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Certain Legal Aspects of Domestic
Quarantine
1ÍEN1?Y BIXP.Y IIEMEXWAY, A.M., M.I).
irV'.VXSTON, ILL.
líeprintcfí from ihr. Journal of the American Mcrlical Auftociaiion
Aug. 27, 1910, Vol. L V, pp. 741-140
Copyright^ 1910
American Medical A.ssociation
Five Hundred and Thirty-pive Dearborn Avenue
CHICAGO
CERTAIN LEGAL ASPECTS OF DOMESTIC
QUAEANTIXE*
HEXRY BIXBY ^MENWAY, A.M., M.D.
EVANSTOX, ILL.
The word "quarantine" was originally used to desig¬
nate the forty days of Lent. Then it was applied in the
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 time her dower was to be assignecl. Next we
find the term employed with reference to the forty days
during which a vessel might be detained without inter¬
course with the shore, after arrival from an infected
port. After it was learned that forty days' isolation was
not invariably necessary, the original signification
was dropped, and the word came to refer only to the
isolation of tlie vessel. The same idea, and the same
methods, applied to protection at a land frontier; and
later to the isolation of persons, or plaees contaminated
with infectious disease. It is ii-.teresting here to noté
that syphilis was a subject of land quarantine in Eu¬
rope during the "earlier years.
The present domestic quarantine is no more anoma¬
lous as to original signification, than it is as to either law
or science. We know well that in the case of yellow
fever, for example, it is far less necessary to prevent
intercourse between the patient and healthy individuals,
than it is to exterminate the stegomyia mosquitoes. A
typhoid patient is not properly isolated if his discharges
are thrown into the publie sewage system before disin¬
fection. The complete disinfection of those discharges
must be an integral part of such quarantine, yet that
fact is not generally realized by the citizens of this
country. As to the legal side, we have made practically
• Read In the Section on Preventive Medicine and Public Health
of the American Medical Association, at the Sixty-first Annual
Session, held at St. Louis, June, 1910.
no advance in the last hundred years. Neither the
rights nor restrictions of either state or individual,
are much more clearly recognized to-day than they
were when this nation was born. Just as in industrial
pursuits, to preserve the same general line of action, we
must alter our methods to conform to recent scientific
advances, so in law we must alter our statutes and
institutions, to conform to the decisions and discoveries
of a progressive people. Fundamental law must he
flexible, and change in form according to conditions.
Is it not time that our archaic practice as to quarantine
should be critically examined and revised?
The first step from absolute monarchy is the estab¬
lishment of institutions. Institutions may he safe¬
guarded by constitutions. Though ours is a constitu¬
tional government, there are certain institutions which
have survived which are more dictatorial than constitu¬
tional, and quarantine is one of these. It overrides all
constitutional rights. Though we are supposed to have
guaranteed to us the right of liberty, any person may
be imprisoned by a health department, without a previr
ous trial, and without even having a formal complaint
lodged against him. Is a retail merchant a criminal
simply because a patient suffering with a mild form of
smallpox happens to come into his store to make a pur¬
chase? Yet such a dealer may have his store closed,
and he himself imprisoned, and he is practically with¬
out redress.
It is well recognized that the greatest liberty for
the individual, as well as the greatest safety for the
nation, is to be found in the observation of constitutional
provisions. Whenever two courses are open it is our
duty therefore to take the constitutional route. It is
sometimes necessary, however, to suspend constitutional
protection. Thus when the spirit of anarchy settles on
a community, and a mob rules a city, the slower opera¬
tions of ordinary law are unable to cope with the dan¬
ger, and martial law must be declared. So too, a man's
house is his castle, and the stranger may not enter
without permission ; neither must he take therefrom
aught which is not his own ; but when the house catches
fire, no portion is so private that those who are fighting
the fire are restrained thereby. It is contrary to Iwth
constitutional and statutory law to kill a human being:
hut "self-preservation is the first law of nature," and
it is not deemed criminal if the killing be in self-
3
defense, or, as in the case of a policeman in the line of
duty. Self-preservation on the part of the community
may demand the imprisonment, either at home or else¬
where, of an individual afflicted with, or exposed to,
an infectious disease. If the ordinary liabilities were
more clearly defined in the statutes, and the duties of
health officials were thus definitely prescribed, much
possible opposition would thus be removed, and even
in those occasional extraordinary emergencies when it
is necessary for the health officer to take martial com¬
mand, he would have more of the confidence of the
citizens, and more active support. The present system
is unconstitutional, un-American and despotic in many
states. Whether the powers are used for good or bad.
