Page:Popular Science Monthly Volume 76.djvu/284

From Wikisource
Jump to: navigation, search
This page has been proofread, but needs to be validated.
280
THE POPULAR SCIENCE MONTHLY
THE RELATION OF THE LAW TO PUBLIC HEALTH
By ALFRED HAYES, Jr.
COLLEGE OF LAW, CORNELL UNIVERSITY

PUBLIC interest in the preservation of health has generally found expression in a demand for legislation increasing the powers of governmental agencies charged with the protection of health. Boards of health, state and local, are more liberally sustained, have greater facilities for the investigation of disease and are armed with greater powers than heretofore, but nevertheless common law, that is, the great body of law which the colonists brought with them from England, has an important bearing on public health, chiefly in two ways. Without resort to statutes, means of protection are frequently available to the individual or to the community. On the other hand, unless in fact a common-law nuisance exists, boards of health are often, perhaps usually, powerless, either by reason of the express language of the statutes or because of the constitutional guarantees as to private property. The rules of the common law, therefore, as to nuisances, are fundamental to an understanding of the problems involved in safeguarding public health.

A variety of wrongs are classified as nuisances, which have little relation to each other and many of which have no relation to public health. In a general way, a nuisance may be said to be anything which wrongfully interferes with a public right or with the enjoyment of property. But stopping here, little progress has been made toward ascertaining what interferences are wrongful.

There are many things which render one uncomfortable which are not wrongful. A certain plaintiff was annoyed when his neighbor rented his property to an undertaker, but one has an absolute right to make any use he wishes of his property provided he does not create a nuisance, and the courts said that the plaintiff was unduly fastidious. So long as burial continues, some persons must be undertakers. It is annoying to be awakened in the morning by the roar of a city's traffic or by the crowing of a cock in the country, but such annoyances are necessary incidents to life in a given locality and must be endured. A case involving this principle arose in Philadelphia where a woman claimed that she was kept awake to the injury of her health by pneumatic riveting machines in a locomotive works. The inferior courts decided in her favor, prohibiting the operation of such machinery from eight p.m. to seven a.m., but the Supreme Court of Pennsylvania unanimously held that though there was no doubt inconvenience and dis-