Part 26 (1/2)
_Principle of laws of hygiene._
It is particularly the laws which pertain to health and hygiene which we shall consider in this chapter. The principle on which laws relating to hygiene are pa.s.sed is that while nominally a person is always free to do with his own whatever he may choose, yet as a member of a community he must choose to do only that which shall not injure or affect the health or comfort of his neighbors. This principle was not at first invoked to prevent violations of laws of health, but rather to prevent the inconvenience which might come to a neighbor or to the public at large by some unreasonable though apparently legitimate use of individual property. As an example we may mention the law of New York State requiring each owner of property in the country to cut gra.s.s, weeds, and brush along the highway twice each year. Although this interferes with the right of the owner to have the land which belongs to him left as he chooses, it is legal because of the greater convenience and comfort it contributes to the larger number of persons traveling along the highway.
The state does not a.s.sume the right to interfere with the acts of individuals so long as such acts affect only their own individual well-being, but when those actions affect others, then the police power of the state may be invoked. It is on this principle that the law prohibits suicide, a.s.suming that no man can live or die without affecting the interests of other people. This is plainly so in the case of the head of a family or in the case of a man upon whom others are dependent and whose death removes their support and causes those supported to become dependent upon the state or county. This principle has been extended so as to include the cases where a method of living, a lack of care, or even a mere appearance in public may adversely affect the health of others in the same community. If, for example, a member of a family has diphtheria or smallpox, and such a child is isolated so that no danger of the spread of the disease exists, the state would not, in general, insist upon the use of any preventive or curative inoculation; but if a child with incipient diphtheria or whooping cough goes to school where other children may be infected and the disease spread, the state, acting through its Board of Education, would have a perfect right to send the child home and prevent its enjoying school privileges until recovery from the disease.
It is on this principle that the state says that no child in New York State may attend school unless vaccinated, the law reading, ”No child, not vaccinated, shall be admitted into any of the public schools of the state, and the trustees of the schools shall cause this provision of law to be enforced.” This law has been questioned and brought before the Supreme Court for review, and it was held by the judges that the protection to the community implied is of sufficient importance to justify its enactment.
For like reason, other restrictions governing the control of contagious diseases is a function of the police power of the state in which the rights of the individual must yield to the greater good of the community. The writer remembers a particularly malignant case of smallpox where the efforts of the local Board of Health had been concentrated on the enforcement of quarantine, and where by the aid of policemen, day and night, it was hoped that the disease was being confined in the one house; yet, after the death of the patient, and when apparently efforts for protection might be relaxed, a wake was held in the house, in the very room of the patient, which might have resulted in the spread of the disease through the entire town. Regulations, therefore, covering the conduct of funerals and of burials should be agreed to, since they are intended to prevent the spread of disease.
_Self-interest the real basis of law._
Many practices which are required by law in cities where the population is crowded are not required or are not enforced in country districts, since there the failure to carry out protective measures reacts only on those immediately concerned. Disinfection of rooms in which contagious diseases have occurred is one such provision. It rarely happens that a health officer of a country community concerns himself with seeing that a case of scarlet fever, for example, is prevented from spreading by a thorough disinfection of the rooms. That seems to be left to the good sense of the individual. It is hardly conceivable that a mother with three or four children (when one child has been sick with a contagious disease) will neglect ordinary and reasonable precautions to prevent the spread of that disease to the rest of the family.
It is inconceivable, when the small amount of trouble and expense is considered, that the parents of a family, after a case of diphtheria, will neglect to fumigate and disinfect the clothing and bedding which may be thus infected, particularly if such clothing or bedding is to be used by other members of the family; and yet instances are recorded where a child has died of scarlet fever and a year later another child, perhaps wearing some of the clothes of the previous victim, has been seized with the disease and has followed its brother or sister to the grave. Cases of tuberculosis have been known to follow each other almost year after year, as one member of a family after another occupied a room where the infection persisted, either in the carpet or furniture, which was never properly disinfected. Such cases must be left to the good sense, intelligence, and understanding of the persons concerned. The police power can never in this age take the place of an enlightened sense in the community, nor are laws, as a matter of fact, of any use except as they are sustained and enforced by public sentiment.
QUALITY OF WATER
There is another way in which the police power of the state exercises control over rural communities, and that is in the matter of food which the country generally supplies to the city. Perhaps the pollution of water, which is, after all, one kind of food, is as important as any matter covered by health laws.