whether as a help to the community, or a means of op-
pression, depends entirely on the individual officer. It
is true that the power is seldom abused, but we must
remember the possibility. During the old Tweed régime
in New York City we are told that the health depart¬
ment was systematically used as a tool for collecting
blackmail.^
There is another form of abuse of sanitary authority
which is more or less common. It forms an argument
against boards of health, as compared with health com¬
missioners; and it is an evidence that health officials
should not be engaged in private practice. Here is an
illustration : A widow in Clark County, Illinois, sold
milk in a neighboring village. Her son came home from
Brazil, Indiana, sick with typhoid fever. The mother
nursed him, still continuing in the milk business. The
local board of health consisted of three physicians, un¬
paid. One of these was the attendant on the typhoid
patient. Knowing that the widow was dependent on her
business for support, he was reluctant about forbidding
her to sell the milk. The other members of the board
hesitated to act, lest their motives might be misunder¬
stood, and jealousy charged. After some thirty cases of
typhoid had occurred on her route, the sale of milk
was stopped, and no further cases occurred.
It is true that we have at present a check on the abuse
of the power now possessed by health officials, in the
form of court supervision, but that check may very easily
prove a source of annoyance, or oppression on the health
departments, and the ends for which they are created
be thereby defeated. For example : Suppose that the
1. Autobiography of Andrew D. White.
4
members of a household are quarantined for malaria.
Every sanitarian knows that in the presence of the
anopheles such a family is a source of danger to the
community, and the individuals should be restricted as
to liberty. It would not be difficult, however, in most
communities to find physicians who have the respect
and confidence of the citizens, and who would deny in
court the relationship of mosquitoes to the disease,
and who would assert that malaria is not infectious like
yellow fever, but that it is due to some indefinite miasm
which is present in certain localities. Under such con¬
ditions it would not be strange if a judge should decide
that the disease is not infectious, and he might even
render a judgment for damages against the health offi¬
cer. In the absence of statutory provisions to the con¬
trary, the opinion of one physician is as good in law as
that of another, and a health officer is only a physician
under such conditions.
The three great objects of government are: The
maintenance of national existence; the maintenance
of right or justice ; and the public welfare.^ Health de¬
partments have to do with each of these objects. Their
powers are of the nature technically called police powers.
While the Federal government may exercise certain of
, the functions of health administration in the United
States, authority of action rests in the individual states.
Certain powers may be delegated by the states to the
municipalities. These delegated powers are always sub¬
ordinate to state action. Thus, among the powers of
cities and villages granted in the statutes of Illinois we
find:^ "Sixty-seventh.—To appoint a board of health,
and prescribe its duties;" and "Sevent3'-eighth.—To do
all acts, make all regulations, which may be necessary
or expedient for the promotion of health, or the sup¬
pression of disease." Acting under these provisions the
City of Chicago passed an ordinance making vaccina¬
tion obligatory as a requisite for attending the public
schools. The Supreme Court, however, in Jenkins vs.
Board of Education,^ held that the legislature of the
state had not made such a requirement, and that it had
not delegated the power to do so to the city.
In order more perfectly to control the collection of
manure in the City of Chicago, an ordinance was passed
2. Freund, The Police Power, Sec. 4.
3. Chapter 24, Art. V, and Section 62.
4. 234 111., 422.
5
and a contract made, after advertising for bids. One
Landberg, who had made a business oï collecting and
selling such manure, was thereby thrown out of his
occupation. He objected, and the Supreme Court found
the ordinance unconstitutional, on the ground that it
created a monopoly, and interfered with legitimate busi¬
ness. The city may regulate such occupation, by license
or otherwise, but it may not, without specific power
granted by the legislature, create monopoly, or destroy
a private enterprise.®
McGehee® holds differently, saying: "The property
interests in the no.xious materials must be subordinated
to the general good." He refers to California Eeduc-
tion Co. vs. Sanitary Eed. Works, 199 U. S., 306, and
Gardner vs. Michigan, 199 U. S., 325.
