The Birmingham age-herald., 1909-03-11

such bacterlologist, the said health officer or the municipality?
 f. Is pr. Hardness the legally elected health officer of the Birmingham mu- nicipality?
 Review of Statutes.
 I will endeavor to give my construction of the law in response to the issues sub mitted to me in as full, plain and brief manner as practicable.
 The act of the general assembly August b. 1907. remedial of former sanitary leg islation, in fact the genesis of the elab- crate sanitary system referred to above and found in present code. confers upon the state and county board of health enlarged and comprehensive powers. Among these granted powers authority is conferred on the state board of health to provide for county board of health and confers upon such county board the au- thority to elect 'the health officer of every municipality in the state, but such election to be subject to approval or rat ihcation of the municipal authorities"
 The duties, privileges and powers of such municipal health officer are set forth in paragraph TO, chapter 9, of the code of 1907, page 42s ct seq.
 In said paragraph 710. subdivision "b'' 439, of the code Especial powers in carry ing Into effect duties imposed). the scope of his authority and limitation thereof is set forth in the following terse and plain language, to-wit: ''To exercise, under the direction and control of the committee of public health acting for the county board of health, and in accordance with the health laws of the state, and the health ordinances of the municipality, general supervision over the sanitary in- terest of such municipality, and should he discover any cause of disease or any con- dtion detrimental to the health of the people he shall as far as authorized by law or ordinance, compel the removal or abatement of the same, and should no au- thority for such removal or abatement exist, he shall report facts to the county board of health, adding such recommen- datlon for special action as he may deem proper. There is no express authority vested in the municipal health officer to appoint any officer of the municipality.
 On the contrary, the municipal system referred to above and set forth in chap ter 32 of the cope of 1907 confers upon the municipalities the creation of all offices and the right to elect officers thereof in any manner which 1t may deem proper not inconsistent with the constitution.
 All Powers Necessary.
 It is not necessary to enumerate here all the powers, privileges and duties con ferred upon the municipalities; suffice 1t to say the law in the said municipal system is generous and comprehensive in bestowal of all power necessary to pro vide for the best interest of the people, in the loyal discharge of the grand trusts reposed in them; and as sanitary func- tions are perhaps the most important of all the powers conferred on this all-im- portant subject are elaborate, adequate to meet all emergencies, do not con fiict with the sanitary system referred to herein, but on the contrary at their ex- pense provide all the ordinances, officers and means necessary to war against the merciless and dreaded foe of the people under the guidance and supervision of able, faithful educated and experienced physicians The power to create its own offices and appoint officers necessary to carry out all It's functions, and especially those pertaining to sanitary protection, is expressly vested in the municipality, and likewise the passage of any ordinance pertaining thereto unless such ordinance conflicts or is inconsistent with, antag- onises, destroys or usurps the exercise of the functions conferred on the officers by the laws of the sanitary system As ger main to decision of this matter. and nec- essary to the solution of this problem. 1t is proper to consider the duties. powers and purposes of what has been claimed apparently conflicting laws, as well as what was designed thereby. It Is the province and duty of the court to ascer- tain, construe and sustain the intention and purposes of the legislature and If possible so to construe the apparent con ficts so as to give effect to both. Guided by this rule 1t Is both necessary and proper to examine the powers, duties and functions of the bacteriologist and of the municipal health officer. Those of the bacteriologist are set forth in the ordi- nance No. 14S, approved May g. 1908, and includes (a) weekly examination of pub lie water supply: (b) bacterlological ex- animation of milk. and also for the de- termination of the existence and character of suspected cases of various diseases therein mentioned, and make report di- rectly to the mayor; and said ordinance further declares said bacterial depart ment an integral part of the municipal government. In the municipal system, chapter 32 of the code. paragraph 1276 ann pie authority is granted to the municipal ity to create all offices, appoint all of- hcers or agents and pass all laws deemed necessary for the sanitary benefit of the people and not in conflict with the duties and functions of the municipal health of ficer
 What Is BacterlologiSt?
 A bacteriologist Is a person skilled in the Knowledge of bacteria Bacterum (pural bacteria) is defined to be a ml- croscopic organization of various shapes, constituting the most elemental force of vegetable life and certain species are ac- tive agents in alcoholic fermentation, while other appears to be the cause Of certain infectious diseases. Bacteriology is further defined to be that department of biology which investigates bacteria and other microbes, especially their life history and agency in disease Bacteri- ology is the scientific study of bacteria It Is manifest that a bacteriologist may be a scientist along the line of bacterial ism. thoroughly equipped and a master of the subject without being practicing physician. So likewise a physician may be educated, successful master in His profession and knightly /nampion in be- half of the people in any contest with contagious diseases and their dreadful as- saults, and still not be a skillful, ac- complished and scientific bacteriologist
 The duties and powers of the municipal health officer are ample, but do not in- clude in terms or by implication the sci- ence of bacteria. Power Is given him to carry into effect special duties enumer- ated in the sanitary code but in every in- stance there is limitation to the exer- else of this power to-wit: It must be in accordance with the health laws of the state and health ordinances of the city. Other than here stated, the power ana status of the municipal health officer is a general supervision over the sanitary interest of the city.''
 It is argued that section 12OS held the municipal health officer responsible, and so 1t does, but only for derelictons in