thus, under Statutes 4 and 5 of Henry VIII, it Mitchell, J., in State v. Mc- i7aGundling v. Chicago, 177 U. Mahon (Minn.), 72 N. W. R. 79; S. 183; Gundling v. Chicago, 176 see also Ex parte Garza, 28 Texas 111. 340; Chicago v. Drogasawacz, App. 381; Boehm v. Baltimore, 61 256 111. 34; Swarth v. People, 109 Md. 259; Chicago, etc., Co. v. Chi- 111. 621. cago, 88 111. 221. LICENSES 663 Chapter 5, we find the act by which the College of Phy- sicians of London was established. In this King Henry said that he was following the example of Italy, and in accordance with the suggestions of Lord Woolsey, he 1 'held it necessary to restrain the boldness of wicked men who professed physic more for avarice than out of confidence of a good conscience." By this act no one was permitted to practice medicine, either in the city of London, or within seven miles of the city, unless he should have passed a satisfactory examination before the censors of this college. Violations of this provision were punishable by a fine of a hundred shill- ings a month, so long as the practice continued. This act was confirmed by Statute I, Mary, Chapter 9, and extended in effect, permitting imprisonment for mal- practice in a broad sense. It will be noted that the additions under Mary gave to the censors of the Col- lege a certain continuous control over parties licensed. One Thomas Bonham, in 1606 brought action against the censors of the College for false imprisonment. It was claimed that he was practicing medicine without the license of the College. The censors, therefore, assessed him a fine and kept him imprisoned for the space of seven days. The decision by Lord Coke became somewhat famous incidentally as a precedent for judicial supervision of legislative acts contrary to the common law. 18 It was shown at the trial that the said Bonham graduated from the University of Cam- bridge with the degree of Doctor of Physics on July 2, 1595. He therefore claimed that since he had the diploma of the University, the College had no author- ity to restrain his practice as the College was a mere 18 8 Coke, 107a. 664 PUBLIC HEALTH ADMINISTRATION subordinate to the University. On the other hand it was shown that the said Bonham had been before the censors several times for examination, and that he had failed to answer the questions satisfactory. The cen- sors, therefore, forbade his practicing medicine, and this prohibition he disregarded. Lord Coke held that they had no authority to imprison Bonham unless it could be shown that he was guilty of malpractice. As to his contention that the holding of a diploma from the University granted him the right to practice, Lord Coke quoted the statute and said that "nemo" ■ — no one — was sufficient to prohibit any person prac- ticing in London or within seven miles unless he have the license of the College of Physicians. For that violation the statute would permit a fine of five pounds a month to be recovered by the censors in an action at law. But, for less than a month's violation there could be no fine. Lord Coke said — and this expression has made the case famous in law — "the censors can not be judges, ministers, and parties; * * * and it appears in our books, that in many cases the common law will control acts of parliament, and sometimes adjudge them to be utterly void; for when an act of parliament is against common right and reason; or repugnant or impossible to be performed, the common law will control it, and adjudge such act to be void." So much, therefore, of the statute as contemplated that the censors be both executives and judges in regulating the practice of medicine, Lord Coke held null and void. He said that there should be neither fine nor imprison- ment without a legal record of the proceeding. In gen- eral the comments of Lord Chief Justice Coke in this case are valid today. LICENSES 665 In order that the populace may not be imposed upon by unscrupulous persons who lack a knowledge which would fit them to practice medicine, it is customary at the present time for the individual states of our union each to require that candidates for admission to practice present certain evidence of their qualification. This being strictly a police regulation is within the authority of the individual states and according to the present Constitution of the United States, it in no wise comes within the jurisdiction of the federal gov- ernment. Practitioners of medicine who are not posted in legal principles frequently urge that the federal government assume the responsibility of granting such licenses. The only legal authority for the restriction of medical practice as yet found in this country has been in police power. It has been repeatedly held that the states have authority in this power thus to regulate the practice, and that this power is reserved to the individual states. 19 Apparently, therefore, the only way in which the federal government may under- take this regulation must be by first repealing the Tenth Amendment to the Constitution. It is then the province of the state legislature to determine the general condi- tions under which a license shall be granted, but the granting of such licenses is not ministerial in charac- ter; it must depend upon the exercise of discretionary judgment on the part of the officer as to whether or not the applicant may be qualified to assume the duties of the practice. On the other hand, neither the grant- 19 Dent v. West Virginia, 129 Michigan, 188 U. S. 505; Watson U. S. 114; Hawker v. New York, v. Maryland, 105 Md. 650, 66 A. 170 U. S. 189; Jacobson v. Massa- 635; Ex parte Spinney, 10 Nev. chusetts, 197 U. S. 11; State v. 323. Hathaway, 115 Mo. 36; Reetz v. 666 PUBLIC HEALTH ADMINISTRATION ing, nor the revocation of a license to practice medi- cine is an exercise of judicial power. The statutes de- termine the terms upon which the license is granted or revoked, and the issuance is purely an executive act, though exercised with discretion. 198 (§§ 183, 184.) In addition to requirements as to educational quali- fications of those who seek licenses to practice medi- cine, it is entirely proper that the state further safe- guard the interests of the people by requiring that all who would enter into such intimate and confidential relationships with the citizens shall be of good moral character. It has been repeatedly held that, so long as it uses reasonable discretion, the legislature may de- termine what shall be the evidence of such good moral character. 19 " There are two principal methods for determining the fitness of a candidate, viz. by the requirement of a diploma from a recognized school of medicine, or by examinations conducted by governmental officers. Occasionally an exception is made in favor of experi- ence permitting years of practice as a substitute for the training which a diploma represents. The ques- tions arise relative to diplomas: first, is the diploma genuine; and secondly, does it represent a properly equipped school of medicine. Our American educa- tional system is so exceedingly lax that it has been possible in the past for commercial establishments run by men often ignorant of the practice of medicine, though legally incorporated according to the laws of isa People v. Apfelbaum, 251 Minn. 324; Thompson v. Hazen, 111. 18. 25 Me. 104; State v. Hathaway, i9b Dent v. West Virginia, 129 115 Mo. .36; Eastman v. State, U. S. 114; Hawker v. New York, 109 Ind. 278; State v. Call (N. 170 U. S. 189; State v. State C.) 28 S. E. 517. Medical Examining Board, 32 LICENSES 667 some state, to issue diplomas which represent abso- lutely nothing on the part of the holder of the "de- gree" further than the payment of cash. If diplomas be accepted as a basis for issuing the license by the state, it becomes necessary to invest some officer or officers with the quasi- judicial function of determining the genuineness of the diplomas and the character of the school of learning; and this examining body must have power to reject all applications below a certain grade. Similarly, if the license is to be issued after an examination, again the licensing board must use its quasi-judicial authority in the determination of the question whether or not a license be granted. Such tests of fitness do not violate the principle of equal protection of the laws nor create any special privilege, provided the qualification required is obtainable by reasonable effort. 20 Discretion implies a fair judgment without discrim- ination against any individual. The right to practice cannot be dependent upon adherence to any particular school of medicine. Science is universal; it recog- nizes no particular school. The very idea of "school of practice" is essentially commercial, not scientific. What the state desires is evidence as to the moral character of the applicant and as to his knowledge. Therefore it is that individual "schools" must neither be given special privileges nor be discriminated against. The exclusion of members of the "eclectic schools" by a board of examiners is not in itself a discrimination unless it be shown that the applica- tions for admission were improperly rejected. 21 "In 20 Dent v. West Virginia, 129 U. 2 * Allopathic State Board of S. 114; Ex parte Spinney, 10 Nev. Medical Examiners v. Fowler, 50 323. La. Ann. 1358, 24 S. R. 809. 668 PUBLIC HEALTH ADMINISTRATION a case where it was clear from the evidence that dis- crimination had been made against a system of medicine, we should not hesitate to hold that the board had exceeded its power. ' ' 22 The decision either as to the personal knowledge of the candidate by examination, or the value of the diploma must be "with discretion," and in no sense arbitrary. The standard for the school should be fixed by statutory enactment and the examiners should simply apply the standard to the case. When the board has attempted to make requirements not prescribed by statute the courts have offered relief by mandamus. 23 A similar relief might be given if the determination of the lepu- tability of a school has been left to some foreign body, or if the board refuse to accept a diploma from an institution which it had recognized as reputable. 24 It is customary that statutes regulating the practice of medicine provide for the appointment of boards of examiners. The California Law provides for the elec- tion of medical examiners by different medical socie- ties. This provision, so far as we are aware, has not been tested in the courts, but it seems to us contrary to good usage. The supreme court of Illinois held in a somewhat similar case that 25 such granting of power to special organizations was an unconstitutional dele- gation of authority, and a granting of special fran- chise which is contrary to the Illinois constitution. The people of the state elect officers to look after the business of the state. They are so elected, presum- ably, because people have confidence in their ability, 22 Nelson v. State Bd. of Health, 23 State v. Lutz, 136 Mo. 633. 22 Ky. Law 438, 50 L. K. A. 383; 21 State Board of Dental Ex- State v. Gregory, 83 Mo. 123; aminers v. The People, 123 HI. 227. White v. Carroll, 42 N. Y. 161. 25 Lasher v. People, 183 111. 226. LICENSES 669 integrity, and judgment. It is not apparent by what right or authority the legislature of California saw fit to thus take a portion of the governmental authority and confer it upon independent and private organiza- tions. "Such rights as inhere in the sovereign power can only be exercised by the individual or corporation by virtue of a grant from such sovereign power, and when the state grants such a right it is a franchise. ' ' 26 Power to appoint to office is an attribute of sovereignty. 27 The legislature itself had no power to appoint to office. Therefore it could not give that power to non-governmental persons. § 426. Medical reciprocity. Although variously worded, the statutes regulating the practice of medi- cine require that the candidates shall be personally examined by the examining board. This seems to exclude the employment of readers of examination papers, or others to do anything more than the mere ministerial duties. Otherwise, there would be a dele- gation of authority with discretion. Few of the states have in their statutes any provision relative to the granting of license by reciprocity. Unless special exception be made in the statute, there may be some considerable question as to the legality of such a pro- cedure. Some of the statutes specify that the examin- ation shall be in writing, and that the examination papers shall be a part of the records of the examining board and kept on file in the office. It is difficult to understand how these provisions may be observed when the examination has been made in another state, 2a Lasher v. People, 183 111. 226, ^ 1 Blackstone Comm. 272. 233; citing Bd. of Trade v. Peo- ple, 91 111. 80; People v. Holtz, 92 111. 426. 670 PUBLIC HEALTH ADMINISTRATION when these records are kept in another state, and when the judgment as to the qualifications of the ap- plicant was exercised by residents of such foreign state. ' ' In these cases in which the proper execution of the office requires, on the part of the officer, the exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise that good judgment and discretion, and, unless power to substitute another in his place has been given to him, he cannot delegate his duties to another." 28 "Where, however, the question arises in regard to an act which is of a purely mechanical, ministerial, or executive nature, a different rule applies. * * * The rule, therefore, is that the per- formance of duties of this nature may, unless express- ly prohibited, be properly delegated to another." 29 So, also, Throop says 30 in speaking of the American practice: "Thus the rule is well settled here that ministerial powers may generally be executed by a deputy, but judicial powers may not. 31 Where the powers are partly ministerial and party of a judicial nature, the exercise of the former may be given to a deputy, but not that of the latter." 32 The ruling given above as to judicial duties applies also to quasi- judicial duties or powers. 33 Thus, a board of health 28 Mechem, Public Officers, 567, so Public Officers, 570. citing State v. Patterson, 34 N. J. si Citing Page v. Hardin, 8 B. L. 163 ; Sheehan v. Gleeson, 46 Mo. Mon. (Ky.) 648, 662; People v. 100 ; Abrams v. Ervin, 9 Iowa, 87 ; Bank of N. America, 75 N. Y. Lewis v. Lewis, 9 Mo. 183. 547; Kirkwood v. Smith, 9 Lea 29Mechem, Op. cit. 568, citing (Ky.), 228. Abrams v. Ervin, 9 Iowa, 87 ; Ed- 32 Citing Powell v. Tuttle, 3 N. wards v. Watertown, 24 Hun (N. Y. 396. Y.), 428; Lewis v. Lewis, 9 Mo. as Abrams v. Ervin, 9 Iowa, 87; 183. State v. Shaw, 64 Me. 263; Shee- LICENSES 671 cannot delegate to a committee its power to employ a physician. 34 Applying the above to the granting of medical license by reciprocity, if the statute permits the regis- tration and license of all who hold diplomas from legally chartered medical colleges, the duty of the board may be considered purely ministerial, and as such the determination as to the variety of the diploma might be left to a foreign board. Even here, the case is not clear, for to a minor degree even this deter- mination requires a semi-judicial consideration which will be the greater if the statute requires that the medi- cal school granting the diploma shall be of approved standard. If, however, the statute requires that the applicant shall pass an examination before the board, that is certainly of a judicial nature, and the power cannot be delegated. The mechanical portion of the examination, the supervision of the room during a written examination, for example, can be delegated, but no part requiring judgment. There is another legal objection to license by reciprocity. A foreign board is not under the jur- isdiction of the commonwealth. Citizenship is one of the requisites for office. It is repugnant to our ideals of government that any of the attributes of sovereignty should be surrendered to a person upon whom the commonwealth could have no authority — who could not be punished for abuse of trust. If the law regulating the granting of the license does not require an examination, but simply requires that the board shall be satisfied that the applicant is a proper han v. Gleeson, 46 Mo. 100; 34 Young v. Blaekhawk Co., 66 Crocker v. Crane, 21 Wend. (N. Y.) Iowa, 460; Taylor v. Adair Co., 211. 119 Ky. 374. 672 PUBLIC HEALTH ADMINISTRATION person to receive the license, the fact of license in another state may be taken as evidence of his fitness. For example: A is licensed in Illinois, and B in Minnesota. Both apply for license in Massachusetts. If the Massachusetts law simply required that the license board be satisfied as to fitness, but does not stipulate how they shall be so convinced, knowing the work of the Minnesota and Illinois boards, the Mass- achusetts board might be justified in licensing B and in rejecting A. In other words, the Massachusetts board does not surrender nor delegate its semi-judicial power, though it accepts the previous license as evi- dence of fitness. One Thomas, having been licensed to practice medicine in the state of Maryland, attempted by mandamus to compel the issuance of a license in "West Virginia by reciprocity. The license board of the second state, however, had a rule requiring that an applicant for a reciprocal license must have been practicing in the state issuing the primary license at least one year. 35 This rule was sustained by the court. It will be presumed that a man is not a legal practitioner until he proves to the contrary. 36 Lieutenant Colonel Kean, 36a of the United States Army, has suggested that use may be made of the Med- ical Reserve Corps of the Army, and that of the Navy, to provide for license by reciprocity. His scheme re- quires that the state license boards voluntarily take the result of the army and navy examinations as a basis for license. This seems to be open to the objection that it involves the delegation of qua si- judicial duty. 35 Thomas v. State Board of 36a Quarterly of the Federation Health, 79 S. E. E. 725. of State Medical Boards, April, se Miller v. State (Miss.), 63 1914. South. E. 269. LICENSES 673 It is possible that these commissions in the reserve corps may, however, be used to enable a physician to make a transfer to another state. It is a necessity for the national government that it have an efficient medi- cal corps for the army and for the navy. There is need for a larger service in time of war than during peace. It seems advisable, therefore, that such additional sur- geons be commissioned and trained before their serv- ices may be needed. This is the foundation for the reserve corps. It is not impossible that such commis- sions in the reserve corps may be sufficient authority for a physician or surgeon to practice in any state in the union. If the present law relative to the organiza- tion of the corps does not give that authority it is pos- sible that it may be made to cover this point. Clearly, it is for the interest of the government that such men while in reserve shall not be objects of expense to the national government, and to prevent such govern- mental obligation, while at the same time keeping them in training for possible use, it is necessary that they be permitted to engage in private practice of their pro- fession. § 427. What is medical practice? The exact word- ing of the statute governing the practice of medicine must decide in every case as to how far it may apply. It would seem reasonable to include everything per- taining to the practice of medicine as medical prac- tice — adding the letters M. D. after one's name or calling oneself "doctor," and particularly when one advertises or holds himself out as competent to treat diseases. The courts have not always been liberal in their application of the statutes, and sometimes they have been rather too lenient, possibly, with real vio- 674 PUBLIC HEALTH ADMINISTRATION lators of the law. The fitting of glasses for defective vision is a legitimate portion of medical practice in the estimation of most members of the medical pro- fession. The work requires something more than sim- ply finding the lense which gives the greatest relief. The association of the action of the eye with the nerv- ous system is so intimate that an ocular defect may have serious results upon the rest of the human sys- tem. An error in correction of visual defects might seriously increase the patient's troubles. Very fre- quently the visual defect is associated with some trouble which needs more than glasses, but because suitable glasses have been found the disease is neglected, and permanent harm results. Nevertheless, fitting glasses has been declared not to be practicing medicine. 37 On the other hand, the giving of oint- ments, salves, and eye-water for the eyes is practic- ing medicine. 38 The confusion which may be found between the statements of different courts as to the same question comes largely from the changing condi- tion of the science of medicine, and the imperfect way in which evidence may be presented. What is here said relative to the practice of medi- cine applies equally to each of the several professions which are being properly licensed in the interest of health. There may be too great a tendency to extend this system of license beyond its rational scope. Thus, to guard against the dangers which may lurk in the barber shop it may very well be that the regulation of the shop is far more important than the determination as to the knowledge of the applicant for license. How- 37 People v. Smith, 208 111. 31. 38 State v. Blumenthal, 125 S. W. R. 1188. LICENSES 675 ever, barbers' laws have been upheld. 39 In the con- trol of barber shops in the interest of health it is neces- sary to keep a constant supervision. The superficial knowledge which a barber may have of infectious dis- eases is not sufficient to dignify his art with the title of profession. With the exception of the disease com- monly called barbers' itch, infection in barber shops is probably rare. The prevention of such ills must depend chiefly upon the strict observance of sanitary regulations. Because of their slight scientific knowl- edge and the superficiality of its character, barbers themselves are incompetent to make such rules and regulations. In proportion, therefore, as dependence is placed upon the barber's knowledge, rather than upon compliance with regulations formulated by the sanitary authorities of the state or municipality, it will be found that the protection of the state will be unstable. It is perfectly proper that barber shops should be licensed for control under police power. The license of barbers themselves as members of a pro- fession does not seem to us justifiable. Pharmacy is a profession, and it is the pharmacist who should be licensed rather than the drug store. The pharmacist may properly be examined. There is little necessity for police supervision over a pharmacy which is under the control of a competent pharmacist. This distinc- tion between the license of an individual and the license of his business for police control seems important. The supreme court of Missouri upheld as constitu- tional a statute regulating the barber shops, even 39 State v. Sharply, 31 Wash. 191 ; State v. Zeno, 81 N. W. 748, 79 Minn. 80. 676 PUBLIC HEALTH ADMINISTRATION though it applied only to cities of more than 50,000 inhabitants. 40 On the other hand, the Texas law was declared unconstitutional because in its operation exception was made of the barbers at certain schools and at eleemosynary institutions, and in towns of 1000 inhabitants or less, such exceptions amounting to a discrimination. 41 The court said that sanitary regula- tions should operate upon all alike, when subject to the same conditions. In Ehode Island the barbers' law was attacked on several points: first, that the search authorized for the sanitary inspection of bar- ber shops was a violation of the state constitution, which declared the people of the state to be secure against unreasonable searches and seizures. On this point the court said that the inspection authorized was no such search as was intended by that provision of the constitution. The examiner is not authorized to take any summary action, such as seizure of objection- able tools, appliances, or furnishings ; but the examina- tion is made only for the purpose of ascertaining the sanitary condition thereof, and to enable the board to judge whether or not the law is being obeyed. Other objections to the statute were based upon the fact that it applied only to towns, after adoption by town coun- cil. The law was upheld. 42 The New Jersey court recognized the fact that local boards of health have ample power to prevent the spreading of contagious skin diseases in barber shops. 43 § 428. Revocation of license. License under police power is only a means to an end. Its existence is an evidence that the particular business or occupation 40 Ex parte Lucas, 61 S. W. 218. 42 state v. Arneno, 72 Atl. 216. 41 Jackson v. State, 117 S. W. 43 La Porta v. Board of Health, 818. 42 Vr. 88. LICENSES 677 has in it a possibility of harm for the community; and to guard against that evil influence the state, possibly through the instrumentality of the city, attempts by means of the license to keep track of, and control the occupation or business. It would be contrary to pub- lic policy were the governmental body to resign, even for a given time, all control over the matter. In fact it has been generally recognized that the police power is so inherently a part of government that it cannot be alienated, and the constitutions of several of the states specially provide against this bargaining away of police control. (§ 212.) The granting of a license in the liquor business does not create a contract. 44 Though in some of the earlier cases it was held that a liquor license could not be revoked, it is now generally agreed that a liquor license can be revoked at any time during its life for cause. The fact that a milk dealer has obtained a license is no defense for him in continued violation of the ordinances of the city, and should he conduct his business in an insanitary man- ner, it would seem to be the duty of those in authority to cancel his license. 44 * All statutes or ordinances pro- viding for license under police power should also con- tain a provision for revocation of license. Such revo- cation must, of course, be made only for cause. In the case of Hawker v. New York 45 the revocation was on account of a crime committed years before. Professor Freund questions the justice of this revocation, 45 * arguing that Hawker had acquired a right, and that the license was then essentially a contract. If, how- 44 Calder v. Kurby, 5 Gray, 597. 45 Hawker V. New York, 170 U. 44a State v. Milwaukee, 121 N. S. 189. W. 658; People v. Health Depart- 45a Police Power, 546. ment, New York, 82 N. E. 187. 678 PUBLIC HEALTH ADMINISTRATION ever, the commission of crime is a moral reason why a man should not be licensed to practice medicine, it would seem to be a valid reason for denying him the right to practice whenever it might be discovered. Since the revocation must depend largely upon the statutory enactment, the exact wording of the enact- ment must govern the revocation. A case arising in Missouri was that in which a physician was denied the right to continue in practice on the ground that he was guilty of "unprofessional and dishonorable conduct", and that he was willing to commit a criminal abortion. The state statute under which he was suspended pro- vides that the board may revoke licenses for, among other things, producing criminal abortion but the specifications in the act were not intended to exclude all other acts for which licenses may be revoked. The court says that the appellant, through his license to practice medicine, and through his ability and indus- try, had become possessed of at least a valuable privi- lege — perhaps a property right — which had been sus- pended by the action of the respondents for his alleged violation of the laws of the state. The court found nothing in the brief of the attorney general to intimate that the conviction and suspension of the appellant could be sustained on the advertisement which he published. There was no crime in the advertisement itself, nor was hearsay evidence of another physician to the effect that the appellant bore the reputation of being a criminal abortionist sufficient. The statute, in so far as it authorizes the revocation of licenses of physicians, is highly penal and cannot be expanded or enlarged beyond its letter or spirit. Its general specification is directed solely against certain acts, not LICENSES 679 against evil thoughts or a willingness to perform wrongful acts. 40 It was not a question of what might have been done, but what was done in the Spriggs case. Doubtless the legislature might have made the publishing of an ad- vertisement sufficient cause for revoking license, but it did not do so. Neither was the advertisement an open offer to commit abortion, though it might pos- sibly be so interpreted. Neither was it a question of whether or not the doctor might commit abortions. That was really a question for the future. In fact, he had not been convicted of having performed abor- tions. The board had to deal with facts, not with theories or intentions. Statutes providing for revocation of license should specify how the license is to be revoked. It would be proper to specify as a cause for revocation the com- mission of crime; a certification of conviction, duly filed with the proper officer might then be sufficient for the cancellation of the license. Ordinarily the rev- ocation must depend upon some sort of trial. This trial might be before a regular court, upon complaint of the executive, and upon the filing of the finding of the court the license could be cancelled. Or the trial could be within the executive department. If so pro- vided the statute should specify how notice is to be served upon the party whose rights are to be sus- pended. If the license is to be cancelled by a board, the meeting of the board should be formally recorded, and a copy of the certificate of the serving of the notice should be recorded in the minutes of the meeting. If « State ex rel Spriggs v. Robin- ■ son et al., 161 S. W. 1169. 680 PUBLIC HEALTH ADMINISTRATION the respondent be present he should be given trial. If he do not respond, or after trial in case he be pres- ent, the board may take such action as the facts war- rant, and the action should be fully recorded. Unless otherwise provided by the statute, this executive hear- ing would be final, though questions of law might be reviewed in court. 47 (§ 141.) Purely ex parte find- ings, because they violate due process, should never be used, further than temporarily in emergencies. There is another class of cases in which licenses might and should be cancelled or suspended. Statutes sometimes make habitual drunkenness a cause of revocation of medical license. That condi- tion is, in a sense, a crime for which the culprit may be punished. It is a specific act, or result of such action. The reason why the license should then be revoked is that the person who deals with the sacred- ness of human life should be in his right mind, and with an unclouded brain. It sometimes happens, how- ever, that physicians are in practice whose mental state is such as to unfit them for their work, though it would be difficult to get them committed to an asylum. The consequences of their errors of judgment may be serious. These are not cases of specific acts, but of conditions due to disease. Such persons would not be given licenses were they to request it in that state — why should they retain their right to practice when the rights of the citizens are no longer pro- tected 1 It is only by revoking, or suspending, a license to practice medicine that the safety of the people is guarded, when the practitioner is in a mental state which prevents the use of clear judgment. *" Nishimura Ekiu v. U. S., 142 U. S. 651. CHAPTER XVI WATER SUPPLIES DRAINAGE AND GARBAGE DISPOSAL water § 437. Water on trains and boats. § 430. Natural unity of problems sewage of disposal of waste with § 440. Municipal sewage problem. water supply. § 441. Sewer a nuisance. § 431. State and municipal rela- § 442. Jurisdiction. tionship contrasted. § 443. Eelation of problems to § 432. Duty of city to provide natural drainage. water supply. garbage § 433. Franchise granted to private § 450. Garbage as a municipal corporations. problem. § 434. Municipal plants. § 451. City collection. § 435. Liability of municipality. § 452. Ankylostomiasis or the § 436. State supervision. hook-worm disease. Water §430. Natural unity of problems of disposal of waste with water supply. The subjects of water sup- ply and of sewage and garbage disposal are intimately associated. The line between garbage and sewage is not always clearly drawn, and sewage is a frequent pollution of water supplies. In country districts neither of these problems may assume an aspect de- manding public attention. They are solved upon the premises of the individual citizen — he digs his own well; what little sewage he may have may be easily diverted where it enriches the soil or is destroyed by nature. The household garbage is fed to the pigs and poultry. On the farm these materials have value 681 682 PUBLIC HEALTH ADMINISTRATION while in the city they are waste. The farmer may easily prevent these substances from being a nuisance to himself or his neighbors, and they become sources of profit in the place of causes for expenditure. Un- fortunately, a growing proportion of our population live under the hampering restrictions of city surround- ings. Many families reside in a single building crowded upon a small city lot. There may be no portion of the lot uncovered by the edifice, no place in which a well could be dug. Even in the larger city yards a well is an unsafe source from which to obtain the water for household purposes, for the drainage area is very likely to include points threatening pollu- tion. Garbage might be burned upon the premises in many places ; but where gas is used for fuel, where the rooms are small and crowded, and where ventilation is difficult, even such destruction is practically impos- sible for the individual family. The care of dejecta, dish-water, and laundry waste is even more impossible for the family residing in the city, except by communal effort. It has therefore become necessary that all of these subjects be at least regulated by some govern- mental authority. Under modern methods of life the inhabitants of a city demand large quantities of water, and they must have an enormous amount of sewage. To insure its purity the water must frequently be brought from a distance. The sewage of a given city may make its way towards the point at which the water supply is obtained, as happened so long at Chicago; or, if diverted elsewhere, it may be a source of danger for other municipalities. It therefore seems increasingly necessarv that the state become interested in both WATER SUPPLY DRAINAGE GARBAGE 683 problems. This it may properly do under its police power. The supply of city water is no longer purely a commercial matter. It is necessary that citizens and cities be protected from possible harm which may come in the waste from others. § 431. State and municipal relationship contrasted. It must be remembered that there is a marked differ- ence between the relationship of the state and the municipality to the water and sewage problems. One of the prime objects sought in the incorporation of cities is to provide for such matters of common concern as individual citizens cannot so well manage them- selves. Since the citizens may not, each for himself, obtain his needed water supply at home, he must arrange for it to be brought to him either in bottles, casks, or other retainers, or through a system of pipes. He may make his contract with an individual, or with a private corporation. As a part of its police power the city may supervise this business. In its super- : vision the municipality may grant franchises. Since, however, it is a subject which is of vital concern to all the inhabitants, the public corporation may generally enter the business itself, thus competing with the private corporations. In a small town where many of the citizens still obtain their supply from private wells, because of the fact that only a relatively small portion of the taxpayers find it necessary to buy water, the franchise may perhaps be the best solution; but in a more thickly settled community the city may transact all the business more economically than the private corporation. To divide the expense equably among the customers the city charges users in propor- tion to the amount each consumes. There may be a 684 PUBLIC HEALTH ADMINISTRATION net gain or net loss to the corporation, but in such a matter the city is a business corporation and as such it assumes certain responsibilities and liabilities. The state, on the other hand, is not a corporation^ It is not in the business of selling water; but in its governmental capacity of protecting its citizens from harm, it may, and should, protect the purity of water supplies. This protection is often impossible for the city because the source of supply is frequently not within the jurisdiction of the city. Similarly, when the city undertakes to take the place of private con- tractors in removing the garbage and sewage it may be considered as acting in its corporate rather than in its governmental capacity; but it is the duty of the state to protect other communities from being injured by the sewage which a city throws away. The interest of the city is to get rid of its waste; the state sees to it that one municipality does not commit a nuisance upon others. § 432. Duty of city to provide water supply. It is the duty of municipalities to provide a plentiful supply of pure water either as a corporation or in its govern- mental capacity. This means that the city must see to it that its inhabitants are provided with water of such a composition as will serve for all their needs and be free from injurious chemicals and pathogenic bacteria, or protozoa. This does not mean that the water must be chemically pure. The most satisfactory spring water, clear as crystal, and cooled by nature, contains a varying quantity of earthy salts, and those very salts may be useful in the nutrition of the body. Even salts which are beneficial in small quantities may be harmful in larger proportions. Decaying animal WATER SUPPLY — DRAINAGE — GARBAGE 685 and vegetable matter, on the other hand, is always objectionable. Such materials may contain harmful germs at any time, and they furnish food for patho- genetic growths. Formerly the ordinary tests used to determine the character of the water were purely chemical. Today the chief tests are bacterial. It is not shown that the colon bacillus is per se harmful, but its presence is considered a sure indication of danger. Though the study of the Hygienic Laboratory in the Panama Canal Zone indicates that the colon bacillus may be present without pullution with human excre- ment, the only safe way is to regard it as an evidence of such contamination. If the colon bacillus derived from human sources find its way into the water supply we may at any time find it accompanied by its cousin which produces typhoid fever. Water containing the colon bacilli is suspicious in proportion to the number of those bacteria per cubic centimeter. It is the gov- ernmental duty of the city to prevent the use of water containing harmful germs, thus to prevent illness among the citizens. It is the duty, therefore, of the city to see that there is furnished to its inhabitants plenty of water. As Mr. Justice Harlan remarked, 1 ' ' The contrary can- not be maintained unless we hold that a municipal corporation may by mere implication bargain away its duty to protect the public health and safety, as they are involved in supplying the people with sufficient water. Nothing can be more important or vital to any people than that they should be supplied with pure, wholesome water." The fact that even an exclusive i Vicksburg v. Vicksburg Water Works Co., 202 U. S. 453. 686 PUBLIC HEALTH ADMINISTRATION franchise has been given by the city to a water com- pany does not, therefore, put a stop to its control over the subject. If the company furnishes unwholesome water it is the duty of the city to use its police power to stop such sale; and if the company does not then provide a safe supply, its non-user would justify the annulment of the franchise. § 433. Franchise granted to private corporations. It frequently happens, especially in smaller communi- ties, that for financial reasons it seems best to meet the obligation of supplying water, gas, and electricity to the citizens by granting a franchise for this purpose to a private corporation. The amount of the initial cost of the plant may be temporarily prohibitive for the city. On the other hand, private investors will gen- erally be loath to make such an outlay unless they be assured of sufficient permanency for the business to guarantee a safe profit. Exclusiveness is an im- portant element in the contract. The authority of the city to make such a bargain must be clearly found in the charter or in the general statutes of the state; and such provisions will be very strictly construed by the courts. 