In these cases the matter of monopolj^ was distinctly
considered as well as the interference with private busi¬
ness. Both of these cases were mentioned in the brief of
the attorneys in the Landberg case. Since these decisions
were from the highest court in the land, it seems strange
that in differing from the Federal court the Illinois
court did not specially mention these decisions in its
opinion. It is the contention of the Chicago Department
of Health tliat the present method does injure the com-,
munity, and that tlie method proposed in the ordinance
was necessary to safeguard the interests of the citizens.
The general rule governing such matters is thus
stated by Freund.'
Under the principle of local self-government local authorities
cannot be vested with powers necessarily exceeding their ter¬
ritorial 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 possibly but
not undoubtedly injurious to health, the establishment of
monopolies, the restriction of the right to pursue established
avocations, may under circumstances be conceded to the legis¬
lature of the state, but cannot be introduced by local author¬
ities under mere general grants of power.
Such a limitation of municipal power is reasonable.
If left to the individual municipalities, confusion, and
lack of protection is likely to arise, and local feeling
5. Landberg vs. City of Chicago, 237 111. 112.
6. Due Process of Law, p. 336:
7. Police Power, Sec. 142.
6
may lead sometimes to excess of reasonable action. Thus
adjoining municipalities may establish very different
regulations as to quarantine. It is necessary, there¬
fore, that there be a general supervision, and coordi¬
nation.
In spite of the delegation of powers to cities and vil¬
lages in Illinois, as cited above, we find that as amended
in 1907 the Eevised Statutes,® say of the State Board
of Health that it "shall have supreme authority in
matters of quarantine, and may declare and enforce
quarantine when none exists, and may modify or relax
quarantine when it has heen established." Such a pro¬
vision would be all right if it were made more definite,
but there is nothing in the statutes making it requisite
on any one to report infectious diseases to any one,
specifying what diseases are to he quarantined, or defin¬
ing in the least how, or to what degree such quarantine
is to be exercised. It puts into the hands of the execu¬
tive of the board almost unlimited power. Some time
ago in a dairy district supplying Chicago with milk,
families were quarantined for scarlet fever. A repre¬
sentative of the state board appeared and abolished the
quarantine. If the law is constitutional, he had the
undoubted legal right to do 50 autocratically. There
was no appeal.
It is possible that such a law as that just mentioned
might be declared by the court unconstitutional, for the
reason that it gives to a man, or hody of men, an arbi¬
trary power, without limitation, and violates the pro¬
visions of the fifth and 'fourteenth amendments to the
Federal Constitution. Health boards, and officers, have
only executive power. They must not act in a legisla¬
tive capacity. There is nothing in the statutes of the
State of Illinois which limits quarantine of human be¬
ings to infectious, or contagious diseases. Though ani¬
mals afflicted with contagious diseases are especially
mentioned in the statutes, and provision is made against
the spread of hog cholera, glanders, and cattle fever, so
far as the state statutes are concerned human beings are
permitted to communicate their diseases to others with
impunity. On the other hand, there is nothing in the
statutes which would prevent the state board of health,
through its executive officer, from quarantining a man
afflicted with any disease, nephritis for example, thougli
the common law practice might prevent such action.
8. Chapter 126a, Sec. 2.
7
Still court action is not rapid, and a corrupt politician
might thus gain the temporary seclusion of an oppo¬
nent.
As set forth by Prof. Goodnow" there are three ways
possible by which a nuisance may be determined ; by the
common law, by legislation, and perhaps by executive
action when so authorized by legislative enactment. In
common law, the courts are supreme, and boards of
health have no power to enlarge common law nuisances.
Smallpox is a common law nuisance, but malaria is not.
As to the right-of legislatures to enact such laws, there
is no question. The restrictions on boards of health, or
health ofBcers, are not so generally recognized by sani¬
tarians. In the most excellent decision of Pott vs.
Breen," the Supreme Court of Illinois said of the State
Board of Health:
It had and could have no legislative power. Its duties were
purely ministerial, and the provision of the statute authorizing
the board to make such rules and regulations as it should from
time to time deem necessary for the preservation or improve¬
ment of public health cannot be held to confer that broad dis¬
cretionary power contended for.
And:
We are of the opinion that the powers of the board are lim¬
ited to the proper enforcement of the statutes, or provisions
thereof, having reference to emergencies requiring action on
the part of the agencies of government to preserve the public
health and prevent the spread of contagious or infectious dis¬
eases. I
And again :
Its duty to recommend legislation is repeated more than
once in the act in connection with specifications of the powers
and duties of the board.
