134 N.E. 815 (Ill. 1922), 14123, People ex rel. Barmore v. Robertson

CourtSupreme Court of Illinois
Writing for the CourtTHOMPSON, J.
Citation134 N.E. 815,302 Ill. 422
PartiesPEOPLE ex rel. BARMORE v. ROBERTSON et al.
Docket Number14123.
Date22 February 1922

Page 815

134 N.E. 815 (Ill. 1922)

302 Ill. 422

PEOPLE ex rel. BARMORE

v.

ROBERTSON et al.

No. 14123.

Supreme Court of Illinois

February 22, 1922

Rehearing Denied April 13, 1922.

Original proceedings for a writ of habeas corpus by the People, on relation of Jennie Barmore, against Dr. John Dill Robertson and others, to procure release from custody in quarantine.

Relatrix remanded to custody.

Duncan, J., dissenting.

[302 Ill. 424] Darrow, Sissman, Popham & Carlin, of Chicago, for relatrix.

Samuel A. Ettelson, Corp. Counsel, of Chicago (Berthold A. Cronson, Carl F. Lund, and John A. Bugee, all of Chicago, of counsel), for respondents.

THOMPSON, J.

Jennie Barmore filed in this court at the June term, 1921, an application for a writ of habeas corpus, stating that she was unlawfully restrained of her liberty at her home in the city of Chicago by John Dill Robertson, commissioner of health, and Herman N. Bundesen, an epidemiologist of the department of health of the city of Chicago. The writ was awarded, and respondents made due return, by which they admit that they are restraining relatrix from going about the city of Chicago and from following her usual occupation of boardinghouse keeper, for the reason that she is a carrier of typhoid bacilli; that they are restraining her by virtue of the authority given them by the statutes of the state and the ordinances of the city and the rules and regulations of the state department of health, and that her detention was necessary for the preservation of the health of the citizens of the city and the state.

The facts are stipulated by the parties to be substantially as follows: Relatrix is a citizen of Chicago, and is the owner of the house in which she resides. She kept roomers and boarders. Information came to the department of health, by letters and otherwise, that several persons who [302 Ill. 425] had previously roomed and boarded at the house of relatrix had been ill with typhoid fever. Pursuant to this information the department placed relatrix and her house under quarantine, and caused a large placard to be placed in a conspicuous place upon the house. This placard warned all persons that a typhoid carrier resided in the house, and contained the ordinary warnings and instructions found on such placards. Relatrix submitted to the department of health bowel discharges, and an examination of them revealed the presence of large numbers of typhoid bacilli. Several bacteriologists and other medical experts testified that a typhoid carrier is one who has suffered from typhoid fever, and, although having apparently recovered, still carries the typhoid bacilli, or one who has never suffered from the disease of typhoid fever, but who continually or intermittently discharges the typhoid bacilli; that the means of freeing such a person of this disability is not known to medical science, and that a typhoid carrier may discharge typhoid bacilli for a number of years, and then for a period of years the body discharges may be free from bacilli, after which the disability may recur. The uncontradicted evidence of the experts is that typhoid bacilli are present in the bowel and bladder discharges of relatrix, and that typhoid fever may be communicated to healthy persons if these bacilli enter their bodies. Relatrix testified that she had never been sick with typhoid fever, and that no member of her family and no boarder or roomer in her household had ever been sick with typhoid fever while they lived with her, and that so far as she knew no one had contracted the disease by contact with her. There was no evidence introduced by respondents to contradict her testimony. The quarantine regulations prescribed by the respondents require relatrix to remain in her home and forbid her to prepare food for anyone but her husband, and forbid any one to come into her home, as roomers or otherwise,

Page 817

unless they have been immunized from typhoid fever.

[302 Ill. 426] Hemenway on Public Health (section 30) says of human disease carriers:

'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 everpresent 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.'

This quotation shows at once the insidious danger of the disease with which we are dealing in this cause, and the difficult and perplexing problems its regulation presents.

The health of the people is unquestionably an economic asset and social blessing, and the science of public health is therefore of great importance. Public health measures have long been recognized and used, but the science of public health is of recent origin, and with the advance of the science methods have been greatly altered. The results to be obtained by scientific health regulations are well illustrated by the remarkable changes made in health conditions in Cuba and Panama. With the increase of population the problem of conserving the health of the people has grown, and public health officers and boards have been appointed [302 Ill. 427] for the purpose of devising and enforcing sanitary measures.

That the preservation of the public health is one of the duties devolving upon the state as a sovereign power will not be questioned. Among all the objects sought to be secured by governmental laws none is more important than the preservation of public health. The duty to preserve the public health finds ample support in the police power, which is inherent in the state, and which the state cannot surrender. Every state has acknowledged power to pass and enforce quarantine, health, and inspection laws to prevent the introduction of disease, pestilence, and unwholesome food, and such laws must be submitted to by individuals for the good of the public. The constitutional guaranties that no person shall be deprived of life, liberty, or property without due process of law, and that no state shall deny to any person within its jurisdiction the equal protection of the laws, were not intended to limit the subjects upon which the police power of a state may lawfully be asserted in this any more than in any other connection. 12 R. C. L. 1271; Booth v. People, 186 Ill. 43, 57 N.E. 798, 50 L. R. A. 762, 78 Am. St. Rep. 229; State v. Robb, 100 Me. 180, 60 A. 874, 4 Ann. Cas. 275; Kirk v. Wyman, 83 S.C. 372, 65 S.E. 387, 23 L. R. A. (N. S.) 1188; Ayres v. State, 178 Ind. 453, 99 N.E. 730, Ann. Cas. 1915C, 549.

