The purpose of this memorandum is to describe in outline form the sources of public and environmental health laws. Legislated enactments and administrative regulations that affect public health are very large in both number and bulk, they appear in many different forms, they issue from many different levels of government, and they issue from many different kinds of governmental units. In addition the common law, though of relatively minor application in the public health field, is nevertheless of importance because of its place in the underlying foundation to our system of law.

Because of the variety and complexity in this body of law, its sources can be placed in understandable perspective only against a picture of the structure of government itself. This outline is thus built largely around the pertinent structural components of our governmental system.

Most of the illustrative material is taken from the State of Washington, and although the outline text speaks generally of a "state", in most settings the State of Washington has served as the model. Also, although most of the examples are taken from the public health field, a few, thought better illustrative of the point, are taken from other fields. The citation starting with the letters "RCW" refers to the Revised Code of Washington.

The approach of the outline, corresponding to the major subdivisions, is first to show how law is used, then to describe the functional types of governmental units that make law, then to describe in detail the political structural units (nation, state, and state subdivisions) and the type of law made by each, and finally to sketch briefly the functions of constitutions.

I.    There are two principal ways in which law is used to promote public health.

A.    Law may be used to control conduct:

1.    by imposing criminal sanction

a.    for doing a specifically described act, or

Example: RCW 70.54.010. "Any person who shall deposit in a (drinking water supply) any matter or thing whatever, dangerous or deleterious to health . . . shall be guilty of a misdemeanor."

b.    for violating an ordinance or regulation adopted by a county or a city, or

Examples:
1) RCW 36.58.020. "Any person violating any of the rules and regulations made by the board (of county commissioners) relating to the use or occupation of any site owned or occupied by the county for garbage disposal purposes shall be guilty of a misdemeanor."
2) RCW 36.32.120. "The legislative authorities of the several counties shall . . . (7) make and enforce, by appropriate resolutions or ordinances, all such police and sanitary regulations as are not in conflict with state law . . . any violation (of which) . . . shall constitute a misdemeanor."

c.    for violating a regulation issued by an administrator or an administrative agency;

Example: RCW 70.05.120 (in part). "Any person . . . violating or refusing or neglecting to obey any of the rules, regulations or orders made for the prevention, suppression and control of dangerous, contagious and infectious diseases by the local board of health or health officer . . . shall be guilty of a misdemeanor."
 

2.    by direct action taken by an official, an administrator, or by an administrative agency, pursuant to statutory authority; or,
 
Example: RCW 16.70.030. "The secretary (of social and health services) shall have authority to destroy any pet animal or animals (defined in detail) which may reasonably be suspected of having a communicable disease dangerous to humans . . ."
3.    by imposing liability in damages payable to a person who has been harmed, or by enjoining threatened harmful conduct.
Example: Forbus v. Knight, 24 Wn. 2d 297, 163 P. 2d 822 (1945). The nature of this action is indicated by this brief quotation from the opinion of the Washington Supreme Court: "Plaintiff brought suit against the defendants to recover damages and to enjoin the continuance of an alleged nuisance threatening further damage to her real property. As grounds for the action, the complaint . . . alleged that the roots of a certain tree situated on land owned by the defendants invaded plaintiff's property and periodically clogged her sewer pipe line, causing sewage to back up into the basement of her house . . . In this action . . . we are concerned with only one tree, designated as a salix babylonica, commonly known as a weeping willow."


B.    Law may provide for and impose conditions upon the use of public funds:
 

1.    To make positive contributions to the public health; or
 
Example: RCW 70.96A. This statute is the Uniform Alcoholism and Intoxication Treatment Act. It includes provision for major treatment programs directly benefiting the alcoholics, without cost to those unable to pay. It permits the secretary of social and health services to contract for services to be rendered by public or private "treatment facilities". It also provides that the secretary may "keep records and engage in research and the gathering of relevant statistics". Substantial amounts are legislatively appropriated for these purposes.
2.    So condition the use of public funds that the user is effectively induced to conform to stated health standards.
 
