On Saturday, December 9,
1918 as Hamiltonians read their daily newspapers, the headlines in the Times,
Herald and Spectator all concerned the Hamilton Board of Health’s regulations
for fighting the influenza epidemic.
Members of the city’s clergy,
both Protestant and Roman Catholic, plus representatives from the city’s major
retail stores, had been campaigning for an end of the ban, or at least some
modifications to the ruling.
The board of health members
were sympathetic to the concerns but still had to deal with their
responsibilities as to fighting the epidemic:
“There is little prospect tomorrow over the
board of health’s proclamation ordering the churches to remain closed. Rectors
of some of the Roman Catholic churches earlier in the week announced that mass
would be celebrated, as usual, but this morning His Lordship Bishop Dowling stated
that all the Catholic churches in the city would remain closed.
“The board of health has
refused to modify in any degree its proclamation. The request of the Protestant
and Roman Catholic clergy and the merchants for a slight relaxation of the
regulations was turned down at a meeting of the board and representatives of
the Medical association yesterday afternoon.”1
1“Churches
Will Remain Closed; Order Stands : No Modifications of Health Board’s
Proclamation : Merchants and Clergymen Appealed in Vain: Flu Epidemic Seems to
Be Abating – Few Deaths”
Hamilton Spectator. December 07, 1918.
Although the meeting of the
board which made the decision was closed to the public, the following overview
of the matters discussed was put together by the board’s publicity commissioner
:
“Rev. W.P. Robertson
presented a letter signed by himself and three representative Protestant
ministers, suggesting that the proclamation be so amended as to permit of the
holding of services in the churches under certain restrictions. He stated that
he did not wish to appear antagonistic
to the health authorities, his desire being to back them up in every way
possible, but he felt that measures might be adopted that would safeguard the
health of the citizens without interfering with the holding of services for
divine worship.
“Rev. Dean Kelly, St. Mary’s
Cathedral, expressed every confidence in
the health authorities, but concurred in the contents of the letter signed by
the Protestant clergymen. He urged that the matter be given careful
consideration.
MERCHANT’S SIDE OF IT
“”Lieut.-Col. Robertson,
representing the retail merchants, assured the board of the confidence of the
merchants in the health authorities, and of their continued co-operation in the
carrying out of any necessary restrictions. At the same time, the merchants
asked for the reconsideration of two points, viz. : Whether it would not tend to relieve congestion by permitting
the stores to remain open Saturday afternoons and evenings, and whether it
would not be wise if the first suggestion could not be acted upon, to close all
stores at 4 p.m. to prevent the crowding of smaller stores by the closing of
the larger ones. He advanced several strong arguments in support of both
suggestions.
“After the deputations had
retired, the joint committee went fully into all of the suggestions and
arguments that had been advanced, and also into the statistics showing the
progress of the disease. Dr. Roberts suggested that relief might be given the
churches to the extent of permitting them to be opened for private prayer, but
not for the holding of services, but he received no support from the others.
“F.A. Magee, who attended as
the board of trade’s representative said that, after hearing the facts, he was
inclined to favor more stringent regulations rather than modification of those
now in force.
“”After a long discussion,
it was agreed by all that the restrictions should not be altered for the time,
but the members asked that they be kept fully informed from day to day
regarding the progress of the disease, with a view to the removal of the ban at
the earliest possible date, consistent with the safety of the public.
“A letter was received from
the Ontario Billiardmen’s association, asking that relief be granted the
proprietors of local billiard parlors as soon as possible. The members agreed
that this class was feeling the effects more than any others, but could not see
their way clear to do anything at the present time.
“The Dominion Civil Service board
wrote asking permission to hold civil service exams in Hamilton next week, there
being between 30 and 40 candidates to write, but the request was refused.
