concurring.
I concur in the majority opinion for two reasons.
(a) As stated by the majority, the trial judge found: ‘ ‘ That the petitioner has failed to show by sufficient and competent evidence that the respondent has tuberculosis in a communicable or infectious stage ’ ’. I agree that the above statement is true, but it is my view that it was not necessary under the statute for the court to make such a finding. Even a casual reading of said Act 161 confirms my view. Section 1 defines tuberculosis in a “communicable or infectious stage” as if is established by a procedure approved jointly by the State Health Officer and the Medical Director of either the Arkansas Tuberculosis Sanatorium, the McBae Memorial Sanatorium, or the Arkansas State Hospital. To my mind it is unreasonable to think that a Probate Court would be expected to conduct an examination such as contemplated by the statute, or, if it were attempted, that the Probate Judge would not be capable of properly evaluating it. Section 2 and 3 of the statute make it plain that a petition may be filed in the Probate Court upon “reasonable grounds to believe” that a person has tuberculosis, and that, upon such showing, the Court takes jurisdiction. Section
7 of the statute shows plainly that there is only one issue to he decided by the Court. That issue is not, as the majority holds, whether the respondent has tuberculosis in a communicable form, but it is whether his surroundings are suitable “for proper isolation.”
There is an important fundamental difference in my view and the view of the majority. Under my view the Tuberculosis Sanatorium would make the examination while under the majority view the Probate Judge would make it. I submit that the majority view is not sustained by the Statute, and, further, that it makes said Act 161 unworkable and useless, because the Court is not equipped to make a test of this nature.
(b) As stated before, the Probate Court’s duty was to determine from the evidence whether the respondent was living in circumstances not suitable for isolation. I have read the record carefully and feel that it supports the trial court’s finding that no such showing was made. It is upon that ground only that 1 would affirm.
Stating the matter briefly, Act 161 of 1955, provides: (a) if there is reasonable grounds to believe John Doe has active tuberculosis, and (b) if he refuses to be examined, then (c) the Probate Court is empowered to do one of two things, (d) If it finds John Doe is properly isolated he must be released, but (e) if the Court finds John Doe is not properly isolated he must be sent to the Sanatorium for examination and treatment.