The Supreme Court of Wisconsin gave a similar opin¬
ion in State vs. Burge.^^
The Minnesota Supreme Court, in State vs. Young,^®
said:
It is a principle not questioned that, except where authorized
by the constitution as in respect to municipalities, the legis¬
lature cannot delegate legislative power—cannot confer on any
9. Columbia Law Review, li, 203.
10. 167 111., 67.
11. 70 N. W. Rep. 847.
12. 29 Minn. 551.
8
body or person the power to determine what shall he law. The
legislature only must determine this.
So we find in Dowling vs. Insurance Company" that
it was an unconstitutional act when the legislature at¬
tempted to leave to the insurance commissioner the
decision as to what form of a policy must be used. So
too in Schaezlein vs. Cabaniss^* it was illegal to leave to
an executive ofiicer the power to determine the particular
form of appliance which should be used in factories to
limit the dangers therein, and making it compulsory on
the owners to comply with his orders.
Freund summarizes
It cannot he left to an administrative ofiicer to determine
conclusively the existence of a danger, and the choice of meas¬
ures to he taken against it, since that would involve an uncon¬
stitutional delegation of legislative power.
The fifth amendment to the Federal Constitution
provides that no person shall "be deprived of life, lib¬
erty, or property, without due process of law; nor shall
private property be taken for public use, without just
compensation." The fourteenth amendment says in
Section 1 : "Xo state shall make or enforce any law
which shall abridge tlie privileges or immunities of citi¬
zens of the United States; nor shall any state deprive
any person of life, liberty, or propertv, without due
process of law."
"What is "due process of law ?" Pomero}' saj's
Due process of law implies primarily that regular course of
judicial proceeding to which our fathers were aecustomed at
the time the Constitution was framed; and, secondly, and in a
subordinate degree those more summary measures which are
not strictly judicial hut which had long been known in the
English law and which were in familiar use when the Consti¬
tution . was adopted. These summary measures generally,
though not universally, form a part of that mass of regula¬
tions which many writers term "Police," and which relate to
the preservation of public quiet, good order, health, and the
like. . . . The summary measures which may form a part of
due process of law are those which have been admitted from the
very necessities of the case to proteet society by abating
nuisances, preserving health, warding off imminent danger,
and the like, when the slower and more formal proceedings of
the courts would he ineffectual.
13. 92 Wis. 63.
14. 135 Cal. 466.
15. Police Power, Sec. 34.
16. Constitutional Law, Sec. 246.
9
In Murray's Lessee vs. The Hoboken Land Company,"
Mr. Justice Curtis says:
Though due process of law generally implies and includes
actor, reus, judex, regular allegations, opportunity to answer,
and a trial according to some settled judicial proceedings, yet
this is not universally true. There may be, and we have seen
that there are, cases under the law of England after Magna
Charta, and as brought to this country and acted on here, in
which process in its natui-e final, issues against the bodj', lands
and goods of certain public officers without any such trial.
Due process is not necessarily judicial process.^® The
term, therefore, is now frequently applied to legislation,
the underlying principles being that all persons inter¬
ested may have an opportunity of being heard, and that
the legislation does not represent arbitrary acts of gov¬
ernment.^®
An arbitrary statute is not due process.
The just cause of legislation is the legitimate function of
government. A statute not supported by such cause is not due
process.^
Practically the present system of judicial control over legis¬
lation has meant in many cases that unless all three depart¬
ments of government are convinced of the justice and reason¬
ableness of a radical change in social or economic policj'- it
'lont become embodied in principles of law.^'
A recognition of tbese principles, in tbe place of
restricting the liberty of action for health officials, really
increases their power. A man walking on uncertain
ground must go carefully. When assured of its safty,
he may step boldly and with speed. If the infectious
nature of a disease is not legally established, no matter
how sure the official may be, he is liable to be blocked by
habeas corpus proceedings. He must then establish
before the court the correctness of his diagnosis,, the
infectious nature of the malady, and that the measures
taken are both reasonable and necessary. If be fails
to satisfy the court on every point, the case is lost.
General rules and regulations have not the same stand¬
ing as statutes.®®
17. 18 Howard 272.
