State ex rel. McBride v. Sup'r Ct., 103 Wash. 409,

174 Pac. 973 (1918).

           STATE EX REL. MCBRIDE v. SUP'R CT.           409
 Aug. 1918               Syllabus.

     [No. 14913. Department Two. August 27, 1918.]
THE STATE OF WASHINGTON, on the Relation of J. S.
      McBride, Plaintiff, v. THE SUPERIOR COURT
           FOR KING COUNTY, Respondent. 1

habeas corpus proceedings to produce a person detained in
quarantine by authority of the state board of health, that
the commissioner cannot break quarantine without incurring
the penalties of the law, as the order of the court would be
a complete protection.

Const., art. 20, SS 1, provides that the state board of health
be created and makes no provision for city boards, a city has
power to pass health ordinances and to create the office of
health commissioner, when not in conflict with the general law.

SAME - HEALTH ORDINANCES - VALIDITY. Seattle ordinances, Nos.
15,957 and 32,444, providing for quarantine of persons afflicted
with contagious diseases, with the right of appeal to the state
board of health, does not conflict with general laws; for if
sole power is conferred upon the state board, the same is
preserved by providing the right of appeal.


REVIEW BY COURTS - HABEAS CORPUS. The legislature, in the exercise
of the police power, has power, by Rem. Code, SS 5404 et seq., to
create a board of health and to provide that its decisions as to
the detention of persons in quarantine shall be final and
conclusive; and the courts will not, in habeas corpus proceedings,
inquire into the reasonableness of the act, where the legislature
makes proper classifications and provides the means and methods
for carrying out an ordinance sounding in the police power, the
court not going beyond the query whether the subject-matter of
the act is within the range of its authority.


HEALTH LAWS. Health ordinances relating to quarantine are not
unconstitutional as an unlawful delegation of legislative
authority because they leave to health boards definitions and
classifications of disease.

notice that the nature of contagious diseases are factors to be

1 Reported in 174 Pac. 973.

                Opinion Per CHADWICK, J.          103 Wash.

considered in the matter of quarantine and to be left to the
judgment of medical experts.

HEALTH - QUARANTINE - VALIDITY. The power of summary
quarantine is not to be denied because the authority may be
abused or the law readministered.

HEALTH - STATUTES - CONSTRUCTION. Health and quarantine laws
are to be liberally construed.

Application filed in the supreme court July 23, 1918,
to prohibit the superior court for King county from
releasing on habeas corpus a person detained in quarantine
by order of the boards of health of the city of
Seattle and of the state of Washington. Granted.

Hugh M. Caldwell, Thomas J. L. Kennedy, Walter F.
Meier, and Geo. A. Meagher, for relator.

Smith, Chester, Brown & Worthington, for respondent.

The Attorney General, and John A. Homer, Assistant,
amici curiae.


CHADWICK, J. - This case grows out of and demands
a construction of the quarantine regulations of the
city of Seattle and the state law creating a state board
of health and defining its powers and duties.

On the 11th day of April, 1918, one Francis Williams
was arrested charged with a violation of Ordinance
No. 16,046 of the city of Seattle. On the 14th day of
April, Williams was given over to the health commissioner
of the city for examination. The health commissioner
found Williams to be afflicted with a dangerous,
infectious and contagious disease known as
syphilis, whereupon he was committed to the isolation
hospital of the city and he has there since remained.

He appealed to the state board of health, and the
finding of the commissioner was affirmed. On July
15th, Williams petitioned this court for a writ of

           STATE EX REL. MCBRIDE v. SUP'R CT.           411
 Aug. 1918          Opinion Per CHADWICK, J.

habeas corpus, alleging that he was arrested, as he
believes, without a warrant and without being informed
against, and that he is being held on a pretended
claim vexatiously instigated by some police
officer that he is afflicted with some dangerous, contagious
and infectious disease; that such charge is unfounded
and in fact untrue; that he is not now, nor at any time
during his detention has been, so affected; that, as
he believes, the alleged cause of his detention is but a
subterfuge in furtherance of a conspiracy on the part
of the police department, aided and acquiesced in by
the health department, to unjustly deprive him of his
liberty; that he has been detained in unsanitary, filthy
and poorly ventilated quarters crowded with inmates
who are suffering from various ailments, and is forced
to use the same soap and a common drinking cup;
that he is fed on unwholesome food and forced to submit
to arbitrary medical treatment in furtherance of
the design to detain him, without the privilege of
having or consulting a physician of his own selection.

