Section 6 of the above act is as follows:

“ This board shall have authority to promulgate and enforce such regulations for the better preservation of the public health in contagious and epidemic diseases as they shall judge necessary; and any person or persons or corporation neglecting or refusing, after haring been duly notified in writing, to comply with the requirements of such regulations shall, upon conviction thereof, pay to the treasurer of the state a fine of not less than twenty-five dollars nor more than one hundred dollars, said offense to be prosecuted for before any court of competent jurisdiction in the state.'

In 1892 the legislature passed an act defining the duties and powers of state and local boards of health, health officers and oth

No. 82, laws of 1892. This act gave power to the state board to appoint a health officer for each city, town and incorporated village in the state. It defines the powers and duties of local health officers and boards, and provides certain regulations in respect to health that the public must observe under penalties.

Section 11 of this act is as follows:

“ Section 6, of No. 93, of the acts of 1886, entitled 'An act to prevent the spreading of contagious diseases and to establish a state board of health,' approved Nov. 23, 1886, is hereby amended by inserting in the third line of such section after contagious and epidemic diseases' these words, also regarding the causes which tend to their development and spread.'

Pursuant to the power conferred in section 6, of No. 93, Laws of 1886, as amended, the state board of health, on the 3d day of August, 1893, promulgated certain regulations, among which was the following:

"* 24. No pig-pen shall be built or maintained within 100 feet of any well or spring of water used for drinking purposes, or within 100 feet of any street or inhabited house."

The information charges a violation of the above regulation and the right of the state to prevail in this case depends in the first instance upon the validity thereof.

This is a subject that comes within the scope of the police power of the state, and unless some provision of the constitution directly forbids, the court should sustain this rule of the state board of health as a sanitary ordinance. The state insists that there is no express constitutional provision against the validity of this regulation, and that the same should be sustained as a sanitary ordinance enacted within the police power of the state.

It has long been held that the power to enact sanitary regulations which shall have the force of law, and for which a criminal prosecution will lie, may be conferred on a board by the legislature. This power was especially recognized in

People v. Special Sessions, 7 Hun. (N. Y.) 214. This case arose upon a prosecution upon a section of the sanitary code adopted and promulgated by the board of health of the city of New York, which provided “that no person shall have at any place where milk, huiter or cheese is kept for sale, nor at any place offer or have for sale, nor shall any person bring or send to said city any unwholesome, watered or adulterated milk, or milk known as swill milk, or milk from cows or other animals that, for the most part, lived in stables," etc.

The power to enact this regulation was granted by the legislature which declared that any violation of the same was to be treated as a misdemeanor.

It was insisted that the legislature could not confer on the board of health power to enact the ordinance.

The court say:

“ A more wholesome regulation could hardly have been devised or adopted, and it should be sustained and enforced by the courts unless the board were deprived of the power to prescribe it by some constitutional disability.

The court held that not only could the legislature confer upon the health board power to enact the regulation, but that the power 80 to do was clearly settled by an unbroken right of authority, citing Jones v. Firemen's Fund Ins. Co. (2 Daly 307), and Hopkins v. Mayor of Swansea (4 Meeson & W. 621).

In these cases it is held that corporate by-laws, enacted by authority, have the same effect within their appropriate limits as an act of parliament.

In the case of Commonwealth v. Lambrecht, decided in the quarter sessions for Philadelphia county (not reported) May 6, 1887, it was held that where the boards of health of cities of the first class in Pennsylvania were authorized to promulgate suitable rules and regulations for the construction of house drainage, and the disregard of such rules made a misdemeanor, punishable with fine and imprisonment; that such act was not unconstitutional on the ground that it delegated the law-making power to a department of the municipality.

Am. and Eng. E. of L., Board of Health. In

Polinsky v. The People, 73 N. Y. 65 (11 Han. 390), the same health ordinance as in People v. Special Sessions was a ssailed on the ground of its unconstitutionality. Trial was had upon an indictment charging violation of the ordinance by bringing unwholesome milk into the city for sale.

The court there say :

That the legislature in the exercise of its constitutional authority may lawfully confer on boards of health the power to enact sanitary ordinances having the force of laws within the districts over which their jurisdiction extends is not an open question. This power has been repeatedly recognized and affirmed."

This doctrine is laid down by Worthington and Parker in their recent work on Public Health and Safety. In section 85, under the title of “ Ordinances and Regulations,” they say:


“ The constitutionality of this delegation of legislative power over matters of local concern has been repeatedly affirmed, and cannot be regarded as an open question. Indeed it is difficult to perceive any reasonable ground for denying to the legislature authority to confer upon boards of health the power to enact sanitary by-laws and regulations, having the force of law within the districts over which their jurisdiction extends."

See also note to above section.

In an excellent article by Mr. G. W. Field on “ Boards of Health,” published in the American Law Review, vol. 24, page 559, on the subject “Of the Authority to make Ordinances, Rules and Regulations,” the author says, in regard to delegated powers, “ These powers may also be delegated by the legislature to boards of health,

and in such a case they may make ordinances, or rules and regulations, to secure the objects for which they are organized, with all the effect, within their respective jurisdictions, of a law of the legislature.'

