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Quasi-Legislative Powers of State Boards of Health1

Published online by Cambridge University Press:  02 September 2013

U. G. Dubach
U. G. Dubach
Affiliation:
School of Commerce of Oregon Agricultural College
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Extract

The aim of the present paper is to describe the regulative powers granted to state boards of health, and to consider the wisdom of these grants as well as their validity as tested by the principle that the law-making powers granted to legislatures may not constitutionally be delegated by them to other agents of government.

State boards of health, while primarily administrative bodies, have generally a more or less extensive power to make regulations in supplement to and having the force of statute law. Questions thus arise as to the extent and validity of the ordinance-making powers granted. Does the power to make these regulations, having the force of law, change the nature of these boards? Under what conditions may they exercise their power?

Type
Research Article
Information
American Political Science Review , Volume 10 , Issue 1 , February 1916 , pp. 80 - 95
Copyright
Copyright © American Political Science Association 1916

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References

2 State vs. Burdge, 95 Wis. 390.

3 Blue vs. Beach, 155 Ind. In accord with this case, Isenhour vs. State, 157 Ind. 517.

4 Starte vs. Morse, 80 Atl. Ren. 189.

5 Acts, 1909, ch. 144, sec. 6.

6 Rev. Statutes 1907, ch. 126, sec. 2.

7 Public Health Laws and Sanitary Memoranda. Issued by the State Board of Health, 1907, p. 6.Google Scholar

8 Sec. 5, Act Apr. 27, 1905, Public Laws, 313.

9 Sec 1408, Wis. Statutes, 1898.

10 Statutes and Public Health Bulletin, no. 54, p. 43.

11 Arizona, Colorado, California, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey. New York, Ohio, Pennsylvania, South Carolina, Virginia, Washington and Wisconsin.

12 Arizona, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming.

13 Alabama, Arizona, Arkansas, California, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Minnesota, Montana, New Jersey, New York, North Carolina, North Dakota, Ohio, South Carolina, Vermont, Washington and Wisconsin.

14 Florida, Georgia, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Montana, New Hampshire, North Carolina, Ohio, Oregon, South Carolina, Texas, Utah, Virginia, Wyoming.

15 Sec. 113, ch. 75, Rev. Laws. The Connecticut and Merrimac rivers excepted.

16 Sec. 21, 31 Rev. Laws, 1905.

17 Rev. Laws, 1911, sec. 1560.

18 Cons. Code, 1909, sec. 71, as amended by ch. 695, Laws 1911.

19 Sec. 24, Health Code, 1912 Bulletin, March, 1912, p. 14

20 Sec. 5497, Rev. Statutes.

21 Laws, 1909, ch. 593, no. 12, sec. 1.

22 Laws, 1910, ch. 179, sec. 1.

23 Rev. Statutes, 1910, sec. 4382.

24 Laws, 1906, ch. 150, sec. 4382.

25 Arizona, Arkansas, California, Colorado, Georgia, Indiana, Kansas, Nebraska, New Mexico, North Dakota, Massachusetts, Mississippi, Missouri, South Dakota, Virginia, Wisconsin, Wyoming, and West Virginia.

26 Statutes and Public Health Bulletin, no. 54.

27 Pierce vs. Doolittle, 130 La. 333.

28 The regulation was general in terms, but apparently the board expected it to be enforced only when local authorities were ordered to put it into effect.

29 State vs. Burdge, 95 Wis. 390.

30 Blue vs. Beach, 155 Ind. 121.

31 Potts vs. Breen, 167 Ill. 67. Reaffirmed in Lawbough vs. Board of Education, 177 Ill. 572.

32 Abell vs. Clark, 84 Cal. 226. In re Walters 33 N. Y. Supplement, 322.

33 Bissel vs. Davidson, 65 Conn. 183.

34 Duffield vs. Williamsport School District 162 Pa. State 476.

35 Jacobson vs. Mass., 197 U. S. 11.

Though it was not necessary to the decision of the case, the Supreme Court of Wisconsin held in State vs. Burdge, 95 Wis. 390 (cited above) that the board of health could not make a regulation requiring vaccination as a condition of school attendance even though acting under a statute giving it authority to do so unless an epidemic existed. This decision is contrary to the general opinion. The subject is fully discussed and citations given in American State Reports, Vol. 80, p. 230, in connection with Blue vs. Beach, 155 Ind. 121, and in 29 L. R. A. 251 in connection with Bissel vs. Davidson, 65 Conn. 183.

36 Kentucky Board of Health Report, 1908–1909, p. 72

37 The Lake Erie and Western R. R. Co. vs. James, 10 Ind. 550.

38 Hurst vs. Warner, 102 Mich. 490.

39 Wilson vs. R. R. Co., 77 Miss. 714. Same holding in Koscuisko vs. Solomon Slowberg, 68 Miss. 469.

40 Compagnie Francaise De Navigation vs. State Board of Health, 25 So. Rep. 591.

41 Sprague vs. Dorr, 185 Mass. 10.

42 State vs. Morse, 80 Atl. Rep. 189.

43 Sprague vs. Minon, 195 Mass. 581.

44 Commonwealth vs. Staples, 191 Mass. 384.

45 State Board of Health vs. Village of St. Johnsburg, 73 Atl. Rep. 58.

46 Miles City vs. State Board of Health, 39 Mont. 405. State Board of Health vs. City of Greenville, 98 N. E. Rep. 1019.

47 Nelson vs. State Board of Health, 186 Mass. 330.

48 Act 192 of 1898; amended by Act 44 of 1900, Act 150 of 1902 and Act 184 of 1904.

49 State vs. Snyder, 59 So. Rep. 44, La. Superior Court, 1912.

50 Public Health Bulletin, no. 54, p. 44.