Upon this showing we ordered that a writ issue returnable
on the 17th day of July to the superior court
of King county for inquiry as to the time and cause of
the detention of the petitioner.

The matter coming on for hearing, the petitioner
asked that physicians be appointed to examine him.
Superior Judge Tallman, before whom the case was
called, appointed three physicians to examine the
petitioner. The order was obtained ex parte and without
formal notice. On the next day the city attorney petitioned
Judge Dykeman, Judge Tallman then being out
of the city, to vacate the order as improvidently made,
contrary to the law, and without sustaining jurisdiction.
Judge Dykeman having announced his intention
of enforcing the order made by Judge Tallman, the
health commissioner came to this court and procured

                Opinion Per CHADWICK, J.          103 Wash.

an order to show cause why a writ of prohibition
should not issue restraining further proceedings. We
understand that all questions of procedure are waived,
to the end that the issues hereinafter to be noted may
be finally determined by this court.

It is alleged that Williams was arrested and is detained
as a disorderly person under the provisions of
Ordinance No. 16,046, "an ordinance for the preservation
of the public morality, peace, safety and good
order of the city of Seattle, etc."

That he is now held under the provisions of Ordinance
No. 15,957 and Ordinance No. 32,444. In the
latter ordinance it is provided that:

"Whereas, by reason of investigations made by the
Sanitation Department and under its direction, the
public welfare requires the examination of persons of
both sexes taken into custody by the Police Department
of the city for the purpose of preventing the
spread of infectious and contagious diseases; now,

"Be it ordained by the city of Seattle as follows:

"Section 1. For the purpose of preventing the
spread of contagious and infectious diseases or
maladies, it shall be the duty of the Sanitation
Department of the City of Seattle to duly examine in such manner
and by such methods as modern science has found to
be proper all persons who are taken into custody by the
Police Department of the city, who are suspected of
being afflicted with any contagious or infectious
disease or malady, and the Sanitation Department
and the Commissioner of Health are hereby authorized and
empowered, and it shall be their duty, to order any
such persons so taken into custody to be examined for
such purpose."

Ordinance No. 37,928, amendatory of Ordinance No.
15,957, provides:

"Section 6. Whenever it shall come to the knowledge
of the Commissioner of Health of the City of

           STATE EX REL. MCBRIDE v. SUP'R CT.           413
 Aug. 1918          Opinion Per CHADWICK, J.

Seattle that any adult therein has chickenpox, or any
person therein has smallpox, varioloid, syphilis,
gonorrhoea, or any other contagious or infectious disease of
a similar or different kind from that herein specified,
or any disease or sickness dangerous to the public
health, said Commissioner is hereby authorized and
empowered, and it shall be his duty to forthwith,
whenever in his judgment it is safe, expedient and
practicable, cause such infected person to be removed
to and kept in a hospital, sanitarium, a separate house,
or such place as may be designated by the Commissioner
of Health, or as may be by law or ordinance
provided therefor, and cause said person to be properly
treated and cared for, and to make such other rules and
regulations as may be necessary or advisable for the
protection of the public health."

Then follows, inter alia, a legislative assertion of
existing local conditions calling for the exercise of the
police power.

Sac. 1, art 20, of the state constitution provides that
"There shall be established by law a state board of
health . . . with such powers as the legislature
may direct."

It is also provided, SS 11, art. 11, that "any county,
city, town or township may make and enforce within
its limits all such local, police, sanitary, and other
regulations as are not in conflict with the general
laws." The legislature in obedience to the warrant of
the constitution has passed general laws creating a
state board of health and defining its duties. The law
seems to have been drawn upon the theory that the
municipalities would exercise their power to enact
such measures as they saw fit to care for, protect, and
preserve the public health. That such thought prevailed
is evidenced by reference to SS 7507, wherein the
general powers of cities of the first class are
enumerated. Power is granted "To erect and establish

                Opinion Per CHADWICK, J.          103 Wash.

hospitals and pesthouses, and to control and regulate the
same." (Subd. 17.)

