#### C. B. McCLENNY v. THE UNITED STATES.

[Congressional,

13156.

Decided March 28, 1910.]

*On the Proofs.*

An epidemic of yellow fever breaks out in a town in Florida. A physician, being a yellow-fever specialist and expert of the Marine-Hospital Service, is sent to tbe town. 1-Ie informs the authorities that it is infected with a virulent type of *306yellow fever, and suggests as a means to prevent it from becoming epidemic that a hospital be established and the sick be placed therein. His suggestions are merely advisory and he leaves the town the same day. The authorities there obtain the claimant’s hotel, and it is used as a hospital. The Senate refer a bill for its use and occupancy as a yellow-fever hospital. The claimant’s petition in this court alleges “ *that at the instance and under the practical direction of the United States Marine-Hospital Service his hotel property*” “ *was talcen and used as and for a hospital for yelloio-fever patients."*

I. The United States can not be charged with the expenses of an epidemic merely because an official of the Government upon the request of a suffering community was dispatched to the scene, his services and statements there being merely advisory.

II. Where a building was taken by local authorities and used as a hospital for yellow-fever patients a claim for reimbursement made by the owner upon the United States is neither “ *legal"*nor “ *equitable*” within the meaning of the Tucker Act, ancL the court is without jurisdiction.

*The Reporters'*statement of the case:

This is a claim for rent of and damage to a hotel property owned by the claimant in the town of Macclenny, Baker County, Fla., which was used as a yellow-fever hospital in the fall and winter of 1888, such use and occupation of said property alleged to have been at the instance and under the direction of the Marine-Hospital Service of the United States.

On the 2d day of March, 1907, the United States Senate referred to the court a bill in the following words:

“ [S. 8579, Fifty-ninth Congress, second session.]

“ A BILL For the relief of O. B. McClenny.

*uBe it enacted by the Senate and Rouse of Representatives of the United States of America in Congress assembledy*That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, the sum of ten thousand dollars to C. B. McClenny, for the use and occupancy of his property at Macclenny, Florida, as a yellow-fever hospital in the year eighteen hundred and eighty-eight.” *307The claimant appeared in this court on the 8th day of November, 1907, and filed his petition, in which it is substantially averred:

That in the month of August, 1888, an epidemic of yellow fever broke out in the town of Macclenny, Baker County, Fla., and that at the instance and under the practical direction of the United States Marine-Hospital Service his hotel property situated in said town was taken and used as and for a hospital for yellow-fever patients for several months, with the result that he lost the rent of said property during that period and forever afterwards, and that said property was also greatly damaged by reason of such occupation and use, requiring fumigation and the removal of the papering from the wall, and entailing upon him also a total loss of all the furniture contained in said hotel property, which had to be burned, to his loss and damage in the sum of $10,000.

The following are the facts pf the case as found by the court:

I. The claimant at the date of the loss hereinafter set forth was and still is a citizen of the United States.

II. In August, 1888, the claimant was the owner of a frame hotel building 140 feet by 20 feet, two stories high, with a porch on either side of it, containing 20 rooms, situate in the town of Macclenny, Baker County, Fla. The building was lathed on the inside and the laths were covered with heavy wall paper. It appears that said hotel had a rental value of $100 a month during the summer season and $150 a month during the winter season, and was fairly well patronized.

III. In the early part of August, 1888, an epidemic of yellow fever broke out in said town. The local physicians did not pronounce the disease yellow fever, and the acting mayor of the town telegraphed to the Surgeon-General of the United States Marine-Hospital Service at Washington requesting him to send an expert specialist on yellow fever for the purpose of deciding whether the disease was yellow fever. The said Surgeon-General directed Dr. J. L. Posey to proceed to said town and diagnose the disease. He did so, arriving there two days later. He examined one or more cases and pronounced the disease a virulent type of yellow *308fever. The mayor at that time was suffering with the disease, and Doctor Posey conferred with the acting mayor in relation to the best method of handling the epidemic. There were about 90 cases at that time. Pie suggested that said acting mayor secure the hotel building owned by the claimant and corral therein those suffering with the disease. The local authorities agreed to this suggestion, and proceeded at once to convey many of those that were - afflicted to said hotel building. Doctor Posey only remained in the town of Mac-clenny a few hours and returned to Jacksonville. He, however, a day or two later, took a physician with him and made a second visit to Macclenny, but the length of time they remained does not appear. On or about the time of this second visit a number of Red Cross nurses and one or more physicians from New Orleans and Pensacola arrived at the suffering-town and proceeded to take charge of the afflicted patients. Doctor Posey and his assistant withdrew from the town, as it appears there was no further need for their services.

It further appears that there were three and possibly four persons at the hotel suffering with yellow fever at the time it was taken possession of for hospital purposes.

