The opinion
MR. JUSTICE SCHAEFER, dissenting:
The severely literal interpretation of the statute, which requires that a municipal ordinance incorporate literally or by reference the standards of the State Department of Public Health, is not a necessary interpretation. The State Department may well have interpreted the word “ordinance” to include the regulations of the municipal board of health adopted pursuant to the ordinance, as well as the naked text of the ordinance. Indeed, it seems likely that the purpose of the General Assembly in committing the question of compliance with the minimum requirements of the State Department to that Department, rather than to the courts, was to avoid the kind of sterile interpretation adopted by the majority in this case.
The majority opinion avoids this key question by a cryptic reference to sections 7 and 9 of article VI of the Constitution of 1870. Neither of these sections justifies a disregard of the statute in this case. Section 9 gave the circuit court “unlimited original jurisdiction of all justiciable matters, and such powers of review of administrative action as may be provided by law.” In this case, the administrative action provided by law was the determination of the State Department of Public Health as to the compliance, or noncompliance, of the municipal ordinance. Thére was no such determination. Section 7, dealing with the jurisdiction of the appellate court, has no bearing upon this case.
UNDERWOOD, C.J., and DAVIS, J., join in this dissent.