Opinion
07-08-1910
BOARD OF HEALTH of VENTNOR CITY v. NORTH AMERICAN HOME et al. PATTON et al. v. SAME.
Thompson & Cole and John S. Westcott, for complainants. George A. Bourgeois, for defendants.
Suits by the Board of Health of Ventnor City and by Lydia Patton and others against the North American Home and others for an injunction. Preliminary injunction denied.
Thompson & Cole and John S. Westcott, for complainants.
George A. Bourgeois, for defendants.
LEAMING, V. C. Two bills have been filed in each of which the object sought is toprevent defendant from conducting in Ventnor City a sanitarium for the treatment of tuberculosis. One bill was filed by the board of health of that city, and the other by individual residents and property holders. A preliminary hearing has been had to determine whether an injunction pendente lite should be issued. By stipulation the two suits have been heard together.
The affidavits filed in behalf of defendant disclose that the institution of which complaint is now made is not an institution for the treatment of pulmonary tuberculosis, but is a sanitarium which is to be devoted exclusively to the treatment of children who are afflicted with bone tuberculosis. The sanitarium is for the free treatment of poor children who are afflicted with the disease last named, and is not maintained for profit; the provisions of P. L. 1907, p. 411, requiring a municipal license in certain cases, have no application to an institution which is not conducted for profit. Notwithstanding the great public good which will necessarily result from the work of an institution of this nature, it is manifest that, if the health of the residents of Ventnor City is jeopardized by its maintenance, a court of equity may grant such relief as will afford adequate protection to the residents of that city from the threatened danger; but if no real danger of that nature exists the mere fact the uninformed people who are unacquainted with the true conditions may or probably will assume such a danger to exist cannot be made the basis of equitable relief. The answer which has been filed in behalf of defendant is accompanied by affidavits of a great number of physicians and surgeons of eminence in their profession and who have given special study to the various forms of tuberculosis. These physicians have testified that while pulmonary tuberculosis is undoubtedly contagious, bone tuberculosis is neither contagious nor infectious, and cannot be transferred from one to another; and that cases of bone tuberculosis are freely admitted to all the hospitals and treated in the same wards as other surgical cases. If this be true it is manifest that no danger to the health of the inhabitants of Ventnor City is threatened by the maintenance of the sanitarium in question, and the grievance asserted by complainants is based upon the assumed danger which does not in fact exist.
It is urged in behalf of complainants that the Legislature of this state has declared bone tuberculosis to be a communicable disease. An act concerning tuberculosis, approved April 9, 1910 (P. L. p. 279), contains this sentence: "Tuberculosis is hereby declared to be an infectious and communicable disease, dangerous to the public health." An examination of the several provisions of that act, as well as the similar act of 1909 (P. L. p. 421) which it repeals, especially when considered in connection with the testimony touching the difference between pulmonary and bone tuberculosis, renders it at least doubtful whether the portion of the act above quoted was intended by the Legislature to include bone tuberculosis. Throughout the act the word "tuberculosis" is used without qualification and some of its provisions are clearly inapplicable to bone tuberculosis. By the fifth section of the act it is made a misdemeanor for "any person having tuberculosis" to dispose of his sputum in a manner contrary to the directions of the act. If any truth is to be found in the affidavits of the physicians who have testified touching the nature of bone tuberculosis, it is entirely manifest that the Legislature has not by the section last referred to intended to control the disposition of the sputum of persons afflicted only by bone tuberculosis. Whether any of the provisions of that act are intended to include bone tuberculosis it is here unnecessary to consider; but I am convinced that the legislation referred to cannot properly be deemed operative to render the institution conducted by defendant a nuisance per se.
As the present record discloses that the work to be conducted by defendant is a lawful work and is not a source of danger, and is to be conducted in a proper manner and will not occasion real injury to others, I will advise an order denying a preliminary injunction. Costs may abide the event on final hearing.