Example: RCW 70.96A.090 (part of the alcoholism statute described in B-1, immediately above). "(1) The department shall establish standards for approved treatment facilities that must be met for a treatment facility to be approved as a public or private treatment facility, and fix the fees to be charged by the department for the required inspections. The standards may concern the health standards to be met and standards of services and treatment to the afforded patients . . ."
II.    There are three principal functional types of governmental units that make law. They, and the forms of law originated by each, are as follows:
A.    Legislatures, whose principal forms of law are:
 
1.    Direct legislative control, with
 
a.    criminal sanction, or

b.    civil sanction specifying circumstances for court awards of damages or court issuance of injunctions.
 

2.    Criminal sanction to enforce ordinances adopted by a lesser political entity or to enforce administrative regulations, and

3.    Delegation of power to control to an official, an administrator, or an administrative agency to take direct action, applying legislated standards to particular situations;
 

B.    Administrators or administrative agencies, whose control is by regulation with legislated criminal-sanction back-up (see I-A-1-c, above); and

C.    Courts, whose law takes the following forms:
 

1.    Court-made law, whether used to impose damages in favor of someone who has been harmed or to enjoin threatened harmful conduct, exists as "common law". This term, when applied to a particular field such as the rights and duties of landowners, defines the mass of decisions which in its composite represents the total body of governing law. It yields to and may in fact be modified by legislated law or by administrative regulation. The principal creators of this type of law are the appellate courts, whose decisions are described and explained in written opinions, published in official "reports" and available to interested persons.

2.    Courts often build a quasi-common-law body of law upon a statutory base, filling in or elaborating upon the general terms of a legislated law with a succession of decisions which in their composite become the total body of law for the application of the legislated law.

III.    The two basic political entities that make law are the national government and the state government.

A.    The law originated by each differs from that of the other in two important respects:

1.    National government legislative powers are confined to a constitutionally specified list of permissible subject matter, and national law exists only as Congress has enacted law based on that list; state law is not dependent on a list; rather its existent common law is pervasive and is only supplemented or modified by law enacted by its legislature.

2.    National law prevails over inconsistent state law.

a.    The usual instance is of a Congressional statute prevailing over an inconsistent state statute.

b.    In some instances the very existence of power in the national government prevents a state's law from being effective.Ý For example, a principal argument in the litigation challenging a Washington statute regulating tankers in Admiralty Inlet and Puget Sound urged that the Washington statute unduly impinges upon the power of Congress to regulate interstate and foreign commerce.

B.    Law-making power is located within the national and state governments as follows:

1.    The national government is essentially a unitary system with the full range of law-making functional units a legislature, administrators and administrative agencies, and courts. It also has law-making power in its power to enter into treaties and other international agreements that are effective internally within the country, some by their own terms, other by Congressional implementation, with the equivalent force of a Congressionally enacted statute or of an administrator issued regulation.

2.    Two or more states, with Congressional approval, may by interstate compact create political units that have considerable law-making power.

3.    The location and distribution of law-making within state government is much more complex. The dominant characteristic of state government is that it is essentially unitary and authoritarian, with power at the top, yet with many local subordinate political units. These local units exist and have law-making power only as the state as a whole so provides. Basic provisions are in the state constitution (Wash. Const. Arts. VIII and XI, Ams. 12, 21, 23, 27 and 40); great detail is specified in legislative enactment (RCW Titles 35, 35A, 36). Note particularly Wash. Const. Art. XI, 11: "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations that are not in conflict with general laws."
 

a.    The state itself has the full range of law-making units: a legislature, numerous administrators and administrative agencies, and the basic court system (the superior courts and the higher appellate courts). The state also provides for people-originated or -validated legislation enacted through the initiative and referendum mechanisms.

b.    The principal local political entities, i.e., those performing general governmental functions (the counties and the cities and towns), have considerable law-making power.

