Parke v. Bradley

• Decision Date: 30 June 1920
• Docket Number: 3 Div. 457
• Citation: 86 So. 28,204 Ala. 455
• Parties: PARKE et al. v. BRADLEY, State Treasurer, et al.
• Court: Alabama Supreme Court

86 So. 28

204 Ala. 455

PARKE et al. v. BRADLEY, State Treasurer, et al.

3 Div. 457

Supreme Court of Alabama

June 30, 1920

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill by Thomas D. Parke and others against R.L. Bradley, as State Treasurer, Samuel W. Welch, State Health Officer, and the Medical Association of the State of Alabama. Judgment for defendants, and complainants appeal. Affirmed.

I.M Engel, of Birmingham, for appellants.

J.Q Smith, Atty. Gen., Harwell G. Davis, Asst. Atty. Gen., and J.J. Mayfield, of Montgomery, for appellees.

SOMERVILLE J.

It is too well settled for further controversy that the Legislature of Alabama may delegate to officers, or boards, or commissioners, of its own creation and appointment, various governmental powers for the more efficient administration of the laws, subject always to the clearly implied limitation of the Constitution that the lawmaking power, invested exclusively in the Legislature, cannot be delegated to any other department of the government, or to any other agency either public or private. R.R. Commission v. Ala. North. Ry. Co., 182 Ala. 357, 62 So. 749; Fox v. McDonald, 101 Ala. 51, 13 So. 416, 21 L.R.A. 529, 46 Am.St.Rep. 98; 12 Corp.Jur. 839, § 323.

The prevention of disease and the conservation of health, by all of the means known to modern science, is universally recognized as one of the most important and imperious duties of government, and in the construction of statutes enacted for such a purpose, under the police powers of the state, courts are agreed that great latitude should be allowed to the Legislature in determining the character of such laws, and how, when, and by whom, in their practical administration, they should be applied. State v. McCarty, 5 Ala.App. 212, 59 So. 543, approved in Ferguson v. Starkey, 192 Ala. 471, 68 So. 348; 12 R.C.L. 1271, § 10, and cases cited.

The contention of complainants, as stated in brief of counsel, is, not that the Legislature of Alabama is without authority to create a state board of health and empower it to administer the public health laws, but that such a board must be a state board, which is an arm of the state government, and whose members must be state officials, chosen as such and amenable to public control and supervision; and that it is beyond the power of the Legislature to confer upon a private corporation composed of private individuals any part of the sovereign power of the state in that behalf. This contention explains the theory of the bill of complaint, viz. that the state board of health, as constituted by the statutes of Alabama since 1875, is an illegal body, because it is in fact a private corporation, and because the Legislature cannot make such a private corporation a repository of governmental powers, even for purely administrative purposes.

"The Medical Association of the State of Alabama" was first incorporated by the act of February 13, 1850 (Acts 1849-50, p. 315), without any public functions or duties, and the nature of its corporate aims and activities, prior to 1873, has not been made to appear. In 1873, at an annual meeting held at Tuscaloosa, the association adopted a constitution which declared its aims and functions, and prescribed its mode of organization, the character of its membership, and the names and duties of its officers. Article 3 of this constitution is as follows:

"The objects of this association shall be to organize the medical profession of this state in the most efficient manner possible, To encourage a high standard of medical education, and regulate the qualifications of practitioners of medicine in the state. To promote professional brotherhood, and encourage a high standard of professional ethics. To combine the influence of all the medical men in the state, so as to secure by legislative enactments their own legitimate rights and privileges, and the protection of the people against all medical ignorance and dishonesty. To encourage the study of the medical botany, medical topography, and medical climatology of the state. To secure careful and reliable accounts of all the endemic and epidemic diseases of the state. In a word, to watch over and protect, encourage and aggrandize all the interests of the medical profession of the state."

The membership of the association is, under other articles, made up of four classes: (1) Members of county medical associations, holding a charter from the state association, who cannot vote or hold office; (2) two delegates from each county association, who can vote, but cannot hold office; (3) 100 counselors selected from the permanent members of the state organization (as then existing), vacancies in their number to be filled by the vote of delegates and counselors; and (4) correspondents, who are distinguished nonresident physicians, or ex-counselors of 10 years' service as such. The bill charges that membership in the county medical associations is subject to secret ballot, under which three "black balls" will suffice to reject an applicant.

It appears that, in addition to the customary officers of government, the state medical association elects a board of 10 censors, who serve for five years, and who are substantially an executive committee, a court of impeachment, an auditing board, and a board of examiners for admission to practice medicine.

By the act of February 19, 1875 (Acts 1874--75, p. 130), it was provided:

"That the Medical Association of the State of Alabama, organized in accordance with the provisions of the constitution which was adopted by said association at its annual meeting in the city of Tuscaloosa, in March, 1873, be and is hereby constituted the board of health of the State of Alabama."

By the same act it was also provided that--

"County medical societies in affiliation with the Medical Association of the State of Alabama, and organized in accordance with the provisions of the constitution of said association, *** be and are hereby constituted boards of health for their respective counties, and as such shall be under the general direction of the board of health of the state of Alabama. ***"

These provisions have been re-enacted in every Code of Alabama, down to and including the Code of 1907.

The act of September 29, 1919 (Gen.Acts 1919, p. 909), amends, revises, and extends, under a recodification, the health laws of the state, but does not essentially alter the structure of the system.

The present organization of the health department of the state, as fixed by Code provisions, is as follows:

(698) "The Medical Association of the State of Alabama, as constituted under the laws now in force, or which hereafter may be in force, is the state board of health. The state board of censors, of said association, as said board of censors is or hereafter may be constituted under the laws now in force or which hereafter may be in force and under the constitution of said association, as said constitution now exists or may hereafter exist, is, and, when acting as such, shall be known as the state committee of public health; and the Governor of the state of Alabama shall be a member and ex officio chairman of said state committee of public health."

(699) "When the state board of health is not in session said state committee of public health shall act for said board and have and discharge all the prerogatives and duties of said board, including the adoption and promulgation of rules and regulations provided for in this act, when said committee is not in session the state health officer shall act for said board and said committee and shall report to the said board and said committee at its regular meeting his actions, and said board or said committee may at any time revoke any action of said health officer."

(704) "The state board of health shall elect an executive officer, to be known as the state health officer, and shall fix his term of office and salary, provided that the latter shall not exceed five thousand dollars per annum. The state health officer so elected shall, under the direction of the state board of health, exercise general supervision over the county boards of health and county and municipal health officers, and shall promptly report to said county boards of health any delinquencies of official duty on the part of said county and municipal health officers which may come to his knowledge; shall keep himself informed in regard to all infectious, contagious, and pestilential diseases which may be in danger of invading the state, and shall, so far as authorized by law, take prompt measures to prevent such invasion; shall keep the Governor informed as to the health conditions prevailing in the state, especially as to outbreaks of any of the diseases enumerated in section 716 of this Code, and shall submit to the Governor such recommendations as he deems proper to control such outbreaks."

The authority and jurisdiction of the state board of health are defined by section 702 of the Code, as amended. Its powers are purely executive and administrative, except that under subdivision (6) it is authorized "to adopt and promulgate rules and regulations providing proper methods and details for administering the health and sanitary laws of the state, which rules and regulations shall have the force and effect of law, and shall be executed and enforced by the same courts, bodies, officials, agents and employés as in the case of the health laws"; and the knowing violation thereof is made a misdemeanor, punishable as provided by section 7073 of the Code.

Section 733 of the Code, as amended, largely increases the appropriation made to the state board of health, and directs its expenditure for strictly public purposes germane to the health and welfare of the people of the...