Ex parte COMPANY
106 Ohio St. 50, 139 N.E. 204 (1922)
The state department of health was created by the act of March 21,
1917 (107 O. L. 522; section 1232, General Code). The same act provided
for the creation of a public health
council (section 1234, General Code), and provided, further (section
1235, General Code), that it should be the duty of the public health
council, and it should have the power, 'to make and amend sanitary
regulations to be of general application *53 throughout the
state. Such sanitary regulations shall be known as the Sanitary Code.'
It is further provided that----
'Every regulation adopted by the public health council shall state
the date on which it takes effect, and a copy thereof, duly signed by
the secretary of the public health council, shall be filed in the office
of the secretary of state * * * and shall be published in such manner as
the public health council may from time to time determine. Every
provision of the Sanitary Code shall apply to and be effective in all
portions of the state.' Section 1236, General Code.
The public health council of the state department of health
thereafter adopted and promulgated a sanitary code and rules and
regulations in respect thereto effective July 1, 1920, which sanitary
code and regulations were certified to by the secretary of the public
health council, state department of health, and filed with the secretary
of state of the state of Ohio on the 25th day of May, 1920.
Regulation 2 of the Sanitary Code, so adopted, named, classified, and
declared dangerous to the public health certain diseases and
disabilities, and included in class
'B,' of such designated diseases, those known as chancroid, gonorrhea,
and syphilis. Regulation 18 of the Sanitary Code declares such diseases
to be contagious, infectious, communicable, and dangerous to the public
health. Regulation 23 empowers the health commissioner of each city to
make examination of persons reasonably suspected of having a venereal
disease. All known prostitutes and persons associating with them shall
be considered as reasonably suspected of having a venereal disease. *54
Regulation 24 provides that the health commissioner may quarantine any
person who has, or is reasonably suspected of having, a venereal
disease, whenever in his opinion quarantine is necessary for the
protection of the public health.
It is claimed by the several petitioners:
(1) That the Sanitary Code, in so far as it authorizes quarantine,
examination, and detention, is in contravention of section 1, art. 14,
of the amendments to the federal Constitution, and violates section 5,
art. 1, of the Constitution of Ohio.
(2) That the Sanitary Code in so far as its regulations are attempted
to be applied to these petitioners is in opposition to and violative of
subsection 'c' of section 13031-17, General Code.
(3) That the Legislature is without power to delegate its lawmaking
These questions will be considered in the order named.
Section 1, art. 14, of the amendments to the Constitution of the United
States, provides in part:
'No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.'
Section 5, art. 1, of the Constitution of Ohio provides:
'The right of trial by jury shall be inviolate, except that, in civil
There is perhaps no provision of the federal Constitution that is
more overworked than the Fourteenth Amendment. Counsel generally are
apparently unanimous in thinking that any judgment or finding *55
as against the client denies such client the equal protection of the
laws, or is without due process of law. It has been so many times
decided that the Fourteenth Amendment does not limit the states in the
proper exercise of police power that citation of authority seems
needless. If authority were needed to support the proposition,
sufficient would be found in the Slaughter-house Cases, 16 Wall. 36, 21
L. Ed. 394, and in Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42
L. Ed. 780. In the latter case Mr. Justice Brown, in his learned
opinion, has collated and digested the authorities.
Section 5, art. 1, of the Constitution of Ohio, has been so often
passed upon that the principle with
which we are here concerned may be regarded as fully and completely
adjudicated. Board of Commissioners of Champaign County v. Church, Adm'r,
62 Ohio St. 318, 57 N. E. 50, 48 L. R. A. 738, 78 Am. St. Rep. 718;
State Board of Health v. City of Greenville, 86 Ohio St. 1, 98 N. E.