2 Unless such authority be clearly given to the city, it will be presumed not to exist. Under the general authority to grant a franchise the city may not grant exclusive rights; but since municipal com- petition would be destructive of private business, policy may dictate that, in granting a franchise to a water company, the city may properly agree not to establish a competing plant within a specified time. 3 2 Minturn v. Larne, 23 How. 3 Walla Walla v. W. W. Water 435; Wright v. Nagle, 101 U. S. Co., 172 U. S. 1. 791. WATER SUPPLY — DRAINAGE GARBAGE 687 When the grant contains no covenant that the city will not itself establish a plant, it has been held that silence permits such establishment, but that it may not tax the corporation to meet the expense of such competing enterprise, nor discriminate either directly or indirectly in taxation against those citizens who continue to pat- ronize the private corporation. 4 A prior legislative grant of exclusive privilege has been held sufficient to prevent the grant of a municipal franchise, and is restricted only for real or presumed necessity for the protection of public health, or similar cause for the use of police power. 5 Should the state courts hold that under the state constitution the legislature has no authority to bind its successors, there would be no valid contract; and the federal courts would probably follow the construction of the state courts except where the federal court itself holds that no contract exists. 6 A franchise granting a monopoly against a common right may be granted for police purposes; and a water franchise may be thus interpreted. But such a con- tract is still subject to regulations in the interest of health and safety, and it would seem that in case of necessity it might be abrogated before the expiration of its term, but this necessity must be under police power as for preservation of health, not for commercial reasons. 7 It might, however, be held necessary to 4 Skaneateles, etc., Water Co. v. v. Elvers, 115 U. S. 674; St. Taur- Skaneateles, 161 N. Y. 154; s. c. many Water Works Co. v. New Or- 184 U. S. 354 ; North Springs Wa- leans Water Works Co., 120 U. S. ter Co. v. Tacoma, 21 Wash. 517; 64. Glenwood Springs v. Glenwood 6 Freeport Water Co. v. Free- Light and Water Co., 202 F. 678; port, 180 U. S. 587; Douglas v. Washington-Oregon Corp. v. Che- Kentucky, 168 U. S. 488. halis 202 F. 501. 7 Butchers Union v. Crescent •New Orleans Water Works Co. City, etc., Co., Ill U. S. 746. 688 PUBLIC HEALTH ADMINISTRATION acquire the original plant by the use of tjie power of eminent domain. 8 Even a grant of exclusive franchise may not be so exclusive as at the first glance appears. Franchises must be literally construed. We may quote again from Mr. Justice Harlan: 9 ''We are forbidden to hold that a grant, under legislative authority, of an exclusive privilege for a term of years, of supplying a municipal corporation and its people with water drawn by means of a system of waterworks from a particular stream of water, prevents the state from granting to other persons the privilege of sup- plying during the same period, the same corporation and people with water drawn in like manner from a different stream or river." A municipality cannot bargain away any portion of its police power. 10 While it might violate a moral obligation to take advantage of a technicality in a grant of franchise to establish competing works, it becomes a duty to provide other means of supply when the first company fails to furnish pure water. In making a contract with a private corporation or firm to supply water for the municipality it is very proper that a stipulation shall be made that the water shall be pure. This does not mean that it shall be chemically pure, but that it ' ' shall be free from pollu- tion deleterious for drinking and domestic purposes. ' ' It may not require the installation of a filter; but it does require that the contractor furnish means for preventing contamination under all conditions likely to occur. 11 s Freund, Police Power, 680. « Mayor of Jersey City v. 9 Stein v. Bienville Water Sup- Flynn, 74 N. J. Eq. 104. ply Co., 141 U. S. 67. io Freund, Police Power, 362, 561, 562. WATER SUPPLY — DRAINAGE GARBAGE 689 § 434. Municipal plants. Providing pure water for its citizens is a legitimate use of the police power of a city. 12 The municipality may then enter upon the business and establish its own plant. This involves a large initial outlay which may sometimes exceed the authority of the city to pledge. It has been held, how- ever, that when a city has contracted for waterworks to be paid for in annual installments, or monthly, if it can pay each installment when due without exceeding the limit there is no indebtedness, and therefore no violation of the constitution as there is no debt until the money is due. 13 Adjacent cities may sometimes conserve the interests of their citizens by using the same municipal plant. For governmental reasons this cannot well be operated by the two or more corporations conjointly. One cor- poration must assume the responsibilities of maintain- ing the plant, and sell the water to neighboring cities as it does to its own citizens. The sale of water by the municipality to its citizens has been held to be business of a private nature. 14 It would ordinarily be held, therefore, that if it may be done profitably in the interests of its own citizens, a city may sell also to neighboring municipalities; however, in at least one case it was held that authority to supply its own cit- izens did not include authority to carry water outside its limits, and to sell to another municipality. 15 While 12 Kennedy v. Phelps, 10 La. 1 4 Illinois Trust & Savings Bank Ann. 227; Suffield v. Hathaway, v. Arkansas City, 76 Fed. Rep. 44 Conn. 521; Smith v. Nashville, 271; Bailey v. New York, 3 Hill, 88 Tenn. 464; Hale v. Houghton, 531; Cincinnati v. Cameron, 33 8 Mich. 458. Ohio, 336 ; Helena Cons. Water Co. is Walla Walla Water Co. v. v. Steele, 49 Pac. 382; Western Walla Walla, 60 Fed. Bep. 957; Savings Fund Soe. v. Philadel- Keihl v. South Bend, 76 Fed. Rep. phia, 31 Pa. 183. 921. isHaupt's Appeal, 125 Pa. 211. 690 PUBLIC HEALTH ADMINISTRATION this is apparently a correct statement of the law, it is unfortunate, and where so restricted common interests suggest that the law be amended. It has sometimes been held also that the power to sell water is not in the nature of a private business. It is granted for public use, and the corporation is not therefore liable for either non-use or misuse. "The imposition of water rents is but a mode of taxation and a part of the gen- eral scheme for raising revenue with which to carry on the work of government. * * * There is noth- ing connected with the work which is not of a govern- mental and public nature. ' ' 16 One use of the water supply is for fire protection. The case quoted above arose from a failure to furnish sufficient water to ex- tinguish the fire, and that failure was due to the works not being kept in proper condition. It seems to us that such a case is very different from injury due to the water actually used by the party. There is no con- tract with the customer to supply any stated quantity. § 435. Liability of municipality. According to the general rules a city is not liable for malfeasance, mis- feasance, or nonfeasance when acting in its purely gov- ernmental capacity; but it is liable in matters in which it conducts a business for the profit of the corporation or its members. (§§ 374, 375.) When, therefore, it makes no charge for the water which it supplies, it is not liable en tort; 17 but if it charge water rates upon users it may be held liable. 18 As we stated before, is Fire Ins. Co. v. Keesville, 148 Div. 124; Chicago v. Selz, Schwab N. Y. 46. & Co., 202 111. 545; Augusta v. 17 Danaher v. Brooklyn, 51 Hun, Lombard, 99 Ga. 282 ; Whitfield v. 563; Dillon, Munic. Corp. 985a. Carrolton, 50 Mo. App. 98; Bailey " Ingersoll, Pub. Corp. 214; v. Mayor, 3 Hill, 531; Stock v. Dillon, Munic. Corp. 981; Milnes Boston, 149 Mass. 410; Aldrich v. v. Huddersfield, L. R. 10 Q. B. Tripp, 11 R. I. 141; WATER SUPPLY — DRAINAGE — GARBAGE 691 there should be recognized a marked difference be- tween an injury resulting from a failure in the supply, and an injury caused by a polluted supply. When a city undertakes to furnish its citizens with water for domestic use it is under obligation to furnish pure water. If, therefore, the water furnished be con- taminated, as with the typhoid germ, and injury results it may well be assessed damages as they may appear. 19 As to the liability of a city for damages in case that typhoid fever germs were distributed in the city water supply the case of Keever v. Mankato, 20 in Minnesota, promises to be a leading case in this country. The complaint set forth not a mere action against the de- fendant to recover damages because the city failed to provide an adequate supply of pure water. The question here was whether the city was liable for, among other things, recklessly causing dangerous sub- stances like common sewage and other filth to saturate its water supply and the wells, mains, and appurte- nances thereto. The first essential question was whether the city was exempt because it was carrying out a gov- ernmental function, or whether it was liable because it operated the waterworks in its private or corporate function. The defendant naturally insisted that it was performing merely a governmental function. But the court holds that it was liable for its negligence in its private or corporate capacity, and was not exempt as carrying out a governmental function. The defendant also insisted that the city could make no profit out of its operation of these waterworks. Doubtless this was iQMilnes v. Huddersfield, L. E. 20113 Minn. 55. 10 Q. B. Div. 124; Keever v. Man- kato, 113 Minn. 55; see also Mc- Gregor v. Boyle, 34 la. 268. 692 PUBLIC HEALTH ADMINISTRATION in a general way true; at all events it might be here admitted. But the sequence which the defendant sought to draw did not at all follow : i. e. that therefore it should be exempted from all liability for mismanage- ment; for the city is liable for neglect in connection with its streets, sidewalks, and sewers, from which in their very nature no profit is or can be made. The city operates the waterworks for profit in the sense that it is voluntarily engaged in the same business which when conducted by private persons is operated for pro- fit. The city itself makes a reasonable and varying charge. The undertaking is partly commercial. It is enough that the city is in a profit-making business. Then the defendant insisted that it would not be sound policy to open the door and permit actions like the present to be maintained for the reason that as a result the defendant city, as well as any other city, would be liable at any time to have the same misfor- tune and would be bankrupted thereby. But the court must regard the defendant's figures as purely hypo- thetical. The question is one of general principles recognized by the law, and not of the private views of court or counsel as to what the convenience or neces- sity of a particular city may dictate under particular circumstances. The general experience of public and private waterworks is that ordinarily their operation involves no such financial disaster as the defendant portrayed. It is obvious that a sound public policy holds a city to a high degree of faithfulness in provid- ing an adequate supply of pure water. Nor does it appear why the citizens should be deprived of the stimulating effects of the fear of liability on the energy and care of its officials; nor why a city should be WATER SUPPLY — DRAINAGE — GARBAGE 693 exempt from liability while a private corporation under the same circumstances would be held respon- sible for its conduct, and made to contribute to the in- nocent persons it may have damaged. The cases in which a city has been held responsible, or irrespons- ible, for damages by fire consequent on an inadequate supply of water are in a class by themselves. From many points of view the rule holding the city liable for its negligence is not inconsistent with the rule there announced. The law does not undertake to achieve the impossible. The defendant also urged that in no case has the city been held liable for negligence in the operation of its waterworks unless the act involved a trespass, or an invasion of a direct property right. Thus water escap- ing from a city reservoir runs onto another's property and does damage; this is trespass and there is liability. But if the escaping water should do damage to a person on a public highway there would be no trespass, but the law would recognize liability. Liability of the city is recognized in the case of streets and sidewalks which cannot properly involve trespass. Nor did the defend- ant show any reason for imposing liability in the case of trespass or the breach of insurance of safety which does not logically apply to cases of negligence. On gen- eral principles liability for negligence is more just and more generally recognized because it is based on culp- ability. Lastly, the court holds that, on the assumption that the plaintiff's intestate could have maintained, an ac- tion against the city had he lived, his administrator, or administratrix, could maintain an action under the Minnesota statutes. 694 PUBLIC HEALTH ADMINISTRATION This responsibility of the city presupposes authority to guard its source of supply from infection. 21 Such power may be given by legislative enactment but it must be reasonably exercised. This is illustrated by a New York case, which though abstractly correct, may be of doubtful propriety from a scientific point of view. 22 In this case it was held that a health depart- ment prohibition of the harvestry of ice on a source of water supply was unconstitutional, as taking property without compensation, which is justified only by abso- lute necessity. Where the public good can be conserved by the regulation of a right, this power of prohibition does not exist. With the possibility of efficient regula- tion, to prohibit the cutting of ice is beyond the power of the health officer, and a contrary ruling would work public and private mischief. § 436. State supervision. Very frequently the source of a municipal water supply is beyond the jurisdiction of the corporation. It then becomes the governmental duty of the state to step in and use its police power. By statutory enactment this authority may be properly conferred upon the state department of health. As illus- trating this method of action we may cite a Vermont case, 23 in which it was held that police powers may properly be delegated to boards of health, and when so delegated the agency employed is clothed with power to act as fully and efficiently as the state itself. Though a riparian's right to reasonable use of the water of a pond includes the right to bathe and swim therein, such right was not primary, but incident to the owner- 21 Stone v. Heath, 179 Mass. 23 State v. Morse, 80 A. 189. 385. 22 People v. Kirk, 119 N. Y. 862. WATER SUPPLY — DRAINAGE — GARBAGE 695 ship of the land. Hence a regulation of the State Board of Health prohibiting bathing in a pond from which a city derives its water supply was a valid exercise of police power. A frequent necessity for state intervention is found in the prevention of sewage pollution of streams, ponds, and lakes used as sources of water supply, and the indications are that this use of state, and perhaps national intervention will become more frequent and more important in the future. § 437. Water on trains and boats. Whenever cars are designed for interstate traffic the company owning or using them is bound to equip them as required by act of Congress; and when it is shown that a railway company is using the car for transportation purposes between states, sufficient is shown to justify the court in ruling that the act of Congress is applicable to the situation. 24 In the state of Kentucky it was held that it was the duty of all persons in charge of railroads, steamboats, and private conveyances, to obey the reg- ulations of the State Board of Health. 25 In the state of Georgia it was held that it is within the constitu- tional power of the general assembly to impose upon a railway company the duty of providing for an ade- quate supply of pure drinking water for its passengers while journeying upon its cars, and to provide that the corporation shall be indicted, prosecuted, and fined for a neglect of this public duty. 26 It has formerly been a custom for the railway companies to provide drinking water, and by each tank to keep a cup or glass. This has even been required in some states by law. 24 Voelker v. Chicago, etc., E. 2G Southern Ey. Co. v. State, 125 E. Co., 116 Fed. 867. Ga. 287. 25 Mason v. 111. Cent. Ey. Co., 77 S. W. 375. 696 PUBLIC HEALTH ADMINISTRATION Eecently it has become popular for the legislative bod- ies to enact statutes abolishing the common drinking cup, but such abolition does not necessarily repeal a provision that the company must provide cups or glasses. The train may carry supplies of individual cups, or the road may keep a man in charge who shall cleanse the cup each time that it is used. The company may still be compelled to furnish drinking cups. 27 It must be remembered, however, that state regulations on interstate trains are only valid in so far as they do not conflict with legal requirements of the federal gov- ernment. Ordinarily but one system of water is provided for a city, and that is used for all purposes. Sometimes a separate system, in whole or in part, is provided for fire protection and mechanical purposes. The double system is always a sanitary danger, for connecting pipes are more or less common even in spite of munici- pal supervision. With such exceptions sanitarians have no concern with the second system. Sewage § 440. Municipal sewage problem. The contractural, rather than the governmental relationship of the city to the sewage problems may not be immediately apparent to the modern cliff dweller, born and raised in a city apartment building. Originally, however, the city was moved to assume the sewage control as the agent of its individual citizens. The village house dis- charged its sink and laundry waste into a cesspool so 27 Del. Lackawanna & W. Ey. Co. v. Pub. Util. Commrs., 83 N. J. L. 215. WATER SUPPLY — DRAINAGE GARBAGE 697 constructed that the water might pass into the soil, and the organic materials would be decomposed by nature into harmless gas and water. There was, how- ever, a certain residuum of sludge which necessitated occasional removal. Sometimes the owner buried this sludge upon his own premises; sometimes he had it transported to some other place where it could not be a nuisance. The same was true relative to the contents of the privy vault. Because the cleaning of vaults and cesspools was frequently performed by those who were careless of the rights of others, and the contents were emptied where they might endanger the public health, supervision of the business by the city was frequently necessary under police power. This supervision was sometimes exercised by means of license demanded of all who were engaged in the scavenger business. With increasing density of the population privy vaults especially became a menace. A single vault contain- ing the typhoid bacilli may contaminate every house within two blocks in every direction through the agency of flies as carriers. Though this fact was not appreciated formerly as fully as at present, still privy vaults were long recognized as nuisances. The vault is not a necessity, and no person has a right to endan- ger others by maintaining a nuisance. A law directing the summary destruction of a privy vault, even pend- ing appeal, is constitutional. 28 It is necessary for the citizen to dispose in some manner of his dejecta and of the sink and laundry waste. Very naturally he is moved to make use of natural provisions for drainage; but the nearest stream may be some distance away. 28 Harrington v. Providence, 20 K. I. 223. 698 PUBLIC HEALTH ADMINISTRATION The rational result is that the municipality constructs sewers to take all sewage at the private lot line and transport it underground instead of by wagon, to a point where it may safely be emptied. In so doing the municipal corporation 29 is but acting as the agent of the citizens collectively, and the power is granted for the special benefit of the municipality. 30 Because, therefore, the municipality in this matter acts in its corporate capacity, it is liable for any injury resulting from malfeasance pertaining to the construc- tion or operation of the system. Unless the duty of providing sewers is enjoined by the state, use of its power to construct such a system is discretionary; 31 therefore the city cannot be held liable for a failure to construct, nor for a mistake by which an incompetent system is provided. 32 For various reasons it is not always practicable to have sewers constructed, and to a degree the use of the privy and the cesspool must continue. Because nightsoil has value as a fertilizer it has been used par- ticularly in market gardening. Sewage farms have been found sometimes to be a source for municipal income. However, it has been demonstrated that let- tuce, grown upon soil infected with the typhoid bacil- lus, may carry the germ. It has therefore seemed best to prevent such use of nightsoil. But, the denuncia- 29 Detroit v. Corey, 9 Mich. 165. mour, 79 Ind. 491 ; Montgomery v. soDonahoe v. Kansas City, 136 Gilmer, 33 Ala. 116; Jordan v. Mo. 657; Ostrander v. Lansing, 111 Benwood, 42 W. Va. 312; Perry Mich. 693. v. Worcester, 6 Gray (Mass.), 544; 3i Carr v. Northern Liberties, 35 Diamond Match Co. v. New Haven, Pa. 324. 55 Conn. 510; Power to obtain ex- 32 Mills v. Brooklyn, 32 N. Y. tra territorial outlet, Maywood 489; Henderson v. Minneapolis, Co. v. Maywood, 140 111. 216. 32 Minn. 319; Cummins v. Sey- WATER SUPPLY DRAINAGE GARBAGE 699 tion by statute of certain uses of the contents of cess- pools does not inhibit municipalities from adopting cesspools as a part of its system of sanitation. Such an ordinance is neither oppressive nor unreasonable. The provision in the state constitution giving to the state board of health supervision over public health has no application when the board fails to act. 33 On the other hand, when cesspools and privies are permitted they are reasonable subjects for municipal regulation. Therefore, an ordinance or regulation of a city board of health prohibiting the maintenance of a privy vault within twenty-five feet of any door or window of any residence is reasonable. 34 It would seem, in the light of present information that it is quite as necessary that it be required that all privies be screened, so that flies shall be excluded. The power to designate a place for the deposit of nightsoil is a necessary incident to the power of boards of health over cesspools, and removal of their contents. 35 An act requiring that every build- ing used as a residence, or in which persons are em- ployed, if situated upon a street in which there is a public sewer "to have sufficient water closets con- nected with the sewer," is within the constitutional power of the legislature, as the guardian of the police power of the state. 36 As a municipality increases in size and its popula- tion becomes more dense, the power to construct sew- ers gradually assumes a governmental aspect, and the use of the authority which was discretionary becomes a duty. Such construction becomes increasingly neces- 33 Logan v. Childs, 41 S. 197. 35 Courter v. Newark, 25 Vr. 325. 34 Cartwright v. Board of 36 Commonwealth v. Eoberts, 29 Health, Cohoes, 165 N. Y. 631; N. E. 522. affirmed, 59 N. E. 1120. 700 PUBLIC HEALTH ADMINISTRATION sary in the protection of the public health. 37 Es- pecially with this view of the case the legislature has the authority to impose upon municipalities the man- datory duty of constructing sewers. 38 It is customary to assess the cost of special im- provements upon property which is thereby benefited. Since vacant property can generally not make im- mediate use of sewers it has been contended that vacant property cannot be assessed to pay for sewer construction. Such a contention is unfortunate, so long as the improvement be recognized as one to be thus paid for by special assessment, for it might prevent giving needed relief to isolated citizens. Property now vacant may in the future need sewers. The very presence of the sewer increases the value of the lot and makes it more available for use. The lot below grade may be filled up and so receive benefit from the sewer. Vacant property should therefore be assessed for sewer construction. 39 § 441. Sewer a nuisance. The sewer itself may be- come a nuisance. 40 Whether the sewer be private, as constructed by an individual owner, or public and un- der municipal control, there should be no nuisance. (§375.) The fact, therefore, that a town board of health ordered a keeper of a hotel to discharge the sewage from his hotel into a watercourse was no de- fense to a suit brought by a riparian owner to enjoin such use. 41 No prescription of usage can justify the pollution of a stream by the discharge of sewage 3r Cockrane v. Maiden, 152 Mass. ™ Downer v. Boston, 7 Cush. 365; Noble v. St. Albans, - 56 Vt. 277; Writ v. Boston, 9 Cush. 233. 522; Springfield v. Spence, 39 *° McGregor v. Boyle, 34 Iowa, Ohio, 665; Weis v. Madison, 75 268. Ind. 241. 41 Mann v. Willey, 168 N. Y. 38 Dillon, Munic. Corp. 73. 664. WATER SUPPLY — DRAINAGE GARBAGE 701 therein in such a manner as to be injurious to the pub- lic health. A board of health has power to declare to be a nuisance and to abate whatever is per se a nuisance at common law. 42 The fact that a stream has been used as a sewer may give a certain degree of pre- sumptive right for such use, but it gives no greater right than past usage. That is to say, the fact that a stream has been used for the discharge of sewage in a certain quantity does not give to the city a right to discharge more than that quantity. Further, if the natural flow of water in the stream be decreased, as by diversion above, or by less rainfall, the same amount of sewage discharge would increase the pollu- tion relatively. Either an increase in the total amount of sewage discharged or a decrease in the amount of water naturally in the stream might produce a nuis- ance where previously there was no nuisance. It is quite within belief that a changed use of the banks of the stream below might also change the aspect of such use of the natural watercourse from one of innocence to danger. It must always be borne in mind that a nuisance, especially a nuisance as against public health, is something which should not be tolerated. The estimation as to whether discharge of sewage into a stream or other body of water is a nuisance, is not be to gauged solely by the amount of sewage pro- duced in the city. Under modern methods the sewage may be so treated as to really be a benefit to the stream rather than a detriment. The old septic tank has not proven itself reliable in action, but the tank devised by Doctor Karl Imhoff of the Emschergenoschenschaft 42 Commonwealth v. Yost, 11 Pa. Super. Ct. 323. 702 PUBLIC HEALTH ADMINISTRATION takes the crude sewage and pours out water much clearer than that found in many streams, and prac- tically devoid of harmful bacteria. Sewage has also been treated by Alteration, by electric currents, and by chemical reagents so that it may be harmless. In an English suit to enjoin the use of the stream by a sewage district, the high court appointed no less a man than Sir "William Ramsay to make the investiga- tion, and he found that the water of the stream was actually purer below than above the point of entrance for the sewer. 43 To enjoin the city, therefore, against committing a nuisance by discharge of sewage into natural bodies of water works no permanent hardship upon the city. On the other hand, simply because in times past a little village saw fit to empty its sewage into a neighboring stream is no excuse for the populous city, in getting rid of its sewage, to dump its filth upon its neighbors. This whole subject was well discussed in a case brought by the attorney-general of Michigan against the city of Grand Rapids. 44 This was a proceeding to declare and to abate and restrain the continuance of an alleged public nuisance which was claimed to result from acts of the city in conveying through artificial means its sewage into the Grand River, which flowed down the river and was cast on the lands below that city, and particularly on those lands which are adjacent to and within the Village of Grandville. In the court's opinion the equities of the case were with the complainants, and the testimony made out a case of public nuisance. "If the city in emptying its sewage 43Atty. Gen. v. Birmingham, Grand Rapids (Mich.), 141 N. W. etc., L. E. C. D., 1910, Vol. I, 48. E. 890. 44 Attorney-General v. City of WATER SUPPLY — DRAINAGE — GARBAGE 703 into Grand River, as shown by the evidence, created a nuisance to the public or riparian properties below the city, the continuance or creation of that nuisance might properly be restrained by injunction, and the attorney-general was a proper complainant. Undoubt- edly the city has the right to make a reasonable use of the waters of the river as a riparian owner. But the court f a attention has not been called to any statute giving the city the right to use Grand River below its limits as a sewer for the purpose of carrying away its waste and refuse in an unreasonable manner; and, if it were attempted by statute to give such a right, the statute would be unconstitutional, unless it first pro- vided that the owners of property along the river should be compensated for damages to be first deter- mined by constitutional methods for destruction of such property rights. If the city creates, or threatens to create, a public nuisance, particularly outside of its corporate limits, it is subject to the same rules as would be a private individual, particularly when in the creat- ing of such nuisance it acts not in a governmental but in a private capacity. There can be no prescriptive right, that is from long usage, to pollute a stream by the discharge of sewage in such a manner and to such an extent as to be injurious to the public health. Even assuming that a prescriptive right to foul a stream with sewage can be acquired, such must be restricted to the limits of it when the period of prescription com- menced ; and if the pollution be substantially increased, whether gradually or suddenly, the court will inter- fere by injunction to prevent the wrongful excess; and, if it be impossible to separate the illegal excess from the legal user, the wrong-doer must bear the conse- 704 PUBLIC HEALTH ADMINISTRATION quences of any restrictions necessary to prevent the excess, even if it unavoidably extends to the total prohibition of the user. No person is entitled on the ground of ancient custom to the privilege to collect a mass of sewage matter and pour it at one point into a stream in such a quantity that the river cannot dilute it on its passage down to the lower riparian proprie- tors, as the effect of such an act is to create an evil which must be illegal, being such as no custom can authorize. The general rule is that sewage cannot be cast into the stream to such an extent as to pollute it. Sewage cannot be thrown into the stream in such a way as to render the water foul and unfit for use. "Where- fore, the decree of the court below in favor of the de- fendants is reversed, and one entered for the com- plainants restraining the city, its boards, officials, serv- ants, and agents from continuing to discharge the sewage of the city into Grand Eiver, until the same shall have first been, by the use of a septic tank or tanks, so deodorized and purified as not to contain the foul, offensive, or noxious matter (which it now con- tains) capable of injuring the complainants or their property, or causing a nuisance thereto; such injunc- tion to become operative one year after the date of the settling of decree. The complainants will also recover of the defendant city their costs of both courts." Evidence that there were numerous cases of typhoid fever in a certain building, and that the sewage from that building was conducted by the defendant to cer- tain filter beds, and that the sewage after filtering ran into the plaintiff's stream, was admissible in connec- tion with evidence that the said plaintiff's stream continued to be contaminated by the sewage after the WATER SUPPLY — DRAINAGE GARBAGE 705 use of the filter beds, as tending to show a diminished value in the use of the stream, even without further proof that the germs of the said disease actually reached said stream, and although it appeared that the water of the said stream was not then used for drink- ing purposes. Under such circumstances the plaintiff could neither be expected himself to use such stream for drinking purposes for his own cattle, nor to be able to procure others to so use it. 45 The Collingswood Sewerage Co. was incorporated under the New Jersey Act of 1898, to collect, treat, and dispose of sewage. The State Board of Health is vested with the powers and duties of a state sewage commission. The plans for the Collingswood Sewer- age Co. were submitted to the State Board of Health and approved by the engineer of the board. Neverthe- less, when the plant was put in operation it was dis- covered that it generated unpleasant and offensive odors, to the injury and discomfort of the community, and action was brought against the corporation. The defense of the corporation was that its plans had been approved by the engineer of the state board, and that owing to the cost of the plant it was not a profitable concern, as it did not meet its fixed charges. Upon conviction the corporation appealed. The court said that the state did not, with the permit to treat sewage, grant to the corporation the license to commit a nui- sance. Nor did the fact that the plans had been ap- proved absolve it from maintaining a nuisance. When put in operation the fact was demonstrated by the odors produced that there was some defect in the plans. No matter how much the plant might have cost, or how *~> Gorham v. New Haven, 66 At. 505. 706 PUBLIC HEALTH ADMINISTRATION unprofitable its operation might be, neither element was sufficient to absolve the company from maintain- ing a nuisance due to faulty construction of the plant, or by its negligent operation. 46 § 442. Jurisdiction. Because a local board of health has jurisdiction only over a limited territory, the or- ders of a single board may not be sufficient to preserve the purity of a source of water supply. Thus, a nui- sance maintained on land in two adjacent townships is equally within the jurisdiction of each township, and the orders of one town board would not extend into the territory of the other township. Although the state statutes conferred upon the state board of health super- vision over streams, ponds, etc., used for water supply, a town board still may abate a nuisance in the pollu- tion of a water supply. 47 Generally speaking it must devolve upon the state authorities to protect one com- munity from the nuisance of another 's sewage. Thus, the supreme court of Montana upheld the State Board of Health in prohibiting a city from discharging its sewage into a river. 48 Just as the state must stand guard between different municipalities, so it seems that it would be desirable if authority could be found to enable the national gov- ernment to protect one state from a similar injury by another. (§§ 243, 244.) The only real protection pos- sible at present is a suit before the federal courts brought by one state against another. The condition is at best anomalous. It would be essentially a suit for damages and enforcement of judgment might be diffi- cult. In the case of Kentucky v. Dennison 49 applica- 46 State v. Collingswood Sewer- 48 Miles City v. State Board of age Co., 89 Atl. 525. Health (Mont.), 102 Pae. 696. 47 Stone v. Heath, 179 Mass. 385. 49 24 How. 66. WATER SUPPLY — DRAINAGE — GARBAGE 707 tion was made for a writ of mandamus to compel the governor of Ohio to surrender a fugitive from justice. The court held that while the case was a controversy between two states, it had no jurisdiction to grant the writ; that Congress could not coerce a state officer as such to perform any duty, nor could that duty be enforced by a United States court. In Missouri v. Illi- nois and The Sanitary District of Chicago 50 the court affirmed its jurisdiction of a suit in equity by the state of Missouri to restrain the defendants from re- ceiving or permitting to be received and eventually discharged into the Mississippi the sewage of Chicago, which had previously been discharged into Lake Michi- gan. The court said in its decision: "An inspection of the bill discloses that the nature of the injury com- plained of is such that an adequate remedy can only be found in this court at the suit of the state of Missouri. It is true that no question of boundary is involved, nor of direct property rights belonging to the complainant state. But it must surely be conceded that, if the health and comfort of the inhabitants of a state are threat- ened, the state is the proper party to represent and defend them. If Missouri were an independent and sovereign state, all must admit that she could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the general government, it was to be expected that upon the latter would be devolved the duty of providing a remedy and that remedy, we think, is found in the constitutional provisions we are consid- ering." Earlier in this same opinion, Mr. Justice Holmes said: "The Constitution extends the judicial so 180 IT. S. 208. 708 PUBLIC HEALTH ADMINISTRATION power of the United States to controversies between two or more states, and between a state and citizens of another state, and gives this court original jurisdic- tion in cases in which a state shall be a party. There- fore, if one state raises a controversy with another, this court must determine whether there is any prin- ciple of law and, if any, what, on which the plaintiff can recover. But the fact that this court must decide does not mean, of course, that it takes the place of a legislature. Some principles it must have power to declare. For instance, when a dispute arises about boundaries, this court must determine the line, and in doing so must be governed by rules explicitly or im- plicitly recognized. 51 It must follow and apply those rules, even if legislation of one or both of the states seems to stand in the way. But the words of the Con- stitution would be a narrow ground upon which to contract and apply to the relations between states the same system of municipal law in all its details which would be applied between individuals. If we suppose a case which did not fall within the power of Congress to regulate, the result of a declaration of rights by this court would be the establishment of a rule which would be irrevocable by any power except that of this court to reverse its own decision, an amendment of the Constitution, or possibly an agreement between the states sanctioned by the legislature of the United States." Practically it amounts to this, that in a mat- ter in which Congress has authority to act the courts could enforce action between states; but where Con- gress has not authority, the influence of the federal si Rhode Island v. Massachu- setts, 12 Pet. 657, 737. WATER SUPPLY — DRAINAGE GARBAGE 709 government must be chiefly by moral suasion. As has been previously stated, matters pertaining purely to sanitation come under the heading of police power, and are thus within the jurisdiction of the individual states rather than of Congress. If the discharge of sewage decrease the depth of water and thus interfere with navigation, Congress has authority to act, and the federal courts would therefore have jurisdiction. There is another class of cases in which the federal government may be interested, viz. those in which a portion of the waters of a river may be diverted. Thus, in Kansas v. Colorado 52 suit was brought to enjoin the diversion by the state of Colorado of a dispropor- tionate share of the waters of the Arkansas River be- fore it reached the Kansas line. Particularly when this diversion to any degree lessens the navigability of either the stream diverted or one into which it flows, Congress clearly has authority to act under the com- merce clause of the Constitution. Such diversion may be the means on the one hand of lessening the sewage problem, and on the other, by decreasing the water of the river, of intensifying the difficulties of the situa- tion. § 443. Relation of problems to natural drainage. At common law there can be no liability for natural con- ditions, but when there is added to those natural con- ditions some human element, the agency making the change may assume a liability. A natural pond is not at common law a nuisance, but if a man deposit decay- ing animal and vegetable matter upon its banks so that the composition of the water becomes offensive, a nuisance may be created for which he will be respons- 62 185 U. S. 125; 206 U. S. 46. 