the case. A new trial will be granted, with costs to appellant.

BIRD, MOORE, STEERE, STONE, and KUHN, JJ., concurred with FELLOWS, J.

BROOKE, J. (dissenting). I am of opinion there was no evidence of defendant's negligence and a verdict should have been directed.

OSTRANDER, C. J., concurred with BROOKE, J.

BIRCHARD v. BOARD OF HEALTH OF THE CITY OF

LANSING CHARTER-INJUNCTION.

The provisions of the charter of the city of Lansing, making it the duty of the board of health of said city to locate and maintain a pesthouse, did not vest it with the power to locate said pesthouse in a thickly settled residential district, where it would be a nuisance, but the discretion lodged in said board is to be exercised by it in determining between different lawful locations.

Appeal from Ingham; Collingwood, J. Submitted October 24, 1918. (Docket No. 60.) Decided December 27, 1918.

Bill by Emma Birchard and others against the board of health of the city of Lansing and another to enjoin the maintenance of a hospital for contagious diseases. From a decree dismissing the bill, plaintiffs appeal. Reversed, and decree entered for plaintiffs.

See notes in 5 L. R. A. (N. S.) 1028; 18 L. R. A. (N. S.) 260; 25 L. R. A. (N. S.) 228.

Cummins & Nichols (C. W. McGill, of counsel), for plaintiffs.

Samuel H. Rhoads, City Attorney, and Carl H. Reynolds, Assistant City Attorney, for defendant board.

Joseph H. Dunnebacke, amicus curiæ.

FELLOWS, J. This bill is filed to restrain the maintenance in a residential district of a pesthouse, or as it is sometimes denominated in the record, a detention hospital for the treatment of infectious diseases. The case was heard and an opinion filed in the court below directing the dismissal of the bill prior to the handing down of the opinions of this court in Barth v. Hospital Ass'n, 196 Mich. 642, and Saier v. Joy, 198 Mich. 295 (L. R. A. 1918A, 825). The decree not having been entered, a reargument of the case was had and a further opinion was filed in which it was recognized that these cases were controlling of the instant case, were it not for the fact that these cases deal with rights between individuals, while in the instant case the defendant is acting under certain charter provisions of the city of Lansing, which not only authorize but make it the duty of defendant board of health to locate and maintain such an institution; and it was the opinion of the trial judge that such provisions justified and authorized the board to select the present site and there maintain the institution in the absence of arbitrary action in so selecting it, which was not found to exist here. The bill was accordingly dismissed..

In this court it is not seriously urged, cannot be, that the cases cited do not control this case unless a different rule should obtain where the institution is located and maintained by a public board of health. We held in these cases that while the institutions in

volved were not nuisances per se, they became such by reason of their location in a residential district. We recognized that there might be no actual danger if properly conducted, but that their maintenance in close proximity to the home would create such dread and fear in the mind of the normal person as

"would destroy the comfort, the well-being and the property rights of the plaintiffs,'

-depressing the mind and lowering the vitality of the normal person, rendering one more susceptible to disease, and reducing the value of the property so situated; and in each of the cases this court decreed injunctive relief. In the instant case there is much testimony tending to show that a pesthouse may be so conducted, and well-regulated ones are, as to cause no actual danger to nearby residents. But substantially all the experts who testify to this effect agree that their opinion is not shared by the general public, and that the normal person has a horror and dread of a pesthouse, and a fear of infection from proximity to it.

It must be borne in mind that we are not here dealing with the question of immunity of a municipality from an action for damages when in the discharge of a State agency, as was the case of Nicholson v. City of Detroit, 129 Mich. 246 (56 L. R. A. 601), nor with a contest between two municipalities as to the location of a pesthouse as was Township of Summit v. City of Jackson, 154 Mich. 37 (18 L. R. A. [N. S.] 260). Here the question involved is the protection of private rights by injunction against a public board authorized and required by the charter to perform certain duties. Nor are we dealing with an emergency caused by epidemic of an infectious disease. The detention hospital, or pesthouse, here involved is permanent in character and the injury caused

continuous The charter provisions, so far as important here, are as follows:

"The said board of health has hereby conferred upon it, and may exercise all the powers and authority vested in health boards and health officers by the general laws of the State.

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"The said board of health shall have power, and it shall be its duty, to take such measures as shall be deemed effectual to prevent the entrance of any pestilential disease into the city; ** * *to establish, maintain and regulate a pesthouse or hospital at some place within the city or not exceeding three miles beyond its bounds. * * *

"And from time to time to do all acts, make all regulations, and pass all resolutions, which it shall deem necessary or expedient for the preservation of health, and the suppression of disease in the city, and to carry into effect and execute the powers hereby granted." Lansing Charter 1913, §§ 288, 294.

On behalf of defendant board of health it is insisted that under these provisions it is a State agency, vested with large discretionary powers; that in the exercise of an honest judgment it selected the site in question and that its decision is final and may not be reviewed by the judicial branch of the government, except in case of a clear abuse of that discretion. On the other hand it is urged that the discretion of the board is limited to the selection of a lawful site, one where the institution will not by reason of its location be a nuisance; that it may not under the power conferred inflict injury upon the individual or invade private rights. Upon this subject the authorities are not in accord.

This was

A leading case on the subject is Mayor, etc., of Baltimore v. Improvement Co., 87 Md. 352 (40 L. R. A. 494, 67 Am. St. Rep. 344, 39 Atl. 1081). a case brought by the owner of adjoining lands to restrain the public officials from the use of premises owned by the city for the detention of a leprosy pa

tient. The defense as here was that the officials were maintaining the pesthouse under plenary power conferred by the State. The court said:

"However broad, therefore, may be the powers of a municipality to erect and maintain hospitals and pesthouses for the segregation and treatment of contagious and infectious diseases, and however necessary their exercise may be, they must, generally speaking, be exerted and put into operation subject to the no less well-defined right of the individual to possess and enjoy his unoffending property without the molestation of a nuisance. It cannot be pretended that the city authorities could, even under their comprehensive powers, locate a pesthouse in the midst of a thickly settled community. *

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"The mere power to erect and maintain hospitals and pesthouses does not imply or include the further power to erect and maintain them in such a way or at such a place as will cause injury to others.

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"Assuming at this point that leprosy is a contagious disease which is a menace to the health of a community, and assuming also that the mayor and city council through its health department were about to utilize this 20-acre tract of land for the first time for the erection of a pest house thereon for the reception of this particular patient, there can, in view of the legal principles just discussed, and in the light of the facts to which allusion has been made, be no doubt as to right of the Fairfield Improvement Company to invoke the restraining aid of a court of equity to prevent the establishment of such a nuisance."

In the case of Thompson v. Kimbrough, 23 Tex. Civ. App. 350 (57 S. W. 328), an action was brought by the officers of a school district to restrain the maintenance of a pesthouse in proximity to the school building. The defendants made the contention as here that the decision of the health authorities, there the commissioners' court and health officer, as to the location of the pesthouse was final. The court thus stated the claim: