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may be, shall make effectual provision, in the manner in which they shall judge best, for the safety of the inhabitants, by removing such sick or infected person to a separate house, if it can be done without damage to his health, and by providing nurses and other assistance and supplies, which shall be charged to the person himself, his parents or other person who may be liable for his support, if able, otherwise at the expense of the county to which he belongs.

SEC. 22. If any infected person cannot be removed without damage to his health, the board of health shall make provision for him, as directed by the preceding section, in the house in which he may be, and in such case they may cause the persons in the neighborhood to be removed, and may take such other measures as may be deemed necessary for the safety of the inhabitants.

SEC. 24. Local boards of health shall meet for the transaction of business on the first Monday of May and the first Monday in November of each year, and at any other time that the necessities of the health of their respective jurisdictions may demand.

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It will be observed that this statute provides that local boards of health shall appoint a competent physician to the board, who shall be the health officer within its jurisdiction. And the board is authorized to regulate all fees and charges of persons employed by them in the execution of the health laws and of their own regulations. The evidence shows that the plaintiff was not employed by the board of health; he was employed by a committee appointed by a majority of the board. We are therefore required to determine the question whether the board of health could delegate the power to employ a physician to a committee, none of whom were members of the board. We think it is very clear that the discretion as to what physician shall be employed must be exercised by the board, and that it cannot be delegated to a committee. And, although the plaintiff, after he entered upon the employment, saw two of the trustees, who as individuals directed him to attend the Small-pox patients, and do what appeared to be necessary in the premises, we do not think this can be regarded as an employment by the board.

In Herrington v. District Township of Liston, 47 Iowa, 11, it is said: "The question is here presented whether a corporation, whose business is transacted by a board of directors, can be bound by the assent of a majority of the directors to a contract expressed otherwise than at a duly convened meeting. We are of the opinion that it cannot. While it is true that a majority of a board will govern in the absence of a provision by statute, or in the articles of incorporation requiring the concurrence of a greater number, yet their determination is valid only after the minority have had an opportunity to be heard. A board must act as a unit, and in the manner prescribed. The determination of the members individually is not the determination of the board; citing McCollough v. Moss, 5 Denio, 557; Livingstone v. Lynch, 4 Johns., chapter 595; Rice v. Plymouth County, 43 Iowa, 136. And see Taylor v. District Township of Wayne, 25 Iowa, 447.

Our conclusion is that the plaintiff, not having shown an appointment by

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the board of health, cannot recover in this action. The facts show that this determination works an apparent hardship in this case. But we cannot allow hardships in individual cases to lead to the establishment of a rule which would work a great mischief to the public at large. If we were to overturn what we regard as a well established rule, to prevent hardship in this case, we would turn loose upon the local school boards and other local bodies in this State, all sorts of solicitors, who could obtain the individual assent of members of the boards to all manner of contracts and expenditures, which could not be obtained from the board, acting as a unit. The statute providing for a board of health, provides for meetings of the board at any time that the necessities of the health of their respective jurisdictions may demand, and the board in this case, should have met as a board, when it was known that the plaintiff's services were required, and made the proper appointment as a board. They could not, by their separate acts and declarations, ratify the act of the committee appointed by them. They should have ratified it as a board of health before the service was performed.

We think the judgment of the district court must be (1)

AFFIRMED.

ABATEMENT OF NUISANCES.

SEEVERS, J.—The agreed facts are, that the city of Cedar Rapids is a corporation organized under a special charter, and has a population of about fifteen thousand, and the mayor and aldermen appointed a board of health, as provided in chapter one hundred and sixty-eight of the acts of the Nineteenth General Assembly, and said board of health adopted and published, according to law, the following rule or regulation: "There shall not be kept or maintained, within the corporate limits of the city of Cedar Rapids, any hog-pen or inclosure wherein swine are kept and fed by the owner, lessee or occupant of any property therein, save and except such pens as may be used for the purposes of commerce only; and all such pens used for the purposes of commerce shall be kept clean, and the owner, lessee, or manager thereof shall see that the same do not become nuisances in any respect." The city duly enacted an ordinance providing that any person who shall knowingly violate or fail to comply with any rule or regulation of the board of health should be deemed guilty of a misdemeanor and punished as provided in the ordinance. The defendant maintained in the corporate limits a pen in which was kept one hog, and for the purpose of commerce. Such pen was kept clean, and was not a nuisance by reason of filth therein, but was a nuisance, if at all, because of the rule or regulation of the board of health. These facts were agreed upon for the purpose of enabling the district court to determine whether the regulation of the board of health is valid, and the question to be determined is, whether such board has the power and authority to adopt such order or regulation, and whether the same can be enforced by ordinance.

(1) Young v. County of Black Hawk, 66 Iowa, 460.

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It is not insisted that the statute authorizing the city to create the board of health is unconstitutional, and as the parties have agreed that the only point to be determined is whether the board of health had the power and the authority to establish the rule and regulation that it did, it is immaterial whether the pen as kept was in fact a nuisance. The board had the authority to establish such reasonable rules and regulations as in its opinion would preserve the health of the inhabitants of the city. The only question, therefore, is whether the regulation is reasonable. It is said that while "ordinances which unnecessarily restrain trade or operate oppressively upon individuals will not be sustained, yet such as are reasonably calculated to preserve the public health are valid, although they may abridge individual liberty and individual rights in respect to property." 1 Dillon Municipal Corporations, section 320.