In most cities to-day the pollution of streams is prohibited on two grounds, first, that the streams are public property, even though for a part of their course they may be owned individually. The sum of the parts making up the whole stream involves so many individuals as to imply public owners.h.i.+p, and inasmuch as one individual is limited in his uses of the stream by the principle already referred to, he cannot, even on his own land, do what he pleases with a stream or with its waters. When streams are navigable, according to the law of this country, no private owners.h.i.+p can exist, for the waters are controlled and owned by the federal government. This latter body, in general, does not undertake to control the quality of such waters, but there are many laws covering the quant.i.ty of water in such streams, limiting the amounts that can be withdrawn, restricting the filling up or silting of such streams, and qualifying the bridging or damming of such waterways.
In small streams, such as are generally found in rural communities, the vital principle of owners.h.i.+p is always limited by the requirement that no owner shall so interfere with the normal quant.i.ty or quality of water in the stream as to prevent their full enjoyment by the next man downstream whose rights are equal with his own. This means, in the matter of quant.i.ty, that while one individual may water stock in a stream or may pump water from a stream for household use, he may not withdraw from the stream the entire volume to use for irrigation, nor may he, as a riparian owner, sell the water to some city near by which might take out all the water of the stream.
The quality of a stream, likewise, may only to a certain extent be interfered with. If a stream flows through a meadow, cows pastured in the meadow have a natural right to wade in the brook, and if, in so doing, a certain amount of pollution is added to the waters of the brook, no one downstream can justly complain.
If, however, a sewer is carried from barns or houses into a brook which is later used for drinking purposes, the quality of the water is affected, and such a discharge is so revolting to the senses that complaint to the courts would result in an order to find some other method of disposing of such wastes.
In New York State, the legislature has delegated to the Department of Health certain rights in the matter of the protection from pollution of the waters of the state, particularly when those waters are used for drinking purposes. Upon application from the water company, this department, having carefully inspected the watershed, will prepare a complete and elaborate series of rules, giving in detail just what an individual may or may not do on the watershed, and, when enacted, these rules have all the force of law. They are, however, like all laws, subject to the const.i.tutional limitations, and particularly to the clause of the const.i.tution which provides that ”no state shall make or enforce any law which shall deprive any person of property without due process of law.” This means that if any law prevents an individual enjoying reasonable use of his own property, or if the deprivation of such use is for the special benefit of some special community or company, then that special body must be prepared to make compensation for that deprivation, although if it were for the general good of the community of which the individual was a member, no compensation might be required.
REGULATIONS GOVERNING FOODS
Laws covering the sale of adulterated foods are of two kinds, namely, those enacted by the national government at Was.h.i.+ngton, and those enacted by the local authorities, either state or munic.i.p.al. The laws enacted by the national government, which are comprehended in the recently enacted National Pure Food Law, deal particularly with the adulteration and misbranding, not only of foods, but of all sorts of medicines and liquor. Their effect, however, is limited entirely to such articles as make up interstate commerce. If an article is made and sold within the boundaries of any single state, it is not subject to the national law, nor could this national law be applied to the production or sale of any article from a farm unless that article was well enough known to be generally distributed. For example, maple sirup, widely advertised and generally sold, would be subject to the provisions of the national law. b.u.t.ter and cheese, sold locally, would not be subject to such a law. It is evident, therefore, that this law does not usually apply to farm products, unless, as in the case of some sausages, for example, a widely advertised campaign has been inst.i.tuted to promote their sale.
There are, however, in the different states, laws which do apply locally and which prohibit adulteration of all sorts. In New York State, for example, the law says that no person shall, within the state, manufacture, produce, compound, brew, distill, have, sell, or offer for sale any adulterated food or product, and the law further specifies that an article shall be deemed to be adulterated:--
”1. If any substance or substances has or have been mixed with it so as to reduce or lower or injuriously affect its quality or strength.
”2. If any inferior or cheaper substance or substances have been subst.i.tuted wholly or in part for the article.
”3. If any valuable const.i.tuent of the article has been wholly or in part abstracted.
”4. If it be an imitation or be sold under the name of another article.
”5. If it consists wholly or in part of diseased or decomposed or putrid or rotten animal or vegetable substance, whether manufactured or not, or in the case of milk, if it is the produce of a diseased animal.