IY. After the epidemic had abated the hotel building, as well as other buildings in the town which had been occupied by fever patients, were fumigated by authority either of the Red Cross nurses or the medical board of the county or State, and much of the furniture contained in said buildings was destroyed by this fumigating process. A portion of the personal property thus destroyed was paid for, but by whom does not appear. The heavy wall paper from the hotel building was removed, and considerable damage was done to the building in order that the fever germs might be exterminated. The hotel property of the claimant had materially depreciated in value and necessarily could not be used for hotel purposes for a considerable period -of time. His loss therefore was considerable.

V. Several months after the epidemic had abated claimant filed a claim with the Treasury Department at Washington for a sum not exceeding $2,000 for use, occupancy, and damage to his hotel building, which was not paid for the reasons *309that the Government in no respect was considered responsible for the impressing and use of said hotel building for hospital purposes; that the Government’s connection with the matter was simply in an advisory capacity, and its only purpose in sending the physician to diagnose the disease was to aid in any proper way possible in stamping it out.

VI. Doctor Posey, under date of January 3,1899, addressed a letter to Surg. Gen. John B. Hamilton, United States Marine-Hospital Service, Washington, D. C., and, in referring to the bill of claimant McClenny for the use and injury to his property during the epidemic, stated that this hotel building was the only one available for hospital purposes and that he advised its use by the local authorities, which advice was followed by them. The day after Doctor Posey wrote said letter Dr. Joseph Y. Prater, surgeon in charge of government relief measures in Florida, likewise wrote said Surgeon-General to the effect that Doctor Posey did not seize the hotel premises for hospital purposes, and consequently claimant had no legal claim against the United States for damages to said property.

J. D. Merritt, mayor of the town of Macclenny, soon after the epidemic abated, and at the time claimant filed his account with the Secretary of the Treasury for the use of and damages to the hotel building, wrote the Secretary of the Treasury in effect that when Doctor Posey arrived at the town, there was much excitement and confusion; that entire families were prostrated with fever; that the town officers, were mostly the first victims (he being one of them) ; that there was no board of health to take official action, and that while Doctor Posey did not order the hotel to be taken for hospital purposes, he expressed the opinion that it was a wise and proper move to take.

VII. On account of the visitation of yellow fever the business of the town of Macclenny was greatly prostrated and the value of property depreciated rapidly, and it appears that the claimant exchanged said hotel building for mountain lands in the State of Kentucky, which he valued at that time at from $600 to $1,000. As set forth in Finding V, the claim herein was first presented to the Treasury Depart*310ment for a sum not exceeding $2,000, while the claim now referred is for $10,000 for the use and damage to said hotel property.

VIII. The occupancy, use, and damage of said building at the time and place was reasonably worth the sum of $2,000; but it does not appear from the evidence that the United States in any manner ordered the seizure and occupancy of the hotel‘building for hospital purposes or had anything to do with the destruction of the furniture therein or the removing of the paper from the walls of the same for the purpose of fumigation, which resulted in the damages for which claim is herein made.

*Mr. Harvey M. Friend*for the claimant.

*Mr. J. Harwood Graves*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Atkinson, J.,

delivered the opinion of the court:

This is a claim for rent of and damage to a two-story frame hotel building owned by the claimant in the town of Macclenny, Baker County, Fla., by reason of said hotel being used as a yellow-fever hospital in the summer and fall of 1888. The amount claimed in the bill is $10,000. The evidence consists of testimony of the claimant and five witnesses taken at said town of Macclenny in May, 1909, and certified copies of the records of the Treasury Department bearing upon the operation of the Marine-Hospital Service in connection with the epidemic of yellow fever at that place in August, September, and October, 1888.

The findings show that an epidemic of yellow fever broke out in Macclenny in the early part of August, 1888; that the fever was not recognized by local physicians as yellow fever; that after a number of people, including the mayor and other town officials, had been stricken with the disease the acting mayor telegraphed to the Marine-Hospital Service at Washington, requesting that an expert be sent to ascertain if the malady was yellow fever. The second day after the telegram was sent Dr. J. L. Posey, a yellow-fever specialist and expert of the Marine-Hospital Service, arrived at Macclenny. *311He was met by the claimant and other citizens of the town, made an examination, and stated to the claimant and to others that the town was badly infected with a virulent type of yellow fever, and suggested as a means of preventing it from becoming epidemic, not only throughout the entire town but in the surrounding territory, that a hospital should be secured and those afflicted with the malady, as far as possible, be placed therein.. Claimant’s hotel was the only building in the town large enough for the purpose, and it was agreed to take possession of it, which was accordingly done, and it was quickly filled with fever patients. Doctor Posey left the town the same day he arrived there, and did not again return for perhaps two or three days, then remaining only a short time.