710 PUBLIC HEALTH ADMINISTRATION ible and liable. Now the bank of that pond practically extends as far as drainage towards the pond exists. So, if the sewage from a neighboring house is per- mitted to flow into the pond, either directly or in- directly, or if the drainage from the barn-yard goes that way, the man is liable for the nuisance created. A running stream, especially when it aerates the water by successive falls, has power to decidedly reduce the harmfulness of sewage content. When, however, that stream has been dammed, the flow of water is de- creased and solid portions of sewage become deposited on the bottom. In this way, without in any way chang- ing the amount of sewage content, the stream may be changed from one of harmlessness to one of danger. Problems relative to water supply and to sewage dis- posal are thus frequently intimately associated with those of drainage. Ordinarily, drainage is a portion of the jurisdiction assigned in municipalities to depart- ments of public works. Sewage disposal, therefore, comes under the same heading, and the care of water works is also assigned to a similar department. The influence of a health department in the control of these matters must therefore frequently be indirect, and by moral suasion. Garbage § 450. Garbage as a municipal problem. Garbage is not necessarily a nuisance. In fact, it frequently has a money value. (§§ 171, 200.) It may be used for the nourishment of poultry, hogs, or other animals. After desiccation it may be used as fuel; sometimes it is de- cayed and used as fertilizer. On the other hand, on the crowded city lot accumulations of garbage serve WATER SUPPLY — DRAINAGE — GARBAGE 711 as food for rats and flies and so help to increase the number of these nuisances. The decaying garbage becomes offensive and sickening to sensitive nostrils. Ground soaked with the water from such filth becomes a breeding place for flies. There can be no use of such materials within the city to any extent. Chickens and hogs may not be kept on the crowded city lot. The garbage must therefore be transported to some other place where it may be used or destroyed. If it be trans- ported in an open wagon not specially constructed for that purpose, the streets become littered and the effluvia from the decaying mass is very offensive. In the summer time the wagon is accompanied by hosts of flies. Garbage, therefore, is a nuisance in posse, and as such it must be dealt with. If it be left to the in- dividual property owner to make such disposal of the material as he sees fit, the results will be very unsat- isfactory for the community. Too few citizens have enough of public spirit to do their civic duty except by compulsion. It therefore becomes a duty of a municipality to use its police power in the regulation of the care of garbage. This must be done first by ordinances regulating the collection and storage of such substances until they shall be removed. A still more important regulation must be that which governs the work of scavengers who go about the city gather- ing the stored materials and transporting them to some point without the city, where they may be destroyed without causing offense. When these scav- engers are permitted to work without restriction their services are always unsatisfactory: they take what they want and throw the rest upon the ground, thus really increasing rather than decreasing the garbage problem. 712 PUBLIC HEALTH ADMINISTRATION A case was recently decided by the appellate court of Indiana, showing a direct relationship between the subjects of garbage and water supply, and also showing that in considering the banks of a pond or stream we must not be limited by the immediate proximity to the water line. It is true that the case does not show that the water in question was used for a city supply, but it was used for a fish pond, and the pond was sup- plied by water from a flowing stream which had been dammed for the purpose of creating a pond. The city of Newcastle leased land on the side of a hill to be used for its garbage dump. The owners of the pond brought suit against the city on the ground that the garbage injured the waters of the pond. The court found in favor of the owners of the pond, saying: "As appellant (the city of Newcastle) contends, the town of Newcastle was charged with the duty of preserving the health of its citizens, and was within the bounds of its governmental functions when it provided a suitable place in which to deposit its garbage. But while it has such authority, it may not deposit garbage at such place in a careless and negligent manner, caus- ing a nuisance, nor may it negligently permit the garbage and offal properly deposited, to escape upon the lands of another to his damage. * * * A municipal corporation has no more right to maintain a nuisance than an individual would have, and for nuis- ance maintained upon its property, the same liability attaches against a city as to an individual. " 5S The general proposition may therefore be made, that , a municipal corporation is liable for casting refuse, ss City of Newcastle v. Harvey, 102 N. E. 878. WATER SUPPLY DRAINAGE GARBAGE 713 sewage, or filth of any kind, either into streams, or upon the shores of streams. 531 Without special authorization and under its inherent police power, a municipality may legislate to abate nuisances. The fact that garbage is not a nuisance per se prohibits the city from creating any monopoly in the same except in case of extreme necessity. What is said relative to ordinary garbage is also true rela- tive to dead animals. The carcass of a dead animal may have a money value to the owner. On the other hand, if left in place it may become a nuisance. It therefore follows that opportunity should be given to the owners to remove garbage or dead animals and thus obtain for themselves such value as they may be able. Ownership is not lost with the death of the ani- mal. 54 Ordinances have been declared void which donate the bodies of such dead animals to a third party as being a violation of due process of law, and without just compensation. 55 So it has been intimated that an exclusive privilege to collect and convey gar- bage cannot be made to apply to such matter as the owner may desire to use or .sell, and which is innocuous and capable of being put to useful purposes. 56 A municipal contract giving exclusive rights and fran- chises by a city other than in the exercise of police 53a Franklin Wharf v. Portland, Bros. v. Atlanta, 97 Ga. 697, 33 L. 67 Me. 46; Chapman v. Rochester, R. A. 804; Knauer v. Louisville, 110 N. Y. 273; Spokes v. Banbury 20 Ky. L. Rep. 193, 41 L. R. A. Board of Health, L. R. 1 Eq. 42; 219; Campbell v. District of Co- Goldschmid v. Tunbridge "Wells, L. lumbia, 19 App. D. C. 131. R. 1 Eq. 161 ; Haskell v. New Bed- 55 Town of Greensboro v. Ehren- f ord, 108 Mass. 208. reich, 80 Ala. 579 ; River Render- s'! Underwood v. Green, 42 New ing Company v. Behr, 77 Mo. 91. York, 140; River Rendering Com- se State v. Orr, 68 Conn. 101, 34 pany v. Behr, 77 Mo. 91; State v. L. R. A. 279. Morris, 47 La. Ann. 1660; Schoen 714 PUBLIC HEALTH ADMINISTRATION power is void. 57 But a contract for the exclusive right to clear and dispose of the garbage of a city is not neces- sarily an illegal monopoly. 58 This authority of the city thus to make a special contract was in one case limited to nuisances per se. 59 While ordinarily, as in this mat- ter of garbage, a city may not create a monopoly, 60 an ordinance can not be held as unreasonable and void if it be expressly authorized by the legislature. 61 Though creating a monopoly in making a contract for the col- lection of garbage, the city of Indianapolis was ex- pressly authorized so to do in its charter. 62 It has been held that regulations relative to the removal of garbage must leave a way open to every person who is willing to comply with the requirements to engage in the business. 63 In North Carolina an ordinance was declared void as being unreasonable which required a license from anyone attempting to do scavenger work, and thus prevented owners from removing refuse from their own premises. 64 An ordinance requiring that garbage shall be removed in water-tight closed carts or wagons, which shall be marked with the word ' ' gar- bage," is reasonable. 65 While the Board of Health of Philadelphia has discretionary power to declare the keeping of garbage, offal, and refuse matter upon the streets, alleys, and the premises of individuals, a 57 Long v. Duluth, 49 Minn. 280. 61 Coal Float Co. v. City of Jef- ss Grand Eapids v. DeVries, 123 ferson, 112 Ind. 15; Cooley, Cons. Mich. 570; State v. Orr, 68 Conn. Lim. 241. 101; Kerr v. Simmons, 82 Mo. 269; 62 Walker v. Jameson, 140 Ind. Smiley v. McDonald, 42 Neb. 5, 27 591. L. E. A. 540; Schultz v. State, 76 «s Matter of Lowe, 54 Kan. 759, Atl. 592; Kochester v. Gutherlett, 27 L. E. A. 545. 133 N. Y. Supp. 541. G4 state v. Hill, 126 N. C. 1139, ss Her v. Ross, 90 N. W. E. 869. 50 L. E. A. 473. eo Chicago v. Eumpff, 45 111. 90; 65 p e0 ple v. Gordon (Mich.), 45 Landberg v. Chicago, 237 111. 117. N. W. E. 658. WATER SUPPLY DRAINAGE: — GARBAGE 715 nuisance, it cannot declare the act of a private con- tractor in removing the garbage to be a nuisance, when he has adopted the precise manner for the purpose prescribed by the city ordinance. 66 In other words, the nuisance must consist in a given fact or condition, and that condition would not vary because of any difference in the persons committing the act. Laws must be just and equal with all persons. As a practical matter of administration it may be necessary to restrict the collection of garbage and other refuse absolutely to the employees of the city government. On the contrary, even the requirement of a license in smaller towns may prove an obstacle to securing collection by private scavengers. It is sometimes said that such a requirement would abso- lutely stop all operations by private scavengers and throw the cost of collection entirely upon the city administration. This does not seem a reasonable re- sult if the matter be handled diplomatically. Only by the license system can the collection be efficiently regu- lated. § 451. City collection. Many cities find it to their advantage to assume the responsibility of the collec- tion of all the garbage and other refuse. Such collec- tion by the city may to some degree be aided by pri- vate enterprise. In such cases private collectors should be obliged to take out licenses and to comply with such regulations as might be issued by the proper department in a municipal government. § 452. Ankylostomiasis or the hook-worm disease. A subject which a few years ago was not thought to be 66 Philadelphia v. Lyster, 3 Pa. Sup. Ct. 475. 716 PUBLIC HEALTH ADMINISTRATION of special concern in this country has proven of great importance to the industrial portion of our southern states. All through the south there were individuals and families who were simply considered lazy, though sometimes they were thought to be infected with either consumption or malaria. They were able to work only a portion of the time, and then in an imperfect way. Now it is known that many of these cases are simply the result of infection with an intestinal parasite, and the condition is designated either ankylostomiasis or hook-worm disease. When the hook-worm is eradi- cated from the person, slothfulness gives way to ambi- tion, and inactivity to energy. Families who have never been known to pay a bill become prompt finan- cially, and even forehanded. This disease is spread through carelessness in the disposal of the evacuation from human bowels. Governmental investigations show that in the sections of the country where the disease is specially prevalent sanitary privies are practically unknown, and in fact most families have absolutely no privies. The discharge being thus permitted to mingle with the soil, eggs or larva get upon the vege- tables, into water supplies, or even into the skin of the bare feet. Having made their entrance into the human body, either with food and drink, or through the skin, the worm makes its progress until it finds itself located preferably in the upper part of the small intestine. Here it anchors itself and begins to bleed the patient. This disease demands legislation and energetic administration. Through the southern states at least its importance is so great that extreme measures might be upheld as reasonable. Such regu- lations, in the land like that of the Dakotas, would WATER SUPPLY — DRAINAGE — GARBAGE 717 be deemed unreasonable because of the drier atmos- phere, soil less easily infected, and a population more widely scattered. The rigors of the northern climate necessitate the wearing of shoes which are of them- selves protective, and it is probable that the cold win- ters would exert a decided destructive influence upon the worm in the soil. So far as we are aware, this disease has not been a subject for special litigation. This disease does, however, illustrate how important may be the state control over strictly private matters, as in the care of the farm outhouse, to prevent the spread of disease. It shows how night soil may be a great danger to the community to which it is trans- ported, and illustrates the necessity that health exec- utives be ever wide awake for the discovery of new sources of infection. CHAPTER XVII. PURE FOOD AND DRUG REGULATION. § 460. Two standards of purity. § 466. Regulation of milk indus- § 461. Standard fixed by legisla- try. tion. § 467. Composition of the product. § 462. Misbranding. § 468. Inspection. § 463. Dealer bound to know qual- § 469. Confiscation. ity. § 470. Poisonous Substances. § 464. Serial numbers. § 465. Commercial motive in food legislation. § 460. Two standards of purity. There are two standards for the purity of foods. From a sanitary point of view any food might be regarded as pure un- less it consist of, or contain, some poisonous substance, or some biologic principle capable of producing a poison. From the commercial standpoint an article can only be called pure when it conforms to a definite standard in composition, and is exactly what it is claimed to be. (§ 234 et seq.) We have no concern here with such fine legal distinctions in the interest of commerce as those which prohibit the term " Mocha" to be applied to coffee, unless it be shipped from the Arabian city of that name, but permits the designation " Irish" to be used for potatoes grown in America. From a sanitary point of view it matters not in what land Maraschino cherries grow. It does interest us when butter or milk contain harmful germs, and when they fall below a normal standard. The nutritional value of foods may thus be lowered by 718 PURE FOOD AND DRUG REGULATION 719 adulteration. It may also be changed by the process of its manufacture. The ordinary gelatine capsules are freely soluble in the stomach, but after having been soaked in a solution of formaldehyde they are insoluble in that organ. Such a treatment of the cap- sules is unusual, and not to be expected; and a person buying such capsules would probably be disappointed in the results. This illustrates what may occur to a greater or less degree at any time. Again, for many years phenolphthalein was used as an "indicator" to prevent substitution in a certain kind of wine. It was supposed to be physiologically inert. Later it was discovered that this substance has a pronounced laxative action upon the system. It is therefore neces- sary from a sanitary, as well as commercial, stand- point that there be a definitely fixed standard of char- acter and composition for articles of food and drugs. In the administration of the national Pure Food and Drugs Act stress must be laid upon the commercial aspect, but even from a commercial point of view sub- stances which are positively harmful must be excluded. Decomposed oysters, for example, are not proper articles of commerce : they have no real food value and they may be very dangerous. So the government con- demns decomposed cans of meat or grains that are full of worms. The federal government condemns these articles because they are not legitimate articles for traffic. These same articles might be condemned under the police power of the state on the ground that they are nuisances. It would take no legislation to determine that decayed oysters, when exposed in the market for sale, are really a nuisance. It might, however, require legislation to determine that bulk 720 PUBLIC HEALTH ADMINISTRATION oysters containing more than a given percentage of water are adulterated. Under the national Pure Food and Drugs Act, Judgments No. 2583 and 2584, for ex- ample, are condemnations of cove oysters which the government claimed were adulterated and misbranded. Adulteration of the product was alleged on the infor- mation for the reason that an excessive amount of water had been mixed and packed therewith so as to reduce, lower, and injuriously affect the quality of the oysters. Misbranding was alleged for the reason that the statement on the label thereof "Cove Oysters" was false and misleading, as it conveyed the impres- sion that the product was canned oysters packed without the use of an excessive amount of water, whereas it consisted of canned oysters, packed with an excessive amount of water. In this case the deter- mination was made by a district court on a plea of guilty by the defendant. §461. Standard fixed by legislation. There are many articles of food which have no definitely fixed composition by nature. Take, for example, the milk given by different cows — the product of one cow may contain four or five or even six per cent of butter fat, whereas that taken from another animal may contain less than two per cent. It is not sufficient guarantee as to quality, therefore, simply to say that the milk is as obtained from the cows. There must be some definite standard, and the only way that that standard may be fixed would be by legislation. We therefore have either in the ordinances of cities, or in the enact- ments of states, definite standards as to the composi- tion of many articles. The standard which may be set for one city manifestly does not apply to another PURE FOOD AND DRUG .REGULATION 721 city unless by further legislation, and the .standard satisfactory to one state may differ from that of its neighbor. The standard of purity for drugs is primarily determined by the Pharmacopoeial Conven- tion, composed of pharmacists and j)hysicians, and meeting decennially. Their standard as so adopted becomes official for the United States through acts of Congress. The Act of Congress, in a few words prac- tically re-enacts the whole Pharmacopoeia, and the standard for the purity of drugs is thus determined by legislation. Most of the states have also adopted that book as their standard. In its regulation of com- merce the federal government enforces this standard as to goods passing, either into this country, or from one state to another. When, however, the goods have once been landed in a given state, or if they have never entered interstate traffic, the federal govern- ment has no authority. Standards of purity within the individual states must be enforced by state author- ity. § 462. Misbranding. In the enforcement of the fed- eral act much stress is laid upon accuracy of label. For example, a certain brand of chewing gum has borne the label "Pepsin," and users are advised that it is therefore an aid to digestion. Judgment 1939 under the Pure Food and Drugs Act shows that the amount of pepsin in each tablet of the gum is not more than one-tenth of a milligram, a mere trace which would be without physiological effect. Such a statement on the label is therefore misleading, and contrary to the spirit of the act. Such an error might not be posi- tively harmful in its effect. When, however, a medi- cine is put as a cure for headache and, either by its 722 PUBLIC HEALTH ADMINISTRATION name, or by statements printed upon the label, the buyer is induced to suppose that the product is harm- less, if indeed it contain acetanelid, for example, or morphine or cocaine, the buyer may be positively in- jured thereby. Many of the proprietary medicines have been found to be thus misleading and harmful, and some are even dangerous. Sometimes it happens that when a large quantity of a mixture is put up con- taining some such poison as morphine or acetanelid, a very poisonous proportion may find its way into a single bottle. A patient who had been accustomed on her own responsibility to take a certain brand of effervescent salts, much used for the cure of head- ache, one day took a very small dose, but it chanced that she received a fatal dose apparently of acetanelid. Such "cures" which endanger health are of manifest interest relative to the preservation of the public weal. § 463. Dealer bound to know quality. The ordinary dealer in drugs, particularly, must sell his goods as he buys them, trusting to the honesty of the producer. While it is quite possible for a pharmacist to make a chemical examination of the articles which he sells, it is not commercially practicable. It will require too much time and expense. This time and expense the customers must needs pay for, and they would not be likely to willingly submit. But it is the legal duty of the pharmacist to know the quality of the articles which he is selling, and ignorance will be no excuse for him if he sells goods which in any way deviate from the standard. 1 In a similar way it has been held that a milk man is responsible for the standard of the i District of Columbia v. Ljro- ham, 16 App. D. C. 185. PURE POOD AND DRUG REGULATION 723 milk which he is selling, and if that milk be below the standard fixed by law, even though it be just as it came from the cow, he will be deemed guilty of selling adulterated milk. He must know the quality of his milk. 2 § 464. Serial numbers. Under the Pure Food and Drugs Act it is possible for the local dealer to shield himself under the guarantee of the wholesaler. This guarantee may be written for an individual article and package or it may include a whole bill of goods. It is also provided in the operations of this law that a blanket guarantee may be filed with the government by a manufacturer, covering all of the goods which he manufactures. Goods so guaranteed bear a serial number issued by the department with the legend ' ' Guaranteed under the Food and Drugs Act, June 30, 1906." This guarantee has been much misunderstood. The government does not guarantee anything. The goods may be the rankest imposition, either as to quantity, quality, or purity. The label simply means that the manufacturer has filed his statement that the goods so marked comply with the standard. Because of the misunderstandings which arose under the use of the statement " Guaranteed under the Food and Drugs Act," Food Inspection Decision No. 153 was issued, dated May 5, 1914, and amended by Decision 155, dated May 29, 1914, effective May 1, 1916, and pro- visionally effective Nov. 1, 1916. This decision cancels all guaranties on file, and prohibits the future use of the expression mentioned. All serial numbers are also canceled and prohibited. The original intent of the provision for the serial number was commendable. 2 Commonwealth v. Wheeler, 91 N. E. E. 415. 724 PUBLIC HEALTH ADMINISTRATION Practically it was found that it served only as an aid to those who desired to conduct doubtful business, and its abandonment became a matter of necessity. The act further provides that if the goods be not manufactured by the party named, he must label them "Manufac- tured for," or "Distributed by," or simply the word "Distributers"; and the ruling of the department de- mands that those words be in letters not smaller than eight point capitals, except in case of small packages, when the size of type may be reduced proportionately. Some firms desiring to keep secret the fact that they are not really the manufacturers, attempt to evade this regulation by putting the word "Distributers" in smaller type and more difficult to read. The guarantee of the manufacturer thus made only covers the trans- action between himself and his direct customer. For example, suppose a manufacturer in Philadelphia sends to a wholesaler in Baltimore under his general guar- antee an article which is misbranded; the wholesaler, in turn, sells it to a jobber who disposes of the same article in the original package to a dealer in Wash- ington. If this article be seized in Washington and there found to violate the law by virtue of being mis- branded, even though it bear the legend ' ' Guaranteed under the Food and Drugs Act, June 30, 1906," the Baltimore jobber will be held responsible. The origi- nal guarantee ' ' cuts no figure ' ' in the final transaction, and the jobber has absolutely no protection unless he may have secured a special guarantee from his whole- saler. The large number of judgments obtained by the government under this act for articles bearing serial numbers is of itself a clear evidence that goods so marked are not specially endorsed by the government. PURE FOOD AND DRUG REGULATION 725 An instructive case relative to the subject of guar- anty is set forth in the Notice of Judgment No. 2471 of the Department of Agriculture. 2 * The D. B. Scully Syrup Co., of Chicago, manufactured sorghum for Loverin & Browne Co., also of Chicago, and sold the same to said company. This latter firm, without in any way changing the product otherwise than repack- ing it, shipped it to New Mexico. Since it bore the label "1 Gal. Loverin 's Sorghum, Loverin & Browne Co., Chicago, 111.," whereas examination showed that it contained only .845 of a gallon, the package was con- sidered misbranded, and information was filed in the U. S. District Court at Chicago against the Scully com- pany because that company had given the following guaranty to the Loverin & Browne Co., which guaranty had not been revoked, but was still in force: Food Guaranty The undersigned D. B. Scully Syrup Company of Chicago, state of Illi- nois, United States of America, does hereby warrant and guarantee unto Loverin <$~ Browne Co., a corporation, having office at Chicago, Illinois, that any and all articles of food or drugs, as defined by the Act of Congress approved June 30, 1906, entitled "An Act for preventing the manufacture, sale or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines and liquors, and for regulating traffic therein, and for other purposes," which the undersigned has sold since October 1st, 1906, or shall at any time hereafter prepare, manufacture for, sell or deliver to said Loverin <$• Browne Co., will comply with all the provisions of said act of Congress and are not and shall not be in any manner adulterated or misbranded within the meaning of said Act. It is expressly understood that this shall be a continuing guaranty until notice of revocation be given in writing and notice of acceptance of the guaranty is hereby waived. Dated at Chicago this 31st day of December, 1906. D. B. Scully Syrup Co. Seal. M. E. Scully Seal. On February 18, 1913, the case having come on for trial before the court and a jury, after the submission of evidence the following charge directing a verdict of 2a F. & D. No. 2174, I. S. 14094 b and 2726 e. 726 PUBLIC HEALTH ADMINISTRATION not guilty was delivered to the jury by the court (A. B. Anderson, J.) : ' ' I might explain to you gentlemen here that this is an Act of Congress, and Congress has no right to legis- late on this pure food question except so far as it affects interstate commerce. We all understand that. And, now, there isn't any showing here at all, passing by some other questions, that the Scully Syrup Com- pany, defendant, had anything whatever to do with the shipment. The evidence showed that the Scully Syrup Company made this for Loverin & Browne Company and that Loverin & Browne Company shipped it, so that they have got the wrong defendant here. The gov- ernment undertakes to claim that by reason of the statute which provides that the dealer shall be immune when the manufacturer guarantees to him that the ar- ticle is not misbranded — that in that case the dealer is out, Loverin & Browne Company, and that the other people are in. That does not relieve the government of the responsibility of proving some connection with the shipment by the Scully Syrup Company. And in the next place, the guarantee set forth is no guarantee at all. The guarantee is no guarantee at all under the statute. It isn't anything in the world but a promise that in the future — made six years ago — they will not violate the law. Let the record show a verdict of not guilty." Clearly, in this case it was the Loverin & Browne Company which had violated the national Pure Food and Drugs Act, though they may have been innocent of any intentional wrongdoing. At civil suit it would seem that this firm could recover from the manufac- turers for such damages as might appear. In addition, PURE FOOD AND DRUG REGULATION 727 the Scully company would be liable to prosecution under the Illinois laws, if in fact it should be shown that the state statutes had been violated; but so long as this firm did not ship their product outside of the state, nor give such a guaranty as the federal act required, the Scully company would not be liable under the national law. § 465. Commercial motive in food legislation. Very frequently statutes are enacted or ordinances passed apparently for the one object of securing honest goods and free from harm, when the real object is to cut off competition. One of the best illustrations of this mat- ter is found in the various laws relative to oleo- margarine. This substitute for butter is produced from animal fats or vegetable oils, and contains chemi- cally the same ingredients practically as ordinary dairy butter. It differs in color from butter; it is wholesome and nutritious, and much less expensive. There is no reason why it may not properly be largely used as a substitute for butter. Were the facts prop- erly presented to the people the oleomargarine would be more generally used. The dairy interests early be- came alarmed, and demanded that laws be passed for their protection. In some states the manufacture was absolutely prohibited; in others, it was decreed that oleomargarine must not be colored to represent but- ter, ignoring the fact that most dairy or creamery butter is artificially colored to a greater or less degree. One state required that oleomargarine must be colored pink if sold. The apparent object in all these various forms of legislation was evidently to prevent people from buying oleomargarine under the supposition that they were buying butter made from cream. 728 PUBLIC HEALTH ADMINISTRATION The court of appeals in New York found that oleo- margarine was wholesome and nutritious, and that the matter of fraudulent imitations of butter was covered by another act, so that the fact that it competed with another industry and thus reduced the price of an article of food remained as the sole reason for pro- hibiting the manufacture. The court added: ''Who will have the temerity to say that these constitutional principles are not violated by an enactment which ab- solutely prohibits an important branch of industry for the sole reason that it competes with another, and may reduce the price of an article of food for the human race?" 3 Prohibition of manufacture was early ap- proved in the state of Pennsylvania, 4 and this decision was later confirmed by the Supreme Court of the United States. 5 In both of these decisions the statute was upheld because of the difficulty in preventing substitution. The Minnesota supreme court took a similar view, 6 as did that of Maryland. 7 The Penn- sylvania statute prohibited the sale as well as the manufacture of the article. In Schollenberger v. Pennsylvania 8 the Supreme Court of the United States held that while the prohibition was effective as against the manufacture within the state, it could not prevent the sale of oleomargarine imported from other states. The prohibition of the manufacture of oleomargarine in the imitation of yellow butter by adding ingredients which change its natural color is s People v. Marx, 99 N. Y. 377. e Butler v. Chambers, 36 Minn. * Powell v. Commonwealth, 114 69. Pa. 265. 7 Wright v. State, 88 Md. 436, s Powell v. Pennsylvania, 127 U. 41 Atl. 795. S. 678. 8 171 U. S. 1. PURE FOOD AND DRUG REGULATION 729 found in many states and has been generally upheld. 9 This prohibition of the imitation of butter has been upheld as to oleomargarine imported from other states and sold in original packages, on the ground that the object of the statute is only to suppress false pretenses, and that the freedom of commerce among the states does not demand a recognition of the right to practice a deception upon the public in the sale of any articles, even those that may have become the subject of trade in different parts of the country. 10 Professor Freund says: 11 "The validity of provisions requiring oleo- margarine to be distinctly labeled as such, to be sold in prescribed forms of packages, or in rooms separate from those in which butter is sold, or that the pur- chaser be expressly informed of the nature of the article, is, in principle, not questioned. 12 Such pro- visions, which do not forbid imitation, are found in a number of states. The requirement of some laws that oleomargarine be given a color or a name cal- culated to prejudice purchasers and to make the article odious, is evidently of a different character; it has been upheld in several cases as an exercise of legislative discretion beyond the control of the courts, but the Supreme Court of the United States treats prejudicial requirements as virtual prohibition, and holds them to be invalid as far as interstate commerce is concerned. " 13 In New Jersey it was held that the 9 People v. Arensberg, 105 N. 10 Plumley v. Massachusetts, 155 Y. 123; McAllister v. State, 72 Md. U. S. 461. 390 ; State ex rel. Waterbury v. « Freund, Police Power, 284. Newton, 50 N. J. L. 534 ; State v. 12 State ex rel. Bayles y. New- Addington, 77 Mo. 110; Ex parte ton, 50 N. J. L. 549. Plumley, 156 Mass. 236 ; McCann ia State v. Marshall, 64 N. H. v. Commonwealth, 198 Pa. 509; 549; State v. Myers, 42 W. Va. Beha v. State (Neb.), 93 N. W. 822, 35 L. E. A. 844; State ex 155. rel. Weideman v. Horgan, 55 Minn, 730 PUBLIC HEALTH ADMINISTRATION prohibition against the coloring of oleomargarine did not exclude the use of a substantial ingredient like cotton-seed oil, although it does give color to the product. 14 In Ohio it was held that coloring matter may not be added although it gives an aroma and flavor, thus drawing a distinction between ingredients which are substantial and those which are not. 15 We may practically say that anything of intrinsic value may be added unless its purpose is imitation. 16 Upon a similar ground the supreme court of Illinois upheld a statute prohibiting the coloring of distilled vinegar so that it would resemble cider vinegar. The court remarked that a false color may sometimes be more liable to deceive than a false label. It is quite as necessary to protect the customer as the dealer. In point of fact much vinegar is sent out from the stores without label. Genuineness of label would be no pro- tection for the consumer. As the court remarked in this case, such prohibitions as those of the statute under consideration may embarrass dealers in that class of goods. The prudence of such a regulation may be debatable, but it is not indefensible. 17 It is the duty of the government to protect its citizens from fraud. It is therefore a duty to prohibit the use of coloring matters intended evidently to deceive, but unless the coloring matter be in itself harmful, or if it aid in the sale of substances in themselves harmful in the place of harmless or useful articles, the problem is purely commercial, and not for the attention of a 183, 56 N. W. 688; Collins v. New « People v. Bieseeker, 169 N. T. Hampshire, 171 U. S. 30. 53. i4 Ammon v. Newton, 50 N. J. « People v. William Henning L. 543. Co., 103 N. E. E. 530. isWeller v. State, 53 Ohio, 77, 40 N. E. 1001. PURE FOOD AND DRUG REGULATION 731 public health official, unless the duty be specifically assigned to him by law. One of the difficult problems relative to pure food legislation is illustrated by the subject of alcohol. This article is much used for its preservative quality, and for its ability to extract certain active principles from crude drugs. The result is that most liquid medicines contain a larger or smaller quantity of alcohol. Alcohol is the natural result of fermentation of sugary solu- tions, and minute quantities may therefore be found in many articles of food. It is admitted without ques- tion that alcohol is an intoxicant, but that does not show that an article containing alcohol is necessarily so, and in the matter of drugs, though a large propor- tion of the bulk may be alcohol, still owing to its weaker action, it may not be important. Definite standards must be fixed, either by legislative or execu- tive decision, and in fixing these standards extremes should be avoided. § 466. Regulation of milk industry. For the public sanitarian no other subject so fully represents the various matters pertaining to pure food regulation as does the milk industry. (§§8, 423.) Practically every possible phase of the general problem is covered. It illustrates the fact that our interest in pure food must not depend upon chemical analysis, nor bacteriologic investigations only. The industry must be controlled from the beginning to the end. In order to have good milk it is necessary that the cows be healthy and kept in well lighted and well ventilated places, and that all stables and barnyards be kept clean. It is now cus- tomary in all of the better regulations to require that the udders be washed before milking, and that the 732 PUBLIC HEALTH ADMINISTRATION milkers wear clean white suits when at work, and wash their hands before milking. The milk must be im- mediately cooled and should be kept cool until deliv- ered to the customers. No person who comes in con- tact with infectious disease should have anything to do with the milk business. The strictest cleanliness is necessary in bottling plants, and, to prevent possible violations of regulation, the caps to the bottles, as well as the bottles, should bear such definite marking that the goods may be traced. It is more or less a habit of small dealers to buy miscellaneous bottles from junk dealers. The junk men buy them from boys who find it profitable to gather bottles from all sources. Boys are thus taught to steal the bottles which have been left out of doors to be picked up by the regular driv- ers. They also gather bottles which have been used for purposes which makes their further use as milk containers dangerous. There is also evidence tend- ing to show that some milk sellers make a habit of stealing bottles of milk left by other drivers. Milk thus stolen is transferred to other bottles in the wagon and new caps are applied. The bottles thus filled fre- quently have been simply rinsed out, and they are therefore dangerous. If the regulation be strict that the dealer must only use bottles and caps bearing his own name, there would be no excuse for having in his possession any other supply, and the fact of having in his possession such foreign bottles would be prima facie evidence of crookedness. Another class of cases is illustrated by the following incident. An officer of health received a bottle of impure milk from a cus- tomer, and made complaint against the dealer (A), whose name was blown in the bottle. The customer PURE FOOD AND DRUG REGULATION 733 was not a patron of A and on investigation it was learned that the bottle had been purchased at a grocery, which also was not a customer of A. It then developed that the grocer obtained his supply from a small dealer who had previously given trouble by his carelessness in handling his milk, and by his disregard of all sanitary regulations. What we have said rela- tive to the milk itself must of necessity be applied to all milk products. The importance of regulations pertaining to the con- duct of the milk business is many times greater in the large cities than it is in the country; (§8.) but the milk is produced in the country, perhaps in another state from that in which it is used. Formerly all reg- ulation of the industry was left to the local govern- ment; but the local government has no authority out- side of its own limits. In so far, therefore, as the reg- ulation is left to the local government it must make a distinction between milk produced within its limits and that produced from outside sources. Such dif- ference in requirements as may be based upon this distinction is reasonable. 18 Cows within the city may be frequently inspected by local officers, and if found sick, or infected, they may be kept under isolated observation. Cows kept outside of the city are not under the jurisdiction of the city, and they cannot be inspected frequently by city officers. In fact, the city officer attempting to make an inspection outside of his jurisdiction might be regarded as a trespasser. Since the same dairy district may supply different cities, it is Adams v. Milwaukee, 129 N. W. 518; Adams v. Milwaukee, 228 U. S. 572. 