Mitchell v. Deisch

Kirby, J., (after stating the facts). Under § 4 of act 113 of 1923 the board was given authority and had the discretion to select a suitable site for the establishment of a tuberculosis sanatorium for negroes, and were directed in making such selection to locate the institution at such point in the State ‘ ‘ as shall appear to them ’ ’ to be more nearly in the center of the negro population of the State. They made this selection for the site of lands in Saline County that they regarded most suitable as a site for the establishment of the sanatorium, regarding it as a compliance with the statute because of its accessibility. There is no intimation that the site is not most suitable for the location of such sanatorium, as the evidence shows it to be, nor any suggestion made that one more suitable could be found elsewhere in the State, but only an insistence that the statute was violated by the board in not selecting lands for the site more nearly in the actual geographical center of the negro population of the State. The statute is only directory in its terms, leaving the board the discretion to place the institution at such point in the State “as shall appear to them,” etc. There is not a scintilla of testimony indicating bad faith on the part of the board in the selection of the site as made, and the General Assembly, under act 277 of 1927, knowing of the selection under the authority given the board for the purpose, made an appropriation of moneys for the erection of the necessary buildings and improvements “on the lands heretofore acquired for the purpose of a negro tuberculosis sanatorium.” This was an approval by the Legislature of the selection of the site for the sanatorium by the authorized agency of the State, amounting to a ratification thereof, even if any such ratification had been necessary, and the chancellor did not err in so holding. Tlie argument is without force therefore — the Legislature having decided that question- — that the establishment of a negro tuberculosis sanatorium in a county containing so small a negro population and inhabited almost entirely by white people is a departure from the State’s policy of the segregation of the races, since that is a matter with which the court is not concerned, the policy of legislation and its expediency being questions peculiarly within the province of the lawmaking power. Scalles v. State, 47 Ark. 476, 1 S. W. 769, 58 Am. Rep. 768; State v. Bain, 172 Ark. 480, 289 S. W. 384; Cone v. Garner, 175 Ark. 860, 3 S. W. (2d) 1. In -modern times a sanatorium is not only considered a beneficent institution, but a public necessity, and certainly its establishment cannot be regarded a nuisance per se. The chancellor did not find that its establishment and operation would cause irreparable injury to the appellants, and, at best, the testimony conduced to show that any injury to the market value of the land would be only temporary, and not irreparable, not furnishing sufficient grounds for equitable relief. Gus Blass Co. v. Reinman, 102 Ark. 294, 143 S. W. 1087; 2 Story’s Eq. Juris., 926; Joyce on Nuisances, 427; Wood on Nuisances, 778; McDaniel v. Forest Park Cemetery Assn., 156 Ark. 571, 246 S. W. 874. For cases in other jurisdictions denying injunctive relief against the maintenance of hospitals see Jardine v. Pasadena, 190 Cal. 64, 248 Pac. 225, 48 A. L. R. 509; San Diego Tuberculosis Assn. v. East San Diego, 186 Cal. 252, 200 Pac. 393, 17 A. L. R. 513; Tompson v. Evangelical Hospital Assn., 111 Neb. 191, 196 N. W. 117, 32 A. L. R. 721; Cook v. Fall River, 239 Mass. 90, 131 N. E. 346, 18 A. L. R. 119; Northfield v. Board of Chosen Freeholders of Atlantic County, 85 N. J. Eq. 47, 95 Atl. 748; Board of Health v. North American Home, 77 N. J. Eq., 78 Atl. 677; LeBourgeoise v. New Orleans, 145 La. 274, 82 So. 268. We find no error in the record, and the decree is affirmed.