1             ('   ■
IN   SUPREME   COURT.
THE  PEOPLE,   VV'  ' ^
          PETER  W.  EOFP.






   OPINION OF  JUD&E  BIRDSEYE,


RELATIVE TO THE POWERS AND DUTIES OF THE HEALTH OFFICER

             OF THE PORT OF NEW YORK.
               LOTT C. CLARK,

                         Counsel for the People,


               E. W. STOUGHTON,

                       Counsel for the Defendant.






                   r     ■  '  ,
                V - v  v/ "J J



                  NEW YORK:
WM. C. BRYANT & CO,, PRINTERS, 41 NASSAU STREET, COR. LIBERTY,


                     18 5 6, 
 
  Supreme  Court,

       KINGS COUNTY.
Before Birdseye, J., at Chambers.
        August 19, 1856.
  The People,
      vs.
Peter W. Roff.
   On tbe 16th of August, 1856, on tbe petition of Peter W.
 Roff, alleging tbat he was then illegally restrained of bis liberty,
 and imprisoned in the common jail of Richmond county, a writ
 of habeas corpus to the keeper of tbe jail was  allowed, return-
 able  on  the  18th.   The writ was then returned, and the pri-
 soner brought up.  The return showed that he was imprisoned,
 by virtue of a commitment,  by Theodore Frean,  one of the
 Justices of the Peace of Richmond county,  dated on the 14th
 of August, of which commitment a copy was  annexed to tbe
 writ and return.
   The commitment recites that Roff bad been that day brought
 before the Justice charged, on tbe oath  of John B.  Giles, who
 made complaint, on oath, before said Justice, in tbe words and
 fio-ures following, lo wit: " Tbat  on  or about the 7th day of
 August, 1856, the Supervisor  and Jus ices of the Peace of the
 town  of Castleton,  in said county, were duly organized  as a
 Board of Health, in and for  said town, pursuant to statute in
 such case made and provided  ; that on the 7th day of  August,
instant, the said Board duly met in said town and made certain 
4
regulations to regulate,  prohibit,  and prevent communication
and intercourse with a certain place in said town, in which
there were  persons who had been exposed to infectious and
contagious disease,  to  wit, with a certain place  commonly
known as the  Quarantine  inclosure ; that  among said regula-
tions was one prohibiting all persons from passing from within
the said  Quarantine inclosure into any other part of said town ;
which said  regulations were then and there duly published,
pursuant to statute ;  that afterward, to wit, on the 14th  day of
August,  1856, one Peter Roff  did,  at  the town  and in the
county aforesaid, knowingly and  wilfully violate the aforesaid
regulations of said Board of Health, so published as aforesaid,
by wilfully passing from within the said Quarantine inclosure
into another part  of said  town, to wit, into  the village  of
Tompkinsville ; and, after examination had, in due form of law,
touching the said  charge and accusation, the said Justice did
adjudge  and  determine that the said offence had been commit-
ted, and  that there was probable cause to believe the said Peter
Roff to be guilty thereof."
   The commitment, after further reciting  that the said Peter
Roff had not offered sufficient bail for his appearance to answer
the said  charge at the next  court  having criminal jurisdiction,
commands the  keeper of the  jail to receive Roff into custody
in the jail, and  detain him till discharged according to law.
   It appearing from this return  tbat the  party was detained
upon a criminal accusation, notice was given, by order,  to the
District Attorney of Richmond county,  as  required by sec  47
of 2 R. S., 569*, as amended by sec. 2 of chap. 240 of the Laws
of 1837,  and the hearing was adjourned till he should attend.
The case was then elaborately argued on both sides.
   E. W.  Stoughton for the  prisoner.
   Lott C. Clark for the people.
   Birdseye, J.—The 38th and 39th sections of the habeas  vrpus
act (2 R.  S., 567*,) make it my duty to " proceed to examine into
the facts  contained in the return, and into the cause of the con'
finement of" the prisoner; and  " if no legal cause be  chown
for such imprisonment or restraint, or for  the continuation
thereof,"  to discharge him  from custody.
  The prisoner has not denied any fact set  forth in the  "ailer's 
5
return,  or alleged  any fact to show that his imprisonment is
unlawful, or that he is entitled to his discharge, as he might do
by section 48  of the  statute.  But he contends  tbat the com-
mitment set forth in the jailer's return does not show that any
crime had been committed, for the  reason that the regulation
