The daily Gate City and constitution-Democrat. (Keokuk, Iowa) 1916-1922, 1919-01-04
Judge Hamilton, In Fort Madison Case,
Holds That Courts May Not
interfere with Their
Actions.
POWER rs PARAMOUNT
Judge Goes Into Matter Thoroughly
and Writes Complete Digest Of
Law Of Police power
Of Boards.

| In the Fort Madison case OF Simon
Diekmann, motion picture theater
owner VINO sought to enjoin the city
board of health from closing his
house in the influenza epidemic, on
the ground that the order was dis
termination against such theaters
while other places were allowed open,
Judge Hamilton filed late yesterday
afternoon an opinion covering the
/, whole ground.
| The Injunction was denied and the
court held that it could not interfere
with the discretion and actions of a
board of health, and that as long as
the orders applied to a whole class,
any one class might be acted upon
while other classes Of people were
ignored.
! The opinion Of Judge Hamilton is
as follows:
/ Powers Of Health Board.
| The powers given to the local
board of health by our statutes are
very broad. 1t is in the nature OF
Legislative power delegated to the off,
tcers Of municipality for the preser-
walton and protection Of the public
health and, while it's use as an in
istrument of oppression by the local
authorities will not be permitted, acts
done hereunder, in good faith and
for the purpose of promoting the gen
;eral health, and for the purpose of
preventing the spread of dangerous
contagious diseases, will be upheld by
1.-THE courts.
| 1t is the modern tendency Of judi
cial opinion to hold that the public
Health is the highest law Of the land
,,,,14 oil rofff Y1.
itionally guaranteed rights must give
way to be sacrificed, without compen-
sation to the owner, to regulations
reasonably necessary for the promo
ton of public health.
Boards Given Summary Powers.
! The jurisdiction conferred by the
istatutes of this state on the board
of health is summary in it's nature
and, for this reason, an Injunction
will be denied when board is act
ing within its jurisdiction.
! A court has no power under its
general equity jurisdiction to inquire
/ into the question whether there Is
:. a nuisance, or to epjoin the board
iof health if it should turn out that
in the Judgment of the court there
was, was the holding in case re-
ported in so N. E., at page 975.
| Within the scope OF the power con-
lferred upon them, the board of health
are the exclusive judges of the neces-
sity of police regulations adopted by
them, and of the means necessary
and proper to enforce them.
Boards Have Full Discretion.
| Within the scope of their powers
their action is legislative as well as
| Administrative, and the courts have
Inc power to inquire whether 1T Is
necessary, rea sonable or appropriate
to the end il view. unless and only
in so far as such inquiry may be
necessary to enable the courts to de-
itermine whether rights guaranteed
by the constitution, state or federal,
have thereby been invaded. To adopt
any other rule would be merely to-
substitute the judgment of the court
for the judgment of the board OF
Health.
| Upon an application for an injunc-
! ton to restrain the board OF health
from the enforcement of regulations
Ideemed by it necessary for the Pro-
lection of the public health respect
ing causes of Sickness, a court of
equity should decline to interfere, I'M
less it is made to appear clearly that
the board has acted wantonly, or In
had faith, or has transcribed It's
/; jurisdiction.
/ About Different Kinds Of Business.
1 Plaintiff urges that the resolutions
In question discriminate against him.
However, the resolutions complained