Kirk v. Wyman

Decision Date19 August 1909
PartiesKIRK v. WYMAN et al., Board of Health.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Aiken County; Robt. Aldrich, Judge.

Suit by Mary V. Kirk against H. H. Wyman and others, constituting the Board of Health of the City of Aiken. From a decree granting complainant a temporary injunction restraining defendants from removing plaintiff to the contagious division of the city hospital, they appeal. Affirmed.

Hendersons for appellants. Croft & Croft, Sawyer & Owens, and J. P Kennedy Bryan, for respondent.

WOODS J.

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 shown as anæsthetic, 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 require her to be removed is the city pesthouse, coarse and comfortless, used only for the purpose of incarcerating negroes having small-pox 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 100 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 pesthouse. 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.

The order of injunction rests on the finding by the circuit judge that the city hospital or pesthouse is unfit for the habitation of such a patient, by reason of a want of water supply and heating arrangements and the proximity to the city dumping grounds. The appeal being from a mere temporary injunction with the hotly contested issues of fact depending on affidavits only, we shall consider no matters of law or fact, except such as are absolutely necessary to decide whether the temporary injunction should be maintained.

The state Constitution thus provides for the creation of boards of health: "It shall be the duty of the General Assembly to create boards of health wherever they may be necessary, giving to them power and authority to make such regulations as shall protect the health of the community and abate nuisances." Article 8, § 10. All the statute law relating to boards of health was re-enacted and incorporated in chapter 28, art. 1, Civ. Code 1902, and therefore should be referred to the duty to legislate on the subject, imposed by the Constitution of 1895 on the General Assembly. Municipal boards of health therefore are to be considered as deriving their authority to isolate infected persons from the section of the Constitution above referred to, and from section 1099 of the Civil Code, which provides: "The said board of health shall have power and it shall be their duty to make and enforce all needful rules and regulations to prevent the introduction and spread of infectious or contagious diseases by the regulation of intercourse with infected places, by the arrest, separation, and treatment of infected persons, and persons who shall have been exposed to any contagious or infectious diseases, and by abating and removing all nuisances, which they shall deem prejudicial to the public health, to enforce vaccination, to mark infected houses or places, to prescribe rules for the construction and maintenance of house drains, waste pipes, soil pipes and cesspools, and make all such other regulations as they shall deem necessary for the preservation of the public health. They shall also have power, with the consent of the town or city council, in case of the prevalence of any contagious or infectious diseases within the town or city, to establish one or more hospitals and to make provisions and regulations for the management of the same."

Complaint was made about December 8, 1908, that Miss Kirk was afflicted with leprosy. The board came to the conclusion that the complaint was well founded, that the leprosy was contagious, and that it was necessary to the public health that Miss Kirk should leave the city or be isolated in the city hospital or pesthouse until a more suitable abode could be provided for her. The first resolution was passed on December 13, 1908, in these terms: "Resolved, that we notify Miss Kirk, her friends and practicing physician, that we will move her out to the city hospital if she is not moved out of the city in ten days from the date of service." Notice of this resolution was given to Miss Kirk; but at the request of Dr. Croft, Miss Kirk's physician, the board reconsidered the matter, and entered upon a diligent inquiry as to the nature of the disease and the necessity of isolation, calling to their aid Dr. Croft and all the physicians of the city. The investigation did not change the board's conclusion. On December 28th, and again on the 29th, Miss Kirk wrote to the board, submitting to its action and acquiescing therein, on condition that she should have a white caretaker.

The following extracts from the minutes of the board of health indicate their formulated rule, after having had the matter under consideration from December 5, 1908, to January 13, 1909:

"The matter of Miss Kirk was taken up and discussed. The secretary reported that the resolution adopted asking council to erect a cottage for Miss Kirk had been placed before the mayor and council, and that body had agreed to erect such cottage as soon as practicable, and the mayor had so informed Miss Kirk. The following was then introduced and adopted as a part of the rules and regulations of the board of health: 'Resolved by the board of health for the city of Aiken, that pursuant to the law giving us the power thereto, that we do hereby adopt the following rule and regulation: In order to prevent the introduction and spread of infectious or contagious diseases in the city of Aiken, that wherever any person is known to have any contagious or infectious disease, and if they enter the town having such, they be commanded immediately to leave the city, and if they do not, that they be quarantined until they can be removed, and in case any such person or persons is found within the city of Aiken affected with any such infectious or contagious disease, that they be notified to leave, and if they do not leave within a reasonable time or their relatives and friends do not take them away, then and in such case that an order may be issued by the board of health to the health officers, or any of the policemen of the city, to take such party in charge and remove them to the city hospital for infectious diseases, or such other place as may be designated by the board of health."'

On January 18, 1909, the board resolved: "That Miss Kirk be removed out to the city hospital to-day, provided her health permits." Subsequently, on the same day, Dr. Croft gave to the board a certificate: "I have this day visited Miss Kirk, and find that she is very nervous and has been quite sick all night, and think that it is advisable that she be not removed at present." Three days thereafter, on January 21, 1909, the complaint for injunction and the order to show cause were served on the board of health.

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 guaranty 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 ædas," 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...

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