734 PUBLIC HEALTH ADMINISTRATION becomes important that the real regulation of the in- dustry be no longer left to municipalities. States may enact such reasonable laws for the purpose as seem most fitting to the legislature. Of recent years the federal government has found it necessary to take an active part in breaking up the commerce in impure, or disease-bearing milk. This was necessary because the states were unable to cope with the problem, though essentially one of police power. Under the authority of the pure food and drugs act officers of the govern- ment have secured numerous convictions for attempt- ing to send milk from one state to another, when it was either overloaded with bacteria, or was watered, or otherwise below standard. It is the duty of the local government to take such measures as are necessary for the preservation of the local health. In the settlement of the questions "By whom shall this local power be exercised?" and "To what extent are they justified in regulating?" much depends upon the constitutions and statutes of the respective commonwealths. In general it seems wise to leave all semblance of legislation to the ordinary legislative body of the city or town — the village or city council — and to leave to the health department the purely executive duties. The health department is not always legally justified in taking all precau- tions for the preservation of the public health. It is well known to health officials that "open" milk, that is milk kept in receptacles from which portions are dipped or poured out for customers, is a great source of infection. From a sanitary point of view such a practice is absolutely inexcusable. A dealer who sells good milk would not dare to expose his prod- PURE FOOD AND DRUG REGULATION 735 uct to the possibilities of contamination presented by that old method. The consequence is that, as a rule, today only milk which has been carelessly produced and handled would be found marketed in that manner. vSuch milk should be recognized as a nuisance in posse. For such reasons a Massachusetts board of health pro- hibited such sale. The matter finally came before the supreme court of the state which held that the board had no authority to make such a regulation. 19 "If the board should be certain that the smoking of cigar- ettes by boys affects their health injuriously it would have no power to make a regulation forbidding the smoking of them by boys under a certain age or the sale of them to such boys. It has no power to make general regulations as to conduct or practices injur- ious to health which, if indulged in by many persons, affect the health of the public. The statute above quoted gives the board jurisdiction to deal with 'nui- sances, sources of filth, and causes of sickness within its town.' Plainly, the milk question was not a nui- sance or a source of filth. In determining the mean- ing of the words 'causes of sickness' the doctrine of noscitur a sociis is to be applied. This is a little broader term than the two terms that precede it, but it is of the same general character. Primarily it refers to something local, and the board is directed 'to destroy, remove, or prevent the same.' In section 67 we have another indication of the meaning of these words in the requirement that the board shall order the owner or occupant of private premises to remove any 'nuisance, source of filth, or cause of sickness is Commonwealth v. Drew, 208 Mass. 493. 736 PUBLIC HEALTH ADMINISTRATION found therein.' So under section 74, lie may obtain a warrant directed to an officer or to a member of the board commanding him to destroy, remove, or prevent any 'nuisance, source of filth, or cause of sickness,' in reference to which they have made complaint to a magistrate. "We are of opinion that, within the mean- ing of the language of these sections, milk kept in a vessel, as this was kept by the defendant, was not a 'nuisance, source of filth, or cause of sickness,' which gave the board of health jurisdiction to take any action or make any regulation under the revised laws, Chapter 75, section 65. ' ' It must be remembered that the court did not in the least condemn the idea expressed in the regulation. It only affirmed that under the statutes such power had not been given to the board of health. In a similar manner, when the city of Chicago passed an ordinance which prohibited the sale of dairy products by those who also sold such other merchan- dise as drygoods, it was considered a manifest effort of the small retailer to cripple the department stores, rather than a genuine health measure. It was not, therefore, a true use of police power by the city, and was therefore illegal. 20 On the other hand, an ordinance of the city of St. Louis which prohibited, as injurious to health, milk being sold, offered, or exposed for sale, which con- tained any foreign substances or preservatives of any kind, was not only sustained, but it was interpreted to include watered milk, on the ground that the dilution reduced the nutritious value of the article. 21 In New 20 Chicago v. Netcher, 183 111. 434; also People v. Chipperly, 101 104, 55 N. E. 707. N. Y. 634. 2i St. Louis v. Amel, 139 S. W. PURE FOOD AND DRUG REGULATION 737 York state it was held that the authority to enact a sanitary code, conveys also authority to make further regulations as to the conduct of the milk business, beyond those found in the statutes of the state. 22 So, realizing that dirty milk bottles furnish a good place for the production of bacteria, and that thus market milk may become contaminated with even dangerous germs, the New York city ordinance made it neces- sary that users of milk immediately wash the bottles, and that the dealers must not have in their possession such unwashed receptacles. This regulation was sup- ported by the court. 23 It is generally agreed that local governments have the right to regulate the milk industry, and it is cus- tomary that the regulation shall be aided by requiring licenses from all engaged in the business, and the city may require a license tax to be paid. 24 "If the board should add unreasonable and improper overin- quisitorial questions to be answered, and the applicant should refuse for that reason to comply with the form, the question of the propriety of those questions might be raised by him;" but a board may be given power to withhold licenses to sell milk, for proper cause based on the existence of defective sanitary condi- tions. 25 When the city has the power to license, restrain, and regulate the sale of milk, it also has the power to revoke licenses, and it may vest such power in the health commissioner, with the right to exercise 22 Polinsky v. People, 73 N. Y. 24 State ex rel. Niles v." Smith, 65. 57 So. 426. 23 People v. Roth, Court of Spe- 25 State ex rcl. Niles v. Smith, cial Sessions, City of New York, 57 So. 426. Nov. 1912. 738 Public health administration the same without notice and summarily. 26 Though no order has been adopted by the board of health to that effect, a board may revoke the license to sell milk, and a person who has been convicted four times of selling or offering for sale adulterated milk is an unfit per- son to receive a permit to deal in milk. 27 Statutes and ordinances relative to the milk indus- try should be as definite as possible, but at the best something must be left to executive discretion. A provision of the sanitary code of the city of New York which made the right to sell milk to depend upon conditions imposed by the board of health, although those conditions were not stated in the code, was upheld by the court. 28 It is becoming well recognized that much of human tuberculosis, especially among the children of the cities, comes from milk taken from tubercular cows. A cow which is well advanced with tuberculosis may be easily detected by inspection, but even in the early stages a cow may be producing dangerous milk, and at that stage it is exceedingly difficult to detect the disease either by physical examination or inspection. By injecting such a cow with tuberculin a typical reac- tion is produced, and by this test fairly accurate results are obtained by competent operators. The test works no injury to the cow. In the later stages the results of the operation are not trustworthy, but then the test is not so necessary. When made, it is essen- tial that the test be performed by a competent obser- ver, and under proper conditions. Manifestly, health 26 State v. Milwaukee, 121 1ST. W. 28 People v. Van De Carr, 175 658. N. Y. 440, 67 N. E. 913. 27 People v. Health Department, New York, 82 N. E. 187. PURE FOOD AND DRUG REGULATION 739 departments should, as far as possible, prevent the use of raw milk from diseased cows. It is easier to detect the danger in the cows than in the milk, and consequently it has been ordered in many cities that no milk be sold except from cows which have success- fully passed the tuberculin test. This requirement has been upheld in several cases, and may now be con- sidered as a definitely accepted method of eliminating this one danger. 29 Whether or not a municipality is supplied from cows that are tubercular is primarily a question to be settled by the health department, and in making their selection of methods for test that board should select a method which is well recognized, thoroughly approved, and as reliable as any. 30 The selection of method is an executive problem, or legis- lative problem, and not one for judicial determina- tion. 31 The tuberculin test applies only to the one disease of tuberculosis. In the Nelson case, 32 those attacking the requirement of tuberculin test argued in favor of a requirement of pasteurization for the above reason. The court declined to be drawn into that controversy, saying that it was a question which must be settled by those who made the laws or ordinances. It may be stated, however, that when properly performed the operation of pasteurization does kill most of the dis- ease producing bacteria without materially injuring 29 Borden v. Board of Health, si Nelson v. Minneapolis, 112 Montelair, 80 Atl. 30; Nelson v. Minn. 16; Knobloch v. C, M. & Minneapolis, 112 Minn. 16; Adams St. P. Ry. Co., 31 Minn. 402; Du v. Milwaukee, 129 N. W. 518; luth v. Mallett, 43 Minn. 204; St. Adams v. Milwaukee, 228 U. S. Louis v. Liessing, 190 Mo. 464. 672. 32 Nelson v. Minneapolis, 112 so Borden v. Montelair, 80 Atl. Minn. 16. 30. 740 PUBLIC HEALTH ADMINISTRATION the food value of the milk. What is called ' ' commer- cial pasteurization," which means the rapid heating, and rapid cooling of the article, when at a relatively low temperature does not kill the germs. When at a high temperature, sufficient to kill disease germs, it injures' the taste of the milk, and, to some degree at least, it seems to lower its nutritive value, or its digestibility. Properly performed it should be kept at a temperature of about 140° for twenty minutes. This treatment of milk is being required not only for milk to be used as milk, but also for milk to be used in the manufacture of butter and cheese, for certain disease germs may exist for a long time in those milk products. It does not, as has sometimes been said, make dirty milk pure, but it does reduce the dangers lurking in milk pro- duced under unfavorable conditions. It is, therefore, a reasonable provision, and one which has the appro- val of scientific observers and administrators, though it has not received approval in a high court, and cer- tain dairy interests were able to secure the passage of a law in Illinois forbidding any city in that state from making such a requirement. Such a statute, though contrary to the judgment of sanitarians, was within the discretion of the legislature, and its prohibition was therefore binding upon city governments. Having become satisfied that the conditions under which the milk is produced make it an unsafe article for consumption by its citizens, it is the duty of a health department to prevent the entrance of such milk into the city. 33 Most milk is produced outside 83 Bellows v. Kaynor, 101 N. E. 228 U. S. 572; Reid v. People of 181 ; see also Adams v. Milwaukee, Colorado, 187 U. S. 137. PURE FOOD AND DRUG REGULATION 741 of the municipality in which it is consumed. In the Bellows case the court said : 34 ' l It is unreasonable to say that the department of health, in exercising such a power, renders itself amenable to the charge of exercising an extraterritorial jurisdiction. In notify- ing the creamery company not to include the plain- tiff's milk in its shipments to the city, it was acting for the protection of the inhabitants of the city of New York, and therefore for local interests. There was no interference with the plaintiff's conduct of his farm or business, except as he proposed to supply milk to the city of New York; there was simply an embargo laid on the introduction, within the city of New York, of any milk not produced by him under conditions specified by the department. It had the right to exact from all shippers of milk a compliance with such conditions as would reasonably tend to a pure product for the use of the citizens as a condition for permitting its sale in the city of New York. ' ' Under the Minnesota state regulations operators of what is called the "Babcock Test" of cream were required to hold licenses. An operator who did not hold a license undertook to restrain the enforcement of the law by bringing an action of injunction to pre- vent criminal proceedings being instituted against him. The case was carried to the supreme court which said that injunction proceedings would not be entertained unless it be evident that the prosecution involve some trespass upon property or the invasion of property rights which would cause irreparable injury. 343, s* Bellows v. Raynor, 101 N. E. 34aCobb v. French, 111 Minn. 181. 429. 742 PUBLIC HEALTH ADMINISTRATION §467. Composition of the product. The standard of milk may be fixed so as to prevent the addition of water or coloring matter. 35 In a New York case the milk was found to be adulterated and so condemned, because it contained water, though it was not shown that the water was harmful. 36 An ordinance in the city of Washington requiring three and one-half per cent of butter fat was not considered unreasonable by the court, although it did presume an unusual amount of care in the selection and feeding of the cattle. 37 A Minnesota ordinance prohibiting the sale of cream which contained less than twenty per cent fat was upheld. 37a The use of preservatives in milk is generally prohibited on the ground that if the milk is properly produced and cared for it will require no preservative. The legislative power was held to be absolute in impos- ing prohibition of such preservatives. 38 Admitting that a large amount of boric acid in milk might be harmful, it is not evident that a small quantity would be injurious, though that small quantity might be sufficient to prevent putrefactive changes in the milk. Remembering the fact that bacteria are almost sure to get into the milk before it is delivered to the cus- tomers, some dealers have been accustomed to use a small percentage of formalin or boric acid to prevent possible changes. The New York court upheld this 35 Commonwealth v. Wetherbee, 37a State v. Crescent Creamery 153 Mass. 159, 26 N. E. 114; Com- Co., 83 Minn. 284, 54 L. E. A. 466. monwealth v. Sehaffner, 146 Mass. 38 state v. Schlenk>r, 112 la. 512, 16 N. E. 280; St. Louis v. 642, 51 L. E. A. 347; Common- Amel, 139 S. W. 434. wealth v. Gordon, 159 Mass. 8, 38 36 People v. Chipperly, 101 N. N. E. 709. Y. 634. 37 Wiegand v. Dist. of Columbia, 22 App. D. C. 559. PURE FOOD AND DRUG REGULATION 743 use of a small quantity of preservatives in People v. Biesecker. 39 (This same question comes up in the use of ben- zoate of soda as a preservative in ketchup, for example. Some sanitary enthusiasts would have the use of the benzoate absolutely prohibited. If we grant that large quantities of the benzoate are injurious to the human system, it by no means follows that a small amount, used as preservative, would have any such action. In fact, it might often times be healthful by restraining the action of putrefactive germs which are so common in the intestinal tract. Its harmfulness in small quantities has been frequently asserted, but never scientifically demonstrated. Some tests which seem to show it very evidently omit to take into account possible psychological influences. Contrary to a frequent assertion, the use of a small quantity of the benzoate does not render decayed or spoiled tomato pulp usable. It simply prevents further changes. On the other hand, the opponents of the benzoate for use as a preservative advocate the use of " natural' ' pre- servatives, such as spices; and experience has demon- strated that putrid tomato pulp may be rendered quite acceptable to sensitive palates by the use of such spices, and its true character is not easily detected.) An interesting decision relative to the character of milk is published by the Department of Agriculture under the Food and Drugs Act. 40 The case came up before the court of appeals, District of Columbia. The 39 169 N. Y. 53, 57 L. E. A. F. & D. 1519, I. S. 14636b; F. & D. 178. 1520, I. S. 13439b; similarly, F. & 40 Notice of Judgment, 2516; D. 1743, I. S. 17415b, which re- Dade v. United States, No. 2466, lates to tomato catsup containing App. D. C, Feb. 25, 1913. See yeasts and molds. also F. & D. No. 1357, I. S. 1459b ; 744 PUBLIC HEALTH ADMINISTRATION contention was made by the government that the milk contained the colon bacillus and streptococcus. Since the colon bacillus originates in and is a normal con- tent of the colon of all warmblooded animals, and is discharged in the excreta, if it be found in the milk it is an evidence of fecal contamination of the milk, either directly or indirectly. If directly, it comes from carelessness in permitting particles of manure to get into the milk during the process of milking or afterwards; if indirectly, it must come from dust, veg- etation, or water, none of which have any reasonable excuse for being present in the milk. Therefore, it was held that the milk containing the colon bacillus was adulterated within the provisions of the act. Again, the presence of the streptococcus, which is a germ instrumental in putrefactive changes, is of itself an evidence that the milk must be regarded as putrid. It is very common for ordinances today to specify a maximum bacterial content for the milk, and such ordinances would always be upheld as reasonable unless the number be arbitrarily too low. § 468. Inspection. In order to safeguard the pro- duction of milk it is customary for ordinances to require licenses, and the very granting of the license imposes certain restrictions upon milk production. This is proper use of police power. 41 Under the license, inspection of the whole process of milk production is possible. But the department is not dependent alone upon that inspection; it must have the right to secure samples for analysis. Therefore, ordinances have been upheld which require the dealer to give not exceeding a half pint 42 on the ground that the property value is 4i Blazier v. Miller, 10 Hun, 435. Ann. 577 ; Commonwealth v. Car- 42 State v. Dupaquier, 46 La. ter, 132 Mass. 12. PURE FOOD AND DRUG REGULATION 745 of trifling amount, and in view of the legitimacy of the purpose it does not violate the spirit of the Constitu- tion. In many states the inspector is obliged to ten- der the price of the sample taken. An ordinance in the city of Washington required the dealer to sell upon demand "a sample sufficient for the purpose of analysis" to the inspector. The inspector asked for less than a pint. The dealer refused to sell less than a pint as he sold only full bottles, and that was the size of his smallest bottle. The court upheld the dealer on the ground of reasonableness. 43 Under the general powers granted by rhe state the city of Asheville, N. C, passed an ordinance requiring dealers to take out licenses, and requiring that for such licenses the dealers pay one dollar per cow. The money so provided was to be used by the municipality in the payment of office expenses connected with the supervision of the dairy business, and the needed inspections. One Nettles refused to take out such license, setting forth that the fee charged was unneces- sarily large; that his herd was outside of the munici- pality; and that he sold to only one customer, and that was a creamery. The court held that the ordinance was valid. To permit a dealer to refuse to take out a license on account of the size of the fee might very seriously interfere with the operations of the munici- pal authorities for the preservation of the public health. If the fee be excessive there are other means open for the dealer for relief. (See § 423.) The powers granted by the state to the city are intended to protect the health of the citizens. The fact that 4ri Dist. of Columbia v. Garri- son, 25 App. D. C. 563. 746 PUBLIC HEALTH ADMINISTRATION the herd of dairy cattle is outside of the city does not lessen the necessity for inspection, and it is generally to be expected that the cattle will be outside of the city. Inspection of the cattle and surroundings is evi- dently safer than mere inspection of the milk; but where the herd is far removed from the city the local officers must depend chiefly upon the inspection of the milk itself. The fact that the only customer of the dairyman was a creamery did not in the least lessen the necessity for supervision of his business. 44 § 469. Confiscation. Milk which is below standard may still have a commercial value. If it contain less than the normal proportion of butter fat it might be sold properly as skimmed milk; but when detected on sale as straight milk if it be left with the dealer it would simply enable him to continue in his evasion of the law. To preserve it until a case could be tried and decided would be expensive, and practically impossible. Milk which contains an abnormal amount of bacteria may be rendered usable sometimes by pas- teurization, or it may be used in certain manufactur- ing processes where it does not become an article of consumption as food. Such milk, moreover, is espe- cially dangerous to leave in the possession of one who has already sought to evade the requirements of sani- tary law. Summary destruction is therefore demanded under police power, and such destruction has been repeatedly upheld by the courts. 46 Property which is in itself harmless, but which has been put to an unlaw- ful use may be confiscated. Thus the forfeiture of a 44 Asheville v. Nettles, 80 S. E. Hun, 435; Deems v. Mayor, 80 Md. 236. 164; Shivers v. Newton, 45 N. J. 46 Nelson v. Minneapolis, 112 L. 469; Adams v. Milwaukee, 129 Minn. 16; Blazier v. Miller, 10 N. W. 518. PURE FOOD AND DRUG REGULATION 747 vessel engaged in unlawful oyster fishing was upheld by the Supreme Court of the United States. 47 A dealer who seeks to evade the requirements of the law, and bring milk into a city for sale contrary to the require- ments, is on a par with the smuggler, and it would seem that he could have no cause to complain if his merchandise be confiscated as a penalty for his law- breaking. In Adams v. Milwaukee 48 the claim was made that the ordinance which provided for the con- fiscation and destruction of property was a violation of the Fourteenth Amendment ; but the Supreme Court of the United States said: "The police power of the state must be declared adequate to such a desired purpose. It is a remedy made necessary by plaintiff acting in disregard of the other provisions of the ordinance; that is, failing to have his cows tested and their milk authenticated as prescribed. The city was surely not required to let the milk pass into consump- tion and spread its possible contagion. * * * Criminal pains and penalties would not prevent the milk from going into consumption. To stop it at the boundaries of the city would be its practical destruc- tion. To hold it there to await judicial proceedings against it would be, as the supreme court has said, to leave it at the depots 'reeking and rotting, a breeding place for pathogenic bacteria and insects during the period necessary for notice to the owner and resort to judicial proceedings.' We agree with the court that the destruction of the milk was the only available and efficient penalty for the violation of the ordinance. The case, therefore, comes within the principle of the cases « Smith v. Maryland, 18 How. 48 228 U. S. 572. 71. 748 PUBLIC HEALTH ADMINISTRATION we have cited and of Lieberman v. Van De Carr. 49 In other words, as the milk might be prohibited from being sold, at the discretion of the board of health, and even prohibited from entering the city, 50 a violation of the conditions upon which it might be sold involves as a penalty its destruction. Plaintiff sets up his beliefs and judgment against those of the government and attempts to defeat its regulations, and thereby makes himself and his property a violator of the law. In North American Storage Co. v. Chicago 51 we said, by Mr. Justice Peckham, that food which is not fit to be eaten, 'if kept for sale or in danger of being sold, is itself a nuisance, and a nuisance of the most dan- gerous kind, involving, as it does, the health, if not the lives, of persons who may eat it. ' And it was decided that in such case the food could be seized and de- stroyed, and that a provision for a hearing before seizure and condemnation was not necessary. It was also decided that the owner of the food had his remedy against the arbitrary action of the health officers." The executive who thus seizes and destroys such an article as milk must therefore be sure of his evidence, or he may be held liable for trespass. § 470. Poisonous substances. There are many articles of commerce which may be properly restricted as to sale because of their essentially dangerous char- acter. Such are habit producing drugs, or articles containing poisonous substances. Unless clearly within the powers granted by its charter, or by statute, a city would not have the authority to prohibit the « 199 U. S. 552. 51 211 U. S. 306, 315. so Beid v. People of Colorado, 187 U. S. 137. PURE FOOD AND DRUG REGULATION 749 sale of such articles as are ordinary subjects of com merce. (§ 256.) The state, on the other hand, may regulate or prohibit the sale of such articles. The state of North Dakota passed an act which made it unlawful to manufacture, import, distribute, or give away snuff, or any substitute therefor. This act was upheld as constitutional by the supreme court of the state. 52 The court called attention to the fact that although the United States Supreme Court held in Austin v. Tennessee 53 that cigarettes or tobacco were not so much of a nuisance as to be not properly objects of interstate commerce, in the same case the authority of the state legislature was recognized to prohibit the sale of cigarettes. So in this case the court recognized that the tobacco habit is uncleanly, and its excessive use is injurious. It is particularly injurious on young persons. Snuff is largely used between the cheek and the gum, or along the gums. It is absorbed, rather than chewed. This form of tobacco may be used by boys, when they would not use tobacco in a more open manner. Opium may easily be added as a habit pro- ducing adulterant. The court further recognized the fact that local paralysis of sensory nerves may be produced by the use of snuff on the gums. There seemed to the court sufficient reason to justify the legislation in question. 52 State v. Olson, 144 N. W. R. 53 179 U. S. 343. 661. CHAPTER XVm. INDUSTRIAL REGULATION. § 480. Questionable legislation. § 484. Buildings. § 481. Necessity for accurate § 485. Special occupations. studies. § 486. Industrial regulation § 482. Increased importance. should be definite. § 483. Hours of labor. §480. Questionable legislation. There is perhaps too great a tendency in legislation today to interfere with the ordinary lives of individuals. The agitation is frequently the product of emotional theorizers, un- supported by analytical study of the facts involved. It is the natural result of organized society. Recog- nizing certain truths, one class of citizens secures the enactment of laws designed to remedy specific defects, not realizing that in correcting those defects they may work even greater injury. For example, it is mani- festly desirable that children be permitted to attend school, and that they should not be unduly ground down by the monotony of labor while their bodies are developing. But a law prohibiting child labor, not infrequently results in driving upon the street those who should be using a portion of their time at least in some sort of work. A storekeeper, we will say, who desires an errand boy for a portion of the time might very willingly employ such a one out of school hours, though such employment may be prevented by the statute. The consequence is that the boy grows up 750 INDUSTRIAL REGULATION 751 with a feeling of irresponsibility, and a repugnance to all forms of work. Because he is unoccupied he is very likely to form evil associations and consequently evil habits. In such a case the law designed to protect and benefit the boy has worked a lasting injury. In other words, laws regulating industrial pursuits need to be judiciously drawn, not by partisan advocates, but by those who are well informed in the principles of law and in the sciences of sanitation and sociology § 481. Necessity for accurate studies. In many ways industrial occupations are important to study from a sanitary standpoint. Legislation in the past has been chiefly directed to the commercial side of the problem. There has always been present the conflict between capital and labor, and most of the legislation has arisen from this conflict. There has been the attempt to guard the labor from oppression ; and there has been the effort to secure capital against the unnec- essary demands of labor. It is probable that in the future more attention will be devoted to the sanitary side of the subject. Because of its close connection with commercial questions, the enforcement of all these special laws has been in the past, and probably will in the future be entrusted to some other agency than the health department. Until very recently sani- tary data have not been used in the legal contests. Previously sanitary arguments were based rather upon general statements and mere opinions; but there has been a growing recognition of the necessity for accu- rate studies. It is just such studies as these in which the health department should assist as far as it is pos- sible to determine the effect of poisons upon the sys- tem, and the means by which these detrimental influ- 752 PUBLIC HEALTH ADMINISTRATION ences may be mitigated in manufacture. As instances of such action we may refer to the poisonous results of match making, and of lead, as it is found in many lines of manufacture. Then, too, there are the studies relative to fatigue. In considering the hours during which persons may be engaged in any kind of labor, fatigue is a most important element. In this investigation of fatigue, one must discriminate between workers of different age and sex. A man may endure much longer confinement of labor than could a grow- ing youth; and while a woman's constitution may enable her with less fatigue than a man to do certain kinds of fine mechanical operation, she would be less able to stand many hours of heavy toil. Then, too, there must be considered the divergent results as to the labor of a woman in ordinary condition and one who is in pregnancy. There is the difference between considering the effect upon the one life and the added result upon an unborn child. Period in pregnancy must also be considered. The right to regulate and control persons engaged in any trade or occupation that affects the health of the people is no longer an open question. 1 The legis- lature may regulate in such manner as it may think proper callings that are related to public health. 2 Formerly the most that was attempted under these powers was the regulation of such callings as affected not those engaged in them, but neighbors, or custom- ers. In the prevention of industrial diseases the pro- tective power of the state is used in behalf of those who are engaged in doing the particular kind of labor. i Commonwealth v. Ward, 123 S. 2 State v. Smith, 135 S. W. 465. W. 673, INDUSTRIAL REGULATION 753 It is here that the scientific facts pertaining to the occupation are of the utmost importance. The action of the state in these cases must depend upon legisla- tive enactment, best by the state legislature, though sometimes it may be through the municipal ordinance. This whole matter is very well set forth in an Illinois decision. 3 The court said that statutes to prevent occupational diseases are referable to the police power of the state. Whether the state legislature's classi- fication has a reasonable basis is a judicial question. The legislature may classify persons or occupations for the purpose of legislative regulation and control, provided such classification is not an arbitrary one, but is based upon some substantial difference, which bears a proper relationship to the classification; and the question whether such classification is reason- able or arbitrary is a judicial one. So the court held that the act of 1911 to prohibit the use of emery wheels or emery belts in any basement room lying wholly or partly beneath the ground is invalid, as making an arbitrary discrimination without regard to the ques- tion of ventilation or other . sanitary conditions. The Michigan court held that the law requiring emery wheels to be provided with blowers to carry away the dust was valid, saying that where, under our institu- tions, the validity of laws must be finally passed upon by the court, all presumption should be in favor of the validity of legislative action. If the court find the plain provisions of the constitution violated, or if it can be said that the act is not within the rule of neces- sity, in view of facts, of which judicial notice may be taken, then the act must fall. Otherwise the act should 3 People v. Schenck, 257 HI. 384. 754 PUBLIC HEALTH ADMINISTRATION stand. 4 It must be remembered that the dust from emery wheels is particularly irritating upon the res- piratory organs, and acts as a predisposing cause of tuberculosis. § 482. Increased importance. With our modern industrial development conditions have been greatly altered, and dangers are intensified. Before the days of mechanical sewing we had simply the long hours of labor with the needle, often with imperfect light, in poorly ventilated rooms. Now, in better lighted fac- tories (for manufacturers have learned that good light and pure air are essential to efficiency), we find some machines manipulated by a single operator carrying twelve needles, so that the operator must constantly watch twelve lines of sewing, and other machines set about four thousand stitches a minute. Many machines working in the same room, with a constant vibration and noise, cause such a confusion as of itself to be trying upon one's nerves, even when not employed in labor. But when we consider such a picture as that drawn by Miss Goldmark we can but wonder that anyone is able to do good work under such conditions. "In the well equipped shops each girl has a brilliant electric light, often unshaded, hanging directly in front of her eyes over the machine. Her attention cannot relax a second while the machine runs its deafening course, for at the breaking of any one of the twelve gleaming needles, or the twelve darting threads, the power must be instantly shut off. The roar of the machines is so great that one can hardly make oneself heard by shouting to the person who stands beside one. ' ' 5 Definite facts relative to degrees * People v. Smith, 66 N. W. 382. 5 Fatigue and Efficiency, p. 54. INDUSTRIAL REGULATION 755 of purity of atmosphere, of temperature, and of light, need to be recorded as bases for reasonable legislation and adjudication of enacted statutes. In all this the health department should act more as an adviser than as an administrator or legislator. At present these subjects are still veiled in the haze of considerable uncertainty. Legislation should be based, not upon uncertain theories, but upon established facts. § 483. Hours of labor. The cases which have been adjudicated relative to industrial affairs have been largely centered upon hours of labor. It must be remembered that if the hours of labor be shortened it will naturally result in the employment of more laborers, or if certain classes be excluded from certain kinds of labor it will give greater opportunity for employment of those not belonging to the excluded classes. Practically it demands that the wages be increased; in other words the expense of production must increase. There is, consequently, a dread on the part of the community against increased cost of living. Such legislation is not difficult to obtain, because poli- ticians recognize the importance of the laboring man's vote. When the acts come before the courts for review the question to be decided is not whether they are inherently good or bad, but whether the legislature was justified in its conclusions as embodied in the laws, and whether the terms of the act comply with the forms prescribed by the constitution. The act should be in such form that with the least possible oppression for others it will accomplish its purpose of protection for the class it is designed to aid. "Necessity is the plea of tyrants." It is a plea which will be frequently made in attacking labor laws. The owner of a cran- 756 PUBLIC HEALTH ADMINISTRATION berry bog in Massachusetts made this plea in defense of his violation of the law prohibiting Sunday labor; the berries were suddenly ripening, and with danger of frost he feared that he would be unable to harvest his crop unless he worked on Sunday. The supreme court said: " Without going over the evidence in detail, it is sufficient to say that there was no extraordinary, sudden, and unexpected emergency. The crop was large, it is true, but that it was likely to be large had been known for weeks. The weather was only what might have been expected. The substance of the testimony was simply that in gathering the crop it was somewhat less expensive and more convenient to work seven days in the week rather than six. That is not enough. Such testimony falls far short of show- ing i necessity' within the meaning of the statute." 6 The Mosaic law demanding a rest of one day in seven was not an arbitrary requirement. It is based upon a physiologic necessity, and this same necessity must be remembered in all laws relative to time spent in labor. In the first Eitchie case, 7 decided in 1895, it was declared that an eight hour law for women employed in factories was not sanctioned under police power, and that there was no "fair, just, and reasonable con- nection between such limitation and the public health, safety, or welfare, proposed to be secured by it." Three years later a case was decided in Utah, 8 and sustained by the federal Supreme Court, 9 involving the validity of a mining law fixing an eight hour day 6 Commonwealth v. White, 190 9 Holden v. Hardy, 169 U. S. Mass. 578. 366. 7 Eitchie v. People, 155 111. 98. sState v. Holden, 14 Utah, 71, 37 L. E. A. 103. INDUSTRIAL REGULATION 757 for men employed in the mines and smelters. The court sustained this law on the ground that the men were deprived of fresh air and sunlight, and exposed to foul atmosphere filled with noxious gases and at high temperature. In this case the court called atten- tion to the fact that the different parts of the state did not stand upon an equality, one with another, in the economic sphere, and it was therefore necessary that the state should act as an arbiter. "But the fact that both parties are of full age, and competent to contract, does not necessarily deprive the state of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. The state still retains an interest in his wel- fare, however reckless he may be. The whole is not greater than the sum of all the parts, and when the individual's health, safety, and welfare are sacrificed or neglected the state must suffer. ' ' A similar case 10 was declared invalid in Colorado, though it has since been expressly authorized by an amendment to the state constitution adopted in 1902. The state of New York enacted a statute limiting the hours of labor for men in bakeries to ten hours in one day, or sixty hours in one week, overtime being allowed for the purpose of shortening the last day of the week. This act, when attacked, was sustained by the New York court, but declared unconstitutional by the Supreme Court at Washington in 1905. 11 In each of these cases it may be noticed that the legislation was secured by the laboring class, while the attack J" In re Morgan, 26 Col. 415, 47 n Lochner v. New York, 198 U. L. K. A. 52. S. 45. 