of the Board of Health of Castleton set out therein is illegal
and void, as contravening the  policy of the law and  the provi-
sions of the statute in reference to the Quarantine establish-
ment of tbe State.  If this be so,  there is " no legal cause
shown for such imprisonment," and the prisoner  is by  law en-
titled to his discharge.
  By sec. 2, of  chap.  324, of tbe Laws of 1850,  (p.  691,) it is
enacted that " the  Supervisor and Justices of the Peace, or the
major part of them, of each town in this State, shall be a Board
of Health for such town for  each year, whenever, in the opi-
nion of a majority  of such Board, the public good requires it."
  Tbe  3d section  of  the act  prescribes the  powers and duties
of the Board of Health thus constituted.  That these are very
broad and comprehensive, will appear from  an examination of
the several subdivisions of this section—the third and fourth of
which are these :
  " 3. To make regulations in their discretion, concerning the
place and mode of quarantine ; the  examination  and purifica-
tion of vessels, boat3,  and other  crafts not under quarantine;
the treatment of vessels, articles  or persons thereof; tbe regu-
lation of intercourse with  infected places;  tbe  apprehension,
separation, and treatment of emigrants  and other persons who
shall  have been exposed to any  infectious  or contagious dis-
ease ; the suppression and removal of nuisances; and  all such
other regulations as they shall think necessary and proper for
the preservation of the public health.
  4. To regulate and prohibit  or prevent all  communication or
intercourse by and with all houses, tenements and place-, and
the persons occupying the same, in which there shall  be any
person who shall have been exposed to any infectious or conta-
gious disease."
  By section 4 of the same act, every person who shall wilfully
violate  any regulation so made  and published  by any such
Board of Health, is declared  guilty of a misdemeanor, and, on 
6
 conviction, is made subject to fine  or imprisonment, or both, at
 the discretion of the Court, the fine not to exceed $1000, nor
 the imprisonment two years.
   If the Board of Health of Castleton had the  power to make
 the regulation in question, then the prisoner is clearly enough
 charged with a crime, and is liable, on conviction, to punish-
 ment more severe than many persons suffer on conviction  for
 felonies.
   The real question presented  for my decision, therefore, is,
 whether the Board of Health of the  town  of Castleton had,
 under the statutes above cited, the power to make a regulation
prohibiting all persons from passing from within the Quaran-
 tine inclosure into any other part of said town.
   It is  deeply to be regretted that any such collision should
 have  arisen between this Board of Health, thus temporarily
 organized,  and tbe officers whom the  State has appointed to
 take charge of its Quarantine establishment.  It is tbe duty of
 those officers, and the State has given them sufficient powers to
 protect  tbe health of the town of Castleton and the other towns
 in Richmond County, as well as of the cities bordering on the
 waters and rivers of the  port of New York.  On the due per-
 formance of these duties, and the efficient exercise  of these
 powers, may  depend the health and lives of vast numbers, not
 merely  in all these towns and cities, but throughout the whole
 State, and it may be the whole country.  While tbe inhabitants
 of each  town  are justly entitled to exercise every lawful power
 for their own protection, and will be sustained by this Court to
 that extent, it is not less my duty to see that they do not over-
 step that just limit, and, under the influence of perhaps a natu-
 ral alarm at the approach of infection and disease, seek their
 own safety at tbe expense of the health of the  community at
 large.
   Such  a conflict has never before disturbed our peace.  If the
 rights and  powers of  the parties to the  present  dispute  be
 clearly  defined by tbe law, harmony will be restored, and, it is
 to be  hoped,  the wise and beneficent  purposes of our health
 laws permanently secured.
   But it is not merely the powers of the Board  of Health thus
 organized in Castleton, with reference to the Quarantine estab- 
7
lishment of the State, that renders this case one of importance.
If this regulation is valid,  every other town in the  State may
pass a like ordinance.  It may prohibit the entrance into  any
part of the town, not merely of persons from the  Quarantine
