State v. Superior Court for King County

• Decision Date: 27 August 1918
• Docket Number: 14913.
• Citation: 174 P. 973,103 Wash. 409
• Parties: STATE ex rel. McBRIDE v. SUPERIOR COURT FOR KING COUNTY.
• Court: Washington Supreme Court

174 P. 973

103 Wash. 409

STATE ex rel. McBRIDE v. SUPERIOR COURT FOR KING COUNTY.

No. 14913.

Supreme Court of Washington

August 27, 1918

Department 2. Original proceedings for writ of prohibition by the State on the relation of J. S. McBride, against the Superior Court of the State of Washington for King County. Writ to issue.

Hugh M Caldwell, Walter F. Meier, and Thos. J. L. Kennedy, all of Seattle, for relator.

Smith Chester, Brown & Worthington, of Seattle, for respondent.

CHADWICK J.

This case grows out of and demands a construction of the quarantine regulations of the city of Seattle and the state law creating a state board of health and defining its powers and duties. On the 11th day of April, 1918, one Francis Williams was arrested charged with a violation of Ordinance No. 16,046 of the city of Seattle. On the 14th day of April, Williams was given over to the health commissioner of the city for examination. The health commissioner found Williams to be afflicted with a dangerous, infectious, and contagious disease known as 'syphilis,' whereupon he was committed to the isolation hospital of the city, and he has there since remained. He appealed to the state board of health, and the finding of the commissioner was affirmed. On July 15th, Williams petitioned this court for a writ of habeas corpus, alleging that he was arrested as he believes, without a warrant and without being informed against, and that he is being held on a pretended claim vexatiously instigated by some police officer that he is afflicted with some dangerous, contagious, and infectious disease; that such charge is unfounded and in fact untrue; that he is not now or at any time during his detention been so affected; that as he believes the alleged cause of his detention is but a subterfuge in furtherance of a conspiracy on the part of the police department, aided and acquiesced in by the health department, to unjustly deprive him of his liberty; that he has been detained in unsanitary, filthy, and poorly ventilated quarters crowded with inmates who are suffering from various ailments, and is forced to use the same soap and a common drinking cup; that he is fed on unwholesome food and forced to submit to arbitrary medical treatment in furtherance of the design to detain him, without the privilege of having or consulting a physician of his own selection. Upon this showing we ordered that a writ issue returnable on the 17th day of July to the superior court of King county for inquiry as to the time and cause of the detention of the petitioner. The matter coming on for hearing, the petitioner asked that physicians be appointed to examine him. Superior Judge Tallman, before whom the case was called, appointed three physicians to examine the petitioner. The order was obtained ex parte and without formal notice. On the next day the city attorney petitioned Judge Dykeman, Judge Tallman then being out of the city, to vacate the order as improvidently made, contrary to the law, and without sustaining jurisdiction. Judge Dykeman having announced his intention of enforcing the order made by Judge Tallman, the health commissioner came to this court and procured an order to show cause why a writ of prohibition should not issue restraining further proceeding. We understand that all questions of procedure are waived, to the end that the issues hereinafter to be noted may be finally determined by this court.

It is alleged: That Williams was arrested and is detained as a disorderly person under the provisions of Ordinance No. 16,046, 'an ordinance for the preservation of the public morality, peace, safety and good order of the city of Seattle,' etc. That he is now held under the provisions of Ordinance No. 15,957 and Ordinance No. 32,444. In the latter ordinance it is provided that:

'Whereas, by reason of investigations made by the sanitation department and under its direction, the public welfare requires the examination of persons of both sexes taken into custody by the police department of the city for the purpose of preventing the spread of infectious and contagious diseases; now, therefore,

'Be it ordained by the city of Seattle as follows:

'Section 1. For the purpose of preventing the spread of contagious and infectious diseases or maladies, it shall be the duty of the sanitation department of the city of Seattle to duly examine in such manner and by such methods as modern science has found to be proper all persons who are taken into custody by the police department of the city, who are suspected of being afflicted with any contagious or infectious disease or malady, and the sanitation department and the commissioner of health are hereby authorized and empowered, and it shall be their duty, to order any such persons so taken into custody to be examined for such purpose.'