758 PUBLIC HEALTH ADMINISTRATION was made upon it by the employers. The grounds of the attack in each case were upon the protection of the right of contract in the Fourteenth Amendment to the federal Constitution. Similarly, the New York su- preme court declared unconstitutional a law prohibit- ing the labor of women in factories between the hours of 9 P. M. and 6 A. M., the judge saying, 12 "I find noth- ing in the language of the section which suggests the purpose of promoting health except as it might be inferred that for a woman to work during the forbid- den hours of the night would be unhealthf ul. ' ' A ten- hour law for women in Michigan was attacked as class legislation because a different class of workers was omitted, but the supreme court sustained the act as a valid use of police power. 13 An act in Pennsylvania limiting the hours of labor for women was upheld. 14 "A prohibition upon unhealthy practices, whether inherently so, or such as may become so by reason of prolonged and exacting physical exertion, which is likely to result in enfeebled or diseased bodies, and thereby directly or consequently affecting the health, safety, or morals of the community, cannot, in any just sense, be deemed a taking or an appropriation of property. The length of time a laborer shall be sub- ject to the exhaustive exertion or physical labor is as clearly within legislative control as is the government inspection of boilers, machinery, etc., to avoid acci- dents, or of the sanitary conditions of factories and the like to preserve the health of laborers." 15 The court of appeals in New York said: "In the interest 12 People v. Williams, 189 N. Y. « Commonwealth v. Beatty, 15 131. , Pa. Sup. Ct. 5. is Withey v. Bloem, 163 Mich. is Commonwealth v. Beatty, 15 419. Pa. Sup. Ct. 5, 15. INDUSTRIAL REGULATION 759 of public health, of public morals, and of public order, a state may restrain and forbid what would otherwise be the right of a private citizen. * * * It may limit the hours of employment of adults in unhealthy work, and it may be that it could prohibit the per- formance of excessive physical labor in all callings." 16 It will be noted that the Williams case made no dis- tinction as to character of work. There was no regard for the different kinds of labor, and there was nothing in the statute itself to show that such a law was rea- sonable and just. In this it differs from the first Ritchie case, in which the apparent defect was in the presentation of evidence to show that a law was in fact reasonable. Long hours of labor per se may be harmful; certain kinds of labor may be harmful; long hours at harmful labor would be doubly harmful. In 1910 the Illinois court sustained a ten hour day for women employed in laundries and factories in what was known as the second Ritchie case. 17 Three years previous a law in Oregon fixing a ten hour day for women employed in factories and laundries had been sustained by the state court, 18 and upon appeal to the United States Court, was again sustained purely upon sanitary grounds. 19 The defense of this law, before the federal Court by Mr. Louis D. Brandeis of Boston and Josephine Goldmark of New York, was a radical change in method of defense, and emphasizes more strongly than any other similar argument, the neces- sity for a basis of sanitary fact for such laws. is People v. Orange County estate v. Muller, 48 Ore. 252. Road Construction Co., 175 N. Y. ™ Muller v. Oregon, 208 U. S. 84. 412. it Ritchie & Co. v. Wayman, 244 111. 509. 760 PUBLIC HEALTH ADMINISTRATION The Illinois ten hour woman's law was attacked on the ground that it included hotels, but did not include boarding houses. Eecognizing the fact that such dis- tinctions must have a reasonable basis, the court agreed that the hours in a hotel might be much more varied than they would reasonably be in a boarding house, and upheld the law, remarking, however, that the wisdom of the law was not a question for the courts. 20 The law was also held to include nurses in a municipal hospital. 21 It was held by the court, in this case, that although the hospital was used for infectious diseases, it was conducted by the city in its corporate capacity. In this the court seems to have gone in opposition to the general consensus of the bench, which seems to practically agree that the care of infectious diseases is a governmental matter, and that municipalities are not liable for the conduct of such hospitals. (§413.) In order to render the carrier liable under the fed- eral Hours of Service Act of 1907, there must be proof tending to show a direct connection between the work- ing overtime and the happening of an accident. An accident happening within a few minutes of the close of the sixteen hours could hardly be reasonably due to the violation of the act. 22 When several employees are kept on duty beyond the specified time of sixteen hours, the penalty of the hours of service act of 1907 is incurred for the detention of each employee, al- though occasioned by the same delay of the train. 23 20 People v. Elerding, 254 111. - St. Louis, I. M. & S. Ry. Co. 579. v. McWhirter, 229 U. S. 265. 21 People v. Chicago, 256 111. 23 Missouri, K. & T. Ry. Co. v. 558. U. S., 231 U. S. 112. INDUSTRIAL REGULATION 761 § 484. Buildings. A crowded room, poorly lighted and unventilated, is not conducive to good work. Such a room may be regarded as a nuisance, but, as has frequently been said, nuisance is a question of fact, not purely of statement. As a matter of fact it might be possible for the health officer to enforce better conditions without special enactment. However, it is customary for municipalities, and to some degree for states, to enact laws regulating the construction of buildings. Such laws specify material of construction, window space in proportion to floor space, ventilation, plumbing, etc. The act incorporating the city of Pat- erson, New Jersey, provides that the health depart- ment, for the preservation and promotion of the health of the city, shall have power to regulate and control the manner of erecting and constructing buildings in the city. The court held that this did not give author- ity to require outside walls of a given thickness. 24 Deviation from approved plan of construction is not excused by the permission of the inspector when he had no authority to give such permission. 25 When the plans for plumbing have been approved by a local board, the owner must conform thereto. 26 A law requiring the placing of water closets in certain build- ings is a valid use of police power. 27 Although the sanitary code may not have provided that the health department shall have power to make a special order as to ventilation in buildings, when in a condition of 2* Hubbard v. Paterson, 45 N. J. 27 Tenement House Dept. v. L. 310. Katie Mosschen, 85 N. Y. S. 1148; 25 Health Department New affirmed, 72 N. E. 321; affirmed, York v. Hamm, 24 N. Y. Supp, 203 IT. S. 583. 730. 26 Johnston v. Belmar, 13 Dick. 354. 762 PUBLIC HEALTH ADMINISTRATION danger to life or health, such power has been recog- nized. 28 Very closely associated with the sanitary construc- tion of factory buildings we find the questions relating to private houses, and particularly those which involve the plans of construction and the management of apart- ment houses and tenements. It is quite as important where the people live as where they work. In fact, it is more important, for it involves the welfare of the entire family, and the children are more susceptible to detrimental conditions than are adults. While it is permissible that a tenement shall not be occupied until it has received the certificate of the board of health, or other sanitary officer, it is not presumed that his action will be arbitrary, nor that his authority will be used for purposes of profit or oppression. 29 A police regu- lation relative to such buildings which would be rea- sonable and proper in a metropolis might be unreason- able when applied to the state at large. If the require- ments be made impracticable on account of unneces- sary expense, or because of absence of facilities (such as a requirement that they be connected with sewers where there are no sewers), the enactment would be considered nul. In a Wisconsin case a law making every habitation in which another than the family of the proprietor sleeps a boarding or lodging house was declared unreasonable. 30 In the same case it was held that the requirement in the construction of tenement houses which called for a width of six feet between lot line and building for street courts was unreason- zs Health Department New York so Bonnett v. Vallier, 116 N. W. v. Knoll, 70 N. Y. 530. 885. 29 Ex parte Stoltenberg, 132 Pac. 841. INDUSTRIAL REGULATION 763 able in some conditions and localities. When a build- ing is really insanitary, under ordinances so provid- ing, it may be ordered vacated without previous notice to the owner. 31 §485. Special occupations. The power to regulate the sale of an article includes the power to require license for such sale. 32 In a like manner the com- munity may require license for manufacture, and it may, under police power, specify on what conditions the license shall be granted; but those conditions must be reasonable. Thus, while it has been held that it is proper to require that emery wheels and belts be equipped with blowers to carry away the dust 33 (§ 481), it has also been held that the absolute prohi- bition of the use of such emery wheels or belts in base- ments was unreasonable. 34 From time to time there have been efforts to frighten the people relative to the danger which lurks in sweat- shop goods, particularly articles of clothing. Although it is probable that these dangers are infinitesimal as compared with the great danger for the workers in these shops, it is very proper that the customers refuse to buy such merchandise. It is the purchaser 's human duty to refuse such articles. It is probably true that goods may be made and sold more cheaply by the sweatshop, but it is at the expense of human lives. If so, the purchaser is particeps criminis in the sacri- fice. Laws forbidding such manufacture come within the proper scope of police power. 35 Bakeries are fre- siEgan v. Health Department, 33 People v. Smith, 66 N. W. New York, 45 N. Y. Supp. 325. 382. 32 Gundling v. Chicago, 176 111. 34 People v. Schenck, 257 111. 340; Kinsley v. Chicago, 124 111. 384. 359. ss State v. Hyman, 57 Atl. 6. 764 PUBLIC HEALTH ADMINISTRATION quently the subject of such restrictive legislation. Chi- cago passed what was called "the bread ordinance," regulating the size of the loaf, and requiring the maker to stick his mark upon the loaf. This was essentially not a health measure, but purely commercial, and designed to prevent bakers from defrauding their inno- cent customers. This was attacked on several grounds, but was upheld by the court. 36 Later the city passed another ordinance requiring bakers to take out licenses, and making certain regulations relative to the conduct of the business, among them being a pro- hibition of the use of basements for bakeries. One of the grounds upon which this ordinance was attacked was that the city had already exhausted its legislative power in the passage of the bread ordinance, but the court overruled the objection, and held that the city has the authority under police power to make such regulation of the conduct of the bakery business as seems reasonable. 37 Unfortunately in this case the court did not specifically approve of the stipulations in the ordinance, though at the time many so under- stood. The ordinance is still under contest. In Wis- consin, however, a somewhat similar ordinance, pro- hibiting basement bakeries, was upheld. 38 Laundry regulation has been a frequent subject for legislation, and municipal ordinances making such regulation in the interest of sanitation have been upheld in the United States Supreme Court, 39 as well as by many state courts. 40 But when the real purpose 36 Chicago v. Schmidinger, 243 39 Barbier v. Connolly, 113 U. S. 111. 167. 27. 37 Chicago v. Drogasawacz, 256 *o Ex re San Chung, 105 Pac. 111. 34. 609 ; The King v. Tong Lee, 4 Ha. 38Benz v. Kremer, 142 Wis. 7. 335; Territory v. Ah Chong, 17 INDUSTRIAL REGULATION 765 of the enactment did not seem to be sanitation, but rather that it was directed against a particular class of workers, namely, the Chinese, and gave to the city authorities an arbitrary power in the matter, the ordi- nance was held to be a violation of the Fourteenth Amendment. 41 Perhaps no case relating to the sanitary problems of manufacture has been more severely, and even bit- terly, criticised than that of In re Jacobs, 42 in New York. An act was passed "to improve the public health" which prohibited the "manufacture of cigars or preparations of tobacco in any form, on any floor, or in any part of any floor in any tenement house, if such floor or any part of such floor is by any person occupied as a home or residence for the purpose of living, sleep- ing, cooking, or doing any household work therein. " This act was declared unconstitutional, the court say- ing that it is plain that this is not a health law, and that it has no relation whatever to the public health. Professor Freund makes this comment upon the deci- sion: 43 "Assuming the sanitary object to have been colorable, there was no valid ground to support the act, and the chief interest of the case must be found in the fact that the court undertook to override the legislative judgment, which conceivably might have been based upon sufficient evidence." Without questioning the statement that in its form the act was not clearly a sanitary regulation, as it claimed to be, it does seem that the opinion of the court merited severe criticism from the sanitarian's Ha. 331; District of Columbia v. « 98 N. Y. 98. Shong Lee, 38 Was. Law, 460. *a Police Power, 151. tiYick Wo v. Hopkins, 118 U. S. 356. 766 PUBLIC HEALTH ADMINISTRATION point of view. It may well be that the merits of the underlying proposition were not properly put before the court. The court said: "It has never been said, so far as we can learn [of tobacco] * * * that its preparation and manufacture into cigars were dan- gerous to the public health. We are not aware, and are not able to learn, that tobacco is even injurious to the health of those who deal in it, or are engaged in its production or manufacture." There has been con- siderable evidence as to the harmfulness of tobacco upon the human system. Specific evidence should have been placed before the court showing definitely the effect of tobacco manufacture upon those engaged in the trade, and upon those closely associated with the industry. §486. Industrial regulation should be definite. Granting the right of the state, or municipality, to enact regulations governing the conduct of industries, for the purpose of saving life or health, it follows that the laws passed should be definite and should not delegate legislative power to executive officers. This is illustrated by the case of Schaezlein v. Cabaniss, 44 in which it was held that, though it was within the police power of the state to require safety appliances in factories, it was not proper to leave the selection of the particular form of appliance to the inspector. A nuisance may be ordered abated, but it is not within the authority of the executive to determine just how it is to be abated. 45 44 135 Cal. 466. 45 Belmont v. New England Brick Co., 190 Mass. 442. CHAPTER XIX SCHOOL INSPECTION § 490. Characteristics of medical § 493. Medical problems in educa- inspection of schools. tion. § 491. Injurious effects in school § 494. Medical inspection normally life. educational. § 492. Authority of health depart- § 495. School nurse. ment. §490. Characteristics of medical inspection of schools. The systematic inspection of schools is of comparatively recent origin, and in consequence has given rise to little or no litigation in this country. There can be no reasonable question as to the author- ity of a health department to make such inspection of the pupils in the school as may be necessary to detect unrecognized cases of infectious diseases, and to insti- tute such measures as may be necessary for the control of the same. But this is only a small portion of the work of medical school inspection. Gulick states that only about four per cent of the cases needing attention were excluded for infectious disease. While the work of a medical school inspector admittedly pertains to hygiene, a large proportion of it is much more closely associated with the normal work of the school than with that of the ordinary administration of a health department. §491. Injurious effects in school life. It is neces- sary for the state to educate the children, but it is 767 768 PUBLIC HEALTH ADMINISTRATION found in the first place that as the schools have been conducted a very large proportion of the scholars are more or less permanently injured as the result of the hours spent thus in the public school. This of itself shows that there is something wrong. Secondly, it is recognized that individual instruction is a practical impossibility according to our system. The conse- quence is that either the more able scholars are held back by the dullards or else they will set the pace and the dullards will be obliged to go halting along, drop- ping back in their work year after year, thus occupy- ing more time than even they need. Further, where scholars attend irregularly, the progress made in studies is retarded for the class. If, therefore, the scholars are obliged to be frequently absent on account of slight illnesses, it means that the state is actually paying much more for the maintenance of schools than is properly necessary. The time spent by each scholar in school is abnormally lengthened; more schoolroom is therefore needed; more teachers need to be em- ployed; and in every way the school expenses are increased. If this overexpense can be lessened by dif- ferent management it is clearly the duty of the com- munity to try to effect this saving. Investigation shows that a very frequent cause of backwardness on the part of scholars is due to defects of eyesight or of hearing, though neither the scholar, his parents, nor the teacher may have suspected it. The child is con- sidered dull of comprehension, and he comes to regard himself as less bright than his fellows. Never having seen distinctly, he does not realize that others see bet- ter than he ; or, not having heard normally, he fails to realize that he loses the distinguishing marks of audi- SCHOOL INSPECTION 769 ble sounds. Enlarged tonsils and the associated adenoids are frequent causes of deafness, and through their influence on respiration they weaken the entire system. Not only so, but they serve apparently as gar- dens in which pathogenic bacteria thrive. Many of these physical defects might be detected by non-medical observers. It takes but very little train- ing to discover by the use of Snellen's test type that a scholar has defective vision. It may take much more skill to discover the exact conditions. Anyone may find decayed teeth, but not everybody appreciates how important good teeth may be for the health of the child. Nor do they realize the distinction between first and second teeth. It takes the trained scientific mind to discover the cause of many physical defects, even though that cause may be found in that school itself. Eecent studies on the subject of fatigue show that the relative periods of time devoted to study and to play are very important factors. Temperature of school room and supply of fresh air — these are proper sub- jects for medical study. Those of us who think back upon the long hours spent in overheated and poorly ventilated school rooms long ago can but wonder that we learned as much as we did; and the blackboards placed in dark corners, or between windows, often- times with glazed surface, make our eyes ache even yet. § 492. Authority of health department. All sanitary authority over schools should reside solely in the health department. It has been the custom in many places in the past for schools to readmit pupils after absence from infectious disease with, at the most, the certificate of the attending physician. More frequently 770 PUBLIC HEALTH ADMINISTRATION no medical evidence was requested. Experience dem- onstrates that it is not safe for the school authorities to depend upon the certificates of private practi- tioners. It opens the way for errors due either to the ignorance of the physician or to his willingness to accommodate his patrons. These certificates should clearly be sent to the health department which will be better able to estimate their true value and issue per- mits to return to school when conditions seem safe. The same may be said relative to certificates of vac- cination. Some years ago the writer was engaged in examining the pupils of a certain school exposed to smallpox. Each scholar was obliged to produce a cer- tificate of vaccination. Incidentally it was learned that one physician who did not believe in vaccination was going through the form of the operation and issu- ing certificates thereon, using no other virus than hydrant water. It is not probable that the ordinary school authorities would detect such a fraud. Although the sanitary authority should properly reside in the health department, its authority is purely sanitary. Assuming, without deciding, that the Indi- ana State Board of Health has authority to condemn a school building on purely sanitary grounds, and pre- vent its use in its then present condition, such an assumption does not imply also a presumption that the condemnation carries with it a requirement for the destruction of the building. At most, the State Board of Health can require that the building be made sanitary. Whether this shall be done by repairing the old structure, or by building a new one in its place, is a question for the proper local authorities to deter- SCHOOL INSPECTION 771 mine. 1 Although a building may be ordered destroyed when it is a nuisance in esse which cannot otherwise be abated, as by disinfection, that is a question of fact to be determined, 2 and the finding of the sanitary board is not sufficient of itself to determine that fact. 3 It must be remembered that a school building would not be likely to become a nuisance per se. Even if it were no longer possible to use it for school purposes its mere existence might not be dangerous to health. It might, perhaps, be put to other uses. The health authorities have authority to require that the building be sanitary, but it is very questionable how far they may go in determining just how the disability shall be removed. §493. Medical problems in education. Every suc- cessful school management must make a study of the individual scholars in order to get the best results in education. If the scholars, passing through a certain room uniformly show the acquirement of certain defects it indicates that there is something wrong in the arrangement of the room or of the school work. The most perfect results as to the study of the scholars may reasonably be expected from a physician trained in medicine, experienced as a teacher, and with a practical knowledge of psychology and of physical development. It seems, therefore, that under ordinary circumstances unless there be some special provision in the constitution or statutes of the state, any school board would have the authority to employ such an i Coal Creek Township v. Lew- Chester Fire Assurance Co., 15 Ha. andowski, 84 Ind. 346; see also 704; Ahana v. Insurance Co. of Pasadena School District v. Pasa- North America, 15 Ha. 636; SingB dena, 134 Pac. 985. v. Joliet, 86 N. E. 663. 2 Kwong Lee Yuen Co. v. Man- 3 Cole v. Kegler, 19 N. W. 843 772 PUBLIC HEALTH ADMINISTRATION inspector, just as much as it has authority to employ janitors, engineers) or teachers. Such an inspector may very properly devote a certain amount of time, if available, to the work of teaching. It has been found that the grammar schools have been of the greatest aid in disseminating sanitary knowledge and in inau- gurating the proper system of management. When Sir Eupert Boyce visited the West Indies, making a governmental investigation relative to yellow fever, he found the children in the grade schools becoming experienced entomologists. A little girl showed him a fine sketch of the larva of the stegomyia mosquito which she had made. The scholars were enthusiastic in their search for the breeding places of the pests, and were expert in detecting violations of the sanitary regulations. In a similar way modern sanitary ideas are being carried in our own country from the schools to the parent. In order that the scholars may get such education properly someone must be employed who has that special education. Then, too, there is that most important factor in the prevention of sickness, poverty, and dependency — sexual education, which may properly be given by medical school inspectors. To remove all possible question as to the authority of school boards thus to establish medical supervision, state statutes should be enacted clearly giving this authority. The education of a child means much more than merely communicating to it the contents of textbooks. But even if the term were to be so limited some dis- cretion must be used by the teacher in determining the amount of study each child is capable of. The physical and mental powers of the individual are so SCHOOL INSPECTION 773 interdependent that no system of education, although designed solely to develop mentality, would be com- plete which ignored bodily health. And this is pecu- liarly true of children whose immaturity renders their mental efforts largely dependent upon physical condi- tion. It seems that school authorities and teachers coming in contact with the children should have an accurate knowledge of each child's physical condition, for the benefit of the individual child, for the protec- tion of the other children with reference to communi- cable diseases and conditions, and to permit an intel- ligent grading of the pupils. For these reasons the Minnesota court upheld the authority of school boards, as a part of their regular educational supervision, to employ suitable persons to ascertain the physical con- dition of pupils. 4 § 494. Medical inspection normally educational. Although very much of the work of the medical officer in the schools is in the line ultimately of the preserva- tion of the public health, it must be remembered that essentially it is educational, and in every way it is directly connected with the proper work of the school. It seems to us, therefore, that he should be a school officer, rather than an officer in the health depart- ment. It is the duty of a physician in private prac- tice, when he discovers a case of infectious disease, to report the same to the department of health. This same duty devolves upon the school physician, and the care of the infectious disease prevention must rest with the department of health. Private physicians or school physicians, private families and school boards * State ex rel. Sehomberg v. Brown, 128 N. W. 294. 774 PUBLIC HEALTH ADMINISTRATION — all are subject to the regulations issued by the health department. The school physician must therefore work in harmony with the health department. So long as he promptly reports all cases of infectious disease, and assists the department in tracing up sources of infection, it is immaterial whether he draw his pay and receive orders from the school board or the sani- tary department. It is equally important for the school board and the health department to ferret out the source of every epidemic. Their interests being common, there is no reason why there should be the slightest antagonism. § 495. School nurse. It is customary when the school inspector discovers that a pupil has defective teeth, enlarged tonsils, adenoids, eyes needing spec- tacles, ankylostomiasis, or pediculosis, that a card be issued to the pupil setting forth the defect and refer- ring the case to the family physician. Having dis- covered that very frequently, owing either to the igno- rance or carelessness of the parents, these cases do not receive attention, many schools have employed the school nurse to visit the homes of the children. All of this work requires a high degree of tact. But the school nurse has proven the most efficient aid "just incidentally." The nurse is able to instruct many mothers in the care of infants; she makes suggestions for improving the family menu without increasing its cost; she aids the family to secure better hygienic sur- rounding; and she helps to make the immigrants desir- able American citizens. As to the legal authority of a school board in the absence of statutory regulation to employ such a nurse there may be some question. Her work is educational in character, and authority should SCHOOL INSPECTION 775 be expressly granted by statutory enactment. The work of the school is to make good citizens, fitted for their civic responsibilities. Unfortunately many of our citizens never have come in contact with our school system. They have had their schooling under foreign ideals, and come to this country when fully grown. They need, and their families need, the helpfulness of our educational aid. This assistance can be given bet- ter through the school nurse than by any other present agency. Although it is apparently within the normal work of a school to supervise medical inspection whenever the school authorities fail to act, it is proper that the local health administration should establish such a service. Under the school management the inspector is expected to make a thorough examination and show all defects. Under the health administra- tion the chief force of the inspection must be devoted to discovering evidence of infectious disease, deter- mining upon exclusions from school for such cause, and deciding when individual pupils may re-enter. CHAPTER XX EUGENICS § 500. What is eugenics? § 507. Sterilization. § 501. Eugenics positive. § 508. Court decisions. § 502. Cast universal. § 509. Eeasonable precautions. § 503. Mendel's Law. § 510. Galton's Law of Begression. § 504. Like characters in parents § 511. Eugenics versus low infant and children not necessa- mortality. rily hereditary. § 512. Legislation based on biol- § 505. Disease not hereditary. ogy. § 506. Ante-nuptial examinations. § 500. What is eugenics? Though not strictly a part of regular health administration, the subject of eugenics is sufficiently closely allied to warrant con- sideration here. The science of eugenics is still in its formative stage. The name was suggested by Dr. Francis Galton (a cousin of Charles Darwin). That grand old man in science originated many movements, and this was the culmination of his scientific career. The object of eugenics is the improvement of the human race. It must be based upon an accurate knowl- edge of the laws of heredity. Most of our knowledge of heredity is of necessity derived from a study of the development of plants and animals. The laws of nature are universal. The laws of heredity are prac- tically the same, whether we consider the ancestry of a pea or a mouse, a chicken, a sheep, or a human being. 776 EUGENICS 777 §501. Eugenics positive. Eugenics is a positive science; it is the positive application of known facts to produce a better progeny. The negative phase must of necessity be kept in mind, but it should not be em- phasized. Unfortunately, enthusiastic sociologists and embryo philanthropists have magnified the nega- tive phase until it has become, in many minds, synony- mous with eugenics. This is greatly to be regretted, and the results are of questionable character. The chief aid in eugenics must be education. This education may be imparted in the schools, by general lectures, by books, and by periodicals. It must con- sist in the clear statement of the laws of heredity with their application to human beings. Legislation can have but very slight application. It is true that laws have been proposed to increase the birth rate, as by giving pensions to mothers. The trouble is that this tends to increase the birth rate at the expense of quality. Quality, not quantity, is the aim of eugen- ics. It costs no more to raise a good horse, a valuable dog, or a blooded cow, than it does to raise stock of very little value. The ultimate result of breeding scrub stock is a loss financially. A man who uses lit- tle potatoes for seed may get a large crop, but they are only good for hog feed. The same rules apply to human beings. § 502. Caste universal. Though to some degree op- posed to the ordinary American idea, caste is universal in nature. Eugenics has for its object the increase in the size of the upper castes and the elimination, as far as possible, of the lower grades. This classifica- tion must be based upon intrinsic worth, not upon the mere accidents of society, nor upon financial ratings. 778 PUBLIC HEALTH ADMINISTRATION The chief elements to be considered are physical strength and health, and mental power. A strong mind in a weak body is hampered in its operation. In fact, so dependent is the brain npon physical health that it is easily wrecked by bodily weakness. § 503. Mendel's Law. As we have stated, eugenics is still in the formative stage. An enormous amount of work has recently been done, both in the general study of heredity and in the recording of the traits of human families. In general biological investigations certain laws have been evolved. These studies have been both inductive and deductive. Facts have been observed, theories formed and put to test by direct experimentation. The most important discovery was probably that of Mendel's Law. The Abbe Mendel, in the garden of a monastery at Briinn, laboriously tried the crossing of different kinds of peas. He found that where a wrinkled pea was crossed with a plump smooth variety, the resulting hybrid would show only the smooth, plump character. Permitting these peas to self -fertilize, in the next generation he found that practically one quarter would be wrinkled; one quar- ter would be plump and would breed true ; the remain- ing half, though plump, would have the hybrid char- acteristics, and in subsequent generations would con- tinue to split into the three varieties. The wrinkled peas were of pure heredity, that is, they would always breed true. He called the plumpness a dominant char- acter, and the wrinkledness a recessive character, be- cause it does not appear in the hybrid. It must be remembered that though it does not appear, the wrinkled character is still present in the hybrid round pea. It will be noted that we have here opposing EUGENICS 779 characters, rather than a degree of development of one character. This division of characters in progeny is called Mendel's Law of Dominance. The divisions of characters is found to depend upon the mathematical distribution within the germ cells of the character carrying elements from the two parents. This mathematical grouping is spoken of as Mendel's Law of Segregation. More critically examined, it is found that the oppos- ing characteristic is really due to the absence of some element in one parent. Chlorophyl was absent in one of Baur's plants. (See page 782.) Mendel's observations were published in 1865. But, owing to the greater attention inspired by Darwin's "Origin of Species," they attracted little notice. In 1900 three observers simultaneously — Hugo de Vries in Holland, Correns in Germany, and Tschermark in Austria — rediscovered Mendel's Law, and the Abbe's publication was brought to light. Since 1900 thou- sands of investigations have been made demonstrating the truth of Mendel 's Law of Dominance, and Mendel- ism may be taken as a strong evidence that a character is truly hereditary. § 504. Like characters in parents and children not necessarily hereditary. Many observers without close scientific training have mistaken the recurrence of parental characters in children as evidence of hered- ity. In fact, such recurrence is very frequently the result of environment. Environment includes sur- roundings and education. The parent's example has much to do with forming the character of the child. Professor Davenport, 1 in charge of the eugenics lab- i Heredity in Relation to Eu- genics, p. 157. 780 PUBLIC HEALTH ADMINISTRATION oratory at Cold Harbor, publishes family records showing splenic enlargement, dependent upon hered- ity; but he neglects to eliminate other possible factors. Now, enlargement of the spleen is very commonly caused by malarial infection, so that Eoss, for exam- ple, uses splenic enlargement as an index to the per- centage of malarial infection in a community. If, therefore, these children mentioned by Davenport were living in a malarial country, the same cause which produced enlargement in the parents probably produced it in their offspring, without any reference whatever to heredity. This one example is mentioned simply to show the necessity of care in drawing con- clusions. § 505. Disease not hereditary. It may be stated as a general fact that disease is seldom, or never, in- herited. A child may be born with disease, and the disease, therefore, be congenital: but it is not heredi- tary unless transmitted from parent to child through the germinal cell. Physical defects are distinct from disease, and may be transmitted through heredity. This distinction is important. A character in a child may not be strictly hereditary, though it may depend upon some inherited defect. In efforts at legislation relative to eugenics a most serious error has frequently been made in attempting to limit the production of crime by the act of steriliza- tion. Contrary to common ideas we have no evidence that crime, or the criminal tendency, is transmitted by heredity. There are family records showing crim- inals in generation after generation. Generally those same individuals show other weaknesses, many of them being of imperfect mental development. Now EUGENICS ( 781 such family records do not clearly distinguish between the heredity of crime and the dependence of crime upon physical defects; and particularly, they fail to eliminate the possible influence of environment. The fact that a man's father, or grandfather, committed a certain crime and that he himself was guilty of a similar offence is no evidence that the crime was hereditary. The second offence may have been due to the suggestive influence of the first, or, they may have originated from similar causes. It must be remem- bered that morality is a relative rather than an abso- lute standard. That which is a crime in one country, or age, has been perfectly allowable in others. That a man should marry his own sister is highly repugnant to us, though to the ancient Assyrians it seemed per- fectly proper. All of our studies seem to show that criminality is chiefly dependent upon environment, and particularly upon education. It is to be noted and regretted that most laws rela- tive to eugenics have originated among sociologists, rather than biologists, and they have been stimulated more by emotion than by science. We have little or no evidence to show that from a biological standpoint there is any objection to the intermarriage of people of different races. On the contrary, such union has some- times produced highly desirable results. The Arau- canian Indians of Chile, the only aboriginal nation in America which never was conquered by Europeans in war, when intermarried with the most sturdy Span- ish immigrants from the Basque provinces, have pro- duced a strong people. So the union of Spaniard and Aztec has produced some of the leaders in the Mexican nation. Nevertheless, we early find laws in this coun- 782 PUBLIC HEALTH ADMINISTRATION try prohibiting such mixed marriages. Thus, North Carolina in 1715 passed an act forbidding the mar- riage of whites with negroes, mulattoes, or Indians, under a penalty of fifty pounds, and providing pun- ishment for clergymen performing such marriage cere- monies. Maryland, in 1692, passed an act against the marriage or promiscuous sexual relations of whites and negroes or other slaves. In Massachusetts, in 1692, the marriage of a white person with a negro, Indian, or mulatto was forbidden. 