Globe School Dist. No. 1 of Globe, Gila County v. Board of Health of City of Globe

• Decision Date: 14 March 1919
• Docket Number: Civil 1713
• Citation: 20 Ariz. 208,179 P. 55
• Parties: GLOBE SCHOOL DISTRICT No. 1 OF GLOBE, GILA COUNTY, ARIZONA, by D. L. MELOY, GEORGE R. HILL and MRS. F. J. COLEMAN, Its Trustees, Plaintiffs-Appellants, v. BOARD OF HEALTH OF THE CITY OF GLOBE, Consisting of DR. L. E. WIGHTMAN, RALPH SMITH, J. R. RICE and CLIFFORD CORP. CITY OF GLOBE, a Municipality, and R. L. PINYAN, Chief of Police of said City of Globe, Defendants-Appellees
• Court: Arizona Supreme Court

179 P. 55

20 Ariz. 208

GLOBE SCHOOL DISTRICT No. 1 OF GLOBE, GILA COUNTY, ARIZONA, by D. L. MELOY, GEORGE R. HILL and MRS. F. J. COLEMAN, Its Trustees, Plaintiffs-Appellants, v. BOARD OF HEALTH OF THE CITY OF GLOBE, Consisting of DR. L. E. WIGHTMAN, RALPH SMITH, J. R. RICE and CLIFFORD CORP. CITY OF GLOBE, a Municipality, and R. L. PINYAN, Chief of Police of said City of Globe, Defendants-Appellees

Civil No. 1713

Supreme Court of Arizona

March 14, 1919

APPEAL from a judgment of the Superior Court of the county of Gila. G. W. Shute, Judge. Affirmed.

Mr Charles L. Rawlins and Mr. George R. Hill, for Appellants.

Mr. L L. Henry, City Attorney, for Appellees.

OPINION

CUNNINGHAM, C. J.

By this action the plaintiff board of school trustees of the school district of the city of Globe are seeking to restrain and enjoin the local city board of health and the city officers from enforcing the following health order or regulation:

"Be it resolved, etc., that each, every and all theaters, motion picture shows, banks, business houses, pool halls, shooting galleries, skating rinks, dances, lodges, schools, churches and all places of amusement and entertainment in the city of Globe and vicinity, when people are congregated therein, be and the same are hereby declared to be a public nuisance, during the present epidemic of Spanish influenza and until the further order of the board of health of the city of Globe."

"2. That it shall be unlawful for two or more persons to congregate in the United States post office, any bank, store, meat market, or other business house, shooting gallery, pool hall, theater, motion picture show, skating rink, lodge, church, school, social gathering, card party, or other place of amusement or entertainment in the city of Globe or vicinity. . . .

"11. That it shall be unlawful to open up, conduct or hold any sessions of or services in any lodge, shcool building, church or like place in the city of Globe or vicinity."

Section 16 declares any violation of such rules and regulations to be a misdemeanor, and punishable as prescribed by paragraph 4386, Revised Statutes of Arizona of 1913.

The plaintiff contends that, if valid, said rules and regulations close the public schools, and "keep said plaintiffs' said public schools closed, and prohibit the pupils . . l from entering plaintiff's said public school buildings for the purpose of receiving instructions," etc.

The plaintiff alleges that the "board of health, in declaring the said public schools . . . to be a nuisance and in making it unlawful to attend such schools or to hold sessions thereof and in passing and adopting said resolution and especially the portions herein complained of, was and is beyond the authority and jurisdiction of said board to pass, and the same was passed without any authority of law, and that the same is unreasonable and void as against this plaintiff, and that said defendant board of health exdceeded its power and authority in passing and adopting said resolution herein referred to. . . ."

The parties have stipulated as the facts involved in this case: That there is prevalent in the city of Globe an epidemic of disease known as Spanish influenza, with which several thousand people in that vicinity have been afflicted, and of which a large number of persons have died; that from the present state of the disease, and the large number of persons afflicted, and the recent deaths therefrom, the belief is prevalent that the same is spreading; that, before the said regulations were adopted by the local boards of health, a conference of members of the state and local boards of health and physicians was held, and the conference agreed, and such physicians advised, the passage and adoption by the local boards of the rules and regulations herein sought to be enjoined as needful rules and regulations for the "prevention of the spread of, and as a means of stamping out, said Spanish influenza in said county, city, and town."