18. Reetz vs. Michigan, 188 XJ. S., 507.
19. Johnson, J., in Bank of Coiumbla vs. Okiey, 4 Wheaton, 235 ;
also People vs. Smith, 21 New York 595, and People vs. Adiron¬
dack K. Co. 160 New York 225, affirmed in 176 U. S. 335.
20. Freund : Police Power, Sec. 20.
21. Freund : Police Power, Sec. 21.
22. Health Dept. vs. Knoll, 70 N. Y., 530, and also Reed vs.
People, 1 Park Or. 481.
10
Such rules and regulations should only be issued in
conformity with the clear and evident intent of the
statutes. In Kirk vs. Wyman, et before the
Supreme Court of South Carolina, we find this state¬
ment:
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 public safety.
In this case the court held that the health department
exceeded its authority in removing a case of anesthetic
leprosy to a pest-house. Sanitarians would agree that
typhoid and malarial fevers are infectious, dangerous
to the community, and legitimate objects for some form
of quarantine. These facts have been recognized for
some time. However, for a board of health, or a com¬
missioner of health so to declare, or rule, would in fact
be an act of legislation exceeding his authority. It
would be giving neither due notice, nor opportunity to
be heard. The quarantine of such a case could hardly
be justified on the ground of an emergency, for the
general conditions have long been known, without any
attempt on the part of the executive to secure proper
legislation. The case of epidemic poliomyelitis might
be different. The disease has generally been considered
non-infectious, and therefore not a proper object for
quarantine. The fact has only recently been demon¬
strated that it is infectious. The statutes should be
sufficiently elastic in construction to permit health offi¬
cials under such conditions to control and quarantine
such a disease until such time as the legislature could
reasonably be expected to act. If the health executive
has placed the facts properly before the legislative body
the responsibility rests on the law-makers, and the execu¬
tive no longer has the right, in the absence of new facts,
to declare such a disease quarantinable. So too, some
well-known disease, which there seemed no reasonable
probability would ever enter the particular community,
might not have been mentioned in the statutes, and its
appearance would constitute an emergency. In the case
23. S. E. R., 387.
11
of Jenkins vs. Board of Education^ it seems that the
Commissioner of Health had issued orders declaring
smallpox epidemic. The court held that he had exceeded
his authority.
There is nothing in the nature of an emergency in the occa¬
sional recurrence of the well-known disease of smallpox in a
city like Chicago, which may not be provided for by general
rules and regulations prescribed by the legislative authority of
the city.
It must be recognized that in all these litigations
the health department runs the risk of defeat, and so
of loss of prestige; and that even when the final deci¬
sion is on the side of the health service, adverse deci¬
sions in the lower courts involve loss of time as well as
expense.
The statutes of the states are generally silent on the
authority of diagnosis, and in the cases which have come
to court there is some difference of opinion. An infec¬
tious disease is a nuisance. In Kenedy vs. The Board
of Health,^® it was said :
The determination that a thing is a nuisance is final under
the Pennsylvania statutes, and in a suit to collect expenses or
abate the nuisance the defendants could not offer evidence to
show that there was no nuisance.
In Brown vs. Purdy,^® as to a question of the diag¬
nosis by the health officer, it was held:
If there was any case for his judgment, or any fact or
appearance or symptom as to which a question of smallpox or
not could arise, his determination was final as to the legality
or propriety of removal.
On the other hand, in Miller vs. Horton,®' a board
of health was held liable for the killing of a horse, at the
order of the commissioner of contagious diseases of
animals, who had decided that the horse had glanders.
His diagnosis was disputed in court by unofficial testi¬
mony, and the court took on itself the responsibility of
deciding that the horse did not have glanders. If the
responsibility of diagnosis is not placed on the health
officer, it must be remembered that the legal diagnosis
must be made by the court, which is not'supposed to
have a medical education.
24. 234 III., 427.
2.1. 2 Pa. St. 366.
26. 8 N. Y. St. Kep. 143.
27. 1.52 Mass. 540.