establishment of the State,  in charge of its Health Officer, and
the other functionaries whom the State has appointed to assist
him, but of persons  from  any other town in  the  State, even
though the Board of Health of such town may not think that
any disease exists  within it, or may decide that every case of
disease has  been  cured.  What  the  town  of  Castleton here
assumes to  do towards that institution of the  State, may be
done towards the same town, by every other town in Richmond
County, or in Kings, or in  any portion of the State.
   So far as I discover, by a hasty reference to our statutes, the
first  law of the State on  the subject of Quarantine was the
" Act to prevent  the  bringing in and spreading  of infectious
distempers in this  State," passed 4th May, 1784, at the seventh
session of the Legislature.   (1 Greenleaf's Laws of New York,
117.)  By this act, Quarantine was to be performed at Bedlow's
Island, or in such  other place, and  for such time, and in such
manner, as the Governor,  (to whom by the act of March 29,
1784, [idem, p. 69,] the island,  called Governor's  or Nutten
I<land, was assigned,) or in bis absence from the city of New
York, as the Mayor thereof should direct and appoint.   This
act contains the germ of our present Quarantine  system; and
the provision in section 3 for the  appointment by the Governor
and Council of a  physician to inspect all vessels which  may
have on board, or which may be suspected of having on board,
any person or persons infected with a contagious  distemper, is
probably the earliest provision of law in the State for the selec-
tion of a person to perform the  duties  of the  present Health
Officer of the port of New York.
   This act  was amended on the 27th March, 1794, (3 Green-
leaf, 146,) and by section 5 of the amendatory act the Governor
was authorized to appropriate Governor's Island for the  pur-
pose of erecting buildings, (fee.  for the reception or accommo-
dation of any persons infected with any  such distemper.   On
the 1st April, 1796, another act was passed, (3 Greenleaf, 305,)
the first provision of which is " that a person practicing physic 
8
 shall be appointed Health  Officer for the city of New York."
 And extended powers are  conferred upon him ; most of which
 he possesses to this day.  By the fourth section the Governor
 was authorized  to  " cause a building suitable to serve for a
 lazaretto, the expense whereof, exclusive of the moneys to be
 expended for the purchase of lands, if any shall be purchased,
 not to exceed the sum of two thousand  pounds, to be erected
 on Nutten Island,  or on other  lands which may be  deemed
 more eligible, and  which other lands he is hereby authorized
 to  purchase for the people of this State for the reception of
 persons," &c, subject to quarantine.  The act of February 10,
 1797,  (3 Greenleaf, 267,) extended the  powers of the  Health
 Officer to coasting vessels coming from any pb,ce south of Cape
 May, if he should " deem it expedient."
   By the act of March 30,1801, (1 Webster's Laws of New York,
 361,) it was enacted "that there shall continue to be a health
 office in the city of New York,  under the superintendence of
 three Commissioners, who shall consist of a Health Officer, and
 of  a physician,  to  be styled  the Resident Physician, and one
 other person;  that  the  Health Officer shall  reside  at Staten
 Island, the Resident Physician  in the city of New York, and
 the other Commissioner at or near the Marine Hospital on
 Staten Island,  or in the city of New York, as a majority of said
 Commissioners may deem most proper."
  This act fully established a quarantine system substantially
 like that of the present  day.  Many of its provisions continue
 through  all subsequent   revisions almost unchanged till now.
 The 20th section (Id.,  p. 368,)  declares "that the Hospital
 erected on the easterly part of Staten Island shall continue to
 be denominated  the Marine Hospital, and shall, together with
 the other buildings and improvements  made or to be made
 thereon,  at the discretion of the said Commissioners, and the
 land adjoining the  same, and belonging to the people  of this
 State, be holden by the Commissioners of the said Health Office
in trust for the use of the people of this State, and the purposes
specified in this act; and all vessels subject to quarantine shall
 come to anchor as near  as  may be to the said Hospital, which
is hereby declared  to be the anchoring place for vessels at
Quarantine ; that the said Health Officer shall be Physician of 
