Evening star. [volume] (Washington, D.C.) 1854-1972, 1871-06-17
DEPARTMENT OF JUSTICE,
WASN'T NCTON .Tuna & 1S-f


Of Health:
DEPARTMENT OF JUSTICE,
WASHINGTON, June 8, 1871. (
Hon. Benjdmin II. Bristor, Solicitor General and
Acting Attorney General:
Sir:-I have considered the questions sub
United TO the Attorney General by the Secretary
OF the Treasury in regard 20 the powers of the
Board of Health of the District of Columbia,
which were referred by you ID me. The ques-
lions asked are as follows:
81. What is the authority and what are the
powers OF the Board OF Health OF the District Of
Columbia under the 25th section of the act of
Congress entitled An act to provide govern
ment for the District of Columbian
"2d. Has the Board OF Health power, in carry
ing out the provisions of the law creating IT,
authority to provide for and appoint officers,
whether the same be of its own number or from
persons outside of the board?
Sd. Is the board authorized and empowered
TO establish and collect charges, or expend the
same in the payment of agents or officers, or TO
carry out the general provisions of the law, or to
make contracts?
18th. Is the board authorized 10 declare what
shall be deemed nuisances, and for the violation
of its ordinances in regard thereto, to wit: For
the committing, keeping, or maintaining nui-
sanees, to impose and collect fines according to
the usual legal methods employed in the District
of Columbia ?'
The Board of Health was created by section
twenty-six of the act OF February 81, 1871, enti-
tied 'An act TO provide government for the
District of Columbia" I16 Statutes at Large, ID.
AIS, the language OF Which is as follows: ''There
States, by and with the advice aud consent of
the Senate, a Board OF Health for said District
TO consist OF five persons whose duty il shall be
TO declare what shall be deemed nuisances iniu-
rious to health, and TO provide for the removal
thereof; to make and enforce regulations to pre-
vent domestic animals from running at large in
the cities of Washington and Georgetown; to
prevent the sale of unwholesome food in said
cities; and TO perform such other duties as shall
be imposed upon said board by the Legislative
Assembly,
AS it is understood that there is some difference
~ opinion existing between the Legislative As
N4nbly of the District of Columbia, and the Board
OF Health, in regard 10 the authority and powers
OF the latter, do not deem it proper for this de-
partment TO attempt TO answer so vague and
general question as the one first proposed
pom the second question am of opinion that
the Board of Health, in the absence of other
statute provision, like any other organized body,
has an inherent power 10 appoint a clerk or Sec
Rotary to perform the lusual duties of such an
ofhcer. The power TO appoint officers necessary
to its complete organization, must, of NECESSITY.
exist, where no other provision has been made
therefor, in body established for such purposes
as the Board of Health is. But, beyond the APP
POintment of such officers, l do not find any au-
thority given to the Board OF Health to appoint
officers.
In answer to the third question, / am of
opinion that, under the duty imposed upon the
Board Of Health, "tO declare what shall be
deemed nuisancCs injurious 10 health, and to
provide for the removal thereof" the board has
power not only to declare what shall be deemed
nu1sances, but To provide, by contract or other
wise, for the removal Of anything pronounced by
II o. be nuisance, If necessary, at the expense
OF the District.
The fourth inquiry involves a question of much
dlhculty, ana upon which l express an opinion
viii much reluctance and with great caution.
he section before cited gives the Board of
Health power - TO make and enforce regulations
TO prevent domestic animals from running al
large IN the cities of Washington and Georgetown;
To prevent the sale Of unwholesCme food in said
Clues heJecung punctuation, which constitutes
no Part OF statute, and supplying the cOnjunc-
ton 'Eand' before the last part uf this sentence
as think we must TO give effect to the intention
OF Congress, II Is clear that the power given to
The Board OF Health TO make and enforce regula-
tons, Is confined 10 preventing domestic animals
running at large IN the streets and the sale OF
ulNEOleScme food. But the further question
arises, and the one of real difficulty whether the
power 70 make and enforce regulations includes
The power TO nN penalties for the violation Of
such regulations.
UrOn full consideration am of opinion that
Such power does exist in the Board of Health at
ieaht IN the absence of any legislation on the
sn1Ject. Although the fixing OF penalties for the
violation OF any ordinance or regulation is in
one sense, legisl atOn and, therefore, pertaining
rather 20 legislative body than 70 n body Ike
the Board of Health, yet the power TO fix some
kind of punishment for the violation of police
regulations, where there is no other provision
herefor, either in the fundamental law OF the Dis
trlct or in any law enacted by the Legislative
Asst mbly, would seem naturally to belong to the
Iody which has the power TO establish such re-
uiatioDs, and may be considered as no more An
act OF legislation than the regulations them
selves. The enforcement of such regulations
must, OF course, be through the ordinary tribu-
nals and magistracy of the District.
have considered il my duty in stating nv con-
illusions upon this subject to confine myself with
the utmost strictness to answering the questions
propounded to the Attorney General, and to ex-
press no opinion upon any matter not directly
and explicitly included within those questions
which have answered.
1t may be well, however, to add, in conclusion
mat the powers and duties of the Board of
Health are stated in the fundamental law of the
District, with great brevity and vagueness, and
II was evidently the expectation and intention OF
Congress that the necessary legislation and Off
clai machinery for carrying out the purposes for
which the Board is established, as well as apprO-
pratlons for the expenses incident to it's duties
should ve llS vided by the Legislative Assembly |
Of the District
ta'''e INC nonor TO be your very opy,.--he SIX
teh1 CLEMENT HUGH Hull,
Assistant Attorney General.
Approved-B. IL. BRIsTow, !
Solicitor General and Acting Attorney General.