(1)    Both the counties and cities and towns may enact ordinances on a wide range of subject matter, and both may have administrators with regulation-type law-making power. These powers are frequently specified in detail by statute.
Examples:
1)    RCW 36.32.120.    "The legislative authorities of the several counties shall . . . (7) make and enforce, by appropriate resolutions or ordinances, all such police and sanitary regulations as are not in conflict with state law . . ."
2) RCW 36.62.180 and .190. The board of trustees (of a county-created hospital) shall: (1) have general supervision and care of such hospitals . . . and power to do everything necessary to the proper maintenance thereof . . . The board of trustees may: (1) adopt bylaws and rules for its own guidance and for the government of the hospital . . . (6) formulate rules and regulations for the government of tuberculosis patients and for the protection of other patients, nurses, and attendants from infection; . . ."
(2) The type of control will also be specified by state statute, usually to provide one or both of the following:
(a) direct action; and
Example: RCW 36.32.290 and .300. "When the board of county com-missioners of any county deems it essential to the public interest for flood prevention purposes it may remove drifts, jams, logs, debris, gravel, earth, stone or bars forming obstructions to the stream, or other material from the beds, channels, and banks of watercourses in any manner deemed expedient . . . When any forest trees are situated upon the bank of any watercourse or so close thereto as to be in danger of falling into it, the owner or occupant of any of the premises shall be notified to remove them forthwith. The notice shall be based upon a resolution or order of the county commissioners . . . If the trees are not removed within ten days of the notice, the county may thereupon fell them."
(b) criminal sanction.
Examples: (See the examples given in I-A-1-b, above.)