“L.R. Tobey billed the board
for $195, the cost of his newspaper advertising a week ago yesterday, which he
claimed was rendered ineffective by the operations of the ban. The amount and
letter were ordered to be filed.”1
Although the Hamilton
newspapers had generally been in support of the measures the board of health
had taken, there was a feeling that the epidemic was on its wane, that store
hour limitations were ineffective as the Christmas rush was underway and
finally, that the ban on the holding of services in public worship should be
ceased or at least be more flexible.
The Hamilton Spectator was
particularly forceful on the matter :
“The board of health stands pat. That is to
say, the ‘ban’ remains.
“The ‘ban’ is the means
taken by the members of the board to
stamp out the epidemic of what certain doctors call Spanish influenza.
“The ordinary citizen, who
has respect for properly constituted authority, would like to believe that the
‘ban’ is all that its sponsors claim.
“The members of the local
board of health consist of a tailor, a plumber, a lawyer, a boat builder and a
doctor.
“According to their light
and knowledge, they are doubtless doing the best they can, which is altogether
different, however, from labeling that effort as the best possible.
“The Public Health act gives
them authority to ‘use all possible care to prevent the spread of infection, or
contagion, BY SUCH
MEANS AS IN THEIR JUDGMENT is most effective for the public
safety.’
“The phrase, you will
notice, is elastic. ‘In their judgment’ provides the excuse for those who
challenge the infallibity of the course pursued by Hamilton’s board.
“Inconsistency, anomalies,
even unfairness, have been complained of in the newspapers by those affected by
the order.
“Section 56, part 2, of the
Public Health act, specifically mentions the places to be closed during an
epidemic, as follows:
Section 56, prt 2:
“The medical officer of
health or local board, when it is considered necessary to prevent the spread of
any communicable disease, may direct that any school or seminary of learning,
or any church or public hall or other place used for public gatherings or
entertainments in the municipality shall be closed, and may prohit all public
assemblies in the municipality, and no such school, seminary, church, hall or
public place shall be kept open after such direction for the admission of the
public, nor reopened without the permission of the medical officer of health..
(2 Geo. V., c 58, 58.)
“It will be seen that no
mention is made there of stores, the board evidently relying on the clause
giving them general powers which ‘in their judgment is most effective for the
public safety’ to interfere with shopping hours. The purpose of the act is to
prevent crowding and congestion. How is that being accomplished by restricting
shopping hours in the midst of the busy season of the year?
“Wouldn’t it be better to
keep the stores open longer and attempt to limit the number of persons allowed
to enter the store at one time?
“The board has not lived up
to the requirements of the act for the treatment of communicable disease.
“The board has not inspired
confidence by removing the ban and then restoring it with scarcely any warning,
and while the city was in the midst of its social and business activities.
“It is not too late to undo
some of the mistakes, but the board, by its announcement last night, does not
seem to be in the mood to do so.
“An appeal to higher
authority is a matter that takes time to handle, but it is worthwhile to notice
that when such appeals have been made, the courts have held as a basic truth
that, while bylaws of public representative bodies ought to be supported if
possible, they should be benevolently interpreted, and credit given to those
who have to administer them that they will be reasonably administered.
“If they were found
‘To be partial and unequal in their operation
as between different classes;’
If they were
‘Manifestly unjust;’
If they involved
‘Such oppression or
gratuitous interference with the rights of those subject to them as could find
no justification in the minds of reasonable men, the court might well say :
Parliament never intended to give authority to make such rules; they are
unreasonable and ultra vires.
“The requirement of
reasonableness involves the general rule that bylaws in their application
should be general and not particular. They should not improperly discriminate
between different classes.
“They should not make
unlawful, things which are otherwise innocent.
“Is the danger from the
spreading of this infection or contagion greater or less by herding together a
certain number of people in a store for a shorter period than by thinning out
the number over a longer period?
“If the theory of limiting
the number of people in a street car is sound, why should not the stores be
allowed to remain open and the number at any one time limited?
“And so with the churches?
“What about it, gentlemen of
the board of health?”2
2 “As
to the ‘Ban’ ”
Hamilton Spectator. December 07, 1918
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