This appeal stems from a proceeding in the Franklin Prohate Court, brought on the relation of the State of Arkansas against appellee, ~W. F. Snow, under the provisions of Act No. 161 of the Arkansas Legislature of 1955. The effort was to have Appellee Snow committed to the Arkansas Tuberculosis Sanatorium, since the claim was made that he had tuberculosis in an active and communicable stage, was unwilling to voluntarily submit to medical treatment, and was living in environmental conditions that made appellee a source of danger to others.
The proceeding was instituted on June 5, 1958; the first hearing was on September 4, 1958; the second hearing was on November 10,1958; and the Court’s judgment, entered on December 5, 1958, contained these findings:
‘ ‘ That the petitioner has failed to show by sufficient and competent evidence that the respondent has tuberculosis in a communicable or infectious stage; has failed to establish by sufficient and competent evidence that the circumstances are not suitable for proper isolation or contagious control; has failed to establish by sufficient and competent evidence that the respondent is a source of danger to others and has failed to establish by sufficient and competent evidence that respondent should be committed to the sanatorium. ’ ’
The State has appealed. In Probate cases, as is this, appeals are tested in the same way Chancery appeals are tested: that is, we examine the evidence to see if the findings of the Probate Judge are against the preponderance of the evidence. Campbell v. Hammond, 203 Ark. 130, 156 S. W. 2d 75; Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495; and Credit Industrial Co. v. Blankenship, 230 Ark. 371, 323 S. W. 2d 198 (opinion of April 13, 1959). After a careful review, we reach the conclusion that the Probate judgment must be affirmed, since we cannot say that the findings are contrary to the preponderance of the evidence; but the effect of the affirmance will be limited, as hereinafter set forth.
This being the first case before us involving the Act No. 161, we think it not amiss to discuss the Act for future guidance.1 The caption of the Act No. 161 is: “An Act to Require Isolation of Recalcitrant tuberculous Patients ; Prescribing Methods and Procedures Therefor; and for Other Purposes”. Section 1 of the Act defines the words, “active tuberculosis”; Sections 2 and 3 relate to the investigations to be made by the proper persons preliminary to invoking probate jurisdiction; Section 4 states the allegations to be made in the petition; Section 5 authorizes the court to fix the hearing and cause notice to be served and provides for intermediate quarantine; Sections 6 and 7 relate to the probate hearing and the matters to be proved before the Court shall order the commitment of said person to a hospital or sanatorium; Sections 8, 9, and 10 relate to the matters after the commitment to the institution; Section 11 provides punishment for failure to observe the rules and regulations of the institution; Sections 12 and 13 are in regard to release from the institution; Section 14 provides a penalty for violation of the Act; and Section 15 is the general repealing section.
A proceeding under this Act for the ascertainment of the status, and the adjudication as to commitment, of a tubercular person is, in some respects, similar to an inquest regarding insanity, but the analogy must not be carried too far. Like an insanity proceeding, this is neither a civil nor a criminal proceeding, but rather is a special proceeding by the State in its character of parens patriae, based on the theory that the public has an interest to be protected. This is not a penal statute, yet it is to be strictly construed to protect the rights of the citizen.
With this brief review of the Act before us, we revert to the case at bar.2 Section 1 of the Act says that “active tuberculosis” means “. . . that the disease is in a communicable or infectious stage as established by chest x-ray, microscopical examination of sputum, or other diagnostic procedures approved jointly by the State Health Officer and the Medical Director of either the Arkansas Tuberculosis Sanatorium, McRae Memorial Sanatorium or Arkansas State Hospital”. (Emphasis supplied.) In the case at bar, there is no evidence that any “. . . diagnostic procedures approved jointly. . .” have ever been made. Turning next to chest x-rays, the answer is that no x-rays were introduced. Finally, if we consider sputum tests, the answer is that no witness testified to having taken sputum of the appellee and examined it. There are in the record letters which purport to have attached to them reports made by the Veterans Administration concerning the condition of the appellee. One report, dated January 25, 1955, showed active pulmonary tuberculosis based on an examination of January 20, 1955; another report, dated June 25,1956, showed the same condition based on an examination of April 19, 1956; another report, dated December 9, 1957, showed the same condition based on an examination of July 5, 1957; and the most recent report was dated April 16, 1958 showing the same condition and based on an examination of December 9, 1957.. But the trial of this case was in September and November, 1958; and we do not know what the appellee’s condition was at that time. No witness was produced by either side who had personally examined the appellee. There is in the record some evidence from which the Court might have found that the disease was in a communicable or infectious stage at the time of the hearing; but the record is very meager as to the circumstances at appellee’s home in regard to proper isolation. Because of the condition of the record, we cannot say that the findings of the Trial Court are against the preponderance of the evidence.
However, a reading of the entire record indicates the probability that appellee is a very sick person who stubbornly refuses to allow treatment and is probably a source of danger to those around him. So the affirmance of this present case is without prejudice to the institution of another proceeding by the proper officials against Mr. Snow; and the affirmance of this case will not be res judicata against any further proceeding. The possibility of such a serious and dangerous situation is indicated by this record that we are issuing an immediate mandate in order that further proceedings may be taken in keeping with the procedure and views stated in this opinion.
Affirmed.
Ward and Johnson, JJ., concur. Holt and Bobinson, JJ., dissent. George Bose Smith, J., not participating.Our research reveals that the Act No. 161 of 1955 is not an exact copy of the act of any other State, but does bear a similarity to acts of some other States. We mention only four: Oklahoma Act of 1955, page 361, as found in Title 63 § 533 of Oklahoma Statutes Annotated; Pennsylvania Act of April 23, 1956, as found in Title 35 § 521.1 of Purdon’s Statutes of Pennsylvania; Tennessee Act of 1953, Chapter 166, as found in § 53-1010 of the Tennessee Code Annotated; and Connecticut Act of 1955 S2124d and Public Act of 1957 No. 586 S16, both as found in § 19-120 of the 1958 Revision of the General Statutes of Connecticut. Our Act No. 161 of 1955 was amended by Act No. 298 of 1957 to add the City Health Officer in § 2 of the 1955 Act.
The constitutionality of the Act is not raised in this case.