"To restrain and provide for the punishment of
vagrants, mendicants, prostitutes, and other disorderly

"To provide for the punishment of all disorderly
conduct, and of all practices dangerous to public
health or safety, and to make all regulations necessary
for the preservation of public morality, health, peace,
and good order within its limits, and to provide for
the arrest, trial and punishment of all persons charged
with violating any of the ordinances of said city; but
such punishment shall in no case exceed the punishment
provided by the laws of the state for misdemeanors."
(Subds. 35, 36.)

In the act creating the state board of health, it is

"The state board of health shall have supervision
of all matters relating to the preservation of the life
and health of the people of the state. The board shall
have *supreme* authority in matters of quarantine, and
may declare and enforce it when none exists, may
modify, relax or abolish it when it has been established.
The board may have special or standing orders
or regulations for the prevention of the spread of
contagious or infectious diseases, . . . It shall be the
duty of all local boards of health, health authorities
and officials, officers of the state institutions, police
officers, sheriffs, constables, and all other officers and
employees of the state, or any county, city or township
thereof, to enforce such quarantine and sanitary
rules and regulations as may be adopted by the state
board of health, and in the event of failure or refusal
on the part of any member of said boards or other
officials, or persons in this section mentioned to so act,
he or they shall be subject to a fine of not less than
fifty dollars, upon first conviction, and upon conviction
of second offense of not less than one hundred
dollars." Rem. Code, SS 5406.

"In case of the question arising as to whether or
not any person is affected or is sick with a dangerous,

           STATE EX REL. MCBRIDE v. SUP'R CT.          415
 Aug. 1918          Opinion Per CHADWICK, J.

contagious or infectious disease, the opinion of the
health officer shall prevail until the state board of
health can be notified, and then the opinion of the
executive officer of the state board of health, or any
member or physician he may appoint to examine such
case, shall be final." Rem. Code, SS 5546.

"The term 'dangerous, contagious or infectious disease,'
as used in this act shall be construed and understood
to mean such disease or diseases as the state
board of health shall designate as contagious or infectious
and dangerous to the public health." Rem.
Code, SS 5547.

There are two questions discussed by counsel that
may be summarily disposed of; the first being that the
commissioner cannot obey the order of the court and
bring his ward into the presence of the physicians appointed
to examine him or into court without subjecting
himself to the penalties of the law, and for that
reason the writ of habeas corpus will not issue. The
law contemplates no such absurdity. If the court has
jurisdiction to inquire into the cause of his detention,
resort to examination and expert opinion by those
skilled in the diagnosis of disease would not be a
breaking of the quarantine. The law is not aimed at such
situations. The order of the court would be a complete
defense. State ex rel. O'Bannon v. Cole, 220 Mo.
697, 119 S. W. 424, 22 L. R. A. (N. S.) 990.

The other proposition is that the city has no
authority to pass health ordinances or to create the office of
health commissioner. It is true that the constitution
provides that a state board of health shall be created
and makes no provision in terms for the establishment
of city boards of health; but a city has general
power, both by statute and at common law, to enact
all necessary police regulations for the preservation of
the morals and health of its inhabitants, the only
limitation being a contrary provision of the general law.

                Opinion Per CHADWICK, J.          103 Wash.

We find no conflict between the general law and the
city ordinances, they seem to have been drawn with
careful regard to the harmonious working out of the
problems of public health. State ex rel. Rose v. Hindley,
67 Wash. 240, 121 Pac. 447. For, if there be sole
power in the state board, that power is satisfied by
the preservation of a right of appeal to the state board.
The order then becomes the act of the state board,
for we cannot concern ourselves with the methods provided
by law for the exercise of a jurisdiction founded
in the constitution.

