Ex parte Woodruff

• Decision Date: 28 September 1949
• Docket Number: A-11259.
• Citation: 210 P.2d 191,90 Okla.Crim. 59
• Parties: Ex parte WOODRUFF.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

210 P.2d 191

90 Okla.Crim. 59

Ex parte WOODRUFF.

No. A-11259.

Court of Criminal Appeals of Oklahoma

September 28, 1949

Mae Woodruff filed a petition for a writ of habeas corpus to L J. Hilbert, Chief of the Police Department of the City of Oklahoma City, to secure petitioner's release from the city jail.

The Criminal Court of Appeals, Powell, J., denied the petition holding that the statutes requiring examination and treatment of persons arrested for sex crimes for venereal diseases and empowering the State Commissioner of Health to make rules for carrying out such legislation are constitutional, that a municipal judge may detain a woman pleading guilty of vagrancy by prostitution for such an examination, and that the rule of the State Board of Health, requiring that specimens from female organs be taken 48 hours apart to determine the question of infectivity, is reasonable.

Syllabus by the Court.

1. The Legislature cannot delegate legislative power to an administrative board, and an enactment so doing is void, but laws may be passed conferring administrative duties only without violating Article V, Section 1, of the Constitution.

2. Generally a law conferring discretion on executive officer or board, without establishing any standards for guidance thereof, is 'delegation of legislative power' and unconstitutional, but when discretion relates to police regulation for protection of public morals, health, safety or general welfare and it is impossible or impracticable to provide such standards without defeating legislative object legislation conferring such discretion may be constitutional without such restrictions.

3. Under Sec. 548, of Title 63 O.S.Supp.1947, a person arrested either by warrant or without a warrant, who is thereafter convicted in a police or municipal court, for a sex offense, may be held for the purpose of determining if such person is infected with venereal disease.

4. Where a person is suspected of having venereal disease or diseases, and is in custody under provisions of Secs. 548 and 552.2 of Title 63 O.S.Supp.1947, such person is not entitled to be examined by any licensed physician such person might choose, but only by a licensed physician on the approved list of the state or local health officer.

5. While in the narrower sense of the term, 'an examination' (as used in Sec. 548, Title 63 O.S.Supp.1947) is necessarily made of the person each time a specimen is obtained; in a broader sense and overall, it with reason may be said that the term 'an examination' as used in the statute presupposes and means such an examination or series of tests as in the sound judgment of the State Commissioner of Health and his expert advisers, as will obtain the results sought by the legislative act in question.

6. Rule 10, A, (b), 2, promulgated by the State Commissioner of Health examined and determined not to be unreasonable, and found to have been adopted in effort to achieve the result intended by the legislature in adoption of Sections 548 and 552.2 of Title 63 O.S.Supp., 1947.

Sam W. Moore, Oklahoma City, Forest N. Simon, Oklahoma City, for petitioner.

A. L. Jeffrey, Municipal Counselor, Kenneth J. Wilson, William F. Collins, Jr., and P.J. Demopolos, Assistant Municipal Counselors, Oklahoma City, for respondent.

POWELL Judge.

