2 8o 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 pneu- 

 matic 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 unani- 

 mously held that though there was no doubt inconvenience and dis- 