See Lake Erie & W. Ry. Co. v. James, (Ind. App.) 35

N. E. 395. Assuming that local boards of health can be delegated authority to make rules and regulations that shall have the effect of an act of the legislature within the particular locality over which they have jurisdiction, can a legislature go one step farther and clothe a state Loard of health with power to promulgate rules and regulations that shall have the effect of a law throughout a whole state? It is confidently asserted that it can. There is no constitutional provision that stands in the way of such a delegation of authority, and while it is an innovation in the law it can be sustained with much the same reason that applies to the delegation of power to local boards. It is claimed that the reason why a local board can exercise delegated rights is the fact that they are the officers of a municipality, and the best and principal reason for saying that municipalities may exercise delegated rights is that they have long been permitted so to do. There must have been a time when this reason did not exist, for there must have been a first municipality and the exercise of a first delegated right. At that time as much reason could have been urged for the delegation of a legislative power upon a board like this as for the delegation of a similar power upon the officers of a municipality. In principle the two cases stand upon the same footing.

At the time when legislative power was first delegated to a municipality it is fair to presume that there was some particular need for the exercise of such power, and that need caused such power to be given. The ages testify to the wisdom of this.

In the present case a new necessity is aimed to be met by new and unusual legislation. For a long time local boards of health have existed and over their particular localities have exercised certain powers, having for their object the preservation of health. It is very recent that state boards of health were created, but their necessity is now recognized by the legislative acts of most of the states of the union. That local boards could not successfully cope with the energencies of the situation is apparent from the fact that a higher and better orgavization was called into power by the will of the people. This organization permitted the exercise of the best thought of a state upon the subject of health. A board could be created whose members were men of science and whose knowl. edge of sanitary laws would make them invaluable servants of a state. In the exercise of their proper duties, by guarding the health of its inhabitants, they could perform toward a state the highest earthly service. It cannot be denied that an organization like a state board of health may be of the greatest good, that it may be of vastly more service to a commonwealth by reason of the quality of its members and their removal from causes of local prejudice, than any member of local boards which are of necessity made up in large part of members who are ignorant in respect to the sanitary needs of the people.

Since the state board has the advantage of a superior membership, and so, greater power to do good than a local board, it would be wrong to deny to them the same rights that local boards enjoy. Such a denial would be a step backward, not forward.

Not only have legislatures of most of the states created state boards, but they hare seen fit in many instances of late to clothe them with power to make certain rules and regulations that shall have the effect of law throughout the state, and for violation of such rules the will of the people has said that penalties shall be imposed. From the fact that the late acts of the legislatures of many of our states confer this power upon state boards, it is fair to argue that a necessity for such delegation of authority has arisen which justifies such a step. It is to be lamented that there is no decision directly in point upon this very question. There is at least a dictum that is helpful.

The state board of health of Indiana is created by statute, and among other powers“ they may adopt rules and by-laws subject to the provisions of this act, and in harmony with the other statutes in relation to the public health to prevent outbreaks and the spread of contagious and infectious diseases.'

Pursuant to the authority conferred in the foregoing act, the state board adopted the following regulation :

“Every dead body must be accompanied by a person in charge, who must be provided with a ticket, and also present a full firstclass ticket marked corpse and a transit permit from a board of health or proper health authority, giving permission for the removal and showing name of deceased, age, place of death, cause of death (and if of a contagious or infectious nature), the point to which it is to be shipped, medical attendant and name of undertaker."

Action for damages against the company for refusing to take a body.

Defence that the transit permit did not contain the name of the medical attendant.

Judgment for plaintiff and appeal to the appellate court by the company.

The court say:

“ That the legislature may confer upon the board of health power to make reasonable rules and regulations for the preservation of the public health, is not controverted. The powers thus given should be construed liberally for the advancement of the purposes for which they are bestoweri. Such a provision, reasonable in its character, should be upheld and sustained by the courts.

While some hardships and inconveniences may thus at times be imposed upon individuals, the comfort of the individual must yield to the good of the public in general.”

Lake Erie & W. Ry. Co. v. James (Ind. App.) 35 N.

E. 395. It is decidedly pertinent to the point at issue that the legislatures of many other states have enacted laws conferring upon state boards of health powers equal to those conferred upon the board of Verinont. The adoption of these laws confirms the theory of their necessity and affords a strong presumption of their validity. Besides satisfying the test of the general law-making body as a whole, they must have been endorsed by the judiciary committees of the several states.

Reference to some of these acts will be helpful.

The state board of health of Illinois “shall have authority to make such rules and regulations

as they may from time to time deem necessary for the preservation or improvement of public health.” A penalty is fixed in the act for violation of the rules of the board, and the police instructed to enforce the



Annotated Statutes of Ill, c 126 a.
Iowa has the same law as Illinois substantially.
Wisconsin has the following provision of statute :

"And in general the state board of health shall have power, and it shall be its duty, to make such rules and regulations and to take such measures as may in its judgment be necessary for the protection of the people of the state from Asiatic cholera or other contagious or dangerous disease.”

Penalty fixed by act for violation of rules of board of a fine of not less than $25 or not more than $500, or imprisonment.

Annotated Statutes of Wisconsin, Sec. 1409 C. The state board of Kentucky is given power when they believe infectious or contagious diseases will invade the state to adopt and enforce such regulations and rules as they may deem efficient in preventing the introduction and spread of contagious diseases.

The Kentucky Statutes, Sec. 2049. It is the duty of the state board of health of Florida to formulate such rules and regulations for the preservation of the public health as in their judgment they may deem necessary.

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