City of Little Rock v. Smith
| Decision Date | 13 July 1942 |
| Docket Number | 4-6902 |
| Parties | CITY OF LITTLE ROCK v. SMITH |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, First Division; Gus Fulk, Judge reversed.
Reversed and cause remanded.
Cooper Jacoway, for appellant.
Appellee Billie Smith, who says she is a resident of Malvern Arkansas, was arrested on the night of June 13, 1942, in her room at a hotel in the city of Little Rock, and charged with a violation of §§ 1 and 2 of ordinance No. 6249, prohibiting immorality and prostitution and § 3 fixing the punishment therefor. Through her attorney, she pleaded guilty to the charge and paid a fine of $ 10. Section 4 of said ordinance, as amended by § 3 of ordinance No. 6434, provides that if any person is convicted of a violation of said offense, "such fact shall be reported by the clerk of the municipal court to the city health officer; and on such conviction, the municipal judge or the city health officer is authorized to cause such person to be detained and examined by the city health officer or by a physician designated by the city health officer by use of the necessary tests and examinations, including the Wassermann blood test, to ascertain the presence of any venereal disease in a communicable stage, provided that any evidence so acquired shall not be used against such person in any criminal prosecution." Section 5 of said ordinance provides: "Whenever any person, after the examination provided in section four of this ordinance, is found to be infected with a venereal disease in a communicable stage, the city health officer may, pending the imposition of or at the expiration of any jail sentence imposed on such person, when in the exercise of his discretion he believes that the public health requires it, commit such person found to be infected with a venereal disease in a communicable stage who fails to take treatment adequate for the protection of the public health, to a hospital or other place designated by the city health officer as a place of quarantine in the state of Arkansas for such treatment, even over the objection of such person so diseased or infected, provided the commitment can be done without endangering the life of the patient."
After her conviction appellee was detained and examined by the city health officer, and was found to be infected with a venereal disease, gonorrhea, in a communicable stage, and a Wassermann blood test for syphilis showed positive. She was thereupon ordered quarantined in the public health center, maintained by the United States Government in the city of Hot Springs, Arkansas, by the city health officer.
On June 16, 1942, appellee filed her petition for a writ of habeas corpus directed to the appellant, Gus Caple, sheriff of Pulaski county, in which she stated that she was unlawfully confined in the Pulaski county jail under said ordinance No. 6249 which was alleged to be void, and that she had been informed that she would be transferred to "a concentration camp" against her will.
The sheriff filed an answer to the petition for habeas corpus, setting up the matters aforesaid and many others as his authority for detaining appellee and attaching certified copies of ordinance No. 6249 and its amendatory ordinance No. 6434; also ordinance No. 6248 and its amendatory ordinance No. 6282, and asserting the validity of said ordinances as being a reasonable exercise of the police power of the city for the protection of the public peace, health and safety, and that no right of appellee is being violated in or by them. He further alleged that he held appellee under and subject to the orders of Dr. L. L. Fatherree, city health officer, who should be made a party respondent to the petition. Dr. Fatherree was made a party and adopted, as his response, that of sheriff Caple.
Trial resulted in a holding, by the learned trial judge, that ordinances Nos. 6248 and 6249, as amended, are unconstitutional and void. The writ was granted and appellee was discharged upon her petition, but was ordered held subject to the action of the prosecuting attorney's office on a charge of prostitution, and was remanded to jail pending further orders of the court. The city, the sheriff and the city health officer have appealed, and the city attorney has filed an able brief in their behalf. Appellee has not favored us with a brief in her behalf.
The question presented is whether the ordinances of the city of Little Rock, above mentioned and parts of which are quoted, are valid as being within the police power of the city. If they are valid, then the action taken is not in excess of the authority conferred. There can be no doubt of the city's power to declare prostitution or immorality a criminal offense and to punish for a violation. Indeed appellee was so convicted and paid a fine therefor. This is not a criminal proceeding, but is one in the interest not only of appellee, but of the public. It is a proceeding to compel her to be quarantined, segregated from the public, to the end that she may be cured of the venereal diseases with which she is infected, and that she may not communicate them to others. When a cure is effected, the authority to detain her is at an end.
In Williams v. State, 85 Ark. 464, 108 S.W 838, 26 L. R. A., N. S. 482, 122 Am. St. Rep. 47, it was said: "It is the duty of courts, in testing the validity of a given regulation, to resolve all doubts in favor of the legislative action, and to sustain it unless it appear to be clearly outside the scope of reasonable and legitimate regulation." In 16 C. J. S., § 183, it is said: "Health being a sine qua non, of all personal enjoyment, it is not only the right but the duty of the state possessing the police power to pass such laws as may be necessary for the preservation of the public health." In Beaty v. Humphrey, 195 Ark. 1008, 115 S.W.2d 559, we said: Can there be any doubt that the legislature might enact valid legislation similar to the ordinances here in question? We think not. If it could, then it can and has delegated this power to municipalities. Section 9543 of Pope's Digest makes it their duty to publish certain ordinances and by-laws and power is conferred to "make and publish such by-laws and ordinances--to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such (municipal) corporation and the inhabitants thereof." Section 9589 provides: "They shall have power to prevent injury or annoyance, within the limits of the corporation, from anything dangerous, offensive or unhealthy . . ." So, the state's power to legislate in the protection of the public health has been granted and delegated to municipalities, and its exercise by the city in the ordinances here presented...
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