Under date of June 14, 1949, petitioner, Mae Woodruff, filed her petition in this court, to secure her release from confinement in the City Jail of Oklahoma City. The parties have stipulated as follows: 'That on the 8th day of June, 1949, at the approximate hour of 10:30 o'clock P.M., petitioner was arrested by the Oklahoma City Police without warrant at a tap room in the 2200 block, West Exchange Avenue, Oklahoma City, Oklahoma; petitioner was held in jail until 2 o'clock P.M. on the 10th day of June, 1949, at which approximate time petitioner was convicted in the Municipal Court of the City of Oklahoma City, Oklahoma, of vagrancy by being a prostitute, fined $14.00 and costs, and ordered by the Municipal Judge of the said City to be held for examination in the Oklahoma City venereal disease clinic; that on the morning of June the 11, 1949, petitioner refused to submit to an examination by C. B. Taylor, M.D., director of the Oklahoma City venereal disease clinic; that at 11:30 o'clock A.M. on the 11th day of June, 1949, a hearing was had before the Honorable W. A. Carlisle, Judge of the District Court of Oklahoma County, upon a writ of habeas corpus wherein petitioner prayed that the District Court of Oklahoma County order the Respondent herein to afford to the petitioner the right to be examined by her own physician and further that the Respondent herein be ordered to release the said petitioner upon receipt of the results of such examination; that the said District Judge continued the hearing of the writ of habeas corpus to 1:30 o'clock P.M., June 13, 1949, and refused at that time, to order the respondent L. J. Hilbert to allow petitioner to be examined by her own physician and/or to be bound by the results of such examination of the petitioner by her own physician; that petitioner on the morning of June 13, 1949, did submit to an examination by C. B. Taylor, M.D., for the purpose of determining the existence of both gonorrhea and syphilis; that the result of such examination showed negative as to gonorrhea and negative as to syphilis; that at the hearing on June 13, 1949, before the said District Judge, Judge Carlisle refused to grant petitioner her release for the reason that respondent proclaimed the necessity of an additional examination, to be made before the morning of June 15, 1949, to determine the existence of gonorrhea, that petitioner lodged her petition for a writ of habeas corpus in this court on the 14th day of June, 1949, and that the same was set for hearing and argued, orally, at 10 o'clock a. m., June 15, 1949.'

Respondent justifies petitioner's restraint under provisions of Sections 548 and 552.2 of Title 63 O.S.Supp.1947, reading:

'548. Prisons and penal institutions--Arrested persons--Examination and treatment--Quarantine.--The keeper, manager, guard, or person in control of every prison or penal institution in this State, shall cause to be examined every person confined in such prison or penal institution after conviction for any offense, to determine whether such person is an infected person. State and local Health Officers, or their authorized deputies who are physicians, are empowered to examine those who are arrested by lawful warrant for vagrancy, prostitution, rape or other sex crimes for the purpose of determining if they are infected with venereal disease. Every such person shall submit to such examination and permit specimens to be taken for laboratory examinations. Such person may be detained until the results of such examination are known. The required examination shall be made by the Health Officer, or, at the option of the person to be examined, by an approved licensed physician. All persons found to be infected with a venereal disease shall be treated by the local Health Officer or a licensed physician of their own choice until said person is non-infectious or dismissed by said physician. In the event such person infected with a venereal disease refuses or fails to submit to treatment, then said person may be quarantined for the purpose of treatment and reported to the State Board of Health.' As amended Laws 1943, p. 149 § 1.

'§ 552.2 Rules and regulations.--The State Commissioner of Health shall have power to make and amend any and all rules and regulations for the prevention and cure, to prevent the spread of the venereal diseases, which he deems necessary for carrying out of this and all other legislation for the control of venereal diseases, and such rules and regulations shall have the force and effect of law.' Laws 1945, p. 243, § 2.

In attempting to achieve the results intended by the Legislature, the State Commissioner of Health promulgated certain rules, and herein Petitioner questions Rule No. 10, A, (b) Female, 2, which is: 'Two successive negative examinations for gonococci of the secretions of the urethra, vagina and of the cervix with an interval of at least forty-eight hours, and repeated for four successive weeks, unless shorter in the opinion of the health officer should be sufficient. These smears should be taken from the secretions expressed from the urethra or from the cervix after all secretions have been mopped away from the external os.'

The introductory statement to the rule is: 'Standards which shall govern in determining the infectivity of and the period of control and treatment of persons suspected of being infected, or having been found to be infected with a venereal disease.' Petitioner in support of her petition advances four propositions, the first being: 'That the delegation of authority by the Statutes of the State of Oklahoma, herein involved, Sections 548 and 552.2 of Title 63 O.S.Supp.1947, constitutes an unconstitutional delegation of legislative authority.'

In Ex parte Fowler, Okl.Cr.App., 184 P.2d 814, a case where the treatment is very comprehensive, this court has held the act in question constitutional, and held contrary to petitioner's contentions. And see also Ex parte Roman, 19 Okl.Cr. 235, 199 P. 580.

But in petitioner's argument she contends that in Ex parte Fowler, supra, consideration was not given to the manner in which the statute attempts to delegate police power; that is 'that the authority is delegated without sufficient standards, guides and boundaries within and by which the selected instrumentalities must act.' Also that the effect of the statute in question is that the Legislature has abdicated its constitutionally delegated function contrary to the...