12
It will be noticed that in Brown vs. Purdy there is
another question, namely, the authority of the health
officer to remove a patient afflicted with an infectious
disease. In Maine a police officer and the city physi¬
cian, acting under the direction of the mayor of Ban¬
gor, after seeking a more peaceable entrance, broke into
a house, and took a child sick with smallpox out of its
mother's arms, to a hospital. Action for trespass was
dismissed, because the statute permitted health officers
of a town in which a person was affected with a disease
dangerous to the public health to remove such a person
to a separate house; but the court called attention then
to the fact that such power must be clearly given in the
statutes.^®
In an early case in Maryland,^® the court held that the
health officer must send a patient to the hospital if in
his opinion such a course were necessary, and it further
held that the health officer alone could decide how much,
it was necessary to do, and the captain of the boat on
which the smallpox had been found must pay the bill.
It is doubtful if a court to-day would go so far. In
State vs. City of New Orleans,®® the legislative power of
the state to decide where smallpox patients were to be
treated, was upheld. As opposed to the authority of
the health officer to remove a patient against his will,
in Boom vs. City of Utica,®^ 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
boardinghouse" is not a nuisance.
In Kirk vs. Wyman,®® the court further uses this
expression :
Inasmuch as it is the province of the legislative branch to
determine what laws and regulations are necessary to the
public health, statutes and' regulations made and measures
taken under such statutes and intended and adopted to that
end are not subject to judicial review; but the courts must
.determine whether there is any real relation between the pres¬
ervation of the public health and the legislative enactment, or
the regulations and proceedings of boards of health under
authority of the statute.
28. Haverty vs. Bass, 66 Me. 71.
29. Harrison vs. Mayor of Baltimore, 1 Giii 264.
30. 27 La. 521.
31. 2 Barb. 104.
32. 65 S. E. R. 387.
13
There is an old adage: "In time of peace prepare
for war." If we wait for an epidemic before the dne
process of law, we may find our hands occupied with the
preliminary preparations, when we should he engaged
on the firing line. That has been the experience in the
beginning of most great epidemics. Due process includes
the argument of the defense. Education is a portion
of that due process. The education is not complete
until a decision is reached. The decision may be in the
legislature. If it is not there, it is likely that it will
be in a court. For the benefit of each side the decision
should he reached when time is not an important ele¬
ment. If the conclusions are definitely stated in legis¬
lative enactment, the fight in the epidemic will not be
along the whole line, hut in a limited section. On the
other hand, in the absence of such definite statutory
enactments, long usage may give a health officer a con¬
fidence which is unwarranted, and he may suddenly wake
up, as the result of a court decision, to a realization of
the fact that his method is illegal. Lieber'® calls atten¬
tion to the fact that institutions, though not viciously
conceived, may become injurious. They may become
hollow and like the empty boxes in an ill-managed
house, become catch-alls for rubbish, and thus nuisances.
McGehee'^ advises that, when in doubt as to authority,
health officials have the matter determined in advance
by the courts, for self-protection." 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 found. In Potts vs. Breen,'® the court
admitted the advisability of vaccination, and pointed
out the legal method of its attainment. In Boyd vs.
United States,®^ Mr. Justice Bradley says :
IJlegitimate and unconstitutional practices get their first-
footing in that way, namely, by silent approaches and slight
deviations from legal modes of procedure.
A person who knowingly and willfully exposes an¬
other to infection is in fact a criminal and he is also
liable for civil damages. Intentional wrongdoing is
not necessary; all that is necessary to be sho^Vn is that
33. Civil Liberty, Chap. 26.
34. Due Process of Law, p. 374.
35. People t"s. Board of Health, 140 N. Y., 1.
36. 167 111. 67.
■ 37. 116 U. S. 616-633.
14
due precautions have not been used.'® To-da}', man}'
cases of infectious disease are kept hidden, through fear
of placards, or of quarantine, or of loss of trade. In
many mild cases no physician is employed for these
reasons, and because the persons involved do not recog¬
nize their responsibility to the community. In this way
not only is the danger to the community increased, but
very often valuable time is lost, as in diphtheria, and
the life of the patient is sacrificed by the delay. A
statutory enactment is educational as well. The
parent is no longer able to quote the conflicting theories
of physicians, of whose relative authority and compe¬
tence he is incompetent to judge.
Without considering the legal responsibility of the
community to care for those quarantined; or the duty
of the health service to pay for articles seized, or de¬
stroyed; or the liability of a community to those who
innocently contract an infectious disease through the
inefficiency of a health department; or the desirability
of an enactment making school inspections obligatory ;
it is suggested that much of our present confusion, and
possible inefficiency, will be relieved by securing certain
statutory enactments.