c.    The special purpose units, e.g., a school district, a port district, or a sewer district, may also have law-making power, but the range of powers and the types of available sanctions are limited.
(1) The state may create such units, or it may authorize the county or city or town to create such units. The mechanism for creating such a unit often includes a vote of the persons resident within the affected geographic area.
(2) The type of control given to the unit may be:
(a) deprivation of limitation upon the availability of the services of the district;
Example: RCW 28A.58.101. "Every board of directors (of a school district), unless otherwise specified shall: . . . (2) adopt . . . written rules and regulations regarding pupil conduct, discipline, and rights . . . (and) (3) suspend, expel, or discipline pupils."
(b) direct action;
Example: RCW 56.08.010 (in part). "A (sewer) district may compel all property owners within the sewer district . . . to connect their private drain and sewer systems with the district system . . . The district may for such purpose enter upon private property and connect the private drains or sewers with the district system and the cost thereof shall be charged against the property owner and shall be a lien upon the property served."
(c) criminal sanction.
Example: RCW 36.69.130 and .180. "Park and recreation districts shall have such power as are necessary to carry out the purpose for which they are created, including, but not limited to, the power: . . . (8) to make and enforce rules and regulations governing the use of property, facilities or equipment and the conduct of persons thereon . . . The violation of any of the rules or regulations of a park and recreation district adopted by its board for the preservation of order, control of traffic, protection of life or property or for the regulation of the use of park property shall constitute a misdemeanor."
d.    In recent years a somewhat different type of special purpose political entity has been developed, of wide geographic application and with extensive governmental powers.
(1) Two striking examples are:
(a) the metropolitan municipal corporation, of which the Municipality of Metropolitan Seattle is the exemplar, and
Statutory Base: RCW 35.58
(b) the air pollution control authorities, which, upon being "activated", are municipal corporations.
Statutory Base: RCW 70.94
(2) These entities have most of the law-making powers of general-purpose political entities
(a) limited, however, to the pertinent subject matter, and
Examples:
1) RCW 35.58.050. "A metropolitan municipal corporation shall have the power to perform any one of the following functions . . . (water pollution abatement, water supply, public transportation, garbage disposal, parks and parkways, comprehensive planning)."
2) RCW 35.58.180. "In addition to powers specifically granted . . . a metropolitan municipal corporation shall have all powers which are necessary to carry out the purposes of the metropolitan municipal corporation . . ."
3) RCW 35.58.200, .220, .240, .280, .290, and 310 specify the detailed powers, respectively, for the six authorized functions.ÝÝ Law-making power with respect to water pollution abatement (.200) includes power "to require counties, cities, special districts and other political subdivisions to discharge sewage collected by such entities from any portion of the metropolitan area which can drain by gravity flow into such metropolitan facilities . . . (and) to establish minimum standards for the construction of local water pollution abatement facilities . . . which are connected to the facilities of the metropolitan municipal corporation."
(b) with a broad range of law-enforcing mechanisms.
Example: RCW 70.94.040. "Except where specified in a variance permit, . . . it shall be unlawful for any person knowingly to cause air pollution or knowingly to permit it to be caused in violation . . . of any ordinance, resolution, rule or regulation validly promulgated hereunder."
RCW 70.94.141. "The board of any activated authority . . . shall have power to:Ý (1) adopt, amend, and repeal its own ordinances, resolutions, or rules and regulations, . . . implementing this chapter and consistent with it . . . (and) (3) issue such orders as may be necessary to effectuate the purposes of this chapter and enforce the same by all appropriate administrative and judicial proceedings . . ."
RCW 70.94.200. "For the purpose of investigating conditions specific to the control, recovery of release of air contaminants into the atmosphere, a control officer, the director of the state department of health or their duly authorized representatives, shall have the power to enter at reasonable times upon any private or public property, excepting non-multiple unit private dwellings housing two families or less."
RCW 70.94.425 ". . . (W)henever any person has engaged in, or is about to engage in, any acts or practices which constitute or will constitute a violation of any provision of this chapter, or any rule, regulation or order issued thereunder, the governing body or board or the state board, after notice to such person and an opportunity to comply, may petition the superior court . . . for a restraining order or a temporary or permanent injunction or another appropriate order."
RCW 70.94.430. "Any person who violates any of the provisions of this chapter, or any ordinance, resolution, rule or regulation in force pursuant thereto . . . shall be guilty of a misdemeanor . . . (and) any person who willfully violates . . . shall be guilty of a gross misdemeanor . . ."
RCW 70.94.431. "In addition to or as an alternate to any other penalty provided by law, any person who violates any of the provisions (of this chapter) or any of the rules and regulations of the department or the board shall incur a penalty in the form of a fine in an amount not to exceed $250 per day . . ."
IV.    The constitutions, national and state, serve as sources of public health law.
A.    As noted in III.A.1, above, the power of the national government derives from and is dependent upon the United States Constitution and the exercise of the powers of Congress there specified (or other affirmative powers, as e.g., through treaties) may thus result in public health laws.

B.    The United States Constitution, especially its amendments, serves also to inhibit government, both national and state (and all of its subdivisions), as that government may impinge upon people. This constitutional protection extends over a wide range of situations and of personal interests and thus finds its applications in many public health settings. A typical setting in which constitutional protection may be applicable occurs when a government official enters a private home without permission.

C.    The state constitution has a roughly parallel function to that of the United States Constitution.
 
1.    It affirmatively specifies some subjects for legislative or administrative action.
Examples:
1) Wash. Const. Art. XI, 11.Ý "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."\
2) Wash. Const. Art. XX. "There shall be established by law a state board of health and a bureau of vital statistics in connection therewith, with such powers as the legislature may direct . . . The legislature shall enact laws to regulate the practice of medicine and surgery, and the sale of drugs and medicines."


(Remember, however, the distinction pointed out in III.A.1, above.)

2.    It also inhibits the state, for the protection of people, in much the same way as does the national constitution.

Example: Wash. Const. Art. I, 7. "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

.