Wilson v. Alabama Great Southern Railroad

Whitfield, C. J., delivered the opinion of the court. Appellant’s right were fixed September 23, 1897, and are not affected by the provisions of the second and ninth sections of the act of 1898 (Laws 1898, p. 93). The presence of all three of the members of the executive committee of the state board of health was necessary to a valid order on- September 15, 1897, when the. order in question was , made (Laws 1894, chap. 38, p. 33). This is made clear, .as the legislative purpose, by the amendment (Laws of 1898, p. 93, _ [718] sec. 2), providing, for the first time, tbat “the presence of two members of the executive committee” would do thereafter. The order in question was made by only two members, it not being shown that three were present. Nor is it shown that the board appointed the chairman. Had three been present, and two made the order, this objection would have been obviated. But the order must be held void for unreasonableness also. All orders of the board - of health must stand the test of reasonableness. This order provided: “On account of yelloiv fever at several places along the coast, in this state, and several cases of yellow fever at Edwards, and reported suspected cases at various other points through this state, until further ordered, by this board, no person will be allowed to get off trains and boats at any point or station in the state of Mississippi,” etc., the rest of the order not modifying in any way this provision. Now, the appellant was from Meridian, a noninfected point, had a duly issued health certificate, and was returning from Nashville, a noninfected point, to his home in Meridian, on a valid excursion return ticket. He had not been exposed to infection. The order was not that no person who had been exposed to infection, or who came from an infected point, or who was destined for an infected point, should be allowed to come into the state, but that no person whosoever, from any point whatsoever, should be allowed to get off anywhere in the state. The authorities are uniform that this sort of an order is wholly indefensible. It has been expressly so held in this state (Kosciusko v. Slomberg, 68 Miss., 469, which also holds that the reasonableness of these orders is, of course, for the court to determine), and it has been so held in many authorities, among which see specially: In re Smith, 146 N. Y., 68, s.c. 28 L. R. A., 820; the note to Hurst v. Warner, 26 L. R. A., 484; and State v. Burdge, 37 L. R. A., at p. 162 (2), citing with approval Kosciusko v. Slomburg, 68 Miss., [719] 469. See particularly tbe reasoning of tbe court in In re Smithy supra, at p. 823. • Regard must be bad to tbe maxim, "Salus populi suprema lex,” of course. But regard must also be bad to tbe liberty of tbe citizen, and both principles must be given reciprocal play. The public health must be vigilantly cared for, but with due caution that no order intended to secure it shall be so sweeping and arbitrary as to interfere unreasonably with tbe citizen’s right of return to bis home, neither be nor it having been exposed to infection. With every disposition to uphold all reasonable regulations of our efficient and faithful board of health, we are constrained, by the oft-settled doctrines applicable, to declare this order void for unreasonableness. Doubtless this order would not have been given its unconfined sweep but for the hurry and excitement of the times. The railroad company must take'the risk, as all citizens do, as to the validity of such orders, when it yields to the order alone; and when its defens*» is, not that it yielded obedience because only of the order, but because also of vis major — a shotgun quarantine, for example— its defense will be maintained if it shall appear that such vis major, such uncontrollable necessity, was the real cause of its action. It need not go to the extent of actual collision with force marshaled by necessity. But it must show its action was due to such force existing and capable of controlling its actions. . But here it is clear that was not the case, and the action of the appellee was due wholly to the void order. The appellant was not even brought to the state line, and was once put off in Tennessee, and actually did come into Meridian without hindrance in a private conveyance after he was put off. It was not shown even that the order was temporary, or that it was ever rescinded. Ordinarily it is true that objections not specifically made [720] below cannot liere be relied on. The reason of that rule, which gives it its life, is that ibe opposite party may have opportunity to meet and obviate the objection. But where the court can' see, as to the plaintiff, that he has no cause of action on which á judgment can be legally pronounced, or, as to the defendant, that he has no defense which the law can allow to stand, there ■ is presented, in both cases equally, a case wherein it is not legally possible to obviate the fatal fault, if opportunity to do so had been given,, and this court must in such case act upon the fatal infirmity presented by the record. It was error to grant the peremptory instruction. Bsversed and remanded.