MITCHELL, S.D. — As the number of confirmed COVID-19 cases continues to creep upward, local government leaders across South Dakota are making decisions about what should be closed, restricted or cancelled in what feels for most like an unprecedented pandemic.
Just over a century ago, those leaders' predecessors were making similar decisions to shut down schools, limit public gatherings and close entertainment venues in attempts to slow the spread of the Spanish flu. On Friday, Mitchell became the latest South Dakota city to have an ordinance regulate aspects of local businesses with the goal of slowing COVID-19's spread.
Justin Johnson, Mitchell's city attorney, said there are two statutes cited in the ordinance Mitchell passed this week which give South Dakota city governments the authority to do what Mitchell, Huron, Woonsocket and others have done. Both statutes were put in place well before the turn of the 20th century and would have applied to municipalities during the Spanish flu outbreak, as well.
The first of those statutes, Codified Law 9-29-1, addresses police powers of municipalities. Under the Tenth Amendment, any regulatory powers not claimed by the federal government are delegated to states, and this law gives municipalities in South Dakota the authority to make decisions that promote that community's health, safety, morals and general welfare.
Johnson said while that statute, which applies to situations well beyond those involving COVID-19 or other health concerns, gives the city broad authority, a municipality can't put measures in place without reason.
"There's not any particular limitation as to some kind of imminent threat as to those powers, but whenever the city is passing some kind of ordinance, it still needs to hold constitutional muster," Johnson said. "For a lot of that type of stuff, it's just going to be a rational basis-type review, where as long as the government's pursuing some type of legitimate end, and as long as the ordinance is rationally related to that, it's going to be held up."
The second statute cited in Mitchell's ordinance, Codified Law 9-32-1, specifically gives municipalities power "to do what may be necessary or expedient for the promotion of health or the suppression of disease."
"If you ask me, that's pretty much the exact situation that we're dealing with here," Johnson said.
Changes mirror Spanish flu outbreak
COVID-19 is the fifth pandemic listed by the CDC within the past century and is the first pandemic to be caused by a coronavirus. The previous four pandemics were all flu variations, with the most deaths, by far, occurring during the Spanish influenza pandemic that lasted from roughly 1917 to 1920.
With more than two decades standing between them and the first flu vaccine, people worldwide panicked about the Spanish flu, which killed 50 million in total. The flu was the leading cause of death among South Dakotans for several years after it hit the state in October 1918, killing 1,847 before the end of that year, according to an article from Matthew T. Reitzel, manuscript archivist for the South Dakota State Historical Society. By comparison, during the 2009-2010 H1H1 swine flu epidemic, South Dakota recorded 24 flu-related deaths over a period of about 13 months, according to the state Department of Health.
At the direction of what was then the state board of health, South Dakota cities and counties closed schools in October 1918 as a precautionary measure, and county boards of health were instructed (via telegraph) to also order the closure of "places of public amusement" and to prohibit public gatherings.
"In some localities no doubt there are not enough cases to warrant this action, but in view of the fact that the disease seems to be gaining headway over the state it was thought best to take this action before the situation becomes worse," stated an Oct. 17, 1918, edition of the Philip Pioneer in reference to schools statewide being ordered to close.
Throughout the end of 1918 and into 1919, as the state took a largely hands-off approach in terms of statewide mandates, South Dakota communities determined at the local level how to address the epidemic, with many larger cities opting for temporary mandated restrictions on businesses, events, transportation, education and more.
Some cities regulated individual people's actions more heavily than others did during the flu outbreak. The Home Guard, which was the early 20th century's equivalent of today's National Guard, was brought into Rapid City in 1918 to enforce "sanitation laws" put in place by the city. According to Reitzel, people could be arrested or fined $6 (about $102 today) for spitting in the city's streets.
“It would be safe to say that the state went through a period of organized chaos,” Reitzel wrote. “Civic officials were trying any and every means necessary to end the spread of the flu.”
The Scotland Citizen-Republican reported that while people in Aberdeen weren't quarantined and schools were reopened, local leaders enforced other preventative measures. Beginning Dec. 19, 1918, as ordered by the Brown County Council of Defense and the Aberdeen Board of Health, no one in Aberdeen was allowed to go outside without wearing an "influenza mask," and all public buildings were required to be fumigated. Teachers were instructed to immediately send home any student who coughed or sneezed.
Other communities opted to focus more on keeping people separated than on the actions of each person individually. With policies similar to those that have been popping up across the state over the past two weeks, Madison's city government approved a ban on all public gatherings, and Codington County's board of health decided to close all public places entirely, including all privately-owned businesses. Health authorities in Grant County closed every public venue, prohibited gatherings in homes and ordered children not to play in the streets, declaring any violators would be "promptly dealt with according to law."
Beadle County currently has more confirmed cases of COVID-19 than any other county in South Dakota, and it was similarly affected by the Spanish flu. In late 1918, local leaders put Huron under quarantine for six weeks, according to a report published in the Citizen-Republican when the end of the quarantine was announced. In total, 98 deaths were recorded in Beadle County — more than all except Lawrence and Brown counties — by the end of the epidemic, according to data from the South Dakota Department of History.
Restrictions imposed during the Spanish flu pandemic were lifted locally, with each city deciding when to reopen schools and businesses, when to allow public gatherings and when to let people move about freely.
The same is now happening with ordinances and resolutions passed to control COVID-19. Regulations passed across the state all have varying language on how and when they'll stop being effective; for instance, Mitchell's ordinance will be left in place until repealed, while Woonsocket's resolution is set to be lifted May 4.
Though still to be determined, history suggests because of the statutes that give local governments authority to take action for health or safety reasons, any business owners who were to file a lawsuit against a city arguing they were wronged by COVID-19 restrictions on their business wouldn't likely win, Johnson said.
"Generally, courts in the past have given governmental bodies quite a bit of latitude when they're dealing with emergency situations, but how it would treat this particular circumstance, we don't really know," he said. "... Typically, as long as you're taking some kind of action that's reasonably related to solving an imminent crisis, then courts have typically not laid liability on cities for the emergency actions they take."