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776. DUNBAR v. AUGUSTA

SUPREME COURT OF GEORGIA. 1892

90 Ga. 390, 17 S. E. 907

BEFORE Judge RONEY. Richmond Superior Court. October term, 1891.

William K. Miller, for plaintiffs.

John S. Davidson, for defendant.

BLECKLEY, Chief Justice. . . . The material substance of the petition may be fairly stated thus: The plaintiffs having in the city of Augusta a warehouse and a large quantity of grain stored therein, much of the grain was wet and damaged by a three days' flood in the Savannah river, which commenced on September 10th. Whilst the plaintiffs were engaged successfully in separating the dry grain from the wet in order to dry the wet and save it from total loss as best they could, they received several notices, the last of which, dated the 19th of September, was from the sanitary inspector, and informed them that their damaged grain and other articles must be removed, and requesting them to have it removed to the trash pile where it would be burnt at once. This notice purported to be given by order of the Board of Health. The plaintiffs refused to comply, on the ground that their property, although damaged by the flood, was still of considerable value and there was no reason why they should be required to throw it away, some being dry and some wet. . . . They were brought before the Recorder's Court of Augusta on September 21st, and were there tried for the alleged violation of a certain ordinance declaring that the storage of damaged or unsound corn, or other grain, in large quantities, is forbidden under the penalty of not exceeding one thousand dollars, or imprisonment not exceeding six months, either or both in the discretion of the recorder. The president of the Board of Health was in attendance at the recorder's Court, and insisted that for the public health and welfare it was best that the order of the Board should be carried out. The recorder decided that the plaintiffs must do this, and passed an order that they remove all damaged grain to the city trash pile or outside of the city limits within three days, or incur the penalty of fifty dollars for every additional twelve hours the grain was allowed to remain unmoved. Thereupon the plaintiffs, as assistance to them in complying with the decision of the recorder, requested that the city carts be sent immediately to their warehouse to remove the grain, which was done. The carts carried the grain to the city trash pile where it was burnt and destroyed by the city officials. Against all this the plaintiffs protested, and to none of it did they assent. The property thus taken and destroyed was over eight thousand dollars in value, and the costs to the plaintiffs of drayage, etc., to assist in the

removal of the grain, was at least one thousand dollars, the total damage being $9,843.33, none of which has been paid.

The petition recites the provision of the Constitution declaring that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid. It alleges that the plaintiff's property was taken and destroyed for public purposes; that it was not lawfully adjudicated to be a nuisance, or that it had damaged any of the citizens. . . . Nowhere in the petition is it alleged that the grain condemned and destroyed was not a nuisance or was not dangerous to the public health. . . . It is evident that the Board of Health did in fact consider and decide that the grain was dangerous to the public health. . . . What was done by the Board of Health left the question of nuisance open to be contested by the plaintiffs if they chose to bring such an action as would put that question in issue. But the present action, as we have seen, neither tenders nor invites any issue on that subject.

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But it is said that even if the grain was a nuisance dangerous to the public health, and was legally condemned as such and properly destroyed under the authority of the municipal government, the plaintiffs are entitled to compensation under the provision of the Constitution which the petition cites. There can be no doubt that this position is not well taken. To destroy property because it is a dangerous nuisance is not to appropriate it to a public use, but to prevent any use of it by the owner and put an end to its existence because it could not be used consistently with the maxim "sic utere tuo ut alienum non laedas." In abating nuisances the public does not exercise the power of eminent domain, but the police power. Judgment affirmed.

777. MILLER v. HORTON

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1891

152 Mass. 540, 26 N. E. 100

[Printed post, as No. 1131.]

778. KIRK v. BOARD OF HEALTH

SUPREME COURT OF SOUTH CAROLINA. 1909

83 S. C. 372, 65 S. E. 387

BEFORE ALDRICH, J., Aiken, February, 1909. Affirmed. Action by Mary v. Kirk against H. H. Wyman, M.D., et al., as Board of Health of the City of Aiken. From Circuit order, temporarily restraining the board from removing the plaintiff to the pest house, the defendants appeal.

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

Messrs. Hendersons, for appellant. Ministerial acts of board of health should not be restrained. . . . Messrs. Croft & Croft, Sawyer & Owene and J. K. P. Bryan, contra. One's liberty can not be taken without due process of law. .