2 Because such laws are based purely upon emotional standards, they are outside of the domain of public health. § 506. Ante-nuptial examinations. It is very proper that parties intending marriage should pass a physical examination and present, each to the other, evidence of sound health. Though disease itself may not be transmitted by heredity, it may often be communi- cated from person to person; and its presence may cause a weakened physical condition which will show itself as a defect in future generations. Defects are by nature to a degree self limiting. The alcoholic parent may beget healthy children, but family histories show that with continued debauchery of parent the children become progressively less rugged in constitution and finally later pregnancies result in abortion. In Darbi- shire's experiments with peas, according to Mendel's Law, he found that the recessive pea evidently had a smaller degree of vitality, and vacant spaces in pods corresponded to the numbers of wrinkled peas lacking. So Baur, the German botanist, found a variegated snap-dragon, which when self-pollenated, produced 2 Indian Slavery in Colonial Times, Lauber, p. 253. EUGENICS 783 two variegated plants to one green. This was appar- ently an example of Mendelism with the omission of the chlorophyl free specimens. More careful examina- tion showed that the missing plant germinated but did not develop. These illustrations have their bearing upon ante-nuptial physical examinations. Too fre- quently those most deserving the bar of condemnation will be able to find physicians sufficiently careless or mercenary to furnish a satisfactory certificate. At the most, these examinations simply protect the contract- ing individuals from direct infection, especially from venereal diseases. Because gonorrhea is a frequent cause of sterility this may slightly protect the birth rate; but in addition the results of such precaution will be negligible for subsequent generations. It is possibly questionable whether the requirement of ante- nuptial examinations by law will be effective for eugenic good. Experience has demonstrated that the fact of mak- ing marriage difficult has little influence upon the birth rate. This is shown in France, Spain,.and Latin Amer- ica, where owing to the legal, or church demands mar- riage is frequently omitted. In a like manner, if the law requires that each individual pass a physical ex- amination before marriage, it is to be expected that those who fail thus to pass will indulge in illicit inter- course. The effect here would be to preserve the pur- ity of pure blood, and the unfit would be largely limited to their own class. The natural result would be to intensify the distinction between the two classes, with such an intensification of defectiveness as to favor natural self limitation among the defectives. Laws demanding medical ante-nuptial examinations 784 PUBLIC HEALTH ADMINISTRATION may very easily overstep the reasonable legal boun- daries. January 20, 1914, Circuit Judge F. GL Esch- weisler of Milwaukee gave an opinion upon the Wis- consin eugenic marriage law, holding it unconstitu- tional because, in the first place, the fee prescribed ($3.00) was too small to insure a thorough examina- tion. He held that the law would require the Wasser- man test for syphilis, and if it be not made, a physician giving a clear bill of health might be liable for per- jury. He held, further, that the law was unconstitu- tional because it conflicted with religious liberty in that it tended to halt marriages. It is interesting to note that the effect of the law actually has been to substitute a civil contract for religious marriage. The state supreme court has since upheld the main features of the statute. From the eugenic standpoint it is more important to examine into the family record, than it is to examine the persons who are intending to be married. This point is well recognized among breeders of horses and cattle. The individual may not show serious defects which may be discovered by an investigation of the history of the previous generations, especially includ- ing the grandparents and the uncles and aunts of the parties to be married. Further, it is not the absolute character of each individual which is alone important. The question, from a eugenic standpoint, is, what will be the natural result in the next two gen- erations. A may not be a proper person to marry B, though the union of A and C may be highly commend- able; B should not marry A, but B and D may make, from the eugenic point of view, an ideal combination. All of this simply shows that the subject must be cov- EUGENICS 785 ered by education, rather than by legal enactment and enforcement. Another suggestion has been made by La Eeine Helen Baker, 3 which is at least worthy of considera- tion. From the eugenic standpoint it must be ad- mitted that many illegitimate children are compara- tively of high grade. Physically and intellectually they may represent the very best of blood. That such children should be stamped from the moment of birth with the mark of shame is to put environmental in- fluences at work to drag them into the criminal class. They are not to be blamed by society for the sins of their parents. Were such children placed upon an equality before the law with those born in wedlock it would assist in removing the ban of society which is now placed upon the innocent, and it is not impossible that such a course would go far towards limiting il- licit intercourse. § 507. Sterilization. Several states have recently passed laws providing for the legal sterilization of criminals, imbeciles, idiots, and other mental defec- tive's. If criminality be not transmissible by heredity, such sterilization has no right for consideration in eugenics. With the possible use of sterilization as a punishment under criminal law, we have no concern. Criminals and mental defectives should not be in- cluded in the same sterilization law. We shall there- fore omit further consideration of the sterilization of criminals from our discussion, and confine ourselves to sterilization as a possible eugenic aid. There is no question as to the fact that mental degeneracy is trail s- 3 Eaee Improvement (1912), Chap. IV. 786 PUBLIC HEALTH ADMINISTRATION missible by heredity. Because such individuals are attractive only to their own class, if permitted freely to commingle, the tendency is to intensify the defects. As previously suggested, defectiveness is to a degree self-eliminating. In other words, to a degree the de- fect tends to cure itself. However, the most of these defectives become public charges, and society has a right to defend itself from this expense. In the Jour- nal of Criminal Law and Criminology for September, 1913, Mr. Charles A. Boston published a protest against the laws authorizing the sterilization of crimi- nals and imbeciles. He failed to distinguish between those cases in which heredity plays an undoubted part and those in which the hereditary influence is slight or indirect. He speaks of undesirable citizens, and by way of ridicule, suggests that the over-rich are " un- desirable citizens," and therefore should be sterilized. The over- rich, however, are not "undesirable citizens " in the sense that they are public charges. They do not themselves enter almshouses or insane asylums at the expense of the community. Though they may prey upon the individuals in a state, the state, as a state, runs no risk of being made financially reponsible for their care and keep. § 508. Court decisions. There have been but three decisions upon the constitutionality of sterilization laws. In State v. Feilan the supreme court of the state of Washington held 4 that the Washington statute authorizing vasectomy upon a person convicted of rape is not a cruel punishment, and it therefore re- fused to annul the act of the legislature. This being a decision in criminal law, it has no interest for us. *26 Pae. E. 75. EUGENICS 787 As applied to an epileptic woman who was an inmate of a state institution, it was held that the New Jersey- statute in question was based upon a classification that bore no reasonable relation to the object of such police regulation, and hence denied to the individuals of the class so selected the equal protection of the laws guaranteed by the Fourteenth Amendment to the Con- stitution of the United States. 5 While these forms have been in the printer's hands news comes from Keokuk, Iowa, that in the United States District Court, held there June 24, 1914, Judge Smith McPherson pronounced the Iowa vasectomy, or sterilization law unconstitutional, and in his opinion Judges Walter I. Smith, United States Circuit Judge of the eighth district, and John C. Pollock, District Judge for Kansas, concurred. It seems that the prison- ers in the state institutions united to test the law, and Rudolph Davis, a prisoner in the state peniten- tiary, applied for an injunction to prevent the mem- bers of the board of parole, the warden, and physician of the penitentiary from performing or causing to be performed this operation in compliance with the terms of the law. Judge McPherson granted a temporary in- junction which is now made permanent. In part he said: "Our conclusion is that the infliction of this penalty is in violation of the Constitution which pro- vides that cruel and unusual punishment shall not be inflicted. The punishment prescribed is of course to follow the man during the balance of his life. The physical suffering may not be so great, but that is not the only test of cruel punishment; the humiliation, the s Smith v. Examiners of Feeble- minded, N. J. Supreme Ct., Nov. 18, 1913. 788 PUBLIC HEALTH ADMINISTRATION degradation, the mental suffering are always present and known to all the public, and will follow him where- soever he may go. This belongs to the dark ages." The Court recognized the fact that it is desirable that certain classes of persons, degenerates, should beget no children; but from the telegraphic report before us it appears that the eugenic character of the law is not apparent in the case of criminals, and that the opera- tion must be considered purely ps a punishment. Ap- parently the decision in this case is more reasonable than that in the Feilan case, and unless it be set aside by the Supreme Court it will effectually dispose of the attempted sterilization of criminals. § 509. Reasonable precautions. Under the police power of the state it might be proper for the legisla- ture to pass a law providing for the sterilization of mental defectives where it is probable that their progeny will become public charges. It seems reason- able, however, that certain safeguards for the individ- ual should be provided to prevent excessive activities. It is not sufficient that the decision be left as according to the Indiana statute, to two surgeons and a phy- sician. The proper judges in such matters should have a very wide experience and education. At least one of them should be thoroughly versed in biology. It might be well if it could be provided that the final de- cision should be in some form of court action, and that the patient might be represented by proper counsel. "Without such precautions, it might be considered that the law violates the Fourteenth Amendment to the fed- eral Constitution. It may be well questioned whether or not the scien- tific basis is yet ready for such radical action as com- EUGENICS 789 pulsory sterilization acts. It has not yet been accur- ately determined how much degeneracy may be the re- sult of heredity, and how much is the product of envir- onment. A great deal of the degeneracy found in the southern states, which through the last century was supposed to be hereditary, has recently been demon- strated to be dependent upon the hook-worm disease, and easily curable. Though there may be a heritable condition which makes an individual liable to become insane, it takes some other exciting cause to throw the mental operations off the track. Insanity is not a necessary result of the heritable character in many, if not all of these cases; and, in fact, that very heritable character may be essentially a mark of superiority. Segregation works no permanent harm, and if future progress in science is able to remove the stain the in- dividual may be accorded full liberty. Perhaps no other condition is more distinctly cacogenic than epi- lepsy. Not only do we have the unfortunate convul- sions, but with them we have a progressively weak mentality, with dangerous insanity as a sequel in many cases. These individuals are frequently prolific. Their progeny become public charges in large numbers. It may well be that the sterilization of epileptic males may be therapeutically helpful, and the state may be warranted by eugenic reasons in demanding the steril- ization of all epileptic males who are not strictly segre- gated. However, most of the sterilization laws are operable only upon inmates of public institutions, rather than upon those who are at liberty ; and from a eugenic standpoint such segregated individuals do not need sterilization. The power of procreation is a defense for a woman 7-90 PUBLIC HEALTH ADMINISTRATION with defective mentality. So long as she is in an in- stitution sterilization should be useless. If not, con- ception indicates a degree of mismanagement which the operation would intensify, rather than correct. Such a weakminded woman at liberty, if possessing the procreative faculty, is thereby protected to a de- gree against misuse by unprincipled individuals who might be detected in their nefarious acts if she con- ceived. Moreover, any sterilizing operation upon the woman is more dangerous, and more difficult, than upon the man. It is therefore very questionable whether any law providing for such compulsory steril ization of women, simply to prevent the bearing of degenerate children, ever will prove to be reasonable or necessary. The state has a perfect right to prohibit the mar- riage of such persons as are likely to increase the num- ber of state charges. In Gould v. Gould 6 the court said that among the rights of equality guaranteed un- der the Constitution we find that one is marriage, "but it is a right that can only be exercised under such rea- sonable conditions as the legislature may see fit to impose. It is not possessed by those below a certain age. It is denied to those who stand within certain degrees of kinship. * * * One mode of guard- ing against the perpetuation of epilepsy obviously is to forbid sexual intercourse with those afflicted with it, and to preclude such opportunities for sexual inter- course as marriage furnishes. To impose such a re- striction upon the right to contract marriage, if not intrinsically unreasonable, is no invasion of the equal- ity of all men before the law, if it applies equally to e 78 Conn. 242, 61 Atl. 604. EUGENICS 791 all, under the same circumstances, who belong to a certain class of persons, which class can reasonably be regarded as one requiring special legislation, either for their protection or for the protection from them of the community at large. It cannot be pronounced by the judiciary to be intrinsically unreasonable if it should be regarded as a determination by the general assembly that a law of this kind is necessary for the preservation of public health, and if there are sub- stantial grounds for believing that such determina- tion is supported by facts upon which it is apparent that it was based." § 510. Galton's Law of regression. Dr. Galton found that there is a constant tendency in any race for re- gression toward the mean. In other words, if the par- ents be shorter than the average, their children will be taller than the parents; or, if the parents be taller than the average, the children will be shorter than the parents. This is called Galton's Law of Eegression. The question may be asked whether this law of re- gression would not show that the children of mental defectives would have a like tendency to return toward the normal. It must be remembered that mental de- generacy is not a matter of degree so much as a rep- resentation of a positive loss of a character, compar- able with Baur's snap-dragon, deficient in chlorophyl. If the parents do not possess a character they cannot transmit it. If both parents, therefore, be degenerates, their children would be degenerate also, possibly with a few exceptions, in which cases the children might inherit some character not expressed in the parent. Such a possibility is improbable. If the defects of the parents be the same they will be unable to transmit 792 PUBLIC HEALTH ADMINISTRATION that which they lack We find in nature several in- stances in which the parental defects may appear sim- ilar, though really distinct. It is then possible that each parent may thus supply the deficiency of the other, and in the first hybrid generation defects may disappear, to reappear in subsequent generations. By Mendel's Law we may know that in case of a union be- tween a degenerate and a normal person, the degen- eracy might be shown in a portion only of the off- spring; and by a continuance of such union with nor- mal persons in future generations, degeneracy might be obliterated. Such union of the normal with the degenerate is not to be commended on biologic grounds, for it would take the place of the blending of two normal strains, which should result in only nor- mal offspring. In the one case, we have still the production of individuals who would be public charges; in the other, none should be public charges. The state, therefore, has a perfect right in self protec- tion, to prohibit by any reasonable means the breeding of degenerates. §511. Eugenics versus low infant mortality. The tremendous movement for the bettering of conditions in childhood cannot be wholly eugenic in its effect. By lessening infant mortality, the tendency is to keep alive many who represent a weak general vitality coupled with weak mentality. It is a singular fact that these movements — providing playgrounds for the children, furnishing the services of visiting nurses, free hospitals, and dispensaries — are very largely pro- moted by a generation of men and women in whom there are distinct signs of decaying parental interest. Many of those who are active in such movements are EUGENICS 793 themselves childless. Such eugenic efforts are like the man trying to lift himself over the fence by his bootstraps. A physical fact is plainly stated by Pro- fessor Karl Pearson, when he said, "No degenerate and feeble stock will ever be converted into healthy and sound stock by the accumulated effects of educa- tion, good laws, and sanitary surroundings. Such means may render the individual members of the stock passable, if not strong, members of society; but the same process will have to be gone through again and again with their offspring, and this in ever- widening circles, if the stock, owing to the conditions in which society has placed it, is able to increase its numbers." Professor George E. Dawson, in The Right of the Child to be Well Born, has given the 7 keynote to real eugenics : ' ' Children will never be well-born until they are desired by the men and women who are potential parents. A generation that does not desire offspring will be as weak in its power to propagate fit children as would a generation that did not desire culture or wealth in the power to become educated or prosper- ous. ' ' "While all movements directed towards the sav- ing of life and health are to be commended we must remember that they may be distinctly opposed to eugenics. § 512. Legislation based on biology. The foregoing clearly illustrates that all laws on the subject of eu- genics should be based upon the science of biology. No sociologist should attempt to force such legislation without its approval by competent biologists. No leg- islation is safe upon the subject unless it be reason- able; and to be reasonable, it must be grounded upon 7 p. 43. 794 PUBLIC HEALTH ADMINISTRATION fact, rather than theory; upon sicence, rather than emotion. At present the state of our knowledge does not war- rant much legislation. There is a condition some- times found present in which persons bleed excessively from the slightest injury. They are familiarly known as "bleeders." It is shown by experience that this condition is transferred from mothers particularly to the children, and that it is not safe for such women to have children. Legislation seems to be unnecessary in such a case, as the same end may be obtained through education. Even the educational value of eugenic legislation must be slight. If legislation be unnecessary it is therefore not to be desired. In the New Jersey case attention was called by the court to the fact that the patient, being in a state institution, was protected from procreation. Unnecessary legisla- tion is especially to be condemned until a full develop- ment of the science upon which it should be based has been attained. INDEX OF CASES Aaron v. Broiles, 64 Tex. 316 497, 501, 603 Abeel v. Clark, 84 Cal. 226 .. . 634 Abrams v. Ervin, 9 Iowa, 87. . 361, 467, 468, 670 Adams v. Hackett, 27 N.Y.289. 238 Milwaukee, 129 N. W. 518 733, 739, 746 Milwaukee, 228 U. S. [references are to pages] Allen v. State, 21 Ga. 217. . . 388 State, 42 Ala. 525... 172, 191 572 178, 733, 739, 740, 747 Tyler, 121 Mass. 380. 464 Adams County v. Aikman, 52 So. 513 428, 443 Adler v. Whitbeck, 44 Obio, 539 651 Ahana v. Insurance Co. of Nortb America, 15 Ha. 636 617, 771 Akwai v. Royal Insurance Co. 14 Ha. 533 617 Albright v. Bedford County, 106 Pa. 582 446 Aldrich v. Tripp, 11 R. I. 141 520, 521, 690 Alexander v. McKenzie, 2 S. C. 81 423 Allen v. Bernards, 28 Vr. 303. 619 Blunt, 3 Story, 742. 123 Commonwealth, 83 Va. 94 500 DeKalb County, 61 S. W. 291 429, 619 Georgia, 166 U. S. 138 187 Allison v. Cash, 143 Ky. 679; 137 S. W. 245 590, 595, 612 Allopathic State Board of Medical Examiners v. Fow- ler, 50 La. Ann. 1358; 24 S. R. 809 667 Alston v. Ball, 77 S. E. R. 727 86 American DeForest Wireless Tel. Co. v. Superior Ct., San Francisco, 153 Cal. 533 196 American Insurance Co. v. Canter, 1 Peters, 511 262 American Print Works v. Law- rence, 3 Zabr. 590 206 American School of Magnetic Healing v. McAnnulty, 187 U. S. 94 138, 139, 275 Ammon v. Newton, 50 N. J. L. 543 730 Amy v. Supervisors, 11 Wall. 136 500 Anderson v. Brewster, 44 Ohio, 576 651 Anderson v. O'Conner, 98 Ind. 118 607 Andrews v. Insurance Co., 37 Me. 256 337 Andrews v. Portland, 79 Me. 484 378, 453, 454 Andrews v. United States, 2 Story C. C, 202 438 Appeal of Board of Health, Buffalo Lake, 95 N. W. 221 620 795 796 INDEX OF CASES [references are to pages] Apple v. Crawford County, Auditors v. Benoit, 20 Mich. 105 Pa. 300 438 170 453 Arbuckle Bros. v. Blackburn Augusta v. Lombard, 99 Ga. Dairy Food Com., 113 Fed. 282 521, 690 616 299 Aull v. Lexington, 18 Mo. 401 607 Argenti v. San Francisco, 16 Austin v. Association, 87 Tex. Cal. 255 527 330 174 Armstrong v. United States, Bartholomew, 107 182 U. S. 243 195 Fed. 349 526 Ashville v. Nettles (N. C.) 80 Helms, 65 N. C. 560. 395 S. E. 236 657, 746 Murray, 33 Mass. (16 Ashley v. Port Huron, 35 Mich. Pick.) 121 174, 600 296 504, 523 state, 56 So. 345 .. . 646 Astor v. New York, 62 N. Y. Tennessee, 179 U. S. 567 369 343 293, 295, 296, 298, 749 Athanasa v. United States, Auten v. School Board, 83 Ark. 227 U. S. 326 277 431 635 Atlantic City v. Crandol, 38 Vr. 488 371 B Attorney General v. Barstow, 4 Wis. 587 132 Babcock v. Buffalo, 56 N. Y. Birmingham, Tame 268 236 and Rea Dist. Drainage Bacigalupo, Ex parte, 132 N. Board, L. R. Chan. Div. 1910, W. 303 642 Vol. 1, 48 525, 702 Bacon v. Boston, 154 Mass. ■ Common Council, 29 100 522, 523 Mich. 108 365 Badeau v. United States, 130 Davis, 44 Mo. 131 . . . 453 U. S. 439 379 ■ Detroit, 58 Mich. 213 114 Badger v. United States, 93 ■ Grand Rapids (Mich.), U. S. 599 . 471, 482 141 N. W. R. 890 792 Bailey v. Mayor of New York, Holihan, 29 Mich. 116 534 3 Hill, 531 Love, 39 N. J. L. 520,521,528,689,690 476 424, 441 Baily v. Philadelphia, 184 Pa. McCabe, 172 Mass. 594 520 417; 52 N. E. 717 374, 404 Baird v. Cochran, 4 S. T. R. Northampton, 143 397 553 Mass. 589 539 Baker v. Commrs., 62 Mich. —Squires, 14 Cal. 13 . . . 469 327 394 Stratton, 194 Mass. Cushman, 127 Mass. 51 370, 489 105 399 Attwood v. Bangor, 83 Me. Kirk, 33 Ind. 517 425 582 523 State, 27 Ind. 485 . . 364 Auburn v. Quick, 99 N. Y. Baldwin v. Kansas, 81 Ala. 138 456 272 451 INDEX OF CASES 797 [REFERENCES Baldwin v. Seaboard Air Line R. R. Co., 128 Ga. 567 590 Baltimore v. Fairfield Imp. Co., 39 Atl. 1081 608 Radecke, 49 Md. 217. 338 Schnitker, 84 Md. 34 . 522 State, 15 Md. 376... 114, 370 Baltimore Traction Co. v. Belt R. Co., 151 U. S. 138.: 187 Bangs v. Dunn, 66 Cal. 72.. 463 Bank of Columbia v. Okley, 4 Wheat. 235 189, 191 Bank of United States v. Dan- ridge, 12 Wheat. 64... 386, 388 Banner v. McMurray, 1 Dev. L. 218 419, 467 Banta v. Chicago, 172 111. 204 650 Barbier v. Connolly, 113 U. S. 27 322, 764 Barbour v. Ellsworth, 67 Me. 294 618 Barbour v. United States, 17 Ct. of CI. 1499 481 Bardstown v. Nelson County, 78 S. W. 169 618 Barker v. People, 3 Cow. 686. 147 Barkley v. Levee Commission- ers, 93 U. S. 258 471- Barnard v. Sherley, 135 Ind. 547 226, 609 Barnes v. Means, 82 111. 379. 550 Barrett v. Hill County, 74 S. W. 811 626 Barron v. Baltimore, 7 Peters, 243 147, 188 Barrow Steamship Co. v. Kane, 170 U. S. 100 196 Barry v. Smith, 191 Mass. 70; 77 N. E. 1099 605, 609 Bartch v. Cutler, 6 Utah, 409 446 Bartlett v. Lock wood, 160 U. S. 361 589, 615 Barton v. New Orleans, 16 La. Ann. 317 436 ARE TO PAGES] Bass v. State, 34 La. Ann. 494 156 Bates v. Westborough, 151 Mass. 174 522 Bath v. Reed, 78 Me. 276 472 Bayles v. Newton, 50 N. J. L. 549 729 Beach v. Elmira, 58 Hun, 606 523 Beal v. McVicker, 8 Mo. App. 202 463 Bealafield v. Verona, 188 Pa. 627 522 Beaman v. United States, 19 Ct. of CI. 5 424 Beard v. Decatur, 64 Tex. 7. 446 Becker v. Janiski, 27 Abb. N. C. 45 552 Beckwith v. Racine, 7 Biss. 142 471 Bedford v. Rice, 58 N. H. 446 . 379 Beebe v. Robinson, 52 Ala. 66. 539 Beeks v. Dickinson Co., 131 Iowa, 244 503, 517, 595, 618 Beers v. Board of Health, 35 La. Ann. 1132 613 Beha v. State (Neb.), 93 N. W. 155 729 Beiling v. Evansville, 144 Ind. 644 174 Beine, In re, 42 Fed. 545. .294, 295 Belfast v. Morrell, 65 Me. 580 398 Belknap v. Belknap, 2 Johns Ch. 463 538 Bell County v. Blair, 50 S. W. 1104 621 Bell v. Hearm, 19 How. 252. 125 Bellingham v. Cissna, 87 Pac. 481 333 Bellows v. Raynor, 101 N. E. 181 v-740, 741 Bellows v. Seneca County, 133 N. Y. 586 618 Belmont v. New England Brick Co., 190 Mass. 442. . . 212, 766 798 INDEX OF CASES [REFERENCES Bennett v. Marion, 119 Iowa, 473, 375 523 Bennett v. United States, 227 U. S. 333 277 Bennett v. Walker, 23 111. 97 . 554 Bentham v. Philadelphia, 196 Pa. 302 522 Bentley v. Phelps, 27 Barb. 524 416, 479, 540 Benz v. Kremer, 142 Wis. 1 ... 764 Bergen v. Powell, 94 N. Y. 591 424 Best v. Polk, 18 Wall. 112.427, 471 Beyman v. Black, 47 Tex. 558 190 Birkbeck v. Stafford, 14 Abb. Pr. 285 465 Birmingham v. Land, 137 Ala. 538 524 Bishop v. Ottawa Supervisors, 140 Mich. 177 624 Bishop v. Williamson, 11 Me. 495 507 Bissell v. Davison, 65 Conn. 183 634 Bissette v. People, 193 111. 334 173 Bjelland v. Mankato, 127 N. W. 397 431, 457, 627 Blair v. Forehand, 100 Mass. 136 236 Blake v. McClurg, 172 U. S. 259 196 Blake v. United States, 14 Ct. of CI. 462 483 Blazier v. Miller, 10 Hun, 435 179, 744, 746 Bliss v. Lawrence, 58 N". Y. 442 463, 464, 465 Bloom v. Koch, 63 N. J. Eq. 10 197 Bloom v. Utica, 2 Barb. 104 . . 164, 603, 609 Blue v. Beach, 155 Ind. 121; 56 N. E. 89; 50 L. R. A. 64 211, 634, 635 ARE TO PAGES] Board of Health, In re, 64 Hun, 634 388 Health Rules in Bor- oughs, 14 Pa. C. C. 116; 3 D. R. 225 103 Health v. Loyd, 1 Phia. 20 610 Health of Cranford Township v. Court of Com- mon Pleas, 85 Atl. 217 141 Health of Kortright v. Cease, 53 Hun, 638 426 Liquidation, et al. v. McComb, 92 U. S. 531 498 Trade v. People, 91 111. 80 382, 669 Boehm v. Baltimore, 61 Md. 259 662 Bohen, In re, 115 Cal. 372... 174 Bonham, In re, 8 Coke 107a. . 345, 663 Bonnett v. Valier, 116 N. W. 885 762 Borden v. Board of Health, Montclair, 80 Atl. 30 739 Borger v. Borough of Alliance, 28 Pa. Sup. Ct. 407 630 Boring v. Williams, 17 Ala. 516 188 Boston v. Schaffer, 9 Pick. 415 651 Boston Beer Co. v. Massachu- setts, 97 U. S. 25 157 Boston Belting Co. v. Boston, 149 Mass. 44 523 Bourke v. Sanitary District of Chicago, 92 111. App. 333.. 431 Boute v. Emmer, 43 La. Ann. 980 364 Bowman v. Chicago and Northwestern R. R. Co., 125 U. S. 465 282, 288, 294 Boyd v. Alabama, 94 U. S. 645 157 Boyd v. United States, 116 U. S. 616 51 INDEX [references Braceville Coal Co. v. People, 147 111. 66 197 Brackett v. Blake, 7 Met. 335 464 Brady v. Howe, 50 Miss. 607. . 376, 534 Braman v. New London, 74 Conn. 695 384 Brattleboro v. Stratton, 24 Vt. 306 622 Braudlacht, Ex parte, 2 Hill, 367 537 Breckenridge County v. Mc- Donald, 150 S. W. 549 579 Brent v. Hagner, 5 Cranch, 71 537 Brick Presbyterian Church v. Mayor, 5 Cow. 538 239 Bright v. Supervisors, 18 Johns. 242 452 Brimmer v. Rebman, 138 U. S. 78 327 Briscoe v. Clark County, 95 111. 309 439 Britton v. Steber, 62 Mo. 370 369, 372 Brodbine v. Revere, 182 Mass. 598 83 Brodie v. Campbell, 17 Cal. 11 424 Brotherhood of Painters v. Barton, 93 N. E. 64 104 Brown v. Haywood, 4 Heisk, 357 114 Houston, 114 U. S. 622 281 Howard, 14 Johns, 119 504, 515 Livingston County, 85 N. W. 745 431, 437, 447, 585, 627 Maryland, 12 Wheat. 419 280, 286 Murdock, 140 Mass. 314 503, 573, 610, 616 Perkins, 12 Gray, 89. 236 OP CASES 799 ARE TO PAGES] Brown v. Pierce County, 28 Wash. 345 179, 604 Purdy, 8 N. Y. St. 143 164, 204, 584 State, 82 Ga. 224 238 Vinalhaven, 65 Me. 402 516, 613 Bryant v. St. Paul, 33 Minn. 289 516 Buck v. Eureka, 109 Cal. 504. 445 Buckner v. Veuve, 63 Cal. 304 358 Buffalo v. H. L. & E. W. R. R. Co., 152 N. Y. 276; 46 N. E. 496 54 Bxiford v. Speed, 11 Bush (Ky.), 338 193 Bugajewitz v. Adams, 228 U. S. 585 278 Bulger, In re, 45 Cal. 553.381, 421 Bunn v. People, 45 111. 397.350, 367 Bunting v. Willis, 27 Gratt. 144 483 Burch v. Hardwicke, 23 Gratt. 51 538 Burch v. Hardwicke, 30 Gratt. 24 369 Burfenning v. Chicago, etc., R. R. Co., 163 U. S. 321 . 138, 275 Burger v. Philadelphia, 196 Pa. 41 522 Burk v. Webb, 32 Mich. 174.. 452 Burrough of Sayre v. Phillips, 148 Pa. 482 173 Burt v. Railway Co., 31 Minn. 472 375 Bushnell v. Chicago, Bur. & Q. R. R. Co., 259 111. 391. . . 225 Butchers' Union Slaughter- house Co. v. Crescent City Live Stock Land Ins. Co., Ill U. S. 746 .157, 687 Butler v. Chambers, 36 Minn. 69 728 Neosho Co., 15 Kas. 178 452 800 INDEX OF CASES [references are to pages] Pennsylvania, 10 Carpenter v. Blake, 10 Hun, Butler v How. 403 197 Regents, 32 Wis. 124 368 Butler County v. Gardner, 96 S. W. 582 429 Butterworth v. United States, 112 U. S. 50 125 Cahokia v. Rautenberg, 88 111. 219 509 Calder v. Bull, 3 Dall. A. 386 134 Calder v. Kurby, 5 Gray, 597 238, 677 Caldwell v. Harrison 11 Ala. 755 394 Caldwell v. North Carolina 187 U. S. 622 279, 338 Caldwell v. Texas 137 U. S. 692 186 California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306 . . 181, 205, 206, 341 Callison v. Hedrick, 15 Gratt. (Va.) 244 388 Cambridge v. Monroe, 126 Mass. 496 234 Cambridge, v. Trelegan, 181 Mass. 565 239 Campau v. Langley, 39 Mich. 451 236 Campbell, Ex parte, 74 Cal. 20 335 Campbell v. District of Colum- bia, 19 App. D. C. 131.. 181, 713 Canniff v. Mayor, 4 E. D. Smith, 430 398 Capps v. Adams County, 43 N. W. R. 114 455 Carbondale v. Wade, 106 111. 654 238 Carleton v. People, 10 Mich. 250 373, 375 Carneal v. Banks, 10 Wheat. 181 252 358 551 Carpenter v. People, 8 Colo. 116 380 Carr v. Board of Education, Vol. 13 Ohio. Dec. 10 N. P. Rep. 1903 637 Carr v. Northern Liberties, 35 Pa. 324 698 Carr v. State, 111 Ind. 101.. 484 Carter v. McFarland, 75 Iowa, 196 397 Carter v. Sympson, 8 B. Mon. (Ky.) 155 388 Carthage v. Colligan, 144 N. Y. Supp. 468 345 Cartwright v. City of Cohees, 165 N. Y. 631 84, 699 Cary v. State, 76 Ala. 78 372 Case v. Blood, 71 Iowa, 632.. 365 Case v. Lowell, 7 Gray (Mass.), 33 400 Case of Prerogative, 12 Rep. 12 156, 206 Cassin v. Zavalla, 70 Tex. 419 395 Castillo v. McConnico, 168 U. S. 674 187 Cavanaugh v. Boston, 139 Mass. 426 212 Cawley v. Allentown, 2 Leh. 58 428 Cay ford v. Wilbur, 86 Main, 414 551 Cedar Creek v. Wexford Coun- ty, 135 Mich. 124 430, 457, 625, 626 Census Superintendent, In re, 15 R. I. 614 389 Central Ga. R. R. Co. v. Mad- den, 69 S. E. 165 596 Cesar v. Karutz, 60 N. Y. 229 . 644 Chae Chan Ping v. United States, 130 U. S. 581 193 Chalkley v. Richmond, 88 Va. 402 522 INDEX OP CASES 801 [references Chambers v. Gilbert, 17 Tex. Civ. App. 106 202 Champion v. Ames, 188 U. S. 331 273 Champion v. Crandon, 84 Wis. 405 522 Chandler v. Lawrence, 128 Mass. 213 419 Chapman v. Muskegon Coun- ty, 134 N. W. 1025. . . .361, 455 Chapman v. Rochester, 110 N. Y. 273 713 Chariton v. Barber, 54 Iowa, 360 338 Charles v. Hoboken, 27 N. J. L. 203 395 Charles River Bridge Co. v. Warren Bridge Co., 11 Peters, 240 123 Charlotte, etc., R. Co. v. Gibbes, 142 U. S. 386 198 Chase v. Lowell, 7 Gray, 33.. 400, 436 Chicago v. Bowman Dairy Co., 234 111. 294 334 Drogasawacz, 256 111. 34 662, 764 Gage, 95 111. 593.473, 474 Ice Cream Co., 252 111. 311 5, 333 Knobel, 232 111. 112. 197 Netcher, 183 111. 104; 55 N. E. R. 707 736 Rumpf f, 45 111. 90 . . . 177, 337, 714 Schmidinger, 243 111. 167; also, 190 334, 764 Selz, 202 111. 545 . 521, 690 Wright, 69 111. 326.. 369 Chicago B. & Q. R. Co. v. Ne- braska, 170 U. S. 57 198 P. & P. Co. v Chicago, 88 111. 221 662 Rock Island & P. R. Co. v. State, 86 Ark. 412.. 196 ARE TO PAGES] Chicago, St. P., M. & O. R. Co. v. Douglas County, 134 Wis. 197 157 W. & V. Coal Co. v. People, 181 111. 270; 54 N. E. 961; 48 L. R. A. 554. . . 600 Child v. Boston, 4 Allen, 41.. 522 Childs v. Phillips, 45 Me. 408 . 626 Chirac v. Chirac, 2 Wheat. 259 251, 252 Chisholm v. Coleman, 43 Ala. 204 453 Christy v. Supervisors, 39 Cal. 3 421, 423 Church Street, In re, 49 Barb. 455 396, 397 Chy Lung v. Freeman, 92 U. S. 275 196 Cincinnati v. Cameron, 33 Ohio, 336 689 City Council v. Ahrens, 4 Strob. (S. C.) 241 340 City Council v. Baptist Church, 4 Strob. 306 340 City Council v. Louisville, etc., R. R. Co., 84 Ala. 127 538 Civil Rights Cases, 109 U. S. 3 192 Clark v. Des Moines, 19 Iowa, 199 509 Clark v. May, 2 Gray, 410. . . 503 Clark v. Mitchell, 64 Mo. 564. 190 Clay v. St. Albans, 43 W. Va. 539 522 Clayton v. Berry, 27 Ark. 129 462 Clason v. Milwaukee, 30 Wis. 316 339 Cleaver v. Commonwealth, 34 Pa. 283 ..533, 534 Clement v. Town of Casper (Wy.), 35 Pac. R. 472.. 173, 601 Clinton v. Clinton County, 16 N. W. 87 630 Clooman v. Kingston, 37 Misc. Per. 322 452 802 INDEX OF CASES [references are to pages] Coal Creek Township v. Le- wandowski, 84 Ind. 346... 771 Coal Float Co. v. City of Jef- ferson, 112 Ind. 15 . . 176, 343, 714 Coates v. Mayor of New York, 7 Cow. 585 174, 239 Cobb v. French, 111 Minn. 429 741 Cocke v. Halsey, 16 Peters, 71 373 Cockrane v. Maiden, 152 Mass. 365 700 Cohen & Co. v. Rittman (Tex.) 139 S. W. 59 648 Cohens v. Bank of Virginia, 6 Wheat. 414 260 Cole v. Kegler, 64 Iowa, 69; 19 N. W. 843 224, 618, 771 Coleman v. Elgin, 45 111. App. 64 446 Collier v. Town of Scott, 102 N. W. 909 362, 627 Collins v. New Hampshire, 171 U. S. 30 730 Collins v. Tracy, 36 Tex. 546. . 484 Collins v. United States, 15 Ct. of Claims, 22 413 Colon v. Lisk, 153 N. Y. 188 . 237 Columbus v. Cutcomp, 61 Iowa, 672 238 Commissioners v. Douglas, 1 Binn. 77 389 1 McClintock, 60 Md. 560 -Peck, 5 Hill, 215 -Philadelphia Commis- 638 379 399 sioners, 5 Binn. 534. . . . Williams, 79 Ky. 42. . 474, 486 Commissioners' Court of Perry County v. Medical Society, 127 Ala. 257 381, 638 Commissioners of Immigration v. Brandt, 26 La. Ann. 29 . . 308 Commonwealth v. Alger, 7 Cush. 84 156 Commonwealth v. Allen, 128 Mass. 308 394 Arnold, 3 Littell, 316 467 Barry, Hardin, 229.. 474 Beatty, 15 Pa. Sup. Ct. 5 758 Carter, 132 Mass. 12.. 172, 180, 600, 744 Chambers, 1 J. J. Marsh, 160 474 Clark, 14 Lane. L. Rev. 41 531 Cutter, 156 MassJ 52 174 Davis, 162 Mass. 510. 200 Drew, 208 Mass. 493 . 735 Fowler, 10 Mass. 290 532 Gilbert, 160 Mass. 157 201 Gordon, 159 Mass. 8; 38 N. E. 709 742 Hanley, 9 Pa. 509.. 426 Hargest, 7 Pa. County Ct. 333 398 Jacobson, 183 Mass. 242 ". 634 Jones, 12 Pa. 365.410, 533 McLoughlin, 120 Pa. 518 365 Meeser, 44 Pa. 341.. 533 Newhall, 205 Mass. 344 333 Olyphant Borough, 2 Lack. L. N. 181 531 Patch, 97 Mass. 221 . . 340, 583 Pear, 183 Mass. 242; 66 N. E. 719 634, 635 Plaisted, 148 Mass. 375 H3 Read, 2 Ashm. (Pa.) 261 396 Roberts, 29 N. E. 522 699 Rowe, 218 Pa. 168.. 637 Schaffner, 146 Mass. 512; 16 N. E. 280 742 Staples, 77 N. E. 712 212 INDEX OF CASES 803 [REFERENCES Commonwealth v. Sutherland, 3 S. & R. (Pa.) 145 419 Waite, 11 Allen (Mass.), 264 172 Walter, 83 Pa. 105.. 532, 534 Ward, 123 S. W. 673 752 Wetherbee, 153 Mass. 159; 26 N. E. 114 742 Wheeler, 91 N. E. (Mass.) 415 172, 177,723 White, 190 Mass. 578 756 Yost, 11 Pa. Super. Ct. 323 701 Compagnie Francaise de Navi- gation a Vapeur v. Louisi- ana, 186 U. S. 380.158, 325, 595 Confiscation Cases, 20 Wall. 92 125 Congdon v. Nashua, 72 N. H. 468 625 Conner v. Mayor, 2 Sand. 355 470 Conrad, In re, 15 Fed. R. 641 452 Conroy v. Mayor, 6 Daly, 490; Affirmed, 67 N. Y. 610.113, 408 Consolidated Coal Co. v. Illi- nois, 185 U. S. 203 198 Cook v. Marshall Co., 196 U. S. 261 297 Cook v. Peacham, 50 Vt. 231. 540 Cook v. Pennsylvania, 97 U. S. 566 288 Cooke v. Board of County Commissioners, 13 Okla. 11 624 Cooley v. O'Connor, 12 Wall. 391 395 Cooner v. Gilmer, 32 Cal. 75 . . 385, 387 Cooper v. Lampeter, 8 Watts. (Pa.) 125 395 Cooper v. Scranton, 21 Pa. Super. Ct. 17 522 Copple v. Davie County, 50 S. E. 574 361, 619 Corliss, In re, 11 R. I. 638 358, 360, 414, 483 ARE TO PAGES] Cortis v. Kent Waterworks Co., 7 B. & C. 314 394 Cotten v. Ellis, 7 Jones L. 545 488 Council Bluffs v. Waterman, 86 Iowa, 688 446 County Commissioners v. Hel- len, 72 Md. 603 393 County Seat v. Linn County, 15 Kas. 500 200 Courter v. Newark, 25 Vr. 325 80, 699 Cousins v. Burgie, 13 D. R. 368 637 Coventry v. Barton, 17 Johns, 142 504, 515 Covington v. Mayberry, 9 Bush. 304 446 Cox, Ex parte, 63 Cal. 21 75 Craig v. Chambers, 17 Ohio, 253 551 Craig v. Norfolk, 1 Mod. 122. 387 Cranston v. Mayor, 61 Ga. 572 202 Crawford v. Dunbar, 52 Cal. 36 358, 414 Creier v. Fitzwilliam, 83 Atl. 128 518, 616, 628 Crocker v. Crane, 21 Wend. 211 361, 670 Cronin v. Gundy, 16 Hun, 520 474 Crossman v. Lurman, 192 U. S. 189 299 Crowell v. Crispin, 4 Daly, 100 509 Crowley v. Christensen, 137 U. S. 86 175 Crygier v. United States, 25 Ct. of Claims, 268 453 Cubit v. O'Dett, 51 Mich. 347 504, 515 Cummings v. Missouri, 4 Wall. 277 198 Cummins v. Seymour, 79 Ind. 491 522, 698 Cunningham v. Macon R. R. Co., 109 U. S. 446 498 Curies' Case, 11 Coke, 2 387 804 INDEX OP CASES [references are to pages] Currier v. R. R. Co., 31 N. H. 209 420 Curry v. Stewart, 8 Bush. 560 477 Curry v. Wright, 86 Tenn. 636 379 Curtis v. Butler, 24 How. 435 . 395 Cutter v. Hamlin, 147 Mass. 471 644 Cynosure, The, 1 Sprague, 88 Fed. Cas. No. 3529 196 Dago, The, 61 Fed. 986 586 Dailey v. State, 8 Blackf. (Ind.) 329 358 Dallas v. Allen, 40 S. W. 324. 616 Dalton v. Wilson, 118 Ga. 100 516 Danaher v. Brooklyn, 51 Hun, 563 521, 690 Darby v. Wilmington, 76 N. C. 133 454 Dargan v. Mobile, 31 Ala. 469 517 Davenport v. Hull, 18 Wend. 510 398 Davidson v. New Orleans, 96 U. S. 97 190, 513 Davis v. Massachusetts, 167 U. S. 43 200 Dawe v. Board of Health, Monroe, 146 Mich. 316 624 Debolt v. Cincinnati Tp., 7 Ohio, 237 446 DeCastellux v. Fairchild, 15 Pa. St. 18 74 Decatur v. Vermilion, 77 111. 315 456 Deems v. Mayor of Baltimore, 80 Md. 14 ; 26 L. R. A. 541 . . 179, 746 Delano v. Goodwin, 48 N. H. 203 317 Delano v. Smith, 92 N. E. 500 610 Delaware Lack. & W. R. R. Co. v. Public Util. Commis- sioners 83 N. J. L. 215 696 DeLima v. Bidwell, 182 U. S. 1 195 DeLovio v. Boit, 2 Gallison, 398 310 Dent v. State of West Vir- ginia, 129 U. S. 114 173, 198, 217, 665, 666, 667 Denver v. Dunsmore, 7 Colo. 328 524 Department of Agriculture, Notice of Judgment, 2516. . 743 Department of Agriculture, Notice of Judgment, 2471. 725 Des Plaines v. Poyer, 123 111. Ill 217, 229 Detroit v. Corey, 9 Mich. 165 522, 698 Detroit v. Redfield, 19 Mich. 376 436, 446, 452 Dewis v. Webb, 3 Greenl. 326 172 Dewey v. Garvey, 130 Mass. 86 464 Diamond Match Co. v. New Haven, 55 Conn. 510 698 Dickson v. People, 17 111. 191 367, 413 District of Columbia v. Gar- rison, 25 Appeals, D. C. 563 178, 745 District of Columbia v. Lyn- ham, 16 Appeals, D. C. 185 177, 722 District of Columbia v. Shong Lee, 38 Wash. Law, 460.. . 765 Dodge County v. Diers, 95 N. W. 602 623 Dolan v. Mayor, 68 N. Y. 279 379 Donahoe v. Kansas City, 136 Mo. 657 522, 698 Donahue v. Will County, 100 111. 94 488 Donahue v. Dewey, 82 Mich. 309 376 Dooley v. Kansas City, 82 Mo. 444 605 INDEX OF CASES 805 [references Dooley v. United States, 182 U. S. 222 195 Door v. United States, 195 U. S. 138 195 Dorsey v. Ansley, 72 Ga. 460. 534 Douglas v. Kentucky, 168 U. S. 488 687 Douglas v. Wickwire, 19 Conn. 492 373 Douvielle v. Supervisors, 40 Mich. 585 424 Dowling v. Insurance Co., 92 Wis. 63 75 Dowling v. Rugar, 21 Wend. 178 468 Downer v. Boston, 7 Cush. 277 700 Downes v. Bidwell, 182 U. S. 244 195 Doyle v. Raleigh, 89 N. C. 133 360, 367 Drake' v. Phillips, 40 111. 389. 538 Draper v. Arnold, 12 Mass. 449 507 Dubois v. Augusta, Dudley R. 30 341 Dubuc v. Voss, 19 La. Ann. 210 489 Duffield v. Williamsport School District, 162 Pa. St. 476... 635 Dullam v. Willson, 53 Mich. 392 487, 488, 534 Duluth v. Mallett, 43 Minn. 204 , 739 Duncan v. Missouri, 152 U. S. 377 217 Dunlop v. Black, 108 U. S. 40 137 Dunlop v. Munroe, 7 Cranch, 242 507, 515 Durand v. Hollings, 4 Batch. 451 160 Durand v. Shiawassee Super- visors, 132 Mich. 448 629 Durham v. Lewiston, 4 Greenl. 140 172, 191 ARE TO PAGES] Dykes v. Stafford County, 121 Pac. 1112 623 E Eap v. Lee, 71 111. 193 235 Eastman v. State, 109 Ind. 278 666 East St. Louis v. Wehrung, 50 111. 28 76 Eckhardt v. Buffalo, 156 N. Y. 658 241 Eddy v. Board of Health, 10 Phia. 94 603 Eden v. Templeton, 72 Iowa, 687 365 Edson v. Crangle, 62 Ohio St. 49 181 Edwards v. United States, 103 U. S. 471 481, 483 Edwards v. Watertown, 24 Hun, 428 468, 670 Egan v. Health Department, City of New York, 45 N. Y. S. 325 234, 763 Egan v. Hart, 45 La. Ann. 1358; 14 South 244 156 Eichenlaub v. St. Joseph, 113 Mo. 395 180, 202 Eldridge v. Trezevant, 160 U. S. 452 156 Eliason v. Coleman, 86 N. C. 235 533 Elliott v. Chicago, 48 111. 293 . 123 Elliott v. Kalkaska County, 58 Mich. 452 628 Ellis v. Cleburne, 35 S. W. R. 495 525 Ellison v. Stevenson, 6 T. B. Mon. 275 467 Elmore v. Overton, 104 Ind. 548 499 Ely v. Parsons, 55 Conn. 83. . 