This case really presents all the features of a. return
to the petition for a writ of habeas corpus, and
we shall treat it as such and shall refer to Williams as
the petitioner and the health commissioner as the

It is the contention of the petitioner that to deny
him a review of the findings of the health officers is
to suspend the writ of habeas corpus; that the boards
of health are not immune to judicial review and that
their actions and findings are open to judicial inquiry
the same as other boards, institutions and officers.
"Their determinations are not final and conclusive; if
they were, then the exercise of such summary power
could not be upheld." Bailey, Habeas Corpus, SS 106;
People ex rel. Copcutt v. Board of Health of Yonkers,
140 N.Y. 1, 35 N. E. 320, 37 Am. St. 522, 23 L. R. A.
481. And counsel undertakes to fix a boundary line
beyond which the state cannot arbitrarily extend the
police power. It is, "The legislature may not under
guise of police regulation arbitrarily invade personal
rights - when those rights are involved it becomes the
duty of the court to inquire into it." Relator on the
other hand takes the position that it is not only within
the power of the legislature to provide that the findings
of the state board of health shall be final, but

           STATE EX REL. MCBRIDE v. SUP'R CT.          417
 Aug. 1918          Opinion Per CHADWICK, J.

that, it having done so, the courts cannot under the
pretense of a habeas corpus proceeding sit in review
of its findings.

This then is the controlling question - Whether the
legislature has power to create a board of health and
make its rulings final and conclusive when called in
question in a court of general jurisdiction.

In People ex rel. Copcutt v. Board of Health, supra,
it is maintained that an attempt to make a finding of
the board conclusive (the law did not make it so)
would violate the constitutional right of the one detained.
In the case of In re Smith, 146 N.Y. 68, 40
N. E. 497, 48 Am. St. 769, 28 L. R. A. 820, while
granting the power of the legislature to provide summary
methods for the suppression and control of disease,
it is strongly insinuated that the acts of the board
cannot be upheld, unless a state of facts is shown that
will warrant the restraint, otherwise a writ will issue.
But it seems to us that these cases are not controlling.
They were rightly decided upon the law of the case,
but their insinuations are not to be sustained.

A writ of habeas corpus is a writ of right, and is
never to be denied in any case where the liberty of the
subject is made the subject of inquiry. But it has
always been held that a return showing a legal cause
for the detention of a petitioner is enough to suspend
the operation of the writ. The power to detain one
who is suspected of having a contagious disease rests
in the police power, and to this extent the authority
of the commissioner is not challenged, but the right to
restrain a subject without judicial review is vehemently

"The police power is to the public what the law of
necessity is to the individual." State v. Mountain

                Opinion Per CHADWICK, J.          103 Wash.

Timber Co., 75 Wash. 581, 135 Pac. 645, L. R. A.
1917D 10.

"Private rights must be deemed to be subordinate
to the general interest of the public . . . And in
respect of personal right every citizen is bound to
conform his conduct and the pursuit of his calling to
such general rules as are adopted by society, from
time to time, for the common welfare." Parker and
Worthington, Public Health and Safety, SS 12.

"The state may interfere wherever the public interests
demand it, and in this particular a large discretion
is necessarily vested in the legislature to determine,
not only what the interests of the public require,
but what measures are necessary for the protection
of such interests." McGehee, Due Process of Law, 301.

See, also, Manigualt v. Springs, 199 U. S. 473; State
v. Somerville, 67 Wash. 638, 122 Pac. 324.

And since Barbier v. Connolly, 113 U. S. 31, it has
been held that the limitations of the Fourteenth
Amendment were not intended to interfere with the
exercise of the police power on the part of the state.

"Nor can it justly be said that the proceedings of
the authorities, with respect to the special orders
mentioned, do not constitute 'due process of law,' or that
they violate 'the law of the land' for any of the following
reasons, namely:

"(1) That the functions of accuser and judge are
blended in the same body; (2) That no process is
served, or notice of the proceedings given to the parties
interested; (3) That the judgment precedes the
trial; (4) That the accused is not confronted with the
witnesses against him; (5) That the testimony is not
under oath; nor the ordinary rules of evidence observed;
or (6) That no means are afforded to the
accused to compel the attendance of witnesses."
Parker and Worthington, Public Health and Safety,
SS 88.

See, also, State ex rel. Davis-Smith Co. v. Clausen,
65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466.

           STATE EX REL. MCBRIDE v. SUP'R CT.          419
 Aug. 1918          Opinion Per CHADWICK, J.

If the legislature makes proper classification or
prescribes methods, the reasonableness of its acts
must rest in the nature of the subject treated.

