Argued April 22, 1895
Decided May 3, 1895
Charles J. Patterson for appellants. Alexander H. Van Cott for respondent.
The question presented, like all those which involve the right to restrain the citizen in his personal liberty, or to interfere with his pursuit of a lawful avocation, demands a careful consideration of the provisions of law, under which the right is alleged to be conferred. Where such a right is claimed, it must appear very clearly and satisfactorily, not only that it has been conferred by the law, but, also, that in its exercise the facts were present which justified it. The validity of the law is not so much called in question, as the right to enforce its provisions is. For his authority, the respondent refers to certain provisions of the charter of the city of Brooklyn (Chapter 583, title 12); where the health commissioner is empowered as follows: "Section 5. In the presence of great and imminent peril to public health of the city of Brooklyn, by reason of impending pestilence, it shall be the duty of said commissioner to take such measures * * * for the preservation of the public health from such impending pestilence as he may in good faith declare the public safety and health to demand, and the mayor of the said city and the president of the Medical Society of Kings County shall also in writing approve. And such peril shall not be deemed to exist, except when and for such period of time as the mayor, president of the medical society and the health commissioner shall by proclamation declare." The provisions of section 14 of chapter 661 of the Laws of 1893 (the "Public Health Law"), which relate to "contagious and infectious diseases," are, also, referred to. They are that, "Every such local board of health shall guard against the introduction of contagious and infectious diseases by the exercise of proper and vigilant medical inspection and control of all persons and things arriving in the municipality from infected places, or which from any cause are liable to communicate contagion. It shall require the isolation of all persons and things infected with or exposed to such disease, and provide suitable places for the treatment and care of sick persons who cannot otherwise be provided for. * * * It shall provide at stated intervals a suitable supply of vaccine virus, etc., * * * and at all times provide thorough and safe vaccination for all persons in need of the same." It would seem from a consideration of these provisions of law that, while responsibility and a wide authority have been conferred upon the respondent in the administration of his important office, nevertheless, the statute contemplates, when persons or property are to be affected by the isolation mentioned, that the fact must exist, either that they are infected with the contagious disease, or that they were exposed to it. But I find no warrant for the rather extraordinary declaration of the commissioner that "wherever any person shall refuse to be vaccinated, such person shall be immediately quarantined and continued in quarantine until he consents to such vaccination." Of course, if we could regard it as a mere expression of his opinion as to what measures would be necessary to prevent pestilence, this document would not demand our consideration; but, being issued officially and with the formal approval of the mayor and the president of the Medical Society of Kings County, as required by the city charter, it assumes the importance of a public and official paper, and the inquiry suggests itself as to the authority for its terms. That the powers conferred upon the health commissioner by the provisions of the city charter give to him the right to compel the vaccination of every citizen in the city of Brooklyn, if he would escape quarantine, seems an unnecessary and it is an unwarrantable inference from the language. It is difficult to suppose that the legislature would invest local officials with such arbitrary authority over their fellow-citizens and the language of an act would have to be very plain before the court would be warranted in giving it such a construction. But the legislature has done nothing of the kind. In the presence of imminent peril to the public health of the city, by reason of an impending pestilence, he may take such measures as he declares the public safety demands and which are approved by the mayor and the president of the medical society. This language is sufficient to confer the needed authority to do all acts which in his judgment, as approved by his associates in the matter, are necessary to be done to improve the sanitary conditions of the city and to preserve the public health from being affected. That authority would, undoubtedly, be sufficient to deal summarily with cases where persons are stricken with a contagious or infectious disease, or have been actually exposed to it, and it is broad enough for every practical purpose in dealing with the facts of any case presented; but the authority is not given to direct, or to carry out, a quarantine of all persons, who refuse to permit themselves to be vaccinated and it cannot be implied. Certainly no power should be implied from an act, which is not necessary to its due execution; and where the liberty and the property of persons are sought to be brought within its operation, the case must be clearly seen to be within those intended to be reached.
Passing to the question of what power is vested in the commissioner by virtue of his office, under the Public Health Law, it is very clear that an "isolation of all persons and things" is only permitted when they are "infected with or exposed to" contagious and infectious diseases. That that language means, when speaking of persons and things "exposed" to disease, the actual fact and not a mere possibility, is plain from the language which precedes it in the section. The local board of health is to guard against the introduction of contagious and infectious diseases, by the exercise of medical inspection and control of persons and things, either arriving from infected places, or from any cause liable to communicate contagion. Obviously, there must be an inspection of persons and things and the resulting discovery, if they are not actually "infected" with disease, that they have been "exposed" to it, and that the conditions actually exist for a communication of contagion, in order to bring into operation the power to isolate. The meaning of the particular language in the section is, and it should read, that the board of health shall "require the isolation of all persons and things infected with, or who have been exposed to such diseases." In the present case, the relators are not alleged to have been infected with any contagious or infectious disease, or to have been exposed to such. The allegations of the commissioner of health are based only upon information and belief and, when referring to the necessity for the stringent measures adopted towards the relators, they simply assert the prosecution of a general express business, which is, in part, carried on through what "has been one of the worst infected centres of the city." It is not alleged that the business had included the carrying of infected articles, or articles from infected centres, or that the relators had been exposed to contagion; but possibilities, merely, are alleged. It is alleged that the business may include the carrying of articles, which may come from infected centres and the relators might be seized with smallpox; and, if they were permitted to continue in their business without being vaccinated, they might be the means of serious consequences to other citizens with whom they came in contact. Such allegations fall far short of stating facts, upon which the commissioner of health would be authorized to take such drastic measures, as to effect the imprisonment of citizens by quarantining them in their houses. He had no jurisdiction to make the order here, unless there was, in fact, before him a case where the parties were either infected with, or had been actually exposed to the disease of smallpox. It was necessary to that jurisdiction that the danger should actually have existed, in the infection of the person or things, or in their having been exposed to the disease. (See People ex rel. Copcutt v. Board of Health, 140 N.Y. 1.) While he was vested with great and extensive powers, in order, in the presence of danger, to act summarily for the preservation of the public health, he was bound to show a state of facts which justified such an exercise of those powers.
I think no one will dispute the right of the legislature to enact such measures as will protect all persons from the impending calamity of a pestilence and to vest in local authorities such comprehensive powers as will enable them to act competently and effectively. That those powers would be conferred without regulating or controlling their exercise, is not to be supposed and the legislature has not relieved officials from the responsibility of showing that the exercise of their powers was justified by the facts of the case. The question here is not whether the legislature had the power to enact the provisions of section 24 of the Health Law; but whether the respondent has shown that a state of facts existed, warranting the exercise of the extraordinary authority conferred upon him. Like all enactments which may affect the liberty of the person, this one must be construed strictly; with the saving consideration, however, that, as the legislature contemplated an extraordinary and dangerous emergency for the exercise of the power conferred, some latitude of a reasonable discretion is to be allowed to the local authorities upon the facts of a case.
As the respondent has utterly failed to show any facts which warranted the isolation on the relators, they were properly discharged and the order of the General Term should be reversed and that of the Special Term affirmed.
All concur, except HAIGHT, J., not voting.