163 S.W.2d 705 | Ark. | 1942
Appellee, Billie Smith, who says she is a resident of Malvern, Arkansas, was arrested on the night of June 13, 1942, in her room at a hotel in the city of Little Rock, and charged with a violation of 1 and 2 of ordinance No. 6249, prohibiting immorality and prostitution and 3 fixing the punishment therefor. Through her attorney, she pleaded guilty to the charge and paid a fine of $10. Section 4 of said ordinance, as amended by 3 of ordinance No. 6434, provides that if any person is convicted of a violation of said offense, "such fact shall be reported by the clerk of the municipal court to the city health officer; and on such conviction, the municipal judge or the city health officer is authorized to cause such person to be detained and examined by the city health officer or by a physician designated by the city health officer by use of the necessary tests and examinations, including the Wassermann blood test, to ascertain the presence of any venereal disease in a communicable *694 stage, provided that any evidence so acquired shall not be used against such person in any criminal prosecution." Section 5 of said ordinance provides: "Whenever any person, after the examination provided in section four of this ordinance, is found to be infected with a venereal disease in a communicable stage, the city health officer may, pending the imposition of or at the expiration of any jail sentence imposed on such person, when in the exercise of his discretion he believes that the public health requires it, commit such person found to be infected with a venereal disease in a communicable stage who fails to take treatment adequate for the protection of the public health, to a hospital or other place designated by the city health officer as a place of quarantine in the state of Arkansas for such treatment, even over the objection of such person so diseased or infected, provided the commitment can be done without endangering the life of the patient."
After her conviction appellee was detained and examined by the city health officer, and was found to be infected with a venereal disease, gonorrhea, in a communicable stage, and a Wassermann blood test for syphilis showed positive. She was thereupon ordered quarantined in the public health center, maintained by the United States Government in the city of Hot Springs, Arkansas, by the city health officer.
On June 16, 1942, appellee filed her petition for a writ of habeas corpus directed to the appellant, Gus Caple, sheriff of Pulaski county, in which she stated that she was unlawfully confined in the Pulaski county jail under said ordinance No. 6249 which was alleged to be void, and that she had been informed that she would be transferred to "a concentration camp" against her will.
The sheriff filed an answer to the petition for habeas corpus, setting up the matters aforesaid and many others as his authority for detaining appellee and attaching certified copies of ordinance No. 6249 and its amendatory ordinance No. 6434; also ordinance No. 6248 and its amendatory ordinance No. 6282, and asserting the validity of said ordinances as being a reasonable exercise of the *695 police power of the city for the protection of the public peace, health and safety, and that no right of appellee is being violated in or by them. He further alleged that he held appellee under and subject to the orders of Dr. L. L. Fatherree, city health officer, who should be made a party respondent to the petition. Dr. Fatherree was made a party and adopted, as his response, that of sheriff Caple.
Trial resulted in a holding, by the learned trial judge, that ordinances Nos. 6248 and 6249, as amended, are unconstitutional and void. The writ was granted and appellee was discharged upon her petition, but was ordered held subject to the action of the prosecuting attorney's office on a charge of prostitution, and was remanded to jail pending further orders of the court. The city, the sheriff and the city health officer have appealed, and the city attorney has filed an able brief in their behalf. Appellee has not favored us with a brief in her behalf.
The question presented is whether the ordinances of the city of Little Rock, above mentioned and parts of which are quoted, are valid as being within the police power of the city. If they are valid, then the action taken is not in excess of the authority conferred. There can be no doubt of file city's power to declare prostitution or immorality a criminal offense and to punish for a violation. Indeed appellee was so convicted and paid a fine therefor. This is not a criminal proceeding, but is one in the interest not only of appellee, but of the public. It is a proceeding to compel her to be quarantined, segregated from the public, to the end that she may be cured of the venereal diseases with which she is infected, and that she may not communicate them to others. When a cure is effected, the authority to detain her is at an end.
