Opinion
No. 55071.
1945-03-15
Ex parte KILBANE.
Michael Picciano, of Cleveland, for petitioner. Anthony A. Ruthkowski, Asst. Law Director, and Myron S. Stanford, Asst. Police Prosecutor, both of Cleveland, for respondent.
Habeas corpus proceeding by Edwyna Kilbane to be discharged from quarantine under regulations of the public health council of the department of health of the City of Cleveland.
Writ denied.Michael Picciano, of Cleveland, for petitioner. Anthony A. Ruthkowski, Asst. Law Director, and Myron S. Stanford, Asst. Police Prosecutor, both of Cleveland, for respondent.
KOVACHY, Judge.
This cause has its origin in a petition for a writ of habeas corpus.
Edwyna Kilbane was arrested March 10, 1945, without a warrant by the Police Department of the City of Cleveland, Ohio, on the charge of selling intoxicating liquor without a license from a drinking establishment located at 3906 Lorain Avenue, and confined in the Central Police Station. The case was subsequently nolled in the Criminal Branch of the Municipal Court.
During her detention she was physically examined by Doctor E. J. Braun, a physician assigned by the Health Commissioner of the City of Cleveland to the Clinic established at the Central Police Station as a branch of the Diagnostic Clinic of the Health Department at City Hall. The examination disclosed the Gonococcus germ as revealed by a smear test and culture of the secretions from her privates and Doctor Harold J. Knapp, the City Health Commissioner thereupon signed the following quarantine order:
‘CITY OF CLEVELAND
Department of Public Health and Welfare Division of Health.
‘Quarantine Order No. 99.
Date Mar. 12, 1945,
The area of quarantine in this case is City Hospital Cleveland.
‘You are hereby directed to quarantine the person of Edwyna Kilbane who is reasonably suspected of being infected with a venereal disease. This quarantine order is a measure for the protection of the public health and is issued in accordance with the Ohio State Sanitary Code, Regulation 23 & 24.
‘It is required that the area in which this person is to be quarantined be designated and defined and except by your permission all persons other than the attending physician, dentist or other necessary attendants are to be excluded from such area.
‘When this person is found to no longer be a menace to the public health, kindly notify me, so that I may lift this order, indicating hereon the date of said notice.
‘Requested by E. J. Braun, M.D.
‘Harold J. Knapp, M.D.
‘Commissioner of Health.
‘Chronic Gonorrhea
‘Smear test and culture positive.’
Pursuant thereto she was taken to the hospital under quarantine.
The evidence discloses that Doctor Harold J. Knapp periodically holds conferences with Major Roy C. Kyle of the Public Health Service, Doctor E. J. Braun, and Field Investigators of the Health Departmemt. At these meetings reports from the Army and Navy with respect to men in the service who have sojourned in Cleveland, the Police, the above mentioned physician and the Field Investigators are disclosed and considered. Focal points for the spread of veneral diseases are determined in buildings and localities designated as areas reasonably suspected as being the source of the spread of venereal diseases. The address on Lorain Avenue from which the relatrix was arrested was such a suspected area.
The relatrix in her petition represents ‘that she is illegally restrained and deprived of her liberty without any legal authority whatever.’ The question of whether Edwyna Kilbane is lawfully or unlawfully detained rests upon the validity and interpretation of regulations adopted by the Public Health Council of the Department of Health effective July 1st, 1920, which read as follows:
‘Regulation 18: Syphilis, gonorrhea, and chaneroid, hereinafter designated venereal diseases, are hereby declared to be contagious, infectious, communicable and dangerous to the public health.
‘Regulation 23: The health commissioner of each city and general health district is hereby empowered and directed to make, or cause to be made, such examination of persons reasonably suspected of having a veneral disease, as may be necessary for carrying out these regulations. Such examination shall be made only by regularly licensed physicians. All known prostitutes and persons associating with them shall be considered as reasonably suspected of having a venereal disease. Boards of health and health commissioners shall co-operate with the proper officials whose duty it is to enforce laws against prostitution, which is hereby declared to be a prolific source of venereal disease.
‘Regulation 24: The health commissioner shall immediately institute measure for the protection of other persons from infection by any venereally diseased person and may quarantine any person who has, or is reasonably suspected of having a venereal disease, whenever in his opinion, quarantine is necessary for the protection of the public health. In establishing quarantine, the health commissioner shall designate and define the limits of the area in which the person known to have, or reasonably suspected of having a venereal disease is to be quarantined and no person other than the attending physician, dentist or necessary attendant shall enter or leave the area of quarantine without the permission of the health commissioner.’
The regulations are a lawful exercise of the police power of the State. Ex parte Company (Ex parte Irvin), 106 Ohio St. 50, 139 N.E. 204.
These regulations authorize the health commissioner of a city to make or cause to be made an examination of a person reasonably suspected of having a venereal disease, and if found to be so infected, and whenever in his opinion the public health requires it, to order such person placed in quarantine.
The fact that the criminal charge which led to the arrest of Edwyna Kilbane was dropped in court in no wise affects the right and duty of the Health Commissioner to act in the matter. He is ‘empowered’ and ‘directed’ under the above regulations ‘to make, or cause to be made, an examination of persons reasonably suspected of a venereal disease.’ Under Regulation 23 ‘all known prostitutes and persons associating with them shall be considered as reasonably suspected of having a venereal disease.’ As to other persons the surrounding circumstances determine who are reasonably suspected of having a venereal disease. The fact that Edwyna Kilbane was found to be so infected was proof of the correctness of such determination.
Did the Health Commissioner have the right to order the relatrix quarantined? Since it had been determined that she had a venereal disease he was then called upon to make an independent finding whether in his opinion the protection of the public health required that she be quarantined. He found that it was as manifested by the written order of quarantine and this Court cannot say under the circumstances in this case that such independent finding on the part of the Health Commissioner was unreasonable or not justified.
The relatrix is therefore not unlawfully restrained of her liberty and the writ is denied.