First: The statutes should definitely specify certain
diseases as infectious, and require that they be reported
to proper officials.
Second: The hiding, concealing, or neglecting to
report such diseases, or a suspicion of their presence,
should be made a misdemeanor, punishable by fine or
imprisonment.
Third : The knowingly or wilfully exposing a person
to infection, through neglect of the principles of quar¬
antine, should be specifically made a misdemeanor, and
punishable by fine or imprisonment.
38. Heiland vs. Bridenstlne, 104 Pac. R. 626, a physician was as¬
sessed damages for 'communicating gonorrhea by the use of unclean
Instruments.—Supreme Court of Washington sustained. A railroad
ticket agent worked while suffering with smallpox. Passengers
contracted the disease from him, and were awarded damages against
the company (Court of Civil Appeals of Texas, approved M. K.
&. T. Ry. Co.- vs. Raney, 99 S. W. Rep. 589J.—Damages awarded
against a city for typhoid fever from an infected public water
supply (Mllnes vs. Huddersfield, L. R. 10 Q. B. Div. 124).—Accord¬
ing to The Engineering News, April 28, 1910, p. 906, the Civil
Court, London Assizes, recently awarded damages to the amount of
$2,430 against a milk dealer for typhoid fever contracted by a
user of the infected milk. The principles are the same as those
holding railway companies specially liable for injury to stock when
the company neglects fences. Also see City of Pekin vs. McMahon,
154 HI. 141, and the sheep case of Herrick vs. Gary, 65 111. 101.
15
Fourth : The statutes should make it obligatory on
health officials to maintain quarantine, and the mini¬
mum requirements of such quarantine should he stated.
It must he recognized that the problems of a thinly set¬
tled community are very different from those of the
densely populated cities, and power should be given to
local authorities to make more stringent regulations in
the form of ordinances. In such statutes it must be
remembered that the essentials of efficient quarantine
differ according to the character of the diseases.
I Fifth : The legal status of disease carriers, especially
typhoid and diphtheria, should be definitely stàted.
They should be obliged to report regularly to the local
health officer (though not for treatment), and should
by law be restricted from engaging in certain occupa¬
tions, such as around dairies, or restaurants, or other
places where they would be likely to spread the disease.
No such person should be given a clear bill of health,
until after examination by the legal guardian of the
public health he shall be found free from evidence of
disease.
Sixth: The diagnosis of the health official should be
considered final, subject only to an appeal to his super¬
ior. In a recent case in California, in one of the lower
courts, physicians were permitted to testify to fact, not
expert opinion, in the diagnosis of disease. It was rec¬
ognized that they used their expert training to make
the diagnosis, but having made it, the court accepted it
as fact, not opinion. There is no reason why a man
should not testify that a disease is typhoid, more than
that he should not testify that a certain animal is a
horse. In the absence of such a declaration on the part
of the legislature, the diagnosis of a competent health
officer may be off-set in the courts by the testimony
of an irresp'onsible private physician. Mistakes of diag¬
nosis may occur, and private individuals be injured
thereby, but the danger to the community will justify
such a provision. Salus populi est suprema lex.
Seventh : In the case of an infectious disease it should
he obligatory on the local health officer to give to the
persons responsible for the care of the patient printed
instructions, or orders, regarding the case, including the
care of discharges fi-om the patient, and violations of
such orders should be punishable. Such instructions
16
should not be left to the attending phj'sician, unless he
be official.
Eighth ; Eelease from quarantine should he only on
the signed permit of the official. School hoards should
not be permitted to accept such certificates from the
attending ph3'sicians, unless they be official.
Xinth : Health officers' should he obliged by the
statute to keep as complete a record as possible of the
circumstances of the infection, and trace, if possible,
the source of infection, and the means of the communica¬
tion. For legal, as well as scientific reasons, such a.
record should show the result of bactériologie or blood
e.xaminations, and whether such tests were made offici¬
ally, or by private practitioners.
Tenth : The statutes should give to the health officials
authority to remove a person sick with an infectious
disease to a hospital, or other suitable place for treat¬
ment and isolation. Such removal should be made dis¬
cretionary, not obligatory.
Lastlv, provision should be made for emergencies, and
health ofiicers should have certain liberty of action in
the presence of danger, which is not provided against in
the statutes.
701 Davis Street.
614.46 H48
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