507 Ely v. Supervisors of Niagara County, 36 N. Y. 297 235 Ely v. Thompson, 3 A. K. Marsh, 70 498 806 INDEX OF CASES [REFERENCES Evans v. Populus, 22 La. Ann. 121 487 Evans v. Trenton, 25 N. J. L. (4 Zabr.) 766 446, 456 Evansville v. State, 118 Ind. 426 114 Everett v. Marquette, 53 Mich. 450 224 Ewing v. Filley, 43 Pa. 384. . 388 Ewing v. Thompson, 43 Pa. 372 399 F Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112 186 Farnsworth v. Kalkaska County, 56 Mich. 640 623 Farrel v. Pingree, 16 Pac. R. 843 421 Farrell v. Bridgeport, 45 Conn. 191 367, 369, 453 Fath v. Koeppel, 72 Wis. 289 . 500 Fell v. State, 42 Md. 71 238 Ferguson v. Selma, 43 Ala. 398 233, 334 Fernandis, Ex parte, 10 C. B. N. S. 339 553 Ferrari v. Escambia County Bd. of Health, 24 Fed. 390 592 Field v. Chipley, 79 Ky. 260. . 463 Girard College, 54 Pa. 233 419 People, 3 111. 79 114, 392, 486 Robinson, 198 Pa. 638 634 Fielder v. Maxwell, 2 Blatch. (U. S. C. C.) 552 504, 515 Fields v. Stokley, 99 Pa. St. 306 180, 202 Finley v. Territory, 12 Okla. 621 452 Fire Insurance Co. v. Keesville, 148 N. Y. 46 690 First National Bank v. Mount Tabor, 52 Vt. 87 395 ARE TO PAGES] Fisher v. McGirr, 1 Gray, 1 . . 498 Fitzgerald v. Harms, 92 111. 372 123 Fitzsimmons v. Brooklyn, 102 N. Y. 536 378, 453, 454 Flanagan v. Hoyt, 36 Vt. 565 507 Fleming, Ex parte, 4 Hill, 581 540 Fletcher v. Peck, 6 Cranch, 136 248 Fletcher v. Rhode Island, 5 How. 504 269 Fletge v. Priest, 53 Mo. 540. 537 Flori v. St. Louis, 69 Mo. 341 . 522 Floyd Acceptances, The, 7 Wall. 680 509 Foltz v. Kerlin, 105 Ind. 221. . 358, 413, 414, 415 Fong Yue Ting v. United States, 149 U. S. 711 194 Forbes v. Escambia County Bd. of Health, 28 Fla. 26, 13 L. R. A. 549 502, 593, 602, 613 Ford v. Parker, 4 Ohio, 576. . 507 ,Forrestal v. People, 3 111. App. 470 473 Fort Wayne v. Coombs, 107 Ind. 75 523 Fort Wayne v. Lehr, 88 Ind. 62 452 Fort Wayne v. Rosenthal, 75 Ind. 156 400, 639 Foster v. Neilson, 2 Peters, 314 247 Fox v. McDonald, 101 Ala. 51; 21 L. R. A. 529; 13 South. 416 110, 383 Fox v. Richmond, 40 S. W. R. 251 526 Frankfort v. Irwin, 72 N. E. 652 628 Franklin v. Butcher, 129 S. W. 428 644 Franklin Wharf v. Portland, 67 Me. 46 713 INDEX OF CASES 807 [references Frederickson v. Louisiana, 23 How. 445 252 Freeman v. Kenny, 15 Pick. 44 503 Freeman v. Otis, 9 Mass. 272. 511 Freeport Water Co. v. Free- port, 180 U. S. 587 687 French v. Barber Asphalt Pav. Co., 181 U. S. 324 186 French v. Barre, 58 Vt. 567. 539 French v. Taylor, 199 U. S. 274 187 Frost v. Aylesbury Dairy Co., 74 L. J. K. B. 386 647 Frost v. People, 193 111. 635. . 202 Gage v. Currier, 4 Pick. 399. . 503 Gaines v. Waters, 64 Ark. 609 225 Gale v. Kalamazoo, 23 Mich. 344 361 Garden City v. Abbott, 34 Kan. 283 337 Gardner v. Bonestell, 180 U. S. 362 138, 275 Gardner v. Michigan, 199 U. S. 325 181, 206, 341 Garfield v. Allison, 211 U. S. 264 144 Garfield v. Goldsby, 211 U. S. 249 144 Garland, Ex parte, 4 Wall. 333 198 Garland Novelty Co. v. State, 71 Ark. 138 202 Garvie v. Hartford, 54 Conn. 440 445 Garza, Ex parte, 28 Tex. App. 381 662 Gates v. Delaware County, 12 Iowa, 405 481, 482 Gaw v. Ashley, 195 Mass. 173 400 Geer v. Connecticut, 161 U. S. 519 200 Geneva v. New York State, 128 N. Y. S. 470 621 ARE TO PAGES] Gibbons v. Ogden, 9 Wheat. 1 320, 322 Gibbs v. Morgan, 39 N. J. Eq. 126 419 Gibson v. Steamer Madras, 5 Ha. 109 572 Gilbert v. Hoffman, 66 Iowa, 205 644 Gildersleeve v. Board of Edu- cation, 17 Abb. Pr. 201 396, 397, 398 Giles v. Walker, 24 Q. B. D. 656 228 Gill v. Appanoose County, 25 N. W. 908 623 Gilman v. Laconia, 55 N. H. 130 522 Gilman v. Philadelphia, 3 Wall. 713 158, 320 Gilmore v. Lewis, 12 Ohio, 281 446 Giozza v. Turman, 148 U. S. 657 217 Glavie v. United States, 182 U. S. 595 446 Glenwood Springs v. Glenwood Light and Water Co., 202 Fed. 678 687 Glover v. Board of Education, 14 S. D. 139 635 Goetcheus v. Matthewson, 61 N. Y. 420 503 Goettman v. Mayor, 6 Hun, 132 414 Goetze v. United States, 182 U. S. 221 195 Golden v. Health Dept. New York, 47 N. Y. Supp. 623 . . 142 Goldsehmid v. Tunbridge Wells, L. R. 1 Eq. 161. 713 Gonzales v. Williams, 192 U. S. 1 195 Goodell, In re, 48 Wis. 693 .. . 406 Goodson v. Detroit Board of Health, 72 N. W. 185 431 808 INDEX OF CASES [REFERENCES Gordon County Commissioners v. Harris, 81 Ga. 719 446 Gorham v. New Haven, 66 Atl. 505 705 Goshen v. Stonington, 4 Conn. 209 354 Goud v. Portland, 96 Me. 125 452 Gould v. Glass, 19 Barb. 179. 379 Gould, 78 Conn. 242; 61 At. 604 790 Rochester, 105 N. Y. 46 524 United States, 19 Ct. of Claims, 593 384 Gow v. Gans S. S. Line, 174 Fed. 215 . 588 Grace v. Newton Board of Health, 135 Mass. 490 212 Grand Rapids v. Braudy, 105 Mich. 670 175 Grand Rapids v. DeVries, 123 Mich. 570 340, 714 Graves v. Bloomington, 17 111. App. 476 174 Graves v. Paducah, 89 S. W. 708 429 Gray v. Building Trades Coun- cil, 91 Minn. 171 197 Gray v. Connecticut, 159 U. S. 77 , . 238 Green v. Miller, 6 Johns (N. Y.), 39 395 Greenbay, etc., v. Patten Pa- per Co., 172 U. S. 58 186 Greencastle Township v. Black, 51 Ind. 565 81 Greensborough v. Ehrenreich, 80 Ala. 579 172, 175, 713 Greenwood v. State, 17 Ark. 332 467 Gregory v. New York, 113 N. Y. 416 491 Grider v. Tally, 77 Ala. 422.. 500 Grieble v. State, 111 Ind. 369 423, 534 ARE TO PAGES] Grindley v. Barker, 1 Bos. & Pul. 229 394 Grogan, In re, 24 N. Y. St. 473; 5 N. Y. Supp. 499 475 Grossman v. Oakland, 37 L. R. A. 593 225 Guckenheimer v. Sellers, 81 Fed. 997 294, 295, 296 Gulick v. New, 14 Ind. 93... 491 Gundling v. Chicago, 176 111. 340 334, 662, 763 Gundling v. Chicago, 177 U. S. 183 660, 662 H Haag v. City of Mt. Vernon, 58 N. Y. S. 585; 41 App. Div. 366 241 Hadley v. Mayor, 33 N. Y. 603 379 Hager v. Catlin, 18 Hun, 148. 366 Haight v. Love, 39 N. J. L. 14 441 Hale v. Evans, 12 Kas. 562. . . 421 Hale v. Houghton, 8 Mich. 458 689 Hall, In re, 50 Conn. 131 406 Hall v. DuCuir, 95 U. S. 485 . . 306 Luther, 13 Wend. 491 415 State, 39 Wise. 79 . . . 455 Hallgren v. Campbell, 82 Mich. 255 537 Hamlin v. Dingman, 5 Lans. 61 415 Hamlin v. Kassafer, 15 Ore. 456 372, 374 Hammond v. Hyde Park, 80 N. E. 650 637 Handley v. Kansas City Southern Ry. Co., 187 U. S. 617 279 Hannibal & St. J. R. R. Co. v. Husen, 5 Otto, 465. . .93, 135, 176, 196, 215, 308, 326, 590, 594 Hardin v. Colquitt, 63 Ga. 588 388 Hardy v. Hopkins, 59 Md. 157.472 INDEX OF CASES 809 [REFERENCES Harmon, In re, 43 Fed. 372. . 295, 296 Harrington v. Fuller, 18 Me. 277 515 Harrington v. Providence, 20 R. I. 223 234, 697 Harris v. Cox, D. C. Law, No. 53015 634 Harris v. United States, 227 U. S. 340 277 Harrison v. Mayor of Balti- more, 1 Gill, 264 164, 203, 592, 601, 609, 610, 613 Hartford v. Bennett, 10 Ohio, 441 414 Hartman v. Wilmington, 41 Atl. 74; 1 Marv. 215.. 215, 224 Harvey v. Dewoody, 18 Ark. 252 618 Haskell v. New Bedford, 108 . Mass. 208 524, 713 Has well v. Mayor, 81 N. Y. 255 436 Hatch v. Mann, 15 Wend. 44 446, 452 Hatwood v. State, 18 Ind. 492 196 Hauenstein v. Lynham, 100 U. S. 483 251 Haupt's Appeal, 125 Pa. 211. 689 Haverhill v. Marlborough, 187 Mass. 150 610 Haverty v. Bass, 66 Me. 71. . 164, 601 Having v. Covington, 78 S. W. 431 517, 607 Hawker v. New York, 170 U. S. 189... 198, 200, 665, 666, 677 Hawthorne v. Cherokee Coun- ty, 79 Kas. 295 623 Hawver v. Seldenridge, 2 W. Va. 274 374 Hayden v. Noyes, 5 Conn. 391 339 Hayes v. Porter, 22 Me. 371. 500 Hays v. Steamship Co., 17 How. 596 503 ARE TO PAGES] Hazard v. Israel, 1 Binn. 240. 507 Hazen v. Strong, 2 Vt. 427 . . 639 Health Department v. Dassori, 159 N. Y. 245 235 Hamm, 24 N. Y. Supp. 730 761 Knoll, 70 N. Y. 530 . . 83, 762 Rector, 145 N. Y. 32. 211 Trinity Church, 145 N. Y. 32 198, 235 Heath, Ex parte, 3 Hill, 42.. 132 Hedley v. Commissioners, 1 Blackf. 116 467 Heilbron, Ex parte, 65 Cal. 609 174 Helena Cons. Water Co. v. Steele, 49 Pac. 382 689 Helland v. Bradenstine, 104 Pac. 626 64 Hench v. State, 72 Ind. 297.. 421 Henderson v. Mayor, 92 U. S. 259 196 Henderson v. Minneapolis, 32 Minn. 319 698 Henderson v. Smith, 26 W. Va. 829 500 Henderson County Board of Health v. Ward, 107 Ky. 477 605 Hendricks v. Butcher, 129 S. W. 431 644 Hengehold v. Covington, 108 Ky. 752 583, 601 Hennesy v. City of St. Paul, 37 Fed. 565 617 Hennon, Ex parte, 13 Peters, 230 ..114, 484 Hernandez v. State, 135 S. W. 170 175 Herrick v. Gary, 65 111. 101. 643 Hersey v. Chapin, 162 Mass. 176 206, 605 Heslep v. Sacramento, 2 Cal. 580 446 810 INDEX OF CASES [references are to pages] Hewett v. Woman's Hospital Aid Ass'n, 64 Atl. 190 .... . 645 Heyman v. Southern Ry. Co., 203 U. S. 270 291 Hibben v. Smith, 191 U. S. 310 186 Hickman County v. McMorris, 149 Ky. 1; 147 S. W. R. 768 450, 578 Hickman County v. Scarbor- ough, 149 S. W. 1116 621 Highland v. Schulte, 82 N. W. 62 576 Hildreth v. Mclntire, 1 J. J. Marsh, 206 374 Hill v. State, 1 Ala. 559 387 Hine v. New Haven, 40 Conn. 478 202 Him v. State, 1 Ohio, 15 238 Hitchcock v. Galveston, 96 U. S. 341 525, 526 Hobbs v. Yonkers, 102 N. Y. 13 446 Hoboken v. Gear, 27 N. J. L. 265 436 Hodges, Ex parte, 87 Cal. 162 . 642 Hodges v. Buffalo, 2 Denio, 110 525 Hodgson v. Dexter, 1 Cranch, 343 509 Hogatt v. Bigley, 6 Humph. 236 499 Hoke v. Henderson, 4 Dev. 1 470, 488 Hoke v. United States, 227 U. S. 308 277 Holden v. Hardy, 169 U. S. 366 172, 756 Holden v. James, 11 Mass. 396 172, 191 Holden v. People, 90 111. 434. 425 Holzworth v. Newark, 21 Vr. 85 531 Hood v. Lynn, 1 Allen (Mass.), 103 69 Hooper v. Goodwin, 48 Me. 79 374 Hope v. Sawyer, 14 111. 254.. 467 Horton v. Garrison, 23 Barb. 176 395 Horton v. Parsons, 37 Hun, 42 379 Hover v. Barkhoof, 44 N. Y. 113 500 Hovey v. Elliott, 167 U. S. 409 188 Howard v. State, 10 Ind. 99. 422 Hubbard v. Crawford, 19 Kas. 570 453, 472 Hubbard v. Paterson, 45 N. J. L. 310 761 Hudmon v. Slaughter, 70 Ala. 546 132 Huesing v. Rock Island, 128 111. 465 174 Huffman v. Greenwood Coun- ty, 23 Kas. 281 452 Hughes v. Buckingham, 13 Miss. 632 420 Humphrey, Ex parte, 10 Wend. 613 398 Hunt v. Ellisden, 2 Dyer, 152 387 Hunter v. Matthis, 40 Ind. 356 356 Hurst v. Warner, 102 Mich. 238 84, 590 Hutchins v. Durham, 137 N. C. 68 635, 637 Hutton v. Camden, 39 N. J. L. 122 207, 234 Hyde v. State, 52 Miss. 665 . . 490, 534 Her v. Ross, 90 N. W. R. 869. 714 Imler v. Springfield, 55 Mo. 119 523 Illinois Trust and Savings Bank v. Arkansas City, 76 Fed. 271 526, 689 Indianapolis v. Beiler, 138 Ind. 30 173, 661 INDEX OF CASES 811 [references Inhabitants of Watertown v. Mayo, 109 Mass. 515 174 Inman v. Tripp, 11 R. I. 520. 524 Iosco v. Waseco County, 100 N. W. 734 . . , 620 Iowa v. Kirby, 120 Iowa, 26. . 583 Iowa Central R. Co. v. Iowa, 160 U. S. 389 186, 187 Isenhour v. State, 157 Ind. 517 211 Ives v. Soutb Buffalo R. R. Co., 201 N. Y. 292 134 Ivy v. Lusk, 11 La. Ann. 486 385 J Jackson County v. Brush, 77 111. 59 209 Jackson v. State, 117 S. W. 818 676 Jacobs, In re, 98 N. Y. 98 765 Jacobs v. Elmira, 132 N. Y. Supp. 54 430, 627 Jacobson v. Massachusetts, 197 U. S. 11 322, 634, 665 James v. Commonwealth, 12 S. & R. (Pa.) 220 147 Jameson v. People, 16 111. 257 71 Japanese Immigration Case, 189 U. S. 86 193, 194, 275 Jay County v. Fertich, 46 N". E. 699 623 Jefferson County v. Slagle, 66 Pa. St. 202 395 Jenkins (People in re) v. Board of Education, 234 111. 422 51 76, 167, 176, 336, 344, 635, 636 Jenkins v. Waldron, 11 Johns. 114 500 Jeter v. State, 1 McCord (S. C), 233 387 Jew Ho v. Williamson, 103 Fed. 10 33, 204, 586 ARE TO PAGES] Jewett v. Alton, 7 N. H. 253 . . 395 Johannerson v. United States, 225 U. S. 227 421 Johnson v. District of Colum- bia, 27 App. D. C. 259. .559, 598 Drew, 171 U. S. 93.138, 275 Dodd, 56 N. Y. 76. . . 395 Lovett, 65 Ga. 716. . . 437 Simonton, 43 Cal. 242 172 Wilson, 2 N. H. 202. . 385, 387, 399 Johnston v. Belmar, 13 Dick. 354 371, 761 Johnston v. District of Colum- bia, 118 U. S. 19 522 Jones v. Jefferson, 66 Tex. 576 425, 482 Jones v. Shaw, 15 Tex. 577. . . 455 Jordan, In re, 37 Minn. 174. . . 421 Jordan v. Benwood, 42 W. Va. 312 524, 698 Jordan v. Hanson, 49 N. H. 199 499 Judge v. Meriden, 38 Conn. 90 522 Justices v. Clark, 1 T. B. Mon. (Ky.) 82 387 Kaiahua, In re, 19 Ha. 218. . . 584 Kansas v. Colorado, 185 U. S. 125; 206 U. S. 46 709 Kansas City v. Baird, 92 Mo. App. 204 560, 598 Kaufman v. Stone, 25 Ark. 336 419 Keefe v. Union, 56 Atl. 571. . 370, 574, 623 Keeler v. Frost, 22 Barb. 400. 395 Keen v. Coleman, 39 Pa. 299. . 525 Keenan v. Perry, 24 Tex. 253 419, 484, 487 Keenan v. Southworth, 110 Me. 474 515 812 INDEX OF CASES [references Keever v. Mankato, 113 Minn. 55 330, 521, 647, 691 Kehn v. State, 93 N. Y. 291. . 437 Keihl v. South Bend, 76 Fed. 921 689 Kellogg v. St. George, 28 Me. 255 623 Kelly v. Wimberly. 61 Miss. 548 377, 478, 540 Kempster v. Milwaukee, 97 Wis. 345; 79 N. W. 411 406, 515, 516 Kennedy v. Board of Health, 2 Pa. 366 204, 584 Kennedy v. Phelps, 10 La. Ann. 227 174, 689 Kennedy v. Ryall, 67 N. Y. 379 614 Kentucky v. Dennison, 24 How. 66 706 Kerr v. Jones, 19 Ind. 351.. . 358 Kerr v. Simmons, 82 Mo. 269. 714 Kerr v. Trego, 47 Pa. St. 292. 388 Kidd v. Pearson, 128 U. S. 1. . 301 Killey v. Forsee, 57 Mo. 390. . 386 Kimball v. Marshall, 44 N. H. 465 397, 399 Kimmish v. Ball, 129 U. S. 217 326 King, The, v. Tong Lee, 4 Ha. 335 764 King v. Davenport, 98 111. 305 180, 202 King v. Kansas City, 58 Kas. 334 522 King v. Whitwell, 5 T. R. 85 . 533 King County v. Mitchell, 71 S. W. 610 620 Kinlock, In re, 165 U. S. 535. 79 Kinmundy v. Mayor, 72 111. 463 661 Kinsey v. Sherman, 46 Iowa, 463 437 Kinsley v. Chicago, 124 111. 359 763 ARE TO PAGES] Kirby v. Harker, 121 N. W. 1071 502 Kirk v. Wyman, 65 S. E. R. (S. C.) 387 164, 208, 364, 581, 609 Kirkland v. Matthews (Tex.), 162 S. W. 375 649 Kirkwood v. Smith, 9 Lea (Ky.) 228 670 Kirkwood v. Soto, 87 Cal. 394 439 Kirtland v. Hotchkiss, 100 U. S. 491 186 Klopfer v. Board of Health, 9 N. P. S. O. 33 371 Knauer v. Louisville, 20 Ky. L. R. 193; 41 L. R. A. 219.. 181, 713 Knight v. Clark, 48 N. J. L. 22 509 Knightstown v. Homer, 75 N. E. 13 619 Knobloch v. Chicago, Mil. & St. P. Ry. Co., 31 Minn. 402 739 - Kollock v. Stevens Point, 37 Wis. 348 517, 606 Kosciusco v. Stomberg, 68 Miss. 469 175, 336 Kosmak v. New York, 117 N. Y. 361 523 Kranz v. Baltimore, 64 Md. 491 522 Kreser v. Lyman, 74 Fed. 765. 157 Krug, In re, 19 Fed. 308 186 Kuhn v. Brownfield, 34 W. Va. 252 551 Kwong Lee Yuen Co. v. Man- chester Fire Association, 15 Ha. 704 617, 771 Labrie v. Manchester, 59 N. H. 120 628 Lacey, Ex parte, 108 Cal. 326 235 LaCroix v. Fairfield County Commissioners, 50 Conn. 321 537 INDEX OF CASES 813 [references Landberg v. Chicago, 237 111. 112 139, 176, 181, 206, 337, 341, 714 Lange v. Benedict, 73 N. Y. 12 499, 503 LaPorta v. Board of Health, 42 Vr. 88 676 Larew v. Newman, 81 Cal. 588 440 Lasher v. People, 183 111. 226 381, 382, 668, 669 Laubaugh v. Board of Educa- tion, 66 111. App. 159 596 Laubaugh v. Board of Educa- tion, 177 111. 572 635 Laugel v. Bushnell, 197 111. 20 228, 229 Laurel County Court v. Pen- ington, 26 Ky. Law, 124 . . 623 Lawrence, Ex parte, 1 Ohio, 431 455 Lawrence v. Commonwealth, 127 S. W. 1013 644 Lawrence v. McAlvin, 109 Mass. 311 516 Lawton v. Steele, 119 N. Y. 226 180, 237 Lawton v. Steele, 152 U. S. 133 181, 237, 634 Leach v. People, 122 111. 240.. 375 Leavenworth v. Brewer, 9 Kas. 307 452 LeConte v. Berkley, 57 Cal. 269 537 Lee v. Marsh, 230 Pa. 351. . . . 639 Lee v. Munroe, 7 Cranch, 366. 509 Leech v. State, 78 Ind. 570. . . 481 Leeper v. Texas, 135 U. S. 712 191 Legal Tender Cases, 12 Wall. 457 260 Leisy v. Hardin, 135 U. S. 100 282, 287, 289, 294, 308 Leitch v. Wentworth, 71 111. 147 538 Lem Moon Sing v. United States, 158 U. S. 538.. 193, 195 ARE TO PAGES] Leovy v. United States, 177 U. S. 621 158, 324 Lewis v. Lewis, 9 Mo. 183 . 361, 670 Lewis v. Webb, 3 Greenl. 326. 191 Lieberman v. Van De Carr, 199 U. S. 552 748 License Tax Cases, 5 Wall. 462 176, 342, 650 License Cases, 5 How. 504 . 269, 308 Lincoln Land Co. v. Village of Grant, 57 Neb. 70 526 Littlefield v. State, 42 Neb. 223 655 Lochner v. New York, 198 U. S. 45 757 Locke v. Central City, 4 Colo. 65 436 Lockwood v. Bartlett, 130 N. Y. 340 614 Loeasch v. Koehler, 144 Ind. 278 207, 234 Logan v. Child, 41 So. 197.103, 699 London v. Headon, 76 N. C. 72 414 London, etc. Land Co. v. Jel- lico, 103 Tenn. 320 525 Londoner v. Denver, 210 U. S. 386 218 - Long v. Chicago, K. & W. Ry. Co., 15 L. R. A. 319 644 Long v. Duluth, 49 Minn. 280 340, 714 Longacre v. State, 3 Miss. 637 478 Los Angeles Co. v. Spencer, 126 Cal. 670 202 Loughborough v. Blake, 5 Wheat. 317 265 Louisa County v. Yancey's Trustee, 109 Va. 229 616 Louisiana v. Texas, 176 U. S. 1 576, 587 Louisville, etc. Ry. Co. v. Mis- sissippi, 133 U. S. 587 306 Louk v. Woods, 15 111. 256. . . 394 814 INDEX OF CASES [REFERENCES Louriston v. Chippewa County, 93 N. W. 1053 620 Love v. Atlanta, 95 Ga. 129.. 516 Low v. Towns, 8 Ga. 360 388 Low, et al. v. Austin, 80 U. S. 29 283, 286, 287, 290, 293 Lowe, In re, 54 Kas. 759; 27 L. R. A. 545 714 Lowe v. Commissioners, 3 Met. 237 486 Lowe v. Conroy, 97 N. W. R. 942; 120 Wis. 151.234, 513, 518 Lowther v. Earl of Radnor, 8 East, 113 503 Low Wah Suey v. Backus, 225 U. S. 460 138, 278, 283 Lozin v. Newark Board of Health, 48 N. J. L. 452 371 Lucas, Ex parte, 61 S. W. 218 . 676 Ludlow v. Ritchie, 25 Ky. 1581 446 Luzerne Co. v. Trimmer, 95 Pa. 97 388 Lynde v. Rockland, 66 Me. 309 609 Lyth v. Buffalo, 48 Hun, 175. 362 M Mabry v. Baxter, 11 Heisk (Tenn.) 682 166 Macomber v. Doane, 2 Allen, 541 464 Macon v. Bibb County, 75 S. E. 435 622 Magee v. Brooklyn, 18 App. Div. 22 523 Mahr v. Pottawatomie County, 110 Pac. 751 619 Mallory v. Supervisors, 2 Cowen, 531 452 Mallett v. Uncle Sam G. Co., 1 Nev. 188 376 Manhattan v. Hessin, 105 Pac. 44 226, 538, 609 Manigault v. Springs, 199 U. S. 473 324 ARE TO PAGES] Mankato v. Blue Earth Co., 92 N. W. 405 629 Mann v. Willey, 168 N. Y. 664, 700 Manning v. Bruce, 186 Mass. 282 608, 609 Mansfield v. Balliett, 65 Ohio, 450 524 Marbury v. Madison, 1 Cranch, 137 387, 392, 399, 424 Marion v. Chandler, 6 Ala. 899 335 Marion County v. Bonds, 99 S. W. 532 625 Marion County v. Woulard, 27 So. 619 624 Marmet v. State, 45 Ohio, 63 , 172 Marsh v. Fulton County, 10 Wall. 676 526 Marsh v. Rosen County, 101 N. W. 164 623 Marshall v. Caldwalder, 36 N. J. L. 283 80 Marshall County v. Johnson, 127 Ind. 238 445 Martin v. Brooklyn, 1 Hill. 550 517 Fond du Lac County, 106 N. W. 1095 421 Hunter, 1 Wheat. 326 260 Montgomery County, 27 Ind. App. 98 621 Mason v. Shawneetown, 77 111. 533 80 Massie v. Cesna, 239 111. 352. 197 Mathews v. Board of Educa- tion, 127 Mich. 530 635, 636 Mathias v. Lexington County, 60 S. E. 970 639 Matthews v. Hedlund, 82 Neb. 825 198 Matthews v. People, 202 111. 389 197 Matthews v. Supervisors, 53 Miss. 715 454 May v. New Orleans, 178 U. S. 496 294, 295 Mayer v. Chicago, 38 111. 266. 527 INDEX OF CASES 815 [references are to pages] Mayfield v. Moore, 53 111. 428. 378 McCulloch v. Maryland, 4 Mayor v. Eschbach, 18 Md. 283 509 Mayor of Baltimore v. Rey- nolds, 20 Md. 1 509 Mayor of Birmingham v. Land, 137 Ala. 538 524 Mayor of Jersey City v. Flynn, 74 N. J. Eq. 104 vi, 520, 688 Wheat. 316 260 McCurdy v. Rogers, 21 Wis. 197 510 McDermott v. Wisconsin, 228 U. S. 115 269 McDonald v. Franklin Co., 2 Mo. 218 511 Mayor v. Kelley, 98 N. Y. 467 . 445 McGee v. Gill, 79 Ky. 106 ... . 424 Mayor of Penryn, In re, 1 McGee v. State, 103 Ind. 444. 537 Stra. 582 534 McGregor v. Allen, 33 La. Ann. Mays v. Cincinnati, 1 Ohio, 870 478 268 337 McGregor v. Boyle, 34 Iowa, Maywood Co. v. Maywood, 140 111. 216 698 McAllister, In re, 51 Fed. 282 268 647, 691, 700 McGregor v. Supervisors, 37 Mich. 388 488, 539 292, 295 Mclnstry v. Tanner, 9 Johns. McAllister v. State, 72 Md. 390 729 McAnnally v. Goodier, 195 Mo. 135 273 Mclntire v. Pembroke, 53 N. H. 462 623 551 214 McKenzie v. Royal Dairy, 35 McBride v. Akron, 12 Ohio Cir. Ct. R. 610 .... 523 McBride v. Detroit, 47 Mich. Wash. 390 497, 501 McKibben v. Fort Smith, 35 Ark. 325 37 236; s.c. 49 Mich. 239 452 McKim v. Somers, 1 Penn. McBride v. Grand Rapids, 47 Mich. 236 452 McCann v. Commonwealth, 198 297 478 McKinney v. Salem, 77 Ind. 213 238 Pa. 509 729 McLean v. Arkansas, 211 U. McCarthy v. DeArmit, 99 Pa. 63 364 McCartney v. Philadelphia, 22 Pa. Super. Ct. 257 523 McCarty v. Froelke, 63 Ind. 507 405 McClentics v. Bryant, 1 Mo. 598 511 S. 539 134 McMillan v. Anderson, 95 U. S. 37 214 McMillan Co. v. Minnesota State Bqard of Health, 110 Minn. 145 211, 532 McNevins v. Lowe, 40 111. 209 551, 552 McComas v. Krug, 81 Ind. 327 475 McSween v. School Board, 129 McCord v. High, 24 Iowa, 336 S. W. 206 634, 635 501, 504 McTeer v. Lebow, 85 Tenn. McCoy v. Curtice, 9 Wend. 17 396 McCraw v. Williams, 33 Gratt. (Va.) 510 374 McCue v. Wapello County, 56 Iowa, 698 454 121 499 Mead v. Treasurer, 36 Mich. 416 489 Meadows v. Nesbit, 12 Lea, 489 540 816 INDEX OF CASES [REFERENCES Meeker v. Van Rensselaer, 15 Wend. 397 233 Mellody v. Missouri, K. & T. Ry. Co., 124 S. W. 702 644 Melton v. Mayor, 114 Ga. 462. 238 Memphis v. Brown, 20 Wall. 289 446 Memphis v. Smythe, 58 S. W. 215 - 574 Memphis v. Woodward, 12 Heisk, 499 378 Merrill v. Berkshire, 11 Pick. (Mass.) 268 394 Merrill v. Humphry, 24 Mich. 170 358 Merritt v. Walsh, 104 U. S. 694 79 Merty v. Columbus, 27 0. Cir. Ct. R. 822 623 Metcalf v. St. Louis, 11 Mo. 102 591 Metropolitan Bank v. Van Fyck, 15 Smith (N. Y.), 508 267 Metsker v. Neally, 41 Kas. 122 491 Metzger, In re, 1 Parker Cr. R. (N. Y.) 108 249 Meyer v. Bishop, 27 N. J. Eq. 141 467 Meyer v. Patterson, 28 N. J. Eq. 239 467 Meyers v. Clarke, 122 Ky. 866 371 Miles City v. State Board of Health (Mont.), 102 Pac. 696 213, 706 Miller v. Burch, 32 Tex. 208. . 236 Horton, 152 Mass. 540 164, 180, 182, 203, 204, 205, 207, 234, 235, 512, 586 State (Miss.) 63 So. 269 672 Supervisors, 25 Cal. 93 483 Supervisors, 88 111. 26 539 Miller & Meyer v. Newport News, 101 Va. 432 524 ARE TO PAGES] Millett v. People, 117 111. 294. 217 Milligan, Ex parte, 4 Wall. 120 50, 51 Milliken v. Weatherford, 54 Tex. 388 335, 339 Mills v. Brooklyn, 32 N. Y. 489 522, 698 Milner v. Reibenstein, 85 Cal. 593 439 Milnes v. Huddersfield, L. R. 10 Q. B. D. 124 330, 521, 647, 690, 691 Minister of Interior v. Hack- field & Co., 4 Ha. 420 630 Minkler v. State, 14 Neb. 181 474, 476 Minneapolis, St. P. & S. S. M. Ry. Co. v. Milner, 57 Fed. 276 589 Minnesota v. Barber, 136 U. S. 313 '. . . . 176, 216, 327, 594 Minor v. Sharon, 112 Mass. 477 644 Minturn v. Larne, 23 How. 435 686 Missouri v. Illinois and San. Dist. of Chicago, 180 U. S. 208 707 Missouri, K. & T. Ry. Co. v. Raney, 99 S. W. 589 644 Missouri, K. & T. Ry. Co. v. U. S., 231 U. S. 112 760 Missouri, K. & T. R. R. Co. of Texas v. Wood, 68 S. W. 802 646 Missouri Pac. R. Co. v. Humes, 115 U. S. 512 186 Mitchel v. Horton, 75 Iowa, 271 397 Mitchell v. Harmony, 13 How. 115 156 Mitchell v. Rockland, 41 Me. 363; 45 Me. 496; 52 Me. 118 608 Mobile v. Louisville, etc. R. R. Co. 84 Ala. 115 536, 538 INDEX OF CASES 817 [references Mohan v. Jackson, 52 Ind. 599 372 Monroe v. Bluff ton, 67 N. E. 711 628 Montgomery v. Gilmer, 33 Ala. 116 522, 698 Montgomery v. Hutchinson, 13 Ala. 573 233 Montgomery v. LeSuer Co. 32 Minn. 532 620 Montgomery County v. Brom- ley, 108 Ind. 158 452 Moore v. Indianapolis, 120 Ind. 483 238 Moore v. New York, 73 N. Y. 238 525 Morgan, In re, 26 Col. 415; 47 L. R. A. 52 757 Morgan v. Quackenbush, 22 Barb. 72 132 Morgan's Steamship Co. v. Louisiana State Board of Health, 118 U. S. 455 324, 594, 600 Morrill v. Jones, 106 U. S. 466 79, 167 Morris v. Columbus, 102 Ga. 792; 42 L. R. A. 175 343, 634, 635, 636 Moss v. Cummings, 44 Mich. 359 499 Mostyn v. Fabrigas, 1 Smith Lead. Cas. 1027 499 Moulton v. Reid, 54 Ala. 320. 539 Mouse's Case, 12 Rep. 63.156, 206 Muhlenbrick v. Com., 44 N. J. L. 365 173, 661 Mulhall v. Quin, 1 Gray, 105 . . 464 Mullen v. Mosley, 13 Idaho, 457 202 Muller v. Oregon, 208 U. S. 412 173, 759 Munk v. Frink, 75 Neb. 172; 106 N. W. 425 102, 444 Murphy v. People. 2 Cow. (N. Y.) 815 147 ARE TO PAGES] Murray v. Carothers, 1 Met. 71 510 Murray's Lessee v. Hoboken Land Co., 18 How. 272. .185, 192 Murtaugh v. St. Louis, 44 Mo. 479 618 Mygatt v. Washburn, 15 N. Y. 316 503 N Nashville v. Comar, 88 Tenn. 415 523 Nashville, Chat. & St. Louis R. Co. v. State of Alabama, 128 U. S. 96 198, 216, 600 Natal v. Louisiana, 139 U. S. 621 209 National Cotton Oil Co. v. Texas, 197 U. S. 130 186 Nay v. Underhill, 42 Atl. 610. 404 Neale v. Overseers, 5 Watts, 538 454, 473 Nelson v. Minneapolis, 112 Minn. 16 178, 739, 746 People, 33 111. 390... 196 State Board of Health, Ky., 22 Ky. Law, 438; 50 L. R. A. 383 668 State Board of Health, 186 Mass. 330 532 Newark, etc. R. Co. v. Hunt, 50 N. J. L. 308 203, 234 Newcastle v. Harvey, 102 N. E. R. 878 712 New Decatur v. Berry, 90 Ala. 432 574, 592 Newman v. Beckwith, 61 N. Y. 205 375 Newman v. Sylvester, 42 Ind. 112 . . 509 New Orleans v. Faber, 105 La. Ann. 208 239 New Orleans v. Finnerty, 27 La. Ann. 681 459 818 INDEX OF CASES [REFERENCES New Orleans v. Stafford, 27 La. Ann. 417 239 New Orleans Waterworks Co. v. Rivers, 115 U. S. 674. . . ._ 687 Newsome v. Cocke, 44 Miss. 352 484 New York v. Miln, 11 Pet. 102 321 New York v. Squire, 145 U. S. 175 198 New York & Harlem R. R. Co. v. Mayor, 1 Hilt. (N. Y.) 441 372 New York etc. R. Co. v. Bris- tol, 151 U. S. 556 198 New York etc. Ry. Co. v. Har- bison, 16 Fed. Rep. 688 511 New York, N. H. & H. R. R. v. New York, 165 U. S. 628. 324 Nicholson v. Detroit, 129 Mich. 246 645 Nickerson v. Thompson, 33 Me. 433 500 Nicoulin v. Lowery, 49 N. J. L. 391 174 Niles v. Muzzy, 33 Mich. 61 . . 452 Nine v. New Haven, 40 Conn. 478 180 Nishimura Ekiu v. United States, 142 U. S. 659 138, 193, 194, 680 Noble v. St. Albans, 56 Vt. 522 700 Norris, Ex parte, 8 S. C. 408 . . 472 North American Cold Storage Co. v. Chicago, 211 U. S. 306 202, 748 North Hudson Co. R. Co. v. Hoboken, 41 N. J. L. 81 655 North Springs Water Co. v. Tacoma, 21 Wash. 517 687 Norton v. Shelby County, 118 U. S. 425 374, 498 Nowell v. Wright, 3 Allen, 166 500 Nowotny v. Milwaukee, 121 N. W. 658 83 ARE TO PAGES] Oakland (city) v. Carpenter, 13 Cal. 540 499 Oakley v. Aspinwall, 3 N. Y. 568 81 Officer v. Young, 5 Yerg. (Tenn.) 320 190 Ogden v. Blackledge, 2 Cranch, 272 73 Ogden v. Raymond, 22 Conn. 379 509 Ogg v. Lansing, 35 Iowa, 495 516, 517 Ohio v. Thomas, 173 U. S. 276 266 O'Leary, Ex parte, 65 Miss. 80 217 O'Leary v. Board of Education, 93 N. Y. 1 454 Olmstead v. Dennis, 77 N. Y. 378 479, 481, 540 Olney v. Pearce, 1 R. I. 292.. 473 Olsen v. Smith, 195 U. S. 332. 186 Opinion of Judges, 115 Mass. 602 407 Opinion of Justices, 136 Mass. 578 407 Orr v. Gillman, 183 U. S. 278. 217 Osborn v. Bank, 9 Wheat. 783 498 Osborne v. Russell, 64 Kas. 507 634, 635, 636 Osgood v. Jones, 60 N. H. 543. 534 Ostrander v. Lansing, 111 Mich. 693 698 Oviatt v. Pond, 29 Conn. 479. 236 Owens v. Lancaster, 182 Pa. 257 523, 524 Pace v. People, 50 111. 432 482 Page v. Hardin, 8 B. Mon. 648 477, 487, 670 Palmer, In re, 1 Abb. Pr. N. S. (N. Y.) 30 395, Paola R. R. Co. v. Anderson Co., 16 Kas. 302 394 INDEX OP CASES 819 [REFERENCES Parke Davis & Co. v. Mulford Co., 189 Fed. R. 95 145, 219 Parker v. Kett, 1 Ld. Raym. 658 467 Parker v. Smith, 3 Minn. 240 . 410 Parsons, In re, 54 N. Y. 451. . 446 Pasadena School District v. Pasadena, 134 Pac. 985 771 Passenger Cases, 7 How. 283 196, 268, 275 Patton v. Vaughan, 39 Ark. 211 419 Pearson v. Wilson, 57 Miss. 848 474 Pearson v. Zehr, 138 111. 48.. 180, 203, 207, 234 Peart v. Meaker, 45 La. Ann. 421 156 Pebbles v. City of Boston, 131 Mass. 197 142 Peck v. Bank, 51 Mich. 353. . 452 Peck v. Lockwood, 5 Day (Conn.) 22 339 Peeling v. York Co., 113 Pa. 108 442 Peirce v. New Hampshire, 5 How. 504 269, 287, 294 Pembia Cons. Silver Co. v. Philadelphia, 125 U. S. 181 . 196 Pendleton v. State, 6 Ark. 509 196 Pennoyer v. McConnaughy, 140 U. S. 1 160 Penrice v. Wallis, 37 Miss. 172 156 People v. Addison, 10 Cal. 1. 425, 426 Adirondack Ry. Co., 160 N. Y. 225; affirmed, 176 N. Y. 335 189 Albertson, 55 N. Y. 50 71, 470 Allen, 42 N. Y. 384. . 81 Angle, 109 N. Y. 564. 114 Anthony, 6 Hun, 142 376 Apfelbaum, 251 111. 18 666 ARE TO PAGES] People v. Arensberg, 105 N. Y. 123 729 Bank of North Amer- ica, 75 N. Y. 547 670 Batchelor, 28 Barb. 310 397 Batchelor, 22 N. Y. 128 395, 396, 397 Barnes, 114 N. Y. 317 365 Barnett Tp. 100 111. 332 482 Bender, 36 Mich. 195 360, 499 Biesecker, 169 N. Y. 53; 57 L. R. A. 178 730, 743 Bingham, 82 Cal. 238 534 Bissel, 19 111. 232 160 Bissell, 49 Cal. 407 . . 375, 392, 399, 472 Blanding, 63 Cal. 333 289, 401 Blood, 105 N. Y. Supp. 20 429 Board of Health, 140 N. Y. 1 207 B o a r d of Trustees, 159 N. Y. 568 412 Bradley, 207 N. Y. 592 134 Brady, 90 Mich. 459; 51 N. W. 537 556, 598 —Brooklyn, 77 N. Y. 503 413, 415 Brooks, 16 Cal. 11 . . . 462 Bull, 46 N. Y. 57.380, 422 Burnap, 38 Mich. 350 539 ■ Bush, 40 Cal. 344 500 Callaghan, 83 111. 128 533, 534 Cazneau, 20 Cal. 504. 392 Chapin, 104 N. Y. 96 365 Chicago, 256 111. 558. 760 Chipperly, 101 N. Y. 634 736, 742 Clute, 50 Barb. 451 . . 414 820 INDEX OF CASES [REFERENCES People v. College, 62 How. Pr. 220 488 Collins, 7 Johns, (N. Y.) 549 373 Commissioners, 73 N. Y. 437 484 Conover, 17 N. Y. 64. 372 ■ Coon, 15 Wend. 277. 160 Dean, 3 Wend. 438.. 417 DeMill, 15 Mich. 164. 535 D epartment of Health, New York, 189 N. Y. 187 197 D e n t a 1 Examiners, 110 111. 105 365 Diamond, 76 N. Y. Supp. 57 499 Draper, 15 N. Y. 543. 369 Duane, 121 N. Y. 367 413 Dulaney, 96 111. 503. 540 ■ Dunne, 258 111. 441 . . 134 Durston, 3 N. Y. Supp. 522 114 Elerding, 254 111. 579 760 Eno, 82 N. Y. 520 .. . 623 Fancher, 50 N. Y. 288 390 ■ F ire Commissioners, 114 N. Y. 67 491 Fitzsimmons, 68 N. Y. 514 386 ■ Flynn, 184 N. Y. 579. 238 Foody, 79 N. Y. Supp. 240 499 Forquer, 1 111. 104.. 375, 392, 472 French, 10 Abb. N. C. (N. Y.), 418; 25 Hun, 111.. 240, 490, 491 French, 102 N. Y. 583 475 Freeman, 80 Cal. 233 . 110 Goddard, 8 Colo. 432. 114 Gordon (Mich.), 45 N. W. R. 658 714 Green, 58 N. Y. 304. . 415 Hall, 104 N. Y. 170. 393 ARE TO PAGES] People v. Hammond, 66 CaL 654 375, 392, 420 Hanif an, 96 111. 420 . . 413, 479 Harlow, 29 Ind. 43. . . 451 Hartwell, 67 Cal. 11 473, 477 Hatch, 33 111. 9 540 Haver straw Village, 43 N. Y. 135; 11 App. Div. 108 -Hawker, 152 N. Y. 444 199 234 People (Ex rel Robin) v. Hayes, 143 N. Y. Supp. 325 . 493 People v. Hayt, 66 N. Y. 606. . 540 Head, 25 111. 325.... 537 Health Department, 24 Week Dig. 197 490 Health Department, New York, 82 N. E. 187 . 677, 738 Henry, 236 111. 124.. 365 Hill, 7 Cal. 97... 419, 484 Holley, 12 Wend. 481 473 Holtz, 92 HI. 426... 382, 669 Hurlburt, 24 Mich. 44 369 Hyde Park, 117 111. 492 540 People in re Jenkins v. Board of Education, 234 111. 422 . . 51, 76, 167, 176, 336, 344 People v. Jewett, 6 Cal. 291 .. . 486 Judge, 27 Mich. 170. 365 Kingston T. R. Co. 23 Wend. 193 473 Kirk, 119 N. Y. 862. 694 Kneissel, 58 How. Pr. (N. Y.) 404 402 Knickerbocker, 114 111. 539 365, 540 Leonard, 73 Cal. 230. 415 Lord, 9 Mich. 227... 380, 393, 423 INDEX OF CASES 821 [REFERENCES People v. Marx, 99 N. Y. 377 . . 728 May, 3 Mich. 508 .. . 113 Mayor, 51 111. 17 540 May worm, 5 Mich. 146 535 McAdoo, 110 N. Y. Supp. 432 375, 392 McKinney, 52 N. Y. 57 422 Middleton, 28 Cal. 608 368 Miller, 24 Mich. 458 . . 378, 454 Miles, 2 Mich. 350. . . 536 Mills, 32 Hun, 459.. 385, 399 Mizner, 7 Cal. 519.. 426 ■ Monroe County, 18 Barb. 567 103, 607 Moore, 73 111. 132 533 Morrell, 21 Wend. 563 445 Mulholland, 82 N. Y. 324 172 Murray, 70 N. Y. 521 387 Murray, 5 Hun, 42 . . . 386 Murray, 73 N. Y. 535 376 New York Edison Co. 144 N. Y. Supp. 707 54, 230 Nichols, 52 N. Y. 478 395, 396 Norton, 7 Barb. 477. 160 Nostrand, 46 N. Y. 375 379, 415 O'Keefe, 100 N. Y. 572 540 Orange County Road Constr. Co., 175 N. Y. 84.. 759 Osborne, 7 Colo. 605 375, 392 O'Toole, 164 111. 344. 392 Oulton, 28 Cal. 44.. 425, 467 Palmer, 52 N. Y. 84. 468 Partridge, 13 Abb. N. C. (N. Y.) 410 475 ARE TO PAGES] People v. Pease, 27 N. Y. 45 . . 132 Police Board, 46 Hun, 296 389 Police Commissioners, 20 Hun, 333 475 Police Commissioners, 102 N. Y. 583 491 Porter, 6 Cal. 26.481, 483 Potter, 63 Cal. 127.. 474 Provines, 34 Cal. 520 . 500 Reid, 11 Colo. 141... 385 Ridgely, 21 HI. 67 . . . 535 Roff, 3 Park Crim. Rep. 216 592 Rosborough, 14 Cal. 180 420, 422 Rose, 225 111. 496 365 ■ Roth, Court Special Sessions, City of New York, Nov., 1912 737 San Luis Obispo, 116 Cal. 617 524 Schenck, 257 111. 384 753, 763 Sewer, Water, and Street Com., 90 App. Div. 555; 86 N. Y. 445 197 Shurley, 131 Mich. 177; 91 N. W. 139 557, 597 Sipple, 96 N. Y. Supp. 897 429, 490 Smith, 108 Mich. 527 343 Smith, 21 N. Y. 595. 189 Smith, 208 111. 31... 674 Smith, 66 N. W. 382 754, 763 Solomon, 46 111. 415. 540 State Treasurer, 24 Mich. 468 537 Staton, 73 N. C, 546. 376 Stowell, 6 Abb. N. C. 456 385, 399 Supervisors, 20 N. Y. 252 402, 403 822 INDEX OF CASES [REFERENCES ARE TO PAGES] People v. Supervisors, 53 Hun, People v. Williams, 189 N. Y. 254 364 131 173,758 Supervisors, 10 Abb. Wilson, 249 111. 195. 80 Pr. 233 396 Wilson, 72 N. C. 155 . 424 -Supervisors, 12 Wend. Woodruff, 32 N. Y. 237 452 355 385,399 -Supervisors, 1 Hill, Yonkers, 140 N. Y. 1 362 446 203, 234 -Sweeting, 2 Johns, Peoria v. Calhoun, 29 111. 317 340 184 533 Perry v. Cheboygan, 55 Mich. Tait, 103 N. E. R., 250 436 750 580 Hyde, 10 Conn. 329. 511 -Thatcher, 55 N. Y. Tynan, 22 Barb. 137. 396 525 535 Worcester, 6 Gray, Thomas, 33 Barb. 287 400 544 522, 698 -Thornton, 25 Hun, Perth Amboy v. Smith, 19 N. 456 114 J. L. 52 583 Tieman, 30 Barb. 193 Petersburg v. Petersburg 372, 375, 377, 471 Aqueduct Co., 102 Va. 654. 157 Tilton, 37 Cal. 614.. Petersilea v. Stone, 119 Mass. 375, 392 465 373 Treasurer, 24 Mich. Peterson v. Carter, 6 Ha. 283 . 630 468 537 Peterson v. Mayor, 17 N. Y. Tyrell, 87 Cal. 475 . . 450 527 375, 392,426 Peterson v. Santa Rosa, 119 Van de Carr, 81 N. Cal. 387 524 Y. App. Div. 128 ; 175 N. Y. Pettigrew v. Evansville, 25 440; 67 N. E. 913 172, 738 Wis. 223 524 —Van Slyck, 4 Cow. 297 132 Pettingill v. Yonkers, 116 N". Vilas, 36 N. Y. 451 . . . Y. 558 528 445, 456 Phelps v. Racey, 60 N. Y. 10 . 201 Waite, 70 111. 25 533 Philadelphia v. Lyster, 3 Pa. —Walker, 23 Barb. 304 Sup. Ct. 475 715 396, 397 Philadelphia! Fire Ass. v. New Walter, 68 N. Y. 403. 539 York, 119 U. S. 110 196 Wemple, 1-15 N. Y. 302 Phillips v. Mayor, 88 N. Y. (reversing 52 Hun, 414) ... 439 245 490 Whitlock, 92 N. Y. Phoenix v. Clark, 2 Mich. 327 . 537 191 419, 487, 488 Pierce v. Doolittle, 130 Iowa, -Whitman, 10 Cal. 38 . 358 333 83 Willard, 44 Hun, 580. 385 Pierce v. Gladwin County, 136 William Henning Co., Mich. 425 625 103 N. E. R. 530 730 Pierie v. Philadelphia, 139 Pa. Williams, 36 N. Y. 573 445 441 395 Pike v. Carter, 3 Bing. 78 . . . 503 INDEX OF CASES 823 [REFERENCES Pilie v. New Orleans, 19 La. Ann. 274 446 Pine v. Huber Mfg. Co., 83 Ind. 121 509 Pleuler v. State, 11 Neb. 547. 238 Plumley, Ex parte, 156 Mass. 236; 30 N. E. 1127; 15 L. R. A. 839 729 Plumley v. Massachusetts, 155 U. S. 461.280, 282, 295, 299, 729 Plymouth v. Painter, 17 Conn. 585 372, 374 Plymouth Township v. Klug, 145 N. W. 130 580 Poindexter v. Greenhow, 114 U. S. 270 498 Pole v. Minnehaha Co., 5 Dak. T. 129 439 Polinsky v. People, 73 N. Y. 65 84, 737 Pooler v. Reed, 73 Me. 129 479 Potts v. Breen, 167 111. 67 51, 76, 78, 139, 635 Poughkeepsie v. Wiltse, 36 Hun, 270 446 Powell v. Commonwealth, 114 Pa. 265 728 Newburgh, 19 Johns, 284 438 Pennsylvania, 127 U. S. 678 728 State, 69 Ala. 10 238 Tuttle, 3 N. Y. 396. . 670 Prather v. Hart, 17 Neb. 598 . 477 Pressman v. Dickson City, 13 Pa. Super. Ct. 236 522 Preston v. Bacon, 4 Conn. 471 446 Prince v. Skillin, 71 Me. 361. 469 Pritchard v. Morgantown, 36 S. E. 353 616 Privett v. Brickford, 26 Kas. 52 415 Prosser v. Coots, 50 Mich. 262 507 Provincetown v. Smith, 120 Mass. 96 610 ARE TO PAGES] Pruden v. Love, 67 Ga. 160. . . 364 Publishing Co. v. Payne, 30 Wash. L. R. 339 79, 167 Pulaski County v. Lincoln, 9 Ark. 320 394, 395 Pulaski County v. Somerset, - 98 S. W. 1022 621 Pullman Co. v. Krauss, 40 So. 398 596 Purcell v. Parks, 82 111. 346. . 442 Pursel v. State, 111 Ind. 519. 423 Pusey v. Meade, 64 Ky. 217. . . 638 Putnam v. Langley, 133 Mass. 204 399 Queen v. Atlanta, 59 Ga. 318. 452 Quin v. Donovan, 85 111. 194. 550 R Rae v. Flint, 16 N. W. 887... 592 Raleigh v. Goschen, 1 Ch. 73 . . 505 Rassmussen v. Idaho, 181 U. S. 198 326, 594 Rassmussen v. United States, 197 U. S. 516 195 Raymond v. Fish, 51 Conn. 80 210, 500 Reardon v. St. Louis, 30 Mo. 555 517 Reed v. People, 1 Park. Cr. 481 83, 103 Reetz v. Michigan, 188 U. S. 505 189, 198, 665 Reg. v. Anderson, 2 A. & E. 740 534 Blizzard, L. R. 2 Q. B. 55 .. 483 Green, 2 A. & E. 460. 534 James, 2 Den. Cr. Cas. 1 355 Richmond, 11 W. R. 65 414 824 INDEX OF CASES [REFERENCES ARE TO PAGES] Reid v. Colorado, 187 U. S. 137 326, 740, 748 Reif v. Page, 55 Wis. 496 446 Reilly v. Mayor, 48 N. Y. Sup. Robertson v. Sichel, 127 U. S. 507 506, 515 Robbins v. Taxing District, 120 U. S. 489 281 Ct. 274 Reiter v. State, 51 Ohio, 74. . . 483 Rex v. Bedford Level, 3 East. 356 372 Beeston, 3 T. R. (D. 490 Robinson, Ex parte, 30 Tex. App. 493 224 Robinson v. Hamilton, 14 N. W. 202 135, 559, 597 Robinson v. Rohr, 73 Wis. 436 500, 516 . E.) 592 394 Boyles, 2 Stra. 836.. 534 Rochester v. Gutherlett, 133 -Grimes, 5 Burr. 2599 . 376 N. Y. Supp. 541 714 -Hebden, Andrews, 389 376 Rochester White Lead Co. v. 184 -Hughes, 5 B. & C. 886 480 -Leyland, 3 M. & S. , 481 Rochester, 3 N. Y. 463 522 Rockaway Township v. Morris County, 52 Atl. 373 629 -Lisle, Andrews, 163. 376 Rogers v. Buffalo, 123 N. Y. Mayor, 4 Doug. 14. . . 481 Mayor, 5 Term. R. (D. & E.) 66 376 Tizzard, 9 B. & C. 418 355, 413 Vantandillo, 4 M. & S. 73 643 Whitaker, 9 B. & C. 648 394 Reynolds v. Mt. Vernon, 164 N. Y. Supp. 592 431 Reynolds v. Ossining, 92 N. Y. Supp. 954 101 Rhode Island v. Massachusetts, 12 Pet. 657 708 Rhodes v. Iowa, 170 U. S. 412. 294 Richards, Ex parte, 3 Q. B. D. 368 533 Richmond v. Long's Admr., 17 Grat. 375 517, 618 Ripley v. Gifford, 11 Iowa, 367 451 Ruggles v. Washington Co. 3 Ritchie v. People, 155 111. 98 Mo. 501 511 172, 756 Runion v. Latimer, 6 Rich. (S. Ritchie v. Wayman, 244 111. C.) 126 377, 478, 540 509 172, 759 Runkel v. Winemiller, 4 H. & River Rendering Co. v. Behr, McH. (Md.) 429 355 77 Mo. 91 181, 341, 713 Runnells v. State, 1 Miss 146. 486 173 113, 114, 401 Rohn v. Osmun, 106 JST. W. 967 628 Roper v. McWorter, 77 Va. 214 499 Ross v. Williamson, 44 Ga. 501 474 Rounds v. Mumford, 2 R. I. 154 364, 500 Rowland v. Greencastle, 157 Ind. 707 335 Royall v. Virginia, 116 U. S. 572 660 Ruan v. Mahaska County, 137 N. W. 1003 626 Ruch v. New Orleans, 43 La. Ann. 275 156 Rucker v. Supervisors, 7 W. Va. 661 442 Rude v. St. Marie, 99 N. W. 460 642 INDEX OF CASES 825 [references s Sadler v. Langham, 34 Ala. 311 81 Sage v. Fifield, 68 Wis. 546. 538 St. Charles v. Rogers, 49 Mo. 530 539 St. Clair v. Cox, 106 U. S. 356 196 St. Clair v. People, 85 111. 396 365 St. Johns v. Supervisors, 70 N. W. 131 400, 629 St. Louis v. Amel, 139 S. W. 434 736, 742 Boffinger, 19 Mo. 13. 136 Clemens, 43 Mo. 395. 209 Liessing, 190 Mo. 464 739 St. Louis Consolidated Coal Co. v. Illinois, 185 U. S. 203 600 St. Louis, I. M. & S. Ry. Co. v. McWhirter, 229 U. S. 265 760 St. Paul v. Colter, 12 Minn. 41 340, 656 St. Paul v. Gilfillan, 36 Minn. 298 224 St. Taurmany Water Works Co. v. New Orleans Water Works Co., 120 U. S. 64 . . . 687 Salem v. Eastern R. R. Co., 98 Mass. 431 212, 500, 513 Saline Co. v. Anderson, 20 Kas. 298 379 Salisbury Commissioners v. Powe, 51 N. C. 134 596 Sallinger v. Smith, 192 Mass. 317 610 San Antonio v. White, 57 S. W. R. 858 518 San Chung, In re, 105 Pac. 609 764 Sanborn v. Neal, 4 Minn. 126 510 Saterlee v. Matthewson, 2 Peters, 413 73 Savage v. Jones, 225 U. S. 501 278 Savannah v. Mulligan, 95 Ga. 323 203, 234 ARE TO PAGES] Sawyer v. State Board of Health, 125 Mass. 195 210 Sawyer v. Wapello County, 133 N. W. 104 612, 619 Sayre Burrough of, v. Phillips, 148 Pa. 482 661 Schaezlein v. Cabaniss, 135 Cal. 466 75, 766 Sehenck v. Peay, 1 Woolw. (U. S.) 175 395 Schmidt v. Stearns County, 34 Minn. 112 620 Schoen Bros. v. Atlanta, 97 Ga. 697; 33 L. R. A. 804.. 181, 713 Schollenberger v. Pennsyl- vania, 171 U. S. 1 282, 288, 294, 728 Schultz v. State, 76 Atl. 592. . 714 Scott v. Detroit Y. M. C. A., 1 Doug. (Mich.) 119 395 Scott v. Ring, 29 Minn. 398 . . 472 Seaman v. Patten, 2 Caines (N. Y.) 312 500 Sears v. Cottrell, 5 Mich. 251 190, 217 Sears v. Gallatin County, 40 L. R. A. 405; 20 Mont. 462 156, 561, 597 Seavey v. Preble, 64 Me. 120 499, 595, 612 Seifert v. Brooklyn, 101 N. Y. 136 523 Semple v. Vieksburg, 62 Miss. 63 522, 523 Sentell v. New Orleans, etc., R. R. Co., 166 U. S. 698. . .201, 236 Seymour v. Almond, 75 Ga. 112 537 Seymour v. United States, 2 App. D. C. 240 204, 365 Shannon v. Portsmouth, 54 N. H. 183 491 Sharp v. Teese, 9 N. J. L. 352. 525 Shattuck v. State, 51 Miss. 575 486 826 INDEX OF CASES [REFERENCES Sheehan v. Gleeson, 46 Mo. 100 361, 670 Sheldon v. Payne, 7 N. Y. 458 515 Shell v. Cousins, 77 Va. 328 479, 538 Shepard v. Seattle, 109 Pac. 1067 136 Sherburne v. Yuba County, 21 Cal. 113 517 Shipman v. State Live Stock Commissioners, 115 Mich. 488 513 Shivers v. Newton, 45 N. J. L. 469 179, 746 Shoemaker v. United States, 147 U. S. 282 381 Shreveport Traction Co. v. Shreveport, 122 La. Ann. 1; 47 South 40 157 Shrewsbury, In re, 9 Coke, 50 . 474 Sidway v. Commissioners, 120 111. 496 446 Sievers v. San Francisco, 115 Cal. 648 524, 528 Sikes v. Hatfield, 13 Gray, 347 436 Silz v. Hesterberg, 211 U. S. . 31 280 Simon v. Hoboken, 52 N. J. L. 367 376 Simpson v. Shepard, (U.S.) 33 Sup. Ct. 729 590 Sings v. Joliet, 86 N. E. 663 618, 771 Sinking Fund Cases, 90 U. S. 761 166 Skaneateles etc. Water Co. v. Skaneateles, 161 N. Y. 154; s. c. 184 U. S. 354 687 Sloan v. Peoria, 106 111. App. 151 400, 431 Smiley v. McDonald, 42 Neb. 5; 27 L. R. A. 540 714 Smith, Ex parte, 8 S. C. 495. 