The parties have stipulated that the school term of said school district is limited to 10 school months; that the average attendance is about 1,500 pupils; that at the date of the stipulation "over 80 per cent of the school children are free from disease and ready to attend school"; that the schools are well equipped with nurses and that they have at all times enforced and are now ready to enforce the provisions of paragraph 4397, Revised statutes of Arizona of 1913; that the health board have not enforced the provisions of paragraph 4399, Revised Statutes of Arizona of 1913.

These facts admitted an emergency clearly existed, calling forth the duties of the health officers to cope with it and protect the public from the danger imminent. The local boards of health, the county and city, were called in meeting and under the superintending control and direction of the superintendent of public health and the advice of local physicians and health officers passed said regulation above quoted, for the avowed purpose "as a means of preventing the spread of the disease and the stamping out of the epidemic in Globe and vicinity," as appears in the stipulation of counsel on file herein.

The appellant attacks the resolution, contending that it is unreasonable in declaring the assembly of a public school in session to be a nuisance, and upon the broader ground that the city board of health had no power or authority to pass such resolution, effective to close the public schools, and that if such board had such power and authority, the said regulation is void for uncertainty, for the reason no limit is stated for the duration of the closing order.

To concede that any board of health has been delegated the legislative power to declare what is or what is not a nuisance is to concede that boards of health may be delegated legislative power, and this cannot be done. No authorities need be cited to sustain this proposition. Such boards of health may abate nuisances, and in so doing, if they mistake that for a nuisance which is not in fact a nuisance, then the board acts without jurisdiction, because the existence of a nuisance in fact gives the board the power to act. No portion of the health laws of this state attempts to or could grant to health boards the authority to arbitrarily declare a given condition a nuisance. An attempt by such board to declare what is or what is not a nuisance is futile, null and void. Therefore that portion of said resolution which attempts to define nuisances, and which declares certain assemblies, including school sessions, nuisances, is without authority of law and of no force or effect. The appellant's contention in this respect is evidently correct. But the material thing here is the order closing the schools. This brings us to the second question and inquiry, whether the said closing order is within the power of the local health board to pass and enforce.

The contention of the appellant that the said order is unreasonable seems to be confined to that portion of the order which declares the public assembly of persons in schools, etc., a nuisance; otherwise, the appellant seems to agree, as it must be agreed in all reason, that the order, rule or resolution is a reasonable measure to prevent the spread of the said disease, yet before the local board can make such closing order, and enforce it, it must have had such power expressly conferred upon it by the legislature, and this has not been done. To answer this inquiry we must look to chapter 1 of title 41, Revised Statutes of Arizona of 1913. This chapter provides for a state board of health, a county board of health in each county, and a city board of health in each incorporated city or town within the state. The provisions directly referring to the organization, powers and duties of the state board of health begin with the chapter, paragraph 4367, and include paragraph 4372. Under a subhead appearing between paragraphs 4372 and 4373, viz.: "County Boards of Health," and following, are ten paragraphs, to and including paragraph 4382, in which are set forth the organization, powers and duties of such county boards of health. Paragraph 4382 provides:

"Nothing contained in this article shall in any manner affect any board of health heretofore established, or that may hereafter be established in any city, or incorporated town, provided however, that all such boards of health shall be under the superintending control of the state board."

Thereupon follows the subhead, "City Boards of Health." Paragraphs 4383 and 4384 provide for the appointment of the members and officers of such boards of health, and paragraph 4383 provides that such boards of health "shall have and exercise the powers conferred upon such board by law and by the ordinances of the city." The appellant contends that paragraph 4385 further limits the powers and duties of the local city boards to such powers, duties and authorities as are conferred on such boards by the provisions of the chapter which follow paragraph 4385. Said paragraph reads as follows:

"Each city board of health shall perform the duties and exercise the powers herein provided within the limits of the city for which it is established. Each county board of health and city board of health shall be known as the local board of health."

Before further examination of this statute, it may be interesting at least to remark that this entire health chapter, with slight change in words, was adopted from North Dakota, and in that state, when adopted here, was article 5 of chapter 4 of the Political Code of North Dakota, Revised Code of 1899. The said article 5 became our first health law by adoption by chapter 65, Laws of Arizona Territory of 1903. The only apparent assistance this fact of history gives us is to...