In Commonwealth v. Patch, 97 Mass., 221, it was held that a similar regulation was reasonable and valid. The facts in that case were precisely like the facts in this case, except that the number of inhabitants in the town of Springfield does not appear. It was presumed, because the evidence was not before the court, that the regulations and ordinance operated upon the most thickly settled part of the city. We must assume that the pen in question was situated in a populous part of the city of Cedar Rapids; for the question to be determined is one of power and authority. The question, therefore, is whether the regulation is valid when applied to cities containing fifteen thousand inhabitants. In our opinion the ordinance is reasonable and cannot be said to be invalid when applied to such cities. Before an ordinance or regulation of a board of health can be said to be unreasonable, it should clearly so appear. The question should not remain doubtful, and the discretion necessarily reposed in the officers and boards of cities making regulations for the preservation of the health of the inhabitants cannot be declared invalid unless it clearly so appear. A legal restraint may be imposed on the few for the benefit of the many. We conclude that the regulation and ordinance cannot, as a matter of law, be said to be unreasonable.(1) AFFIRMED.

Action for damages alleged to have been sustained by reason of a nuisance caused by defendant. The plaintiff also prayed for an injunction to abate the nuisance. There was a trial to a jury, which found the existence of the nuisance, and rendered a verdict for twenty dollars damages. The defendant appeals.

ADAMS, C. J.-I. The defendant moved for an order requiring the plaintiff to state her cause of action more specifically, by stating whether the board of health had determined the question as to the existence of the nuisance. The court overruled the motion, and the defendant assigns the action of the court as error. It is provided in section sixteen, chapter one hundred and fifty-one, laws of 1880, that local boards of health may make such regulations concerning nuisances as they shall judge necessary for the

(1) State v. Holcomb, 68 Iowa, 107.

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public health and safety; and if any person shall violate any such regulation he shall forfeit a sum of not less than twenty-five dollars, for every day he shall knowingly violate the regulations, to be recovered before a justice of the peace. It is contended by the defendant, that the intention was to confer upon the local boards of health the exclusive jurisdiction to determine what constitutes a nuisances and to abate nuisances. But we think otherwise. The alleged nuisance in the case at bar consisted in maintaining a yard for feeding cattle and hogs near the plaintiff's residence. Her action was brought to recover for damages sustained in the discomfort suffered. We cannot think that the statute in question was designed to exclude all remedy for such damages, nor to make a finding of a local board of health of the existence of the nuisance a condition precedent to the maintainance of an action for damages.

II. It is contended that instructions three, four, six and seven, state too broadly the law in regard to nuisance. Wherein the law is stated too broadly appellant's counsel does not specifically point out. Such a general assertion, made in respect to four instructions together, does not, we think, render it proper for us to say more than that we have read the instructions complained of, and see no error.

III. The defendant asked certain instructions regarding the measure of damages, which the court refused. The rule as to the measure of damages, given by the court appears to be correct, and we think fully covers the ground.

IV. One James Bohannan, a son of the defendant, was called as a witness in his father's behalf, and testified in regard to the good condition in which he and his father kept the lots in question. He was then asked a question, in these words: "About how are they in comparison to where he, Baker, plaintiff's husband, keeps his own hogs and cattle, in his own lot?" The court excluded the question, and the ruling is assigned as error. It is contended that the witness' answer would have shown that the plaintiff's husband kept his lot in a worse condition than the defendant did the lots in question, and so plaintiff could not properly complain, under the rule in Cassady v. Cavenor, 37 Iowa, 300. But, suppose the fact had been shown as defendant claimed the fact to be, that certainly, without more, would not have aided the defendant, and there was no offer to prove more on that point. The mere fact that the plaintiff's husband's lot was in a worse condition would not have tended to show that his lot was a nuisance, or a source of any discomfort to the plaintiff. A hog-lot does not become a nuisance by reason of its condition alone, but its condition and location. We think that the court did not err.

V. It is contended that the evidence does not sustain the verdict. There was, as is usual in such cases, a great conflict in the evidence. Possibly, according to the preponderance of the evidence, the lots were not a nuisance; but we cannot say that the evidence is such that we would be justified in disturbing the verdict.

VI. A decree was rendered enjoining the defendant from using the lots in question as feed-lots. It is insisted that the injunction should not have

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gone further than to enjoin such use of the lots as constitutes a nuisance, allowing the defendant to use the lots as feed-lots, if he can so change the mode of use, or condition of the lots as to obviate the trouble complained of. In Shiras v. Olinger, 50 Iowa, 571, this court refused to enjoin absolutely the use of a livery stable found to be a nuisance, and enjoined only the particular mode of use thereof employed, which mode of use seemed to constitute substantially all the solid ground of complaint. But the case before us we regard as different. The trouble arose largely from the wet and mirey condition of the soil of the lots. We see no reason to suppose that any mode of use could be adopted which would obviate the trouble. We think that the decree below should be (1)

AFFIRMED.

DECISIONS OF THE ATTORNEYGENERAL.

COMPULSORY VACCINATION.

A communication from Carroll county was addressed to Hon. Henry Sabin, State Superintendent of Public Instruction, in which it was stated that the local board of health had ordered the vaccination of all pupils attending the public school. This action was in accordance with rules and regulations adopted by this Board for. the prevention of contagious diseases in the State. It was stated that the school board ignored the rules of the local board and of the State Board, and advised the teacher to pay no attention to the order, especially as the school would close in three weeks, and from the further fact that no cases of Small-pox existed within the State so far as known. The communication was respectfully referred to the State Board of Health for reply. The following answer was given:

(1) Baker v. Bohannan, 69 Iowa, 60.*

*NOTE-While a livery stable is not necessarily a nuisance, yet it may be so declared, if it is built in close proximity to existing residences, and becomes seriously detrimental to the health and comfort of the occupant.-Shiras v. Olinger, 50 Iowa, 573.