"The test of reasonableness is applicable alike to
the statutes of the legislature passed in the exercise
of the police power and to the acts of local municipal
legislative bodies acting under powers delegated by
the legislature. The English courts have from time
immemorial applied the test to municipal legislation,
and our courts assume a much more untrammelled attitude
in examining the reasonableness of
municipal ordinances. Yet every intendment is to be made in
favor of the lawfulness of the exercise of municipal
power making regulations to promote the public health
and safety, and it is not the province of courts, except
in clear cases, to interfere with the exercise of the
power reposed by law in municipal corporations for
the protection of local rights and the health and
welfare of the people in the community." McGehee,
Due Process of Law, page 308.

In testing the reasonableness of an ordinance or
legislative conduct sounding in the police power, the
courts have not been inclined to go beyond the query,
whether the subject-matter of the act is within the
range of its authority, and having so determined they
will not revise, correct or nullify the methods and
means employed to accomplish the purpose of the law.
That the preservation of the public health is a proper
subject for the exercise of the police power goes
without saying; indeed, it is the first concern of the

"The discussion of modern police regulations has
revealed the tendency of judicial and public opinion to
translate the maxim, salus populi suprema lex; the
public health is the highest law; and whenever a police
regulation is reasonably demonstrated to be a
promoter of public health, all constitutionally
guaranteed rights must give way, to be sacrificed without
compensation to the owner." Tiedeman, State and
Federal Control of Persons and Property, SS 169.

                Opinion Per CHADWICK, J.          103 Wash.

Indeed, it may be said that, where the police power
is set in motion in its proper sphere, the courts have no
jurisdiction to stay the arm of the legislative branch
of the government, for it is operating in its own particular
field, where even the courts are powerless to
insist upon a procedure consistent with the forms of
the common law. Some courts have held that the discretion
and judgment of administrative officers, while
very broad, is not absolutely and in all cases beyond
judicial control, but the tendency is away from this
doctrine, for, granting the right to question means
and methods in one case, the questions of fact upon
which the administrative order is based might be
raised in every case, and the object of the law, which
is to deal summarily, to the end that imminent peril to
the public may be averted, would be wholly overcome.
At any rate, a somewhat extended exploration of the
books convinces the writer that a court should not inquire
into the reasonableness of an ordinance sounding
in the police power in any case where the legislative
body has provided the means and methods of carrying
it into effect.

That a city council may pass ordinances under its
general powers to promote and preserve the public
health, even to the extent of doing that which would
be rejected as unreasonable if passed under its
authority to legislate with reference to corporate affairs, is
affirmed, as we read the text, by Judge Dillon.

"In other words, what the legislature distinctly says
may be done cannot be set aside by the courts because
they may deem it to be unreasonable or against sound
policy. But where the power to legislate on a given
subject is conferred, and the mode of its exercise is
not prescribed, then the ordinance passed in pursuance
thereof must be a reasonable exercise of the power, or
it will be pronounced invalid." Dillon, Municipal Corporations
(5th ed.), par. 600.

           STATE EX REL. MCBRIDE v. SUP'R CT.           421
 Aug. 1918          Opinion Per CHADWICK, J.

And the author, in commenting on the case of Ex
parte Vance, 42 Tex. Cr. 619, 62 S. W. 568, credits it
with approval of the text just quoted, and "as holding
that the court may pass upon the reasonableness of an
ordinance passed in pursuance of an express grant of
power from the legislature where the mode of the exercise
of the power is not prescribed, or the legislature
has not acted directly on the subject."

The Federal government has, in the exercise of its
sovereignty and for many years, assumed to hold immigrants
for examination and possible quarantine.
Under the Federal statutes and the regulation of the
department, the executive officers are given a discretionary
power to determine the right of an immigrant
to land. There may be an appeal to the secretary
having charge of immigration affairs. It is provided
that his decision shall be final. In Nishimura Ekiu v.
United States, 142 U. S. 651, the supreme court denied
a writ of habeas corpus. It was contended that the
law giving the immigration officers exclusive authority
to determine the right of a party to land was so far
unconstitutional as to deprive the petitioner of her
liberty without due process of law.

"Congress may, if it sees fit, as in the statutes in
question, in United States v. Jung Ah Lung, just cited
[124 U. S. 621], authorize the courts to investigate and
ascertain the facts on which the right to land depends.
But, on the other hand, the final determination of those
facts may be entrusted by Congress to executive officers;
and in such a case, as in all others, in which a
statute gives a discretionary power to an officer, to be
exercised by him upon his own opinion of certain
facts, he is made the sole and exclusive judge of the
existence of those facts, and no other tribunal, unless
expressly authorized by law to do so, is at liberty to
reexamine or controvert the sufficiency of the evidence
on which he acted. Martin v. Molt, 12 Wheat. 19, 31;

                Opinion Per CHADWICK, J.          103 Wash.

Philadelphia & Trenton Railroad v. Stimpson, 14 Pet.
448, 458; Benson v. McMahon, 127 U. S. 457; In re
Oteiza, 136 U. S. 330. It is not within the province of
the judiciary to order that foreigners who have never
been naturalized, nor acquired any domicile or residence
within the United States, nor even been admitted
into the country pursuant to law, shall be permitted to
enter, in opposition to the constitutional and lawful
measures of the legislative and executive branches of
the national government. As to such persons, the
decisions of executive or administrative officers, acting
within powers expressly conferred by Congress, are
due process of law. . . .

"The decision of the inspector of immigration being
in conformity with the act of 1891, there can be no
doubt that it was final and conclusive against the
petitioner's right to land in the United States. The words
of section 8 are clear to that effect, and were manifestly
intended to prevent the question of an alien immigrant's
right to land, when once decided adversely
by an inspector, acting within the jurisdiction conferred
upon him, from being impeached or reviewed,
in the courts or otherwise, save only by appeal to the
inspector's official superiors, and in accordance with
the provisions of the act."

See, also, United States ex rel. Schleiter v. Williams.
203 Fed. 292; United States ex rel. Aronowicz v. Williams,
204 Fed. 844; United States v. Gin Fung 100
Fed. 389.

In United States v. Ju Toy, 198 U. S. 253, the court
seems to have removed the doubt, theretofore existing,
as to whether the rule of its former decisions would be
extended to one who claimed to be a citizen of the
United States. The court held the act to apply, "whatever
the ground on which the right to enter the country
is claimed - as well when it is citizenship as when it is
domicile and the belonging to a class excepted from the
exclusion acts." and

           STATE EX REL. MCBRIDE v. SUP'R CT.           423
 Aug. 1918          Opinion Per CHADWICK, J.

"But it is not improper to add a few words. The
petitioner, although physically within our boundaries,
is to be regarded as if he had been stopped at the
limit of our jurisdiction and kept there while his right
to enter was under debate. If, for the purpose of
argument, we assume that the Fifth Amendment applies
to him and that to deny entrance to a citizen is to
deprive him of liberty, we nevertheless are of opinion
that with regard to him due process of law does not
require a judicial trial. That is the result of the cases
which we have cited and the almost necessary result
of the power of Congress to pass exclusion laws. That
the decision may be entrusted to an executive officer
and that his decision is due process of law was affirmed
and explained in Nishimara Ekiu v. United
States, 142 U. S. 651, 660, and in Fong Yue Ting v.
United States, 149 U. S. 698, 713, before the authorities
to which we already have referred. It is unnecessary
to repeat the often quoted remarks of Mr. Justice
Curtis, speaking for the whole court in Murray's
Lessee v. Hoboken Land & Improvement Co., 18 How.
272, 280, to show that the requirement of a judicial
trial does not prevail in every case."

It would seem that the analogy of these cases is
complete, but, if it be not so it would appear that we
have held in principle as we are now holding. In
Davidson v. Walla Walla,
52 Wash. 453, 100 Pac. 981,
132 Am. St. 983, 21 L. R. A. (N. S.) 454, we held that
things done under the police power may be done without
resort to judicial proceedings, and in State v.
Somerville, 67 Wash. 638, 122 Pac. 324, we said:

"Many courts have held that a large discretion is
necessarily vested in the legislature when exercising
that power, and that the legislature may determine not
only what the public interest demands, but also what
measures are requisite and necessary to secure and
protect the same."

And in the concurring opinion by the writer of this

                Opinion Per CHADWICK, J.          103 Wash.

