C. J. ALDEN, Appellant, v. STATE, Respondent

[Criminal No. 467. Filed March 31, 1919.] [179 Pac. 646.] C. J. ALDEN, Appellant, v. STATE, Respondent. Health — Board or Health" Rule — Violation—Criminal Liability.— Board of health rule making !it unlawful during Spanish influenza epidemie to operate moving picture shows, made a misdemeanor by Civil Code of Arizona of 1913, paragraph 4403., is valid. [As to criminal liability in exposing public to contagion, see note in 93 Am. St. Eep. 852.] APPEAL from an order of the Superior Court of the county of Gila, denying a petition for a writ of Habeas Corpus. G. W. Shute, Judge. Affirmed. Messrs. Jacobs & Partridge, for Appellant. Mr. L. L. Henry, City Attorney, for the State. [MAJORITY — PER CURIAM.] PER CURIAM. The appellant was arrested upon a warrant issued by a justice of the peace on a complaint charging appellant with an offense of wilfully, maliciously and unlawfully conducting and carrying on a moving picture show at Globe, in violation of the published rules and regulations of the local board of health, then in force to prevent the spread of Spanish influenza, a dangerous, contagious or infectious disease then raging in epidemic form in the city of Globe and Gila county. The prisoner filed his petition in the superior court of Gila county, praying for a writ of habeas corpus, upon the grounds that the said local board of health was without constitutional authority to enact valid rules and regulations which would compel applicant to close his place of business. The court denied the application and dismissed the petition. From such order, the petitioner appeals. The particular rule that the appellant was charged with having violated is as follows: “Rule 7. That it shall be unlawful for any person, persons, association, company or corporation to open, run, conduct, carry on, 'give or operate any pool room, theater, motion picture show, dance, or other amusement or entertainment in the city of Globe or vicinity.” Rule 17 provides: “That these rules and regulations shall be in full force and effect immediately upon their being published and posted in accordance with law, and shall remain in full force and effect during the continuance of the present epidemic of Spanish influenza in the city of Globe and vicinity, and until the further order of the city health board.” Paragraph 4403, Revised Statutes of Arizona of 1913, declares that a violation of the rules, regulations and measures of the local health board, that have been published or of which the party violating has actual knowledge, is a misdemeanor and punishable as therein prescribed. The questions of the power'of the local health board to promulgate the particular rules and regulations here involved were considered by this court in Globe School District No. 1, etc., v. Board of Health, etc., ante, p. 208, 179 Pac. 55, decided March 14, 1919. We concluded in that case that the rules and regulations were adopted within the power of the local board and are enforceable during the period of existence of the epidemic, as a reasonable measure to prevent the spread of disease. We will not again enter into a discussion of the questions there discussed and decided. It appears that, at the time the petitioner is alleged to have opened his moving picture show, the said Spanish influenza was raging in epidemic form; the facts in this respect appear in the Globe School District No. 1 case, supra, and may not be repeated. In the circumstances admittedly existing, the appellant was subject to prosecution and therefore arrest, if, as a fact, he wilfully and knowingly violated said health rules by opening his said moving picture show and place of entertainment at that particular period of time. Consequently, the arrest was lawful, and the judgment of the lower court is affirmed.