not use up the substance that could be spent to such good advantage for those sometimes classed with him, but whose only points in common are the same illness and the same hopeful and trusting search for health. LEGAL ASPECTS OF THE INDIGENT MIGRATORY James A. Tobey, Institute of Government Research, Washington The interstate migration of tuberculous persons is conceded to be a major public health problem and, according to the statistics which have recently been assembled, is likely to continue to be so for many years and even to increase in intensity. The subject has frequently been discussed from its medical, social, and economic aspects, but there seems never to have been a purely legal treatment of it. The object of this paper, therefore, is to present concisely some of those principles of law which apply to the facts as they are and also to the more practical of the many solutions to the problem which have been suggested. The chief legal phase of this complex situation is one of jurisdiction. When a poverty-stricken consumptive in Connecticut borrows enough money to buy a ticket to Colorado, or is given such a ticket by some misguided charitable organization, and then arrives in Denver in a destitute condition, who is responsible, and whose duty is it to care for him? Is it a matter for the city of Denver, the state of Colorado, his home town in Connecticut, that state, or the federal government? As a matter of fact, in the past it has generally been the city of Denver or the social agencies there which have had to bear the brunt of such exigencies. The question of jurisdiction involves matters of domicile, residence, settlement, and, possibly, of interstate commerce. Every man is presumed to have a domicile somewhere, and only one. Such a legal residence is his true, fixed, permanent home and principal establishment, to which he intends to return whenever he absents himself from it. He may abandon it, however, and create a new one. For such a change there must be an acquisition of the new domicile, coupled with the intention not to return to the old. Thus, he may transfer his legal residence from one town to another, or from one state to another. Local statutes may require him to live a certain period in a state before becoming a citizen, but under such conditions he acquires domicile before citizenship. When a man changes his residence merely in order to benefit his health, he does not change his domicile, unless, of course, he has a definite intention to do so. The leading court decision to this effect is Pickering v. Winch. This case concerned the estate of an Oregon millionaire who died in Cali'See 9 Ruling Case Law 538. 48 Ore. 500, 87 Pac. 763, 9 L.R.A. (N.S.) 1159 and note. fornia while seeking health in that supposedly salubrious clime. When we come to the indigent, however, we find that the pauper has not domicile, but what is called settlement. This is more in the nature of a residence, requiring physical presence and the intention to remain. A pauper is legally defined as one who is so poor he must be supported at public expense. Such support devolves upon the place where the indigent person has his settlement. Settlement is usually a matter regulated by statute, each state having its own settlement laws effective only within its own boundaries. Once a person acquires a settlement in conformity to a state law, he must be supported by the locality of his residence, in accordance with the terms of the particular statute which applies. This may be manifestly unfair to a municipality which is a popular rendezvous for consumptive paupers, but it is the law. There is no uniformity in these settlement laws, and some western states do not even have any. This whole subject of settlement might properly claim the attention of the National Conference of Commissioners on Uniform State Laws. As a partial remedy for the indiscriminate shipping of paupers from one place to another are the so-called "transportation rules," which have been drafted for the guidance of social agencies. This is an agreement to the effect that no transportation will be supplied unless evidence is produced that the applicant will have resources for maintenance at his destination, or that his legal residence is there, or that he is a proper charge on the social agencies. These rules are established only through comity and unfortunately there is no legal redress for failure on the part of signatories to observe them. The translation of these transportation rules into state legislation, acting as a mandate on official and voluntary local agencies, would be proper and might be practicable. While a sufferer from tuberculosis is in a municipality, he is, of course, subject to the state and local laws, ordinances, or regulations governing the public health, no matter where his settlement may be. He is, under the constitution, entitled to equal protection of the laws, and the citizens of each state are entitled to the privileges and immunities of the citizens of the several states, but any state in the exercise of its police power may take any necessary steps to protect and promote the public health, provided that such operation is reasonable and in no way discriminative. The police power is the inherent right of sovereignty to make rules and regulations, within constitutional limitations, for the health, safety, morals, comfort, and general welfare of the people. The states possessed this power before the federal Constitution was adopted in 1789. They did not give it up and it was, furthermore, specifically reserved to them in the Tenth Amendment to the Constitution. Under this power a state may impose inspection or quarantine upon persons or things about to enter its borders, even though this is an interference with interstate commerce, which is exclusively a matter under federal control. Such quarantine laws, when reasonably calculated to promote 'See Bouvier's Law Dictionary. the public health, have been often upheld by the United States Supreme Court. Thus, a state could prevent the entry of any tuberculous person who was actually a menace to the public health, though it might have to prove in a court of law the existence of the disease and its danger. So too, a person actually a pauper could be debarred, but no person could be kept out because likely to become indigent at some future and undetermined date. Nor can a person once admitted be thereafter legally deported, though some cities actually give indigent tuberculous the choice of leaving voluntarily or of being jailed for vagrancy. Whether the prevention of entry of tuberculous patients is practical or expedient is a matter of policy to be determined by each state for itself. So far, no state has seen fit to employ such drastic measures, though several have threatened to do so. The control of diseased persons in interstate commerce is a federal matter which has been intrusted by law to the secretary of the treasury, under whose direction the United States Public Health Service has drafted rules governing interstate quarantine, these rules having the effect of law. These regulations contain a provision that common carriers shall not receive tuberculous persons unless such persons have with