The Birmingham age-herald., 1909-03-11
BacteriOlogist Must Report To
 The Mayor
DECISION BY COLEMAN
City Health Officer Although Nom- mated By Medical Society Must Be Approved By Council.
 Petition Denied.

lose.
 By a decision of Judge A. A. Cole man, rendered yesterday morning, the city health officer must report to the Mayor of Birmingham, and not to the medical society; the bacteriologist will continue to report to the Mayor and not to Dr. Hardness; the street commissioner will also continue to report to the Mayor and to the health officer.
 Judge Coleman held, too, that Dr. Hark- ness must be elected by the city, and that his appointment or nomination by the Jefferson County Medical society was not sufficient. Judge Coleman held that Dr, Hardness in as much as his nomina- ton has never been confirmed by the council, was an official de facto and not de jure, but as such. his official acts have been constitutional
 In other words every contention of the city, through its attorney, R. H. Thach, was granted and concurred in The de- cision, too. authorizes the defendant, which was the city, to collect reason able costs
 Unless the medical society which was behind the movement carries the suit
 
 lasted for more than a year comes to an end. It was initiated by the desire of Dr. R. B. Hardness, city health officer. to have the bacteriologist, the milk and meat Inspector, and the street commits sioner report to him instead of the Mayor. E. M. Duncan, bacteriologist and meat and milk inspector, did not voluntarily fall in line with the desires of Dr. Hark- ness, nor did Street Commissioner Mo Cartin The disagreement was taken up by the medical society and thus it went into the courts.
 Nominated By Medical Society.
 According to the code the Jefferson County Medical society has the power to nominate a health officer for the city Of Birmingham. and the election of this nominee has generally been a perfume tory matter. Dr. Hardness was nomi- mated some months ago, but the coun- cil did not confirm the nomination de- string to await the decision of the court. Unless the medical society sees fit to carry the matter to the supreme court 1t is probable that the council will elect Dr. Hardness at its next meeting. In case this course is pursued the long wrangle will have reached an end and the customary channels for the reports of the bacteriologist, meat and milk in spector, and street commissioner will he adhered to-
 The decision of Judge Coleman, which discusses the matter thoroughly, and gives the result in nutshell follows: 
 Judge coIeman's Decision. state or Alabama, ex rel, B. H. Sholl.
 and E. H. Sholl vs. Ellis M. Duncan.
 In the Circuit Court of Jefferson Coun
 ty. Before Judge A. A Coleman
 The state in the exercise of the h,gbas+ paternal trust and obligation to shield from impending danger, with equal and ike protection every citizen within it's borders formulated and established an elaborate system of sanitary laws. which together with the subsequent amend ments, are practically embodied in chan ter 22 ct seq of the code of 1907 The humane and manifest intention was that the health and quarantine laws of the entire state, every part thereof, whether corporate or incorporate should be conn mitted to the general supervision and control of educated and efficient members of the medical profession, who. above all others, are presumed to be qualified to comprehend and appreciate the import- anee and magnitude of the trust com mitted to them and to solve the numerous issues involved in the best interest of tbe people.
 The state has also formulated and es- tablished full and complete system of laws for the government of municipalities both corporate and incorporate These are compiled and embodied in the code of 1907, chapter 32 ct seq.
 In this system of municipal laws au their powers, duties and responsibilities are elaoorately defined and carefully classined. Their duties and powers and the question of health and quarantine are set forth in explicit terms and at great length
 These two great systems so carefully and elaborately framed were manifestlv designed to work in harmony and with out friction; for the accomplishment of the most vital interest of the entire cjt izenship of the state, to-wit The immun- ity of the people from the dreadful and fatal horrors of conta gious and infectious diseases and the highest and safest san itary condition. But unfortunately bitter and irreconcilable differences as to tbe creation of offices and the exclusive ex- erclse of certain functions have reached a crisis and driven them to inagurate this suit and challenge judicial construc tion.
 In friendly and commendabe spirit the attorneys have agreed and requested the court to waive all technicalities in ruling on the pleadings, and announce a judicial construction of the issues in volved When reduced to the last analysis these issues are as follows:
 Questions Involved.
 1. Has the corporation. city of Bir- mingham. the right and power to create the office of bacteriologist, prescribe and define the duties and functions thereof and require him to report directly to the mayor of the city?
 9 Are said duties and functions in the ordinance creating said office and of ficer and the exercising by such bac- teriologist inconsistent with, and destruc- tive of the rights of Dr. Hardness. the city health officer usurping and busting him from the exercise of the right power and function of such city health officer: this question is involved in this inquiry: Is the said officer of bacteriologist valid in whole or in part?
 B. In whom rests the power to appoint
 WUIcKV FOR LAME RACK