In' the meantime Bed Cross nurses and one or more physicians arrived from Pensacola and New Orleans and assumed control of the situation. By whose authority they were sent does not appear, nor is it anywhere shown that Doctor Posey, the government specialist, at any time during his stay in the town, acted other than in an advisory capacity and as a friendly messenger of the United States Government to aid the local authorities in their efforts to stamp out the disease. On the contrary, it is shown by the letters of the mayor of the town, Dr. Joseph Y. Porter, surgeon in charge of government relief measures in Florida, and by the mayor himself, as shown by Finding VI, that the hotel was taken possession of for a hospital by the town officials and Bed Cross nurses. Hence the charge that Doctor Posey, as an officer of the Government, impressed the hotel building under authority of the United States is not sustained by the findings of fact. It is therefore clear that there can be no liability on the part of the United States for the occupation of the building or for any damage thereto.

It appears from the findings that the principal damage to the hotel property was by reason of the taking down of the heavy paper from the walls on the inside of the building and the burning of furniture, bedding, etc., for purposes of disinfection; that this was done by the Bed Cross authorities or the state board of health, or both, and not by authority *312of the United States, is clearly shown by the findings. It is reasonable to suppose that the authority which destroyed the furniture and wall paper of the hotel likewise destroyed the furniture of other infected buildings in the town. One witness states that the furniture of his dwelling was destroyed, and others were disposed of in the same manner, and that he was reimbursed for his loss, but he fails to state by whose authority the burning was done or who paid him for his property. It is evident, therefore, that it was not done by authority of the United States, because no government officials were in that vicinity at the time of the destruction, but it was evidently done by the Bed Cross Association or by the county or state boards of health, or by their combined authority.

There is no statute authorizing the seizure by the Public Health and Marine-Hospital Service of private property for use in the suppression of an epidemic, the preservation of the public health being a part of the police power of the States. This is borne out by the whole tenor of the statutory enactments in regard to the Public Health and Marine-Hospital Service, which limit the operations of this service to the “ aid of state or municipal boards of health.”

Section 4792, Bevised Statutes, provides that the quarantines and other restraints established by the health laws of any State respecting vessels arriving and departing from any American ports shall be duly observed by customs officers and the masters and crews of revenue cutters and by the military officers of the United States; and it further provides that all such officers shall aid in the execution of such quarantines and health laws.

Congress has, by the act of 1799 (sec. 4792, Rev. Stat.) and previous laws, and by the act of 1878 (20 Stats., 37), adopted the laws of the States on that subject, and has forbidden all interference with their enforcement. *(Morgan's Steamship Co.*v. *Louisiana,*118 U. S., 455.)

The act of April 29, 1878, supra, prohibits vessels from bringing to the United States from foreign countries any persons, merchandise, or animals affected with any infectious or contagious disease, and authorizes the medical officers of *313the Marine-Hospital Service to aid in enforcing quarantine regulations, provided, however, that there shall be no interference with state regulations or laws.

The act of February 15,1893 (27 Stats., 449) is an enlargement of previous acts and bears directly upon foreign vessels arriving at American ports, and prescribes the duties of government officials in enforcing quarantine laws for the purpose of preventing the importation of infectious and contagious diseases, but such service is not allowed to conflict with state health laws and regulations.

A joint resolution was adopted by the Congress September 26, 1888 (the year in which occurred the epidemic out of which this claim arose) (25 Stats., 630), which appropriated $200,000 to suppress infection in the interstate commerce of the United States. This resolution provides that said sum shall be “ expended in the discretion of the President of the United States in aid of state or municipal boards of health, or otherwise, by such means as he shall deem best to prevent the introduction of * ** **yellow fever into the United States from foreign countries, or into one State or Territory from another.” It will be noticed that this provision, having in mind the commerce clause of the Constitution, limits the operations under it- to interstate or foreign commerce. The unexpended balance of this sum has been made available and additional sums added by nearly every Congress since that time, and always with the provision that it shall be expended by the President in aid of state or local boards of health. (34 Stats., 1905, 1907, p. 709.)

It is clear that this statute did not give the President any power to seize which he did not otherwise possess, but merely appropriated money to be used in aid of state boards of health in the suppression of contagious diseases. Plowever, as far as this case is concerned, it makes no difference whether the Marine-Hospital Service, representing the United States Government, had any authority to seize the building in question or not, since it clearly appears from the findings that no such authority was exercised.

If the United States can be charged with the expenses of an epidemic merely because it, upon the request of *314a suffering community, dispatched an expert official to the scene of a raging and dangerous disease, believed to possess an infectious or contagious character, it will be difficult to tell what in the end would be the result. If the Government can not lend a kindly, helping hand to its people in the time of distress by sending expert physicians to diagnose malignant diseases, when called upon' so to do, without being held financially responsible for a part or all of the expenses which must necessarily follow epidemic maladies, it would be either financially crippled or must refuse to answer such calls from its citizens.

Inasmuch as the property of the claimant was not taken or destroyed by the direction of the proper authorities of the United States, express or implied, the claim herein is neither a legal nor an equitable one against the Government.

It is ordered that the findings of fact, together with a copy of this opinion, be certified to the Congress.