1019, Ann. Cas. 1913D, 52; and C. H. & D. Rd. Co. v. City of Troy,
68 Ohio St. 510, 67 N. E. 1051. The right of the state through the
exercise of its police power to subject persons and property to
reasonable and proper restraints **206 in order to secure the
general comfort, health, and prosperity of the state is no longer open
to question. In the American constitutional system the power to
establish the necessary police regulations has been left with the
The adoption of the Fourteenth Amendment has not extended to the
several states of the Union the restrictions imposed by the first ten
amendments to the Constitution of the United States upon the federal
government. Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 L.
Ed. 597; *56 Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. 77,
44 L. Ed. 119, and United States v. Cruikshank, 92 U. S. 542, 23 L. Ed.
588. The regulations here under consideration, if otherwise lawful, are
not in conflict with any provision of the federal or state
It is urged that the Sanitary Code, and the particular regulations in
question, are in opposition to and violative of subsection 'c' of
section 13031-17, General Code.
Section 13031-17 prescribes the penalties to be administered as against
those found guilty of violating any of the offenses set forth and
defined in sections 13031-13 and 13031-16, General Code. Subsection 'c'
of section 13031-17 is in part as follows:
'Any person charged with a violation of § 13031-13 of the General
Code, shall, upon the order of the court having jurisdiction of such
case, be subjected to examination to determine if such person is
infected with a venereal disease. * * * No person charged with a
violation of § 13031-13 of the General Code shall be discharged from
custody, paroled or placed on probation if he or she has a venereal
disease in an infective stage unless the court having jurisdiction shall
be assured that such person will continue medical treatment until cured
or rendered noninfectious.'
In the cases here considered it is to be observed that both of the
petitioners were charged with violations of section 13031-13, General
Code. Regulation 24 provides that such infected persons shall be subject
to quarantine. The statutory provision is that such infected persons
shall not be discharged from custody, paroled, or placed on probation. *57
No inconsistency is found as between the regulations complained of and
the provisions of subsection 'c' of section 13031-17, General Code. In
either event quarantine is established. Quarantine in the sense herein
used means detention to the point of preserving the infected person from
contact with others. The power to so quarantine in proper
case and reasonable way is not open to question. It is exercised by the
state and the subdivisions of the state daily. The protection of the
health and lives of the public is paramount, and those who by conduct
and association contract such disease as makes them a menace to the
health and morals of the community must submit to such regulation as
will protect the public.
It is claimed further in behalf of the petitioners that the
Legislature is without power to delegate its lawmaking authority. The
distinction between power granted to legislate and power granted to
administer marks the difference between the contention urged and the
true question herein to be considered. It is not now necessary to
consider the question of delegated legislative power. It is sufficient
that the power of the Legislature to authorize administrative authority
on the part of boards of health, and subdivisions of the state, and to
authorize the adoption by such instruments of its choice of rules and
regulations affecting public health, including the power to detain and
quarantine, has been considered and upheld in People v. Tait, 261 Ill.
197, 103 N. E. 750; State v. Normand, 76 N. H., 541, 85 Atl. 899, Ann.
Cas. 1913E, 996; Highland v. Schulte, 123 Mich. 360, 82 N. W. 62; City
of Taunton v. Taylor, 116 Mass. 254; Isenhour v. State, 157 Ind. 517, 62
N. E. 40, 87 Am. St. Rep. 228; Blue v. Beach, 155 Ind. 121, 56 N. E. 89,
50 L. R. A. 64, 80 Am. St. Rep. 195; and Hengehold v. City of Covington,
108 Ky. 752, 57 S. W. 495.
*58 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 law within the districts over
which their jurisdiction extends is not an open question. This power has
been repeatedly recognized and affirmed. Polinsky v. People, 73 N. Y.
65; Metropolitan Board of Health v. Heister, 37 N. Y. 661; and Health
Dept. of City of N. Y. v. Knoll, 70 N. Y. 530.
In Ex parte Johnson, 40 Cal. App. 242, 180 Pac. 644, it was decided
by the District Court of Appeals, all judges concurring:
'The adoption of measures for the protection of the public health is
a valid exercise of the police power of the state, as to which the
Legislature is necessarily vested with large discretion, not only in
determining what are contagious and infectious diseases, but also in
adopting means for preventing their spread, as by imposing on health
department of city the duty to take measures to prevent the spread of
disease afflicting any person.'