Generally speaking, what laws or regulations are necessary to protect public health and secure public comfort is a legislative question, and appropriate measures intended and calculated to accomplish these ends are not subject to judicial review. The exercise of the police power is a matter resting in the discretion of the Legislature or the board or tribunal to which the power is delegated, and the courts will not interfere with the exercise of this power except where the regulations adopted for the protection of the public health are arbitrary, oppressive and unreasonable. The court has nothing to do with the wisdom or expediency of the measures adopted. People v. Weiner, 271 Ill. 74, 110 N.E. 870, L. R. A. 1916C, 775, Ann. Cas. 1917C, 1065; State v. Morse, 84 Vt. 387, 80 A. 189, 34 L. R. A. (N. S.) 190, Ann. Cas. 1913B, 218; State v. Superior Court, 103 Wash. 409, 174 P. 973.

[302 Ill. 428] The Legislature may, in the exercise of the police power of the state, create ministerial boards, with power to prescribe rules and impose penalties for their violation and provide for the collection of such penalties, and the exercise of this power by the Legislature is not a delegation of legislative power. The Legislature has the authority to exercise its police powers by general law, and to confer upon boards and other agencies authority and discretion to execute these laws. People v. Tait, 261 Ill. 197, 103 N.E. 750; Klafter v. Examiners of Architects, 259 Ill. 15, 102 N.E. 193, 46 L. R. A. (N. S.) 532, Ann. Cas. 1914B, 1221; City of Chicago v. Kluever, 257 Ill. 317, 100 N.E. 917. In order to secure and promote the public health the state has created a department of public health as an instrumentality or agency for that purpose, and has invested it with the power to adopt by-laws, rules, and regulations necessary to secure the objects of its organization. Similar departments, usually administered by a board of health, have been established in every state in the Union. While it is true that the character or nature of such departments or boards is administrative only, still the powers conferred upon them by the Legislature, in view of the great public interest confided to them, have always received from the courts a liberal construction,...

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4 practice notes
  • Biological terrorism: legal measures for preventing catastrophe.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 24 Nbr. 2, March 2001
    • March 22, 2001
    ...the person is actually infected (and contagious) in order to justify restraint of personal liberty); People ex. rel. Barmore v. Robertson, 134 N.E. 815, 819 (1922) (stating that a person cannot be quarantined upon mere suspicion that he may have a contagious and infectious disease). (181.) ......
  • Constitutional displacement.
    • United States
    • Washington University Law Review Vol. 86 Nbr. 3, January 2009
    • January 1, 2009
    ...OF THE NAT'L ACAD. OF SCI. 7582 (2007), available at http://www.pnas.org/content/104/18/7582.full.pdf. (209.) E.g., People v. Robertson, 134 N.E. 815, 817 (Ill. 1922). (210.) See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding compulsory vaccination of adults against smallpo......
  • Congress and the reconstruction of foreign affairs federalism.
    • United States
    • Michigan Law Review Vol. 115 Nbr. 1, October 2016
    • October 1, 2016
    ...the District of Columbia). (244.) Cf. United States v. Lopez, 514 U.S. 549 (1995). (245.) See, e.g., People ex rel Barmore v. Robertson, 134 N.E. 815, 817 (111. 1922) ("The duty to preserve the public health finds ample support in the police power, which is inherent in the state, and w......
  • OAG 53-24.
    • United States
    • Attorney General Opinions Oregon
    • March 6, 1953
    ...the equal protection of the laws do not act as limitations on the police power of the state. People ex rel. Barmore v. Robertson, (1922) 302 Ill. 422, 134 N.E. 815, 22 A.L.R. Regulations, adopted pursuant to statutes similar in scope and verbiage to §§ 99-103 and 99-602, O.C.L.A., empowerin......
3 books & journal articles
  • Biological terrorism: legal measures for preventing catastrophe.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 24 Nbr. 2, March 2001
    • March 22, 2001
    ...the person is actually infected (and contagious) in order to justify restraint of personal liberty); People ex. rel. Barmore v. Robertson, 134 N.E. 815, 819 (1922) (stating that a person cannot be quarantined upon mere suspicion that he may have a contagious and infectious disease). (181.) ......
  • Constitutional displacement.
    • United States
    • Washington University Law Review Vol. 86 Nbr. 3, January 2009
    • January 1, 2009
    ...OF THE NAT'L ACAD. OF SCI. 7582 (2007), available at http://www.pnas.org/content/104/18/7582.full.pdf. (209.) E.g., People v. Robertson, 134 N.E. 815, 817 (Ill. 1922). (210.) See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding compulsory vaccination of adults against smallpo......
  • Congress and the reconstruction of foreign affairs federalism.
    • United States
    • Michigan Law Review Vol. 115 Nbr. 1, October 2016
    • October 1, 2016
    ...the District of Columbia). (244.) Cf. United States v. Lopez, 514 U.S. 549 (1995). (245.) See, e.g., People ex rel Barmore v. Robertson, 134 N.E. 815, 817 (111. 1922) ("The duty to preserve the public health finds ample support in the police power, which is inherent in the state, and w......

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