472 Smith, In re, 146 N. Y. 68.. 634, 635 ARE TO PAGES] Smith v. Ames, 169 U. S. 466. 196 Baker, 20 Fed. 709 . . 645 Baker, 14 Pa. C. C. 65 212 Colby, 67 Me. 169.. 504, 515 Dyer, 1 Call. (Va.) 562 385 Evans, 53 S. E. 589. . 176 Examiners of Feeble- minded (N. J. Sup. Ct. Nov. 18, 1913) 787 Hobb, 45 S. E. 963.. 622 Irish, 55 N. Y. S. 837 214, 224 Lowe, 121 Fed. 753.. 594 Lynch, 29 Ohio, 261.. 374 Maryland, 18 How. 71 747 ' — Mayor of New York, 37 N. Y. 518 379, 453 Nashville, 88 Tenn. 464 174, 689 New York, 66 N. Y. 295 524 St. Louis & South- western Ry. Co., 181 U. S. 248 135, 158, 216, 326, 594 State, 115 Ind. 611.. 201 State Board of Med- ical Examiners, Iowa, 117 N. W. R. 1116 198 Waterbury, 54 Conn. 174 440 Whitney, 116 U. S. 167 537, 538 Sniffen v. Mayor, 4 Sandf. 193 437 Snowden, Ex parte, 12 Cal. App. 521 333 Snyder v. Gordon, 46 Hun, 538 644 Society for Propagating the Gospel v. New Haven, 8 Wheat. 464 248 Soens v. Racine, 10 Wis. 271. 395 Southern Ry. Co. v. State, 125 Ga. 287 695 INDEX OF CASES 827 [references Southern Ry. Co. v. United States, 222 U. S. 20 307 Spa v. Ely, 8 Hun, 256 645 Spear v. Robinson, 29 Me. 531. 414 Spearman v. Texarkana, 24 S. W. 883 400 Speed v. Crawford, 3 Met. (Ky.) 207 380, 419 Spinney, Ex parte, 10 Nev. 323 665, 667 Spokes v. Banbury Board of Health, L. R. 1 Eq. 42 713 Spring v. Hyde Park, 137 Mass. 554 206, 605, 608 Springfield v. Spence, 39 Ohio, 665 700 Stadler v. Detroit, 13 Mich. 346 393, 424, 473 Stanchfield v. Newton, 142 Mass. 110 523 Standard Stock & Food Co. v. Wright, 225 U. S. 540 278 Stanley v. Monnet, 34 Kas. 703 540 Staples v. Plymouth County, 17 N. W. 569 607 State v. Addington, 77 Mo. 110 729 Allen, 21 Ind. 516 387, 388, 473, 477, 478 Allen, 5 Kas. 213.534, 535 Ailing, 12 Ohio, 16.. 376 Alt, 26 Mo. App. 673 . 419 Armeno, 72 Atl. 216. . 676 Bailey, 33 N. W. R. 778 421 Baird, 47 Mo. 301 477 Ball, 34 Ohio, 194... 76 Bank, 45 Mo. 528 509 Barbour, 53 Conn. 76 385, 399 Bayonne, 44 N. J. L. 114 661 Beacham, 34 S. E. 477 371 Beil, 157 Ind. 25 635 ARE TO PAGES] State v. Berg, 50 Ind. 496... 472 Berg, 70 N. W. 347. . 591 Black, 22 Minn. 336. . 425 Blumenthal, 125 S. W. R. 1188 674 Boal, 46 Mo. 528 535 Board, 17 Atl. 112... 489 Board of Education, 81 N. E. 568 635 Board of Education, 21 Utah, 401 635 Board of Health, 49 N. J. L. 349 388 Board of Public Lands, 7 Neb. 42 419 Boecker, 56 Mo. 17. . . 482, 483 Boone, 95 N. E. 924; 84 Ohio, 346 549, 560 Boucher, 3 N. Dak. 389 no Bowen, 8 S. C. 400. . . 533 Brewer, 59 Ala. 130.. 436 Brewster, 44 Ohio, 589 471 Brinkerhoff, 66 Tex. 45 479 Brown, 128 N. W. 294 773 Brown, 38 Ohio, 344. 424 Bryce, 7 Ohio, Part. II, 82 478 Bulkeley, 61 Conn. 287 375, 376 Burdge, 70 N. W. R. 347; 95 Wis. 390; 37 L. R. A. 157 76, 635, 636 Butts, 9 L. R. A. 725. 577 Buttz, 9S.C. 156.413, 479 Call (N. C), 28 S. E. 517 666 Campbell, 64 N. H. 402 172, 235 Cantler, 33 Minn. 69. 661 Capers, 37 La. Ann. 747 491 Carrol, 38 Conn. 449. . 373, 374 828 INDEX OF CASES [REFERENCES State v. Chapin, 110 Ind. 272. 421, 441 Chatburn, 63 Iowa, 569 484 Churchill, 41 Mo. 41. 473 Clark, 54 Mo. 17 ... . 342 Clarke, 3 Nev. 566.. 414 Cole, 220 Mo. 697. . . 635, 636 Collier, 72 Mo. 13.. 534 Collingswood Sewer- age Co., 89 Atl. 525 706 Columbia, 16 S. C. 412 537 Colvig, 15 Oreg. 57 . . . 473 Comptroller General, 9 S. C. 259 452, 479 Commissioners, 31 Ohio, 451 365 County Court, 51 Mo. 350 538 Crescent Creamery Co., 83 Minn. 284; 54 L. R. A. 466 742 Dahl, 65 Wise. 510.. 532 Davis, 44 Mo. 129 .. . 469 DeGress, 53 Tex. 387 358, 413 Dellwood, 33 La. Ann. 1229 479 Denny, 118 Ind. 449. 380 Deny, 171 Ind. 18.. 197, 202 Draper, 45 Mo. 355.. 413 Duckworth, 51 Pa. 456 594 Duffy, 7 Nev. 349 .. . 172, 191 Duncan, 50 So. 265. 585 — Dupaquier, 46 La. Ann. 577.... 172, 177, 180, 744 Feilan, 26 Pac. R. 75 786 Ferguson. 33 N. H. 424 337 Fischer. 52 Mo. 174 . . 340 — Fitts, 49 Ala. 402... 482 ARE TO PAGES] State v. Fleming, 7 Hum- phreys, 152 74 French, 141 Ind. 618 383 Fortenbury, 56 Miss. 540 -Fulkerson, 10 Mo. 681 421 -Gaines, 2 Lea, 316.. 455 286 Gardner, 54 Ohio, 24 375 George, 23 Fla. 585. 410 George, 22 Oregon, 142 383 Gibson, 36 Ind. 389 . . 172, 191 Goff, 15 R. I. 505 ... . 479 Goss, 69 Me. 22 454 Graham, 13 Kas. 136 533, 534, 535 Graham, 26 La. Ann. 568 478 Gravett, 65 Ohio, 289 199 Gregory, 83 Mo. 123. 668 Griffin, 69 N. H. 1 . . . 175 Hadley, 27 Ind. 496. 474 Hairston, 63 N. C. 451 172, 191 Hamilton Co., 7 Ohio, 134 385 Hammer, 42 N. J. L. 435 533 Hansen, 63 Ind. 155 . . 76 Harrington, 68 Vt. 622 655 Harrison, 113 Ind. 434 375, 392 Hastings, 10 Wis. 518 509 Hastings, 15 Wis. 75 463 Hathaway, 115 Mo. 36 665, 666 Hauss, 43 Ind. 105.. 482 Hay, 126 N. C. 999; 49 L. R. A. 588 632, 634, 636, 646 Herron, 24 La. Ann. 432 491 Higgs, 38 Ohio, 199 . . 651 INDEX OF CASES 829 [REFERENCES State v. Hill, 126 N. C. 1139; 50 L. R. A. 473 714 Hindley, 121 Pa. 447 103 Hixon, 27 Ark. 398.. 533 Holcomn, 68 Iowa, 107 340 Holden, 14 Utah, 71; 37 L. R. A. 103 756 Holmes, 38 N. H. 225 238 Hopkins, 10 Ohio, 509 426 Howe, 25 Ohio, 588 . . 376, 421, 425 Hoyt, 2 Oreg. 246.. 400 Hudson County, 44 N. J. L. 388 440 Hyde, 121 Ind. 20... 380 Hyman, 57 Atl. 6 763 Jacobs, 17 Ohio, 143 . . 376, 533 Jersey City, 25 N. J. L. 536 491 Johnson, 17 Ark. 407 388 Johnson, 26 Ark. 281. 535 —Jones, 19 Ind. 516.. 467 Kearns, 47 Ohio, 566. 413 Kennon, 7 Ohio, 546 . . 351, 380 Kilroy, 86 Ind. 118.. 405 Kirby, 120 Iowa, 26 . . 583 Kirk, 44 Ind. 401 358 Knoxville, 12 Lea. 146 204 Kohnke, 31 So. 45.. 384 Kuhl, 51 N. J. L. 191. 393 Leach, 60 Mo. 58.474, 476 Lincoln, 4 Neb. 260.. 483 Lingo, 26 Mo. 496 491 Long, 76 N. C. 254. . 454 Long Branch, 42 N. J. L. 364 172 Love, 39 N. J. L. 14 399, 424 Lupton, 64 Mo. 415 . . 490, 535 Lutz, 136 Mo. 633.. 668 Lylies, 1 McCord (S. C), 238 387 ARE TO PAGES] State v. Mahner, 43 La. Ann. 496 173 Main, 69 Conn. 123 . . 343 Mar low, 15 Ohio, 114 532 Marshall, 64 N. H. 549 729 Martin, 42 N. J. L. 479 533 Massillon, 24 Ohio Cir. Ct. 249 384 Mayor, 4 Neb. 260.. 481 McCollister, 11 Ohio, 46 380 McDowell, 19 Neb. 442 442 McEntyre, 3 Ire. (N. C.) 171 540 McGoveny, 92 Mo. 328 420 McMahon (Minn.), 72 N. W. R. 79 654, 662 McMillen, 23 Neb. 385 410 McNeely, 24 La. Ann. 19 388 Meehan, 45 N. J. L. 189 385, 401 Milwaukee, 121 N. W. 658 738 Moore, 19 Mo. 369.. 507, 515 Moore, 50 Neb. 88 . . 462 Morris, 47 La. Ann. 1660 181, 713 Morse, 80 Atl. 189 . . 84, 694 Mott, 61 Md. 287; 48 Atl. 105 217, 224 Muller, 48 Oreg. 252. 759 Murphy, 130 Mo. 10. 157 Murray, 28 Wise. 96 405 Myers, 42 W. Va. 822; 35 L. R. A. 844 729 Nashville, 15 Lea. 697 337, 446 Nelson, 60 Minn. 166 172 New Orleans, 27 So. 572; 52 La. Ann. 1263 629 830 INDEX OP CASES [REFERENCES ARE TO PAGES] State v. Normand, 76 N. H. 541 643 North, 42 Conn. 79.. 533 Noyes, 30 N. H. 279. 175 Ocean Grove C. M. A., 55 N. J. L. 507 173, 661 Olinger, 72 N. W. R. 441 445 Olson, 144 N. W. R. 661 749 Orange, 50 N. J. L. 389 173, 661 Orr, 68 Conn. 101; 34 L. R. A. 279 340, 714 Patterson, 34 N. J. L. 163 361, 468, 670 Pearcy, 44 Mo. 159 . . 425 Peck, 30 La. Ann. 280 473 Peele, 124 Ind. 515 . . 388, 399 Phillips, 79 Me. 506. . 385, 399 Police Commissioners, 16 Mo. App. 48 491 Police Commissioner, 40 N. J. L. 175 490 Porter, 7 Ind. 204.. 473 Porter, 113 Ind. 79.. 395, 397 Pritchard, 36 N. J. L. 101 114, 487 Rackowski, 86 Atl. 606 631 Railroad Co., 40 Minn. 267 '. 279 Ring, 29 Minn. 78 . . 389 Robinson, 161 S. W. 1169 679 Rodman, 58 Minn. 393 201 St. Paul, M. & R. R. State v. Schumaker, 27 La. Ann. 332 491 Seay, 64 Mo. 89 426 Seigel, 60 Minn. 507. 172 Sharply, 31 Wash. 191 675 Shaw, 64 Me. 263 . 361, 670 Shorrock, 55 Wash. Co. 98 Minn. 380 157 St. Louis, 207 Mo. 354 409 Schlenker, 112 Iowa, 642; 51 L. R. A. 347 742 208 634, 639 Sinks, 42 Ohio, 345. 651 Smith, 22 Minn. 218. 395 Smith, 57 So. 426... 737 Smith, 135 S. W. 465 752 Smith, 14 Wis. 497.. 405 Smith, 48 Vt. 266... 533 Sneed, 9 Baxt. 272.. 540 — Snyder, No. 19,418 Sup. Ct. La. 1912 81 Somers, 96 N. C. 467 441 Speyer, 67 Vt. 502 .. . 583 Stanley, 66 N. C. 59. 357 State Medical Exam- ining Board, 32 Minn. 324. . 666 Steele, 57 Tex. 200.. 437, 627 Steers, 44 Mo. 223 . . 473 Stein, 13 Neb. 529.. 535 Taft, 118 N. C. 1190. . 172, 175 Taylor, 108 N. C. 196 374 Taylor, 15 Ohio, 137. 421 Tipton, 109 Ind. 75. 534 Tolan, 33 N. J. L. 195 533 Trenton, 63 Atl. 897 227, 609 Trenton, 50 N. J. L. 331 422 Tudor, 5 Day, 329.. 533 Vail, 53 Mo. 97 535 Valle, 41 Mo. 29 358 Wadhams, 64 Minn. 318 385 Walker, 75 Neb. 177; 106 N. W. 427 102, 444 Webber, 38 Minn. 397 365 Wilkesville, 20 Ohio. 288 395 INDEX OP CASES 831 [refeeences State v. Wilmington, 3 Harr. (Del.) 294 368 Wilson, 30 Kas. 661 . . 532 Wiltz, 11 La. Ann. 439 470, 486, 488 Wordin, 14 Atl. 801. . 559, 597 Yopp, 97 N. C. 478 . . 159, 363 Young, 84 Mo. 90 365 Young, 29 Minn. 551 75, 332 Zeno, 79 Minn. 80; 81 N. W. R. 748 675 Zimmerman, 86 Minn. 353; 58 L. R. A. 78; 90 N. W. 783 635 State Board of Dental Exam- iners v. People, 123 111. 227 668 State Board of Health v. Board of Trustees, 110 Pac. 137; 143 Cal. 658 634 Greenville, 86 Ohio, 1 591 St. Johnsbury, 73 Atl. 581 84 Standard Oil Co., 107 La. 713 210 State Centre v. Barrenstein, 66 Iowa, 249 656 State ex rel, Bayles v. New- ton, 50 N. J. L. 549 729 ex rel, Waterbury v. Newton, 50 N. J. L. 534 729 ex rel, Weideman v. Horgan, 55 Minn. 183; 56 N. W. 688 729 Stein v. Vienville Water Sup- ply Co., 141 U. S. 67 688 Stephens v. Allen, 44 S. W. R. 386 443 . Stephenson v. Wal- den, 24 Iowa, 84 465 Stern v. People, 102 111. 540 488 Sternberger v. Cape Fear & Y. V. R. R. 29 S. C. 510 279 Sterry v. Clifton, 9 C. B. 110 465 ARE TO PAGES] Steubenville v. Culp, 38 Ohio, 18 436, 453 Stevens v. Muskegon, 111 Mich. 72 522 Stewart v. New Orleans, 9 La. Ann. 461 517 Stiffler v. Delaware, 1 Ind. App. 368 446 Stock v. Boston, 149 Mass. 410 ..521, 522, 690 Stockton v. Newark, 42 N. J. Eq. 531 239 Stockwell v. Genesee County, 56 Mich. 221 446 Stockwell v. Township Board, 22 Mich. 341 489 Stoddard v. Saratoga Springs, 127 N. Y. 261 522, 523 Stoltenberg, Ex parte, 132 Pac. 841 653, 762 Stone v. Heath, 179 Mass. 385 215, 224, 694, 706 Mississippi, 101 U. S. 814 157 Small, 54 Vt. 498... 537 Wetmore, 42 Ga. 601 539 Stotler v. Rochelle, 109 Pac. 788 226, 609 Stout v. Ennis, 28 Kas. 706. . 367 Stroye v. Gladwin County, 136 Mich. 425 625 Stuhr v. Hoboken, 47 N. J. L. 147 443 Stuhr v. Curran, 15 Vroom, 181 379 Stull v. Reber, 215 Pa. 156 . 634, 637 Sturgis v. Spofford, 45 N. Y. 446 380, 381 Suffield v. Hathaway, 44 Conn. 521 174, 689 Sullivan v. Oneida, 61 111. 242 180, 201 Sully v. American National Bank, 178 U. S. 289 196 832 INDEX OF CASES [references are to pages] Summers v. Board, 103 Ind. 262 516 Summit Township v. Jackson, 117 N. W. 545 605 Sumner v. Beeler, 50 Ind. 341 498 Sumner v. Philadelphia, 9 Phila. 408 517 Supervisors v. Auditor Gen- eral, 27 Mich. 165 539 Supervisors v. Stinson, 4 Hill, 136 379 Surocco v. Geary, 3 Cal. 69 . . 206 Sutton v. Sutton, 1 Russell & Mylne, 663 248 Suydam v. Keys, 13 Johns, 444 503 Swan v. Buck, 40 Miss. 268 . . 445 Swarth v. People, 109 111. 621 662 Tabor v. Berrien County, 120 N. W. 588 .., 447, 612 Taft v. Adams, 128 Mass. 213 421 Tappan v. Gray, 9 Paige, 507 539 Taunton v. Taylor, 116 Mass. 254 211, 384 Taylor v. Adair County, 119 Ky. 374 578, 671 Austin, 32 Minn. 247 522 Backham, 178 U. S. 548 197 City of Owen'sboro, 98 Ky. 271 -602 Tearney v. Smith, 86 111. 391 . 504 Tenement House Dept. v. Katie Moeschen, 85 N. Y. S. 1148; Affirmed, 72 N. E. 321; Affirmed, 203 U. S. 583 761 Territory v. Ah Chong, 17 Ha. 331 764 Territory v. Lockwood, 3 Wall. 236 533 Territory v. Norris, 1 Ore. 107 436 Texter v. Baltimore & Ohio R. P., 59 Md. 63 37 Thayer v. Boston, 19 Pick. 511 520 Thomas v. Burrus, 23 Miss. 550 385, 399 Ingham Supervisors, 142 Mich. 319 585 Mason, 20 S. E. 580. . 628 Mason, 39 W.Va. 526 623 Richmond, 12 Wall. 349 337, 525 R. R. Co., 101 U. S. 71 525 State Board of Health, 79 S. E. 725 672 Thompson v. Carroll, 22 How. 242 337 Thompson v. Hazen, 25 Me. 104 666 Thompson v. Holt, 52 Ala. 491 500 Thompson v. Kimbrough, 57 S. W. 328 227, 609 Thomson v. Tracy, 60 N. Y. 31 537 Throop v. Langdon, 40 Mich. 673 357, 533 Thorp v. Rutland R. Co., 27 Vt. 140 235 Thurlow v. Massachusetts, 5 How. 504 269 Thurston v. Fairman, 9 Hun, 584 465 Tippits v. Walker, 4 Mass. 595 509 Tissot v. Great South. Tel. Co., 39 La. Ann. 996 224 Toledo v. Cone, 41 Ohio, 149. . 521 Tollefsen v. Ottawa, 81 N. E. 283 607 Towaliga Falls Power Co. v. Sims, 65 S. E. 844.... 642, 648 Trabue v. Todd County, 125 Ky. 809 627 Tracy v. Swartwout, 10 Pet. 80 504, 515 INDEX OF CASES 833 [references Train v. Boston Disinfecting Co., 144 Mass. 523 203, 600 Trenton v. Clayton, 50 Mo. App. 535 661 Trenton v. Hutchinson, 39 N. J. Eq. 218 102 Trigg v. State, 49 Tex. 645 . . 486 Triplett v. Gill, 7 J. J. Marsh, 444 467 Trowbridge v. Tupper, 96 N. E. 1096 531 Tucker v. Aiken, 7 N. H. 113 . 374 Tucker v. Burt, 115 N. W. 722 632 Turnipseed v. Hudson, 50 Miss. 429 477 Turpin v. Booth, 56 Cal. 65.. 356 Tweedy v. Fremont County, 68 N. W. 921 623 Twenty Per Cent Cases, 13 Wall. 568 358 Twining v. New Jersey, 211 U. S. 78 191 Twyman's. Administrator v. Frankfort, 117 Ky. 518 .. . 602 u Underwood v. Green, 42 N. Y. 140 181, 207, 713 Union Church v. Saunders, 1 Houst. (Del.) 100 355 United States v. Arredondo, 6 Peters, 691 123 Bevans, 3 Wheat. 336 310 Boutwell, 3 Macar- thur, (D. C.) 172 540 Boyer, 85 Fed. 425.. 301 Clough, 55 U. S. 373 445, 446 Commissioners, 5 Wall. 563 360 Cruikshank, 1 Woods, 308; Affirmed, 92 U. S. 542 192 Douglas, 19 D. C. 99 135, 139, 159, 360 Eaton, 144 U. S. 677 79 ARE TO PAGES] United States v. Eliason, 16 Peters, 291 81, 125 Fisher, 109 U. S. 143 437 Flanders, 112 U.S. 88 438, 453 Fox, Federal Cases, No. 15155 286, 291, 295 Furlong, 5 Wheat. 134 310 Germaine, 99 U. S. 508 350, 357 Green, 53 Fed. 769.. 482 Grush, 5 Mason, 290. 310 Harris, 106 U. S. 629 192 Holmes, 5 Wheat. 412 310 Johnson, 177 Fed. 313 271 Johnson, 221 U. S. 488 271 Ju Toy, 198 U. S. 253 193, 194, 218 Le Baron, 19 How. 73 387, 388 Lee, 106 U. S. 196.. 496, 498 Mitchell, 109 U. S. 146 437 Mouat, 124 U. S. 303 350 Ross, 1 Gallison, 624 310 . Saunders, 120 U. S. 126 452 • Schurz, 102 U. S. 378 360 Seaman, 17 How. 225 360 Sing Tuck, 194 U. S. 161, reversing 128 Fed. 592 194 Smith, 124 U. S. 525 350, 367 Smith, 1 Bond, (U. S.) 68 453 Williams, 194 U. S. 279 193,-195, 275 Wiltberger, 5 Wheat. 76 310 Wong Kim Ark, 169 U. S. 649 .._._ 195 834 INDEX OF CASES [REFERENCES United States v. Yamaska, (C. C. A.) 100 Fed. 404 194 Upjohn v. Richland, 46 Mich. 542 538 Uren v. Walsh, 57 Wis. 98. . . 516 V Valentine v. Englewood, 76 N. J. L. 509 503, 517 Vall§ v. Shaffer, 81 Pac. 1028 384 Vance v. Vandercook, 170 U. S. 438 282, 289 Vandercook v. Williams, 106 Ind. 345 452 Van Orsdall v. Hazard, 3 Hill, 243 478, 481 Van Schaick v. Sigel, 60 How. . . (N. Y.) Pr. 122 507 Van Wormer v. Mayor of Al- bany, 15 Wend. 562 513 Vaughn v. Congdon, 56 Vt. Ill 503 Verdon v. Bowman, 97 N. W. 229 502, 515 Vicksburg v. Vicksburg Water Works Co., 202 U. S. 453 520, 685 Viemeister v. White, 179 N. Y. 235 634 Villavaso v. Barthet, 39 La. Ann. 247 239 Virginia, Ex parte, 100 U. S. 339 188, 191 Vogel v. State, 107 Ind. 374. . 414 Voelker v. Chicago Elc. R. R. Co., 116 Fed. 867 695 Voight v. Wright, 141 U. S. 62 ....327 W Walcott v. Walcott, 19 Vt. 37 395 Walker v. Boone County, 97 N. W. 1077 623 ARE TO PAGES] Walker v. Cook, 129 Mass. 578 436, 464 Ferrill, 58 Ga. 512.. 425 Henderson County, 65 S. W. 15 627 Jameson, 140 Ind. 591 176, 181, 343, 714 McMahn, 75 Neb. 179; 106 N. W. 427... 102, 444 Sauvinet, 92 U. S. 90 186 Wall v. Trumbull, 16 Mich. 228 499, 500 Walla Walla v. Walla Walla Water Co., 172 U. S. 1 686 Walla Walla Water Co. v. Walla Walla, 60 Fed. 957. . 689 Waller v. Wood, 101 Ind. 138. 142 Wamesit Power Co. v. Allen, 120 Mass. 352 499 AVard Lumber Co. v. Hender- son White Mfg. Co., 107 Va. 626 196 Ware v. Hylton, 3 Dall. 270. . 248 Waring v. Mayor, 75 U. S. 110 287 Warner v. People, 2 Denio, 272 470 Warner v. Stebbins, 111 Iowa 86; 82 N. W. 457. .226, 603, 605 Washington-Oregon Corpora- tion v. Chehalis, 202 Fed. 501 687 Waterbury v. Newton, 50 N. J. L. 534 729 Waterman v. New York, 7 Daly, 439 446 Watson v. Maryland, 105 Md. 651 173, 665 Watuppe Reservoir v. Mack- enzie, 132 Mass. 71 212 Waugh v. Chauncey, 13 Cal. 11 123 Waye v. Thompson, L. R. 15 Q. B. D. 342 513 INDEX OF CASES 835 [references are to pages] Weaver v. Devendorf, 3 Denic, 117 499 Webb v. McCauley, 4 Bush. 10 463 Weeks v. Texarkana, 50 Ark. 81 440 Weideman v. Horgan, 55 Minn. 183; 56 N. W. 688.. 729 Weigand v. District of Colum- bia, 22 Appeals D. C. 559 177, 742 Weil v. Record, 24 N. J. Eq. 169 172 Weimer v. Bunbury, 30 Mich. 201 192 Weis v. Madison, 75 Ind. 241 . 700 Weldman v. New York, 84 App. Div. 321 522 Weller v. State, 53 Ohio 77; 40 N. E. 1001. 730 Welsh v. Stowell, 2 Douglas, 332 235 Wentick v. Passiac Co., 66 N. J. L. 65 526 West v. State, 1 Wis. 209. . . 554 Westberg v. Kansas City, 64 Mo. 493 453 Western College v. Cleveland, 12 Ohio, 375 517 Western Savings Fund Soci- ety v. Philadelphia, 31 Pa. 183 520, 689 Westervelt v. Gregg, 12 N. Y. 202 190 Wheelock v. McDowell, 20 Neb. 160 442 Whidden v. Cheever, 69 N. H. 142; 44 Atl. 902; 76 Am. St. R. 154 499, 502, 595 White v. Carroll, 42 N. Y. 161 668 Doesburg, 16 Mich. 133 535 Levant, 78 Me. 568.. 436 Mayor, 4 E. D. Smith, 563 453 White v. Polk Co., 17 Iowa, 413 446, 452 San Antonio, 60 S. W. 427 370 Whiteside v. People, 26 Wend. 634; reversing, 23 Wend. 9 396, 399 Whiteside v. United States, 93 U. S. 247 509 Whitfield v. Carrolton, 50 Mo. App. 98 521, 690 Whitfield v. Paris, 84 Tex. 431 516 Whiting, In re, 1 Ed. Sel. Ca&. (N. Y.) 498 368 Whiting v. Carique, 2 Hill. 93 415 Whitman v. Hubbell, 20 Abb. N. C. 385 538 Whitney v. Von Buskirk, 40 N. J. L. 463 385 Wilcox v. Jackson, 13 Peters, 498 125 People, 90 111. 186.. 486, 487 Rodman, 46 Mo. 322. 421 Smith, 5 Wend. 231. 372 Wilcoxon v. Andrews, 66 Mich. 553 452 Wilkes v. Dinesman, 7 How. 89 499 Wilkinson v. Albany, 28 N. H. 9 638 Willard v. Killingworth, 8 Conn. 247 339 Willemin v. Bateson, 63 Mich. 309 452 Williams v. School District, 12 Met. (Mass.) 497 395 Williams v. Weaver, 75 N. Y. 30 503 Williamsburg v. Lord, 51 Me. 599 395 Wilson, In re, 32 Minn. 145 539, 661 Wilson v. Alabama G. S. R. Co., 77 Miss. 714; 28 S. R. 567 396, 577, 578 836 INDEX OP CASES [REFERENCES ARE TO PAGES] Wilson v. Blackbird Greek Co., 2 Peters, 245 158, 317 Wilson v. Sanitary District of Chicago, 133 111. 443 171 Wing v. Glick, 56 Iowa, 473 . . 509 Winthrop v. Farrer, 11 Allen, 398 531 Withers v. Buckley, 20 How. 84 188 Withey v. Bloem, 163 Mich. 419 758 Withington v. Harvard, 8 Cush. 68 371 Withnell v. Gartham, 6 T. R. (D. & E.) 388 394 Wolsey, In re, 95 N. Y. 135. . 369 Wong Wing v. United States, 163 U. S. 228 ,. 195 Wong Wai v. Williamson, (C. C.) 103 Fed. 1 577, 583, 640 Wood v. Cutter, 138 Mass. 149 385, 387 Woodruff v. Parham, 8 Wall. 123 281 Woods v. Cottrell, 55 W. Va. 476 ] 202 Woolsey v. Tompkins, 23 Wend. 324 396 Wortham v. Grayson Co., 13 Bush. 53 436 Wreford v. People, 14 Mich. 41 175 Wright v. Adams, 45 Tex. 134 421, 471 Wright v. Nagle, 101 U. S. 791 686 Wright v. State, 88 Md. 436; 41 Atl. 795 728 Writ v. Boston, 9 Cush. 233 . . 700 Wurtz v. Hoagland, 114 U. S. 606 209 Yandell v. Madison County, 32 So. 918; 81 Miss. 288. . . 428 Yates v. Milwaukee, 10 Wall. 497 217, 224 Yick Wo v. Hopkins, 118 U. S. 356 217, 765 Young v. Blaekhawk County, 66 Iowa, 460 331, 362, 671 Young v. Ashland, 125 S. W. R. 737 489 Youngblood v. Sexton, 32 Mich. 406 651 Yonkley v. State, 27 Ind. 236 467, 477, 478, 482 Zeigler v. S. & N. Ala. R. R. Co., 58 Ala. 594 190 Zimmermann v. Cheboygan County, 95 N. W. 535. .431, 626 GENERAL INDEX [references are to pages] A Actions — Civil . 529 Criminal 529 Alienum non laedat 154 Animal hosts 29 Ankylostomiasis 3, 715 Antitoxin 13 Production of 22 Action of 22, 23 Dangers of • 27, 575, 639 Appointment, see Officer. Argentina, Constitution of 65 Authority versus policy 303 B Bacillus, defined 19 Bacteria — Defined and classified 19 Changes in virulence of 24 Entrance into body 27 Bacterial problems in commerce 10 Bacterins 23, 24 Barbers, License of 674 Boards of Health 100 Rules of 83, 139, 210 Belgium, Constitution and government of 61 ''Black Death" in England 2 Brazil, Constitution of 62, 65 837 838 GENERAL INDEX [REFERENCES ARE TO pages] C Cairo, Malaria in 35 Canada, Union of powers in 61 Cattle fever 93, 135, 215, 308, 326, 594 Carroll, James 566 Celery, Cause of typhoid fever 18 Centralized government 35 Certiorari 539 Does not determine title to office 376 Tests regularity of removal 490 City- Authority — May be general, specific, or implied 337 For legislation 72, 331 Executive, depends upon legislative 343 Corporation 329 Ordinance — Must not contravene common rights 339 Must not exceed limits of statutes 334 Must not exceed limits of city 335 Not unreasonable if authorized by state 343 Relationship to state government 328 State may do that which would be considered un- reasonable for city 342 Civil Service 415 Coccus, defined 19 Colombia, Constitution and government 63 Commerce, depending upon health conditions 2 Bacterial problems in 10 Commerce, Interstate — Authority versus policy 303 Includes things transported, and means of transpor- tation 268 Includes persons 275 Meaning of 278 National authority over 267 GENERAL INDEX 839 [REFERENCES ARE TO pages] Commerce, Interstate — Continued National authority over Control over manufacturers 13, 301 Control over transportation, extent of 305 Pure foods and drugs 269 Purity of interstate waters 307 Original package, what is 284 State stoppage of navigation 317 White slave traffic 276 Congressional usurpation of power 68 Constitutions compared — Argentina 65 Belgium 61 Brazil 62, 65 Colombia 63 England 44, 62 France 61 Germany 61 Italy 61 Latin America 63 Mexico 65 United States 44 Compared with common law and statutes 45 Consumption, considered in awarding care of children . . 648 D Dead animals 181, 340, 713 Discretion (See also under Officers.) Courts, feeble to resist acts under 161 May not be coerced 160 Disease carriers — Insect 28 Animal 29 Human 31 Diphtheria — Antagonized by lactic acid bacillus 26 Antitoxin for 13, 22, 23, 27, 575, 639 840 general index [references are to pages] Dourine — Inoculation for 25 Spread by flies 237 Due Process of Law 87, 184 to 219 By executive 206 By legislation 189 Fifth Amendment restricts nation ; Fourteenth, state 188 Health administration under 207 Hearing — Right to a 203 Executive 218 Jurisdiction under 217 Nuisance per se not protected 203 Origin of 184 Property created contrary to law not protected .... 202 Inherently harmful, not protected 202 Protects — Corporations 196 Persons 193 Property 197 Protects against state, not against fellow citizens. . . 191 Summary action may be legal 214 E Epidemiology, definition of 19 Eugenics — A positive science , . . . . 777 Antenuptial examinations 782 Caste universal 777 Definition of 767 Disease not hereditary 780 Galton's law of regression 791 Legislation should be based on biologic facts 793 Like characters in parents and children not neces- sarily hereditary 779 Mendel 's law 778 Reasonable restrictions 788 GENERAL INDEX 841 [REFERENCES ARE TO pages] Eugenics — Continued Sterilization 785 Decisions on 786 Versus low infant mortality 792 Exclusion acts 193 State 196 Executive — Appeal in Department 122 Appointments by Governor 109 Assumption of judicial power 78 Assumption of legislative power 76 Boards 100 Departmental adjudication 143 Determination by, limited to matters of fact 274 Disadvantages through enactment 168 Duty to advise legislation 125 Duty to give legislative information 78 Efficiency increased by definiteness of enactment . . . 166 Emergency 76 Excess of power 122 Experts, paid by salary 116, 433 Efficiency under military organization 127 Jurisdiction 142 National 96 One man in charge of each department 115 Oneness of 98 Orders of, law ? 78 Orders of, limitations 81 Organization of 106 Organization of state department of health 119 Organization, principles in 109 Paid by salary, not by fees. . 117 Responsibility, individual 107 Responsibility must be tangible 119 Semi-legislative duties 92 State . . 97 Subjection of trained specialist to untrained official. 104 842 GENERAL INDEX [REFERENCES ARE TO pages] Executive — C&ntinued Quasi-judicial combination 69 Quasi-legislative combination 69 Expediency, Doctrine of, dangerous 47 P Filaria, carried by culex mosquito 28 Flea, carries bacillus pestis 28 Flies- Buried, crawl to air 169 Spread disease 237 Foods and drugs — Adjudication under national act 145 Dealer must know quality 722 Guarantee 723, 725 Misbranding 721 Oleomargarine 266, 292, 728 Original package, Definition of 284 Poisonous 748 Purity of, Commercial and sanitary standards 718 Purity of, Commercial motive in legislation 727 Purity of milk 742 ' ' Serial numbers" 723 Standard fixed by legislation 720 France, Constitution and government of 61 Fumigation kills insects and rats 14, 30 Use in disinfection 169, 611 G Garbage — A municipal problem 336, 710 City collection of 715 Exclusive contracts for 176 Property rights in 181, 205, 710 German empire, Constitution and government 61 Germ origin of disease, proofs of 20, 21 GENERAL INDEX 843 [REFERENCES ARE TO pages] Government — A confederation not a nation 64 Anatomy, and physiology of 56 Centralized 35 Individual supremacy of branches 131 No liberty with powers united 59 Separation of powers Anglican 60 Three branches of, importance 56, 58 Union of powers in Europe 61 Usurpation of powers 68 Union of powers, Tool of Tyranny 58 Governmental supervision of manufacture of antitoxin, etc 13 Ground squirrels and plague 29 H Health administration, a cause for municipal organiza- tion 5 Health administration, a problem of probabilities 29 Hookworm disease 715 Hydrophobia 25 Illegal acts sometimes sanctioned 46 Purity of intention, no excuse for 50 Illegal statutes 93 Industrial Conditions — Bakeries 764 Buildings 761 Emery wheels 763 Hours of labor 173, 755 Increased importance of 754 Laundries • 764 Legislation should be based on proven facts 750 Night factory work by women 173 Regulation should be by legislation 766 844 GENERAL INDEX [REFERENCES ARE TO PAGES ] Industrial Conditions — Continued Special occupations 763 Sweatshops 763 Tobacco trade 765 Infantile paralysis 19 Infectious diseases — Disinfection for 610 Expense for 618 Hospital for 604 May be a nuisance 225 In household, must be considered in awarding care of children 468 Methods for restricting 30 Removal of cases 601 Reports of 33 Injunction 537 Insect hosts .. 28, 575 Institutions 43 Injurious 52 Italy- Constitution and government of 61 Treaty with 244 J Java, Government of 63 Judges as executives 70 . Judicial interpretation of law 46, 129 Judicial power — Executive assumption of 78 Over executives 136 Not appellate over 137 Over legislation 133 Judiciary, a governmental balance wheel 129 K Koch 's postulates 20 GENERAL INDEX 845 [REFERENCES ARE TO pages] L Lactic acid bacillus antagonistic to diseases 26 Lactic spray as a preventive of disease . , 31, 574 Latin America, Government in 63 Law — Common 40 Basis of liberty 42 Compared with constitutions and statutes ... 42, 45 Force of 53 Interpretation of by courts 39, 46, 129 et seq. Must be impartial 191 Should be observed 52 Supremacy of in America 39 Legal methods change with science 11 Legislation — "By the people" 74 Crazy-quilt XII, 94 Definite in effect 91 Mechanics of lawmaking XIII Necessity for, in public health work 89 Should be based on facts, not theories 170 Legislative — Action must be reasonable 215 Branch of government 70 Limitations 87 Municipal power limited 72 Judicial action prohibited 73 Power, cannot be delegated 76 Power, executive assumption of 76 Leprosy 584 Liability of — City- Determined by duties of officer 495 For municipal duties 495, 519 For public duties 515 For typhoid in water 646 846 general index [references are to pages] Liability of — Continued City— For water supplied 690 Not in performance of governmental duties. . . . 495 On contracts 525 Employees 514 Hospital to nurse contracting disease 645 Individuals for communicating disease 643 Milk dealer, for disease from milk 647 Officers — Distinction between discretionary and minis- terial action 498 As to contracts 508, 511 Health officers, not ordinarily liable . . 511, 595, 609 Liable for acts not covered by duty 505 Liable for exceeding authority 503 Liable when not complying with law 496 Not liable when within discretion 499 Not ordinarily liable on implied authority for contract 510 Not protected by unconstitutional statute 497 Superior may be liable for torts of subordinate . 507 Superior not generally liable for torts of subordinates 506 Kailroad Corporation for disease contracted from employees 645 Respondeat superior 528 State, not liable to citizens 494 Liberty — Based on Common law 42 Constitutional 38 Development of, Anglican 36 Individual, necessitates restraint 36 Influenced by social and economic conditions 37 None with governmental powers united 59 Personal, dependent upon observance of law 53 True, is communal 36 ' general index 847 [references are to pages] License under police power — Barbers 674 Based on idea of danger to the community 651 Distinguished from under taxing power 650 Does not abrogate power of control 237 How granted 660 Permits 652 Practice of medicine 662 "Medical reciprocity" 669 What is practice of medicine 673 Revocation of 676 Size of fee 655 M Malaria — A nuisance 12 At Cairo 35 Cooperative campaign against 3 Dependent on mosquitoes 32 Mathematical probabilities of 29 Not due to miasm 6 Petrolization for 35 Plasmodium of, development 21 Prevention of , 14 Relationship to commerce 2 Malfeasance 474 Mandamus 536, 539 Does not create a duty 540 May compel provision for expense of health depart- ment 628 May compel service of officer de facto 377 May not compel discretionary action . . 160, 364, 672, 707 May compel ministerial action 214, 359, 539 Manufacture, federal control over 301 Manure, a nuisance 221 Meat inspection 216, 326 Medical licenses, continued control over 198, 213 848 GENERAL INDEX [REFERENCES ARE TO PAGES ] Medical practice — Differs from health protection 15-18 What is ...673 Mendel 's law 778 Meningitis — Germ of, antagonized by lactic acid bacillus 26 Mexico, Constitution and government of 65 Milk- Bacteria in 26 Multiplication of 7, 8, 10 Composition of 177, 742 Confiscation and destruction of 178, 746 Fee for license 656 Inspection of 744 License and control of business. . . .7-11, 658, 731 et seq. Lactic fermentation 26 Pasteurization of 10, 658, 739 Reasonableness of regulations 15 Regulation of business, a proper use of police power 172 Relationship to disease 155 Tubercular 236 Tuberculin tests of cattle 178, 738 "Millions" fish, Antimalarial use of 6 Mosquito — Anopheline 3, 28, 32 Culex 1 28 Extermination of 32 Stegomyia 6, 28 Municipality (See also City)— Authority to create offices and make appointments . . 401 Legislative power limited 72, 331 N National authority — Enforcement of state acts 313 Over commerce 267 GENERAL INDEX 849 [REFERENCES ARE TO PAGES ] National authority— Continued Over — Manufacture 301 Public places 264 Purity of interstate waters 307 States , 267 Territories 262 Vital statistics 245, 543 Sanitary 243-314 Specified or implied powers 260 Nuisance 220-241 Abatement of 174, 178, 212, 232 A question of fact = . . . . 224 Authority for abatement not for construction 241 Common law or statutory 227 Destruction not always permissible 235 Dead animals 181, 340, 713 Disease a nuisance 12 Diseased cattle a nuisance 181 Executive determination of 230 Harmful 220 Hearing after abatement 234 Hospital , . . 225 In esse 221 In posse 221 Judicial determination of 231 Legislative determination of, best 240 Liability for destruction of 511, 518 Manure 221 Perse 221 Not protected by due process of law 203 Prohibited, abated, or regulated 174, 231 Sewer 522 Statutory determination of 231 Summary abatement of 233 850 GENERAL INDEX [REFERENCES ARE TO PAGES] Officers 348-493 Acceptance of office 416 Appointment 379 By board, majority action 394 By board or municipality 384 By board, sufficiency of notice 396 By board, vote need not show quorum. . . 396 By governor 109 By nonofficial body 381 By outgoing officer 400 By same branch of government 380 By self 400 By two or more bodies 398 Eligibility for 403 Tested by quo warranto 415 Implies written commission 385 Made during recess must be submitted for confirmation 392 Power for, not inherent 110 Of two or more for unspecified class or district 402 Power must be given by law 383 Power once used is exhausted 399 Requiring confirmation made during recess. . . . 389 Restrictions in 112 Time for 388 To fill vacancy 426 Vote must show approval 399 Bond, original, covers extra duties 456 Civil service 415 Classification according to service 358 Commission, best evidence of appointment 387 Compensation — Abolition of office stops 455 Cannot pay self 456 GENERAL INDEX 851 [REFERENCES ARE TO pages] Officers — Continued Compensation Change of salary during term 439 Depends on actual service 453 Determined by legislation 435 Dissatisfied officer may resign 455 Effect of increased duties 444 Extra-official duties 451 Fixed after appointment 442 For two offices 452 Importance of in Health Service 431 Inadequate salary expensive 433 Office not a contract 427 Payment of substitute for extra services 447 Salary not subject to garnishee 465 Salary unearned not assignable 462 Second term presupposes old rate 455 De facto 372 Cannot enforce payment for services 378 May be punished for negligence or misfeasance 378 No office de facto 374 Not ousted by mandamus 377 De Jure 372 May collect for services when barred from office 454 Determination of title to office 376 Discretionary action, implies use of judgment 360 Cannot be coerced 364 Not arbitrary 363 Not subject to purchase 360 Discretionary power cannot be delegated 360 Eligibility — Citizenship 403 Educational qualifications 407 Legislative restrictions 409 Natural qualifications 406 Tested by quo warranto 415 852 GENERAL INDEX [REFERENCES ARE TO pages] Officers — Continued Holding two offices 412 Honorary office 357 Incompatible office 479 Liability of, see Liability — Lucrative office 357 Ministerial or discretionary duties 359 Municipal authority to create offices and make appointments 401 Office and employment distinguished 348 Offices not dependent on statutes 354 Of health, appointed not elected 403 Public or private 367 Removal, power of 114 Sanitary, are state officers 370 State officers proper 371 State or municipal 369 Term — Beginning of 426 Definition of 418 Fixed by constitution 420 Holding over 425 No term, office held at pleasure 418 Termination of official relation — Abandonment of office 473 Abolition of office 468 Acceptance of incompatible office 479 Death 466 Expiration of term .' 470 Failure to qualify 473 Impeachment 491 Malfeasance ,. . 474 Nonuser as cause of forfeiture. 477 Refusal to perform the duties of office 478 Removal, conditions for, fixed in constitution.. 485 Removal, power for, incidental to power to appoint 483 GENERAL INDEX 853 [REFERENCES ARE TO pages] Officers — Continued Termination of official relation Removal, power to, does not include power to suspend 491 Removal, statutory requirements for 487 Removal, what is not 490 Resignation 480 Taking receipt from successor 417 When officer may not hold over 472 Time for which appointed 393 Title not tested collaterally 376 Taking office 417 Oleomargarine 266, 292, 728 Opsonic index 23 Original package, definition of 284 Panama Canal, Sanitation of 127 Phagocytes 23 Phagocytosis 23 Plague — In England 2 Reasonable regulations 33, 586 Restriction of 33 Plasmodia 21 Police power 149-183 Action under must be reasonable 176 Cannot be alienated 157 Contrasted with eminent domain 205 Dangerous power 158 Defined 151 Distinguished from criminal punishment 153 Distinguished from police 150 Expression of social, economic, and political condi- tions 154 Extreme use of 178 854 general index [references are to pages] Police power — Continued Extreme use of, must be necessary 182 Health authority derived from 88, 149 Includes continued control 198 Judicial determination under 163 Property seized under 178 Public health includes what 171 Regulation versus prohibition 169 Resides in the states 243 Statutes dependent upon 156 Statutory action under 161 Superior to commerce 158 Superior to individual rights 156 Summary executive action 158 Variety of methods under 166 Poliomyelitis, germ of 19 Power yielded because claimed is not sanctioned 81 Protozoa — Cause of disease 20 Changes in virulence of 24 Denned 19 Public Health- Activities based on idea of nuisance 89 Has over-ridden restriction 47 Limitations of action 171 Necessity for legislation 89 Powers too great 52 Powers and limitations, nation, state, and city. .243-245 Service, increases property value 18 Purity of intention no excuse for illegal act 50 Q Quarantine — A defensive procedure 574 Authority of diagnosis 583 GENERAL INDEX 855 [REFERENCES ARE TO pages] Quarantine — Continued Control of disease carriers 640 Diseases subject to 581 Disinfection 610 Methods of 169 Expense of 618 Inspection of 598 Right of entry 600 Legality of 162, 164 Meaning of 571 Mechanics of 572 Morbidity reports for 597 Not dependable upon statute 576 Origin of 570 Pest houses 604 Regulations 139 Relationship to commerce 593 Relative powers for, nation, state, city 586 Removal of cases 601 Quinine, as preventive of malaria 30 Quo warranto 532 Determines title to office 377 Not necessary to oust officer accepting second office . . 479 Tests eligibility to office 415 Will oust officer not confirmed 394 R Rats, carriers of plague .29, 640 Reasonableness of action 14 Recovery of books and property 536 Replevin 536 Reports of infectious disease, reasonableness of 33 Rocky Mountain spotted fever 575 856 GENERAL INDEX [references ARE TO pages] S Sanitation — Conflict between state and national authority 317 Cuba 3 Governmental versus private 5 Madeira-Mamore railroad, Brazil 4 Methods, legality of — Changed by economic conditions 7 Changed by scientific advancement 11 Municipal authority over 328-345 Municipal control over, limited by nature and law. . 9, 335 National authority over 243-314 Panama Canal Zone 3 State authority 314-328 Is exclusive 323 May override federal authority 324 Recognized by federal government 316 Suez Canal 3 United Fruit Co 4 School, Medical Inspection of 767 Authority of health department 769 Injurious effects of school life 767 Normally educational 773 Medical problems in education 771 School Nurse 775 Second-hand clothing 175 Sewage — A municipal problem 696 Jurisdiction over 706 Relation of to natural drainage 709 Sewer a nuisance 700 Liability for 522 Sheep scab 593, 642 Slaughterhouses 239 Sleeping-sickness 28 Small-pox — Germ of 19 GENERAL INDEX 857 [REFERENCES ARE TO PAGES ] Small-pox — Continued Liability on 644 Vaccination against 25 Sovereignty of individual in United States 35 Scarlet fever 19 Spirilla, denned 19 State authority — General sanitation 314 Meat inspection 326 Statutes — Authority of state must be evident in act 327 Not conclusive as to authority 325 Sterilization, see Eugenics — Ticks, carriers of Rocky Mountain fever, sheep growing for extermination of 575 Toxins — Production of 22 Transportation, Federal control over 305 Treaties, classified 248 Treaty-making power — Legislative authority under 249 Resides in nation 246 Treaty with Italy 244 Tropical anaemia (See Ankylostomiasis.) — Relationship to commerce 2 Tropical diseases 566 Trypansome — Of dourine 25 Of sleeping sickness 28 Tsetse fly 28 Tuberculin tests of cattle 178, 738 Tuberculosis — Relationship to milk 236 Types of bacteria 24 858 GENERAL INDEX [REFERENCES ARE TO pages] Typhoid Fever — Carriers of 31 From celery 18 From milk 8, 647, 659 From water 330, 646, 691 U "Uncertainties of the law" necessary for advancement. . 13 Union of powers — Antagonistic to individual rights 59 In European governments 61 V Vaccination 24, 632 A form of quarantine 574 Bacterial 23, 639 Production of virus 25 Vital Statistics — An index of healthfulness 542 As evidence 255 Authority for reports not authority for prevention . . 258 Authority under census 256 Morbidity reports 555, 597 National or state control over 245, 543 Necessity for completeness of returns 544 Not essentially health measures 258 Physician, confidential relationships of 555 Physician's record as testimony 550 Records as legal evidence 546 Reports of infectious diseases 597 State organization for 544 Tentative morbidity reports 560 GENERAL INDEX 859 [REFERENCES ARE TO pages] W Water — Duty of city to provide 654 Interstate 307 Liability of municipality for 690 Municipal plants 689 Private franchise 686 Relation of problems of waste and water supply .... 681 State and municipal supervision 683, 694 Trains and boats, supply on 695 White slave traffic 276 Writ of prohibition 537 Yellow Fever 6 Discovery of cause 566 Changed methods of quarantine 30 Co™*.* JSmSrSt the This b ooU is cue on ^^^aVoTo^-wing, as -*— -i.rsr see** °< * special t c2 b(>i*0mioo T^Mc? - V^^ M ~0 t^nPX