August 19, 1909. The opinion of the Court was delivered by
Mr. JUSTICE WOODS [after stating the case as above].

The principles of constitutional law governing health regulations by statute and municipal ordinance may be thus stated:

First, Statutes and ordinances requiring the removal or destruction of property or the isolation of infected persons, when necessary for the protection of the public health, do not violate the constitutional guar

antee of the right of the enjoyment of liberty and property, because neither the right to liberty nor the right of property extends to the use of liberty or property to the injury of others. The maxim "sic utere tuo ut alienum non laedas" applies to the person as well as to the property of the citizen. The individual has no more right to the freedom of spreading disease by carrying contagion on his person than he has to produce disease by maintaining his property in a noisome condition.

Second, The State must of necessity lodge the power somewhere to ascertain in the first instance, and act with promptness when the public health is endangered by the unhealthful condition of the person or the property of the individual; and the creation by legislative authority of boards of health, with the discretion lodged in them of summary inquiry and action, is a reasonable exercise of the police power. From this it follows that the rules and resolutions within the scope of the authority of such boards have the force of legislative enactment.

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

Fourth, To the end that personal liberty and property may be protected against invasion not essential to the public health, not required by public necessity, the regulations and proceedings of boards of health are subject to judicial review, by an action for damages or for injunction or other appropriate proceedings, according to the circumstances. In passing upon such regulations and proceedings, the Courts consider, first, whether interference with personal liberty or property was reasonably necessary to the public health, and, second, if the means used and the extent of the interference were reasonably necessary for the accomplishment of the purpose to be attained. . . .

In applying these principles, it is to be borne in mind that the case under consideration is unusual, imposing upon the Aiken Board of Health a delicate and unpleasant duty. Miss Kirk is not only a lady of refinement, highly esteemed in the community, but she is quite advanced in years. . . . That she is afflicted with anaesthetic leprosy contracted while engaged in missionary work in Brazil is ad

mitted. While there is a strong showing that the anaesthetic form of the disease is only slightly contagious, yet, when the distressing nature of the malady is regarded, it seems manifest that the Board were well within their duty in requiring the victim of it to be isolated. The case then turns on whether, under principles above stated, plaintiff has made a prima facie showing that the manner of the isolation was so clearly beyond what was necessary to the public protection, that the Court ought to enjoin it as arbitrary. .. Nothing but necessity would justify the Board of Health in requiring it, and we think there is a strong prima facie showing that there was no good reason to conclude that such necessity existed.

2. We agree with the Circuit Judge also on the point that an action for damages against the members of the Board of Health as individuals would not afford the plaintiff an adequate remedy. In some jurisdictions it has been held that the members of a board of health incur personal liability for a mistake in destroying property on the ground that it is dangerous, when in fact it is not. . . . In this State it must be held on the authority of White v. City of Charleston, 2 Hill 576, that the members of a board of health are not personally liable for errors in their official conduct, when they exercise their honest judgment. Personal liability depends on proof of bad faith. True, bad faith may be shown by evidence that the official action was so arbitrary and unreasonable that it could not have been taken in good faith, but there is no such showing in this case.

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Careful consideration of the record leads us to the conclusion that this is an exceptional case, and that the order for the temporary injunction, carefully guarded as it was in its terms, was not improvidently made. The judgment of this Court is, that the judgment of the Circuit Court should be affirmed.

Mr. Justice HYDRICK, dissenting. I feel constrained to dissent from the decision of the Court in this case. In the main, I concur in the statement of the principles of the law applicable in the consideration by the Courts of municipal ordinances and regulations of boards of health, as laid down by Mr. Justice WOODS. . . . The principal ground of my dissent, however, is upon the point upon which the decision is mainly rested, to wit: whether "plaintiff has made a prima facie showing that the manner of the isolation was so clearly beyond what was necessary to the public protection, that the Court ought to enjoin it as arbitrary." . . . It does not follow that the Board should be enjoined, on a mere possibility, in the exercise of their honest judgment as to what was necessary for the protection of public health. . . . The maxim "Salus populi est suprema lex" is the foundation of all police law, and to it, even rights of property and of liberty, which are protected by the Constitution must give way. When danger threatens the commonwealth, there arises that overruling "necessity" which "knows no law." It is the principle in which authority is found for compulsory vaccina

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