them adequate facilities for the proper disposal of their sputum. These regulations have also been incorporated in the Standard Railway Sanitary Code, which is said to have been adopted by thirty-four states. Persons have been held to be subjects of commerce by numerous decisions of the United States Supreme Court, notably the so-called "white slave" cases which involved the enforcement of the Mann Act of 1910,5 prohibiting the transportation of women for immoral purposes. The interstate quarantine regulations could be amended so as to debar from interstate travel tuberculous persons actually dangerous to the public health, and such regulations could be construed to include indigent consumptives who by very reason of their indigency are certain to create a public health hazard. This might be legal, but the procedure presents serious practical difficulties. Even if the burden of enforcement were placed on the carrier, that is, by a penalty for accepting such persons for transportation, it would create vast administrative problems which a court might consider unreasonable. The establishment of a federal sanatorium has been suggested. Such an institution, supported by federal funds, could be authorized to accept tuberculous persons consigned to it by state health authorities, just as the federal leprosarium may receive patients from the states, but it could not compel Bangor v. Smith, 83 Me. 422, 22 Atl. 379, 13 L.R.A. 686. 27 Stat. L., 449. Interstate Quarantine Regulations, United States Public Health Service (Revised, May, 'Hoke v. United States (1913), 227 U.S. 308, S. Ct. 281, 57 L. Ed. 523, Ann. Cas. 1913 E. 905, 43 L.R.A. (N.S.) 906. entry and it is a question whether tuberculous persons traveling in interstate commerce could even be consigned to such an institution. If Congress passed a law to this effect, it is probable that it would be upheld by the courts, though the situation would be a new one. However, it is not likely that legislative persuasion would be needed to induce consumptive paupers to enter a federal sanatorium in an attractive climate, or even in an unattractive one. It would be overwhelmed with patients, would require a tremendous appropriation, and for this and other reasons would probably be impractical. Federal subsidies to state sanatoria would be unwise for similar reasons, and also on account of the question of policy involved, although there is plenty of precedent for such subsidies in other branches of governmental affairs. An ingenious plan has been proposed whereby the proper authorities at the point of destination would secure a federal travel order for the tuberculous pauper and send him back to his original place of settlement. A copy of this travel order would then be sent to an appropriate federal department, which at the end of the year would bill the place of settlement for the expense involved. In the first place, this would require congressional enactment authorizing such action by a federal department; in the second place, there would be no method of enforcing collection, except by an agreement between the states, made with the consent of Congress; and there would invariably be much trouble with persons who refused to return. A few might go voluntarily. Persons sent back would have to be stopped at the border, because, if citizens of one state, they could not be lawfully ejected from another state against their will. The administrative problems of this scheme would be great. When all is said and done, the solution of the indigent migratory consumptive problem is probably one of education and agreement rather than one of law. An opinion as to a solution which is based on superficial knowledge of the problem is not of great value, however, and only those who have given years of study to it are competent to express ideas on how to cope with this complicated situation. When a practical plan is forthcoming it is quite likely that the legal phases can be adjusted, within the limitations of existing principles, to permit the scheme to work satisfactorily. When the millennium arrives with its panacea for this problem, the aid of the legal profession should be enlisted to insure the proper utility of whatever arrangement is agreed upon. Up to that point it is a matter to be solved by the physician, the social worker, the philanthropist, and the civic official. NEW DEVELOPMENTS IN COMMUNICABLE DISEASE CONTROL VENEREAL DISEASES AND THE FAMILY A. J. Lanza, M.D., Executive Health Officer, National In dealing with the familial and, therefore, the social aspects of venereal disease, we are not intimately concerned with the medical or pathological aspects. However, the social worker should be well informed of the general nature of venereal diseases and of their major characteristics. He can then appreciate their tremendous social importance, and above all he must appreciate the necessity of regarding these diseases and their victims in a sane and common-sense manner, which is another way of saying he must cultivate the scientific viewpoint. To cope successfully with social problems, to initiate or set in motion benign forces which tend to improve our well-being and advance our civilization, a correct mental attitude is necessary-an informed, and therefore an intelligent, viewpoint, rather than a sentimental one. Not that we would banish sentiment if we could, but sentiment without knowledge is a risky and at times a most treacherous guide, particularly when we are dealing with problems in which moral values are entangled. If we are to add to the great reforms of modern times, as evidenced, for instance, by reforms in the penal system, the industrial system, and the public health-if we are to add to their number the control and ultimate abolition of venereal disease, we must acquire a sane and well-informed mental attitude. We must realize that we are dealing not merely with prostitution, nor with transgressors of the moral law, nor with a submerged and inferior portion of the community who can safely be ignored; we are dealing primarily with those who are sick, just as are the sufferers from any other illness, and their sickness may be physical or mental or both. We must remember, also, that venereal disease is limited to no one class of society and that concerning it we find the same type of ignorance among the well-to-do as among the poor. We must realize further that the whole venereal disease question is an evidence of social disorder, of the fact that we are still unable completely to adjust ourselves to the complicated and unnatural demands that the social order makes upon us-unnatural from the biological standpoint. The average young man and young woman is unable (for economic and other reasons) to marry and assume family responsibilities at the time nature intended them to. The treatment, as well as prevention, of venereal disease has been hampered by generations of prejudice and ignorance and by a distorted conception of these diseases, due to the fact that their moral aspect has overshadowed all other considerations. They have been surrounded and inclosed by a taboo which has prevented them from being dealt with vigorously and scientifically, as have the other scourges of mankind. |