Ordinance No. 37,928, amendatory of Ordinance No. 15,957, provides:

'Section 6. Whenever it shall come to the knowledge of the commissioner of health of the city of Seattle that any adult therein has chickenpox, or any person therein has smallpox, varioloid, syphilis, gonorrhoea, or any other contagious or infectious disease of a similar or different kind from that herein specified, or any disease or sickness dangerous to the public health, said commissioner is hereby authorized and empowered, and it shall be his duty to forthwith, whenever in his judgment it is safe, expedient and practicable, cause such infected person to be removed to and kept in a hospital, sanitarium, a separate house, or such place as may be designated by the commissioner of health, or as may be by law or ordinance provided therefor, and cause said person to be properly treated and cared for, and to make such other rules and regulations as may be necessary or advisable for the protection of the public health.'

Then follows, inter alia, a legislative assertion of existing local conditions calling for the exercise of the police power.

Section 1, art. 20, of the state Constitution provides that:

'There shall be established by law a state board of health * * * with such powers as the Legislature may direct.'

It is also provided (section 11, art. 11) that:

'Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with the general laws.'

The Legislature, in obedience to the warrant of the Constitution, has passed general laws creating a state board of health and defining its duties. The law seems to have been drawn upon the theory that the municipalities would exercise their power to enact such measures as they saw fit to care for, protect, and preserve the public health. That such thought prevailed is evidenced by reference to section 7507, Rem. Code 1915, wherein the general powers of cities of the first class are enumerated. Power is granted:

'To erect and establish hospitals and pesthouses, and to control and regulate the same. To restrain and provide for the punishment of vagrants, mendicants, prostitutes, and other disorderly persons. To provide for the punishment of all disorderly conduct, and of all practices dangerous to public health or safety, and to make all regulations necessary for the preservation of public morality, health, peace, and good order within its limits, and to provide for the arrest, trial, and punishment of all persons charged with violating any of the ordinances of said city; but such punishment shall in no case exceed the punishment provided by the laws of the state for misdemeanors.'

In the act creating the state board of health it is provided:

'The state board of health shall have supervision of all matters relating to the preservation of the life and health of the people of the state. The board shall have supreme authority in matters of quarantine, and may declare and enforce it when none exists, may modify, relax or abolish it when it has been established. The board may have special or standing orders or regulations for the prevention of the spread of contagious or infectious diseases. * * * It shall be the duty of all local boards of health, health authorities, and officials, officers of the state institutions, police officers, sheriffs, constables, and all other officers and employés of the state or any county, city or township thereof, to enforce such quarantine and sanitary rules and regulations as may be adopted by the state board of health, and in the event of failure or refusal on the part of any member of said boards or other officials, or persons in this section mentioned to so act, he or they shall be subject to a fine of not less than fifty dollars, upon first conviction, and upon conviction of second offense of not less than one hundred dollars.' Rem. Code,§ 5406.

'In case of the question arising as to whether or not any person is affected or is sick with a dangerous, contagious or infectious disease, the opinion of the health officer shall prevail until the state board of health can be notified, and then the opinion of the executive officer of the state board of health, or any member or physician he may appoint to examine such case, shall be final.' Rem. Code, § 5546.

'The term 'dangerous, contagious or infectious diseases,' as used in this chapter shall be construed and understood to mean such disease or diseases as the state board of health shall designate as contagious or infectious and dangerous to the public health.' Rem. Code, § 5547.

There are two questions discussed by counsel that may be summarily disposed of; the first being that the commissioner cannot obey the order of the court and bring his ward into the presence of the physicians appointed to examine him or into court without subjecting himself to the penalties of the law and for that reason the writ...