In Williams v. State,
The venereal diseases with which appellee is afflicted have become so widespread and so devastating in their effects upon communities where prevalent as to become a public menace. Many cities are now fighting more or less successfully to overcome this menace and to prevent degeneration into a race of cripples, paranoiacs and insane. Camp Joseph T. Robinson, with its 25,000 young men soldiers; Maumelle Ordnance Works and Arkansas Ordnance Plant, each with thousands of workers, men and *697 women, are near the city of Little Rock, and these men and women, as well as our own citizens in the city, are entitled to protection against these dreadful and loathsome diseases. Here the necessity exists which justifies the exercise of the power, and the private rights of appellee, if any, must yield in the interest of the public security.
Section 9679, Pope's Digest, provides: "The city council shall have the power to establish a board of health, with jurisdiction for one mile beyond the city limits; and for quarantine purposes, in cases of epidemic, five miles; to invest it with such powers and impose upon it such duties as shall be necessary to secure the city and the inhabitants thereof from the evils of contagious and malignant and infectious disease; to provide for its proper organization and the election or appointment of necessary officers, and to make such by-laws, rules and regulations for its government and support as shall be required for enforcing the prompt and efficient performance of its duties and the lawful exercise of its powers."
The trial court thought this statute denied the right of the city health officer to quarantine appellee outside the city or county beyond the limits stated, in case of epidemics, five miles. We think the statute means that the jurisdiction of the board of health shall extend for one mile beyond the city limits, or five miles for quarantine purposes, in cases of epidemics. It has no reference to the place a person may be confined for quarantine purposes, but only to the extent of the jurisdiction beyond the city limits for the better protection of the inhabitants of the city. Section 6438 of Pope's Digest expressly authorizes and requires the city health officer to perform the duties "prescribed for him under the directions, rules, regulations and requirements of the State Board of Health." One of these regulations of the State Board of Health is No. 3, as follows: "Isolation of infectious cases until rendered non-infectious. Any health authority may, when in the exercise of his discretion he believes that the public health requires it, commit any commercial prostitute or other person apprehended and examined and found afflicted with said diseases or either of them who refuses or fails to take treatment adequate for the *698 protection of the public health, to a hospital or other place in the state of Arkansas for such treatment even over the objection of the person so diseased and treated, provided the commitment can be done without endangering the life of the patient."
These rules have been upheld by the court in Allen v. Ingalls,
A number of cases of courts of other states sustaining similar legislation or ordinances are cited, one of which Ex Parte McGehee, et al.,
"It is urged that the regulations in question are unreasonable, in that they authorize isolation in remote places beyond the limits of the city in which the petitioners reside. The court knows of no law, or rule of public policy or private right, which requires a person who, for the protection of the public must be isolated and treated for loathsome communicable disease, to he interned in the locality in which he may reside. It would have been competent for the State Board of Health to designate a single hospital for the detention of all persons in the state found to be so diseased, and it is entirely reasonable for cities having inadequate facilities, or having no facilities of their own, to take advantage of those provided by state authority. In this instance the city health officer's power to isolate is restrained by ordinance which requires the city commission to approve detention hospitals other than those provided by the city.
"In the application for the writ it is stated that the petitioner is not diseased. The question is one of fact, determinable by practically infallible scientific methods. The city health officer was authorized to ascertain the *700 fact. He has certified to the existence of disease, and, in the absence of a charge of bad faith, or conduct equivalent to bad faith, on his part, his finding is conclusive.
"In the application for the writ it is stated that, if the petitioners be diseased, they are able to provide themselves with proper treatment in an isolated place in the city of Topeka. The answer is: The public health authorities are not obliged to take chances."
We, therefore, conclude that the court erred in holding said ordinances unconstitutional and void and in discharging appellee. The judgment is reversed and the cause remanded with directions to dismiss the petition for the writ of habeas corpus and to remand appellee into the custody of the sheriff for isolation and quarantine as ordered by the city health officer, and an immediate mandate shall issue.