Ex parte Johnson presents a case identical in fact with the instant
cases. The petitioner, Johnston, was a woman, who was originally taken
into custody without warrant, found to be diseased, and thereupon by
order of the health commissioner of the city of Los Angeles was ordered
confined for treatment with a view to effecting a cure. In its
consideration of the question there raised the court says:
'In the absence of any showing to the contrary, we must, upon the
evidence before us, assume that petitioner was, when subjected to **207
quarantine regulations, and is now, afficted with and suffering from
gonococcus infection, which * * * is, with leprosy, *59 smallpox,
typhus fever, and a number of other diseases, declared to be contagious
and infectious. The sole question thus presented is the right of proper
authorities to isolate and place her in quarantine. By the section of
the Code just cited it is made the duty of the health officer, knowing
of the existence of any such contagious or infectious disease, to take
such measures as may be necessary to prevent the spread thereof. The
isolation of one afflicted with a contagious or infectious disease is a
reasonable and proper, indeed the usual, measure taken to prevent the
increase and spread thereof.
'It appears that petitioner was originally taken into custody without
a warrant, and, basing his argument upon such arbirary action, counsel
draws a lurid picture of what might result from maladministration of the
law by those charged with the duty of enforcing it. The fact that the
authority so delegated may, in a given case, be abused is no legal
reason for denying the power to quarantine summarily in a case where
grounds therefor concededly exist. * * * Assuming the action of the
police officer arbitrary and unjustified, she is not restrained of her
liberty by reason thereof, but, on account of a disease with which she
was subsequently found to be afflicted, and in
the ascertainment of which fact there appears to have been no arbitrary
or unlawful action taken.'
It is true that, in State ex rel. Adams v. Burdge, 95 Wis. 390, 70 N.
W. 347, 37 L. R. A. 157, 60 Am. St. Rep. 123, it was held that the state
board of health of Wisconsin was a purely administrative body, and had
no regulatory powers, and that none could constitutionally be delegated
to it. The Burdge Case apparently stands alone. Throughout *60
our investigation we have been unable to find that it has been approved
or followed in any jurisdiction. In the Burdge Case it was decided
further that there was no power in the Wisconsin state board of health
to quarantine as against smallpox, or to compel vaccination, or to
exclude children from the public schools because of nonvaccination.
The right to quarantine by exclusion has been upheld in the recent
case of Zucht v. King, decided by the Supreme Court of the United States
on November 13, 1922, 43 Sup. Ct. 24, 67 L. Ed. 194. Mr. Justice
Brandeis in the opinion regards and states it as:
(1) 'Settled that a state may, consistently with the federal
Constitution, delegate to a municipality authority to determine under
what conditions health regulations shall become operative.'
(2) 'Settled that the municipality may vest in its officials broad
discretion in matters affecting the application and enforcement of a
(3) 'Settled that in the exercise of the police power reasonable
classification may be freely applied, and that regulation is not
violative of the equal protection clause merely because it is not all
We do not subscribe to either the principle or pronouncement of the
Burdge Case. We prefer and adopt the latest judgment of the Supreme
Court of the United States. It is founded in reason and sustained by
It is our conclusion that the provisions of sections 1232, 1234,
1235, and 1236, General Code, creating a state department of health, a
public health council, and authorizing such public health council 'to
make and amend sanitary regulations to be of general application *61
throughout the state,' and to provide for the certification,
publication, and enforcement of such regulations, is a lawful and valid
exercise of legislative power.
Writs refused. Petitioners are remanded to the respondent, the
commissioner of health of the city of Akron, Ohio, and the petitions are
Judgment for respondent.
MARSHALL, C. J., and HOUGH, WANAMAKER, ROBINSON, JONES, and MATTHIAS,