"Where the facts depend upon proof, I think it is
competent for the legislature to pass a labor law
covering any particular industry, and that the law will be
binding upon the courts regardless of the showing that
might be made in any particular case. If it were
otherwise, we would have a law for 'special cases,'
and we could not depend upon general laws, for the
obvious reason that the legislature could not pass a
law with any assurance that it would be general in its

In State ex rel. Puyallup v. Superior Court,
50 Wash. 650, 97 Pac. 778, the uncertainty of the statute was
urged against the right of a city council to revoke a
liquor license except for a cause sufficient to stand the
test of judicial review. It was held:

"It is not authority to regulate under certain circumstances,
or to restrain under certain circumstances,
but the authority is absolute and unlimited, and it is
evident that the legislature intended to refer the whole
subject to the city council."

The provision that the finding of the health officers
shall be final is a sufficient evidence of legislative
intent to leave the whole matter to the health officers
without restraint on the part of the courts. The case
just cited rested upon, and is sustained by, State ex
tel. Aberdeen v. Superior Court, 44 Wash. 526, 87
Pac. 818.

We are unable to draw a line that would logically
differentiate this case from the principle involved in
those cases where the courts have sustained findings
of medical and dental boards. If it is within the power
of the legislature to provide for the licensing of all
those who are skilled in the profession devoted to the
health of the people, and to lodge the determination of
their qualifications in a board of professional men, it
ought to follow that the legislature could provide by a
similar law for taking the judgment of men having

           STATE EX REL. MCBRIDE v. SUP'R CT.      425
 Aug. 1918          Opinion Per CHADWICK, J.

the same skill upon a question of fact as to the
existence of, or whether a given person was, or is, afflicted
with a contagious, dangerous or infectious disease.
The right is sustained because the act of such board
is in no sense judicial. State v. Bonham,
93 Wash. 489,
161 Pac. 377, L. R. A. 1917D 996; Reetz v. Michigan,
188 U. S. 505; 30 Cyc. 1550.

The power of the state board to determine the qualification
of dentists and physicians has been repeatedly
affirmed in this state. State ex rel. Smith v. Board of
Dental Examiners, 31 Wash. 492, 72 Pac. 110; Brown
v. State, 59 Wash. 195, 109 Pac. 802; State ex rel.
Brown v. Board of Dental Examiners, 38 Wash. 325,
80 Pac. 544, where the court said:

"The general rule is well established that the courts
cannot review the discretion which has by law been
vested exclusively in inferior tribunals."

Our conclusions are not in accord with the text of
Bailey, but he is content to rest his conclusions upon
the two New York cases referred to in the fore part of
this opinion. To follow him would make the exercise
of the police power a judicial function. We find nothing
in our decisions or in the reasons of the law to
sustain such doctrine.

The sustaining grace of the police power being in
its inceptions and general application rather than in
its consequences as applied to individual cases, we hold
that the ordinances of the city of Seattle and the state
law are founded in sound reason.

It is finally contended that the law is unconstitutional
in that it delegates legislative power to the
health boards, in that it leaves to them definitions and
classifications of diseases. This court has not heretofore
considered similar laws as a delegation of legislative
power or authority. The legislation is that of

                Opinion Per CHADWICK, J.          103 Wash.

the legislative body, but it is not always practical to
meet every phase of the necessity that has called for
the law by the enactment of a general statute.

The legislature may well have taken notice of the
fact that the nature, virulency and extent of territory
covered by contagious and infectious diseases, whether
endemic or epidemic, arc all factors to be considered in
the matter of quarantine, and that, after all, the whole
working of a plan for quarantine must depend upon the
judgment and discretion of men learned in the science
of medicine, and that doctors sometimes disagree. The
legislature, as well as the courts, would be helpless in
such matters without resort to expert opinion, and
their judgments would necessarily lie in greater or less
degree in the facility of witnesses and the skill of
counsel. It is most likely that the legislature sought to
avoid the confusions and delays that must necessarily
follow if arbitrary classifications were attempted in
the statute, for if it had the power to say, in emergency
- in self-defense - that, inasmuch as the whole matter
of quarantine must rest ultimately in the judgment of
medical men, it could avoid the danger of partisan
opinion and fix the seat of that judgment in men of its
own choosing, or to be chosen iu a way provided, and
who, being bound by oath to perform a public duty, and
having a due sense of responsibility, presumably would
discharge their office with justice and fidelity. We may
well adopt the language of the court in another case:

"Because the state has, as in this instance, determined
upon and specified the officers upon whose judgment
on the questions submitted to them the state is
willing to rely. Taking the case at bar for example,
if a record of the examination had been produced in
court, with the questions, answers, and credits given
to each question, who would determine whether or not
a particular answer had received a sufficient credit?
Certainly not the jury, for they are not presumably

           STATE EX REL. MCBRIDE v. SUP'R CT.      427
 Aug. 1918          Opinion Per CHADWICK, J.

competent to pass a proper judgment on such subjects.
Not the judge, for his qualifications do not embrace, or
at least require, an expert knowledge of the science of
dentistry. Expert witnesses could not be properly permitted
to testify, for the reason that the state has already
designated and empowered experts to pass upon
these questions presumably by reason of their recognized
qualifications." State ex rel. Brown v. Board
of Dental Examiners,
38 Wash. 325, 80 Pac. 544.

Nor is there any legal reason for denying the power
to quarantine summarily, or to restrain for treatment,
a citizen or subject because the authority may be
abused or the law maladministered in a given case.
Brown v. State, 59 Wash. 195, 109 Pac. 802; In re
Thompson, 36 Wash. 377, 78 Pac. 899. It is settled that
laws and ordinances creating boards of health and
granting wide powers for the effective and effectual
carrying out of the legislative plan for protecting
health, must be liberally construed. For as Mr.
Freund says in his work on Police Power, SS 446:

"The detention of persons affected with or suspected
of contagious disease in quarantine presents one of
the cases where the police power is literally the law of
self-protection and paramount necessity."

We must credit the legislature with a consideration
of these things.

The state board of health and the health commissioner
of the city of Seattle

"Being the agency created by the legislature to prevent
the outbreak and spread of disease, and to remove
causes of sickness, the presumption is always in
favor of the board of health, and its action will not be
interfered with unless it appear unreasonable or oppressive.
The fact that its membership may sometimes
be composed of extremists is no reason for denying
the power conferred by the legislature. Nor should we
be controlled by the fact that a scientific theory of
today may be discarded tomorrow. In matters affecting

                Opinion Per CHADWICK, J.          103 Wash.

the public health it is the part of reason and common
sense to adopt the best scientific thought of the age in
which we live. If research and investigation lead to
other accepted theories, then we must adopt them.
Were the rule otherwise, both the courts and the
legislature would be without a competent guide." Board
of Health of Covington v. Kollman, 156 Ky. 351, 160
S. W. 1052, 49 L. R. A. (N. S.) 354.

The rule being that health laws shall be liberally
construed, the power of the legislative branch of the
government is not to be lightly interfered with or set
aside. Courts will not seek for an opportunity to declare
a right of appeal or review in cases resting in
public necessity.

We find, as the supreme court of New Jersey found
in a similar case:

"But upon the general merits of the controversy,
we are unable to perceive anything in the legislation
referred to conferring upon the Common Pleas the
right to review the conditions, and the emergency in
the locality, which prompted the board of health to
impose the restrictions and quarantine complained of
in this case. We are unable to perceive any authority
in the legislation itself or in the public policy upon
which it is based which can be said to contemplate the
submission to a legal tribunal of the public necessity,
which requires in an emergency the prompt and expeditious
intervention of a board to which the legislature
for the protection of life and health, in a community,
has especially committed the determination of the
facts." Board of Health v. Union Common Pleas, 83
N.J. L. 392, 85 Atl. 217;
For, as said in that case, to assume to review a finding
of a properly constituted officer vested with authority
to determine a fact in a critical situation involving
detriment to the life and health of a community is
tantamount to a declaration that the police power of
the city is moribund and useless.

           REA v. TACOMA MAUSOLEUM ASS'N.           429
 Aug. 1918          Opinion Per PARKER, J.

Finally, we hold that it is within the power of the
legislature, in dealing with the problems of public
health, to make the determination of a fact by a properly
constituted health officer final and binding upon
the public as well as upon the courts.

Having so concluded, the writ will issue.