9
the said Hospital,  and the said Commissioners of the Health
Office shall  in other respects have the superintendence thereof,
and employ mates, nurses and attendants, and provide bedding,
clothing, fuel, provisions, medicine, and such other matters  as
shall be requisite therein ; and it shall be  lawful for them  to
make reasonable rules and orders for the government and man-
agement of the said Hospital."
  The provisions in section 22 of this Act, in regard to persons
eloping from  Quarantine, their apprehension  and delivery to
the Health Officer, to be detained at Quarantine till regularly
discharged by him, closely resemble some of the provisions  of
section 14 of chapter 147 of the Laws of 1856.
   By this Act, (tbat of 1801,) the Quarantine establishment was
reduced  to  regular  system,  and endowed with  vigorous and
efficient  powers.  It  had then been already located where it
now is, and the Hospital had been erected;  doubtless under the
authority conferred on the Governor by section 4 of the Act of
April 1, 1796.  It  has ever since continued in that location, and
has been the object of the constant attention  and care of the
Legislature.  The  numerous laws that have since been passed,
and the  generous  grants that have at times been made for  its
support,  evince an unvarying design, on tbe part of the State,
to omit nothing essential to  the completeness  and efficiency of
the establishment.   And if the intention of tbe Legislature may
be inferred from their silence, as well as from their enactments,
this Quarantine establishment was deemed amply sufficient to
guard the health of the whole State.  For, until a very recent
period, it was, if I  mistake not, with the exception of the Boards
of Health of New  York,  Albany,  and a few similar places, the
only regularly constituted sanitary  authority, and the only per-
manent sanitary establishment in the State.
  The provisions of sections 34 and 35 of this Act, (1 Webster,
374,) which are the same as  those of section 33 of chapter 175
of the Laws of 1811, which latter was revised  and re-enacted on
the 26th of March, 1813, (see 2 R. L., 536,) seem to contain the
only warrant for the exercise, by the officers of the  towns, of
any of the powers  of  a Board of Health.  The  same  provisions
are contained in  sections 40  and  41 of the  " Act to provide
against infectious  and pestilential diseases,"  passed April 14,
       2 
10
1820, by section 45 of which the former Act seems to have been
repealed.  (See Laws of 1820, pp. 222-3.)
  That Act was repealed, and  another with the same title en-
acted in  its stead, on the 21st of March, 1823.   (Laws of 1823,
p. 54, p.  82, section 51.)  Sections 44 and 45 of this latte:' Act
are evidently a revision of and  a  substitute for sections 40 and
41 of the Act of April 14, 1820.  But in  the revision aU  the
powers of the  town officers are  taken  away,  and the health
laws are confined to  Quarantine  and the cities of New York,
Albany and Hudson, and the town of Brooklyn.
  The Act  of March 21, 1823, was repealed by the General
Repealing Act, passed on the adoption of the Revised Statutes.
(See 3 R. S., 146,* pi. 383.)
  The fourteenth chapter of the first part of the Revised Stat-
utes, as proposed by the revisers, contained no provision similar
to those  referred  to in sections 34 and 35 of the Act of March
30, 1801, and of  some subsequent laws.  (See Revisers'  Re-
ports, vol. 2d, chap. 14, p. 42.)  In the enactment of this chap-
ter, the Legislature inserted section 22 of title 7.  (See 1 R. S.,
451 ;* 3d R. S.,  2d ed.,  p. 504.)  This section provides that
" any two Justices of the Peace, in any town in  this State, may
cause all persons who shall be sick of any infectious or pestilen-
tial disease,  and not being residents of such  town, by an order
in writing, to be removed to such place of safety within the town
as they shall deem necessary for the preservation of the public
health."
  Such had been the  general course of the legislation of the
State, and  such the comparative  care and attention bestowed
by the Legislature on the Quarantine establishment, on the one
hand, and the subject of sanitary powers and regulations, in the
towns of the State, on the  other, up to the passage of the " Act
for the Preservation of the Public Health," on the 10th day of
April, 1850.  (See Laws 1850, chap. 324, p. 690.)  But on  the
same day an elaborate " Act relating to the public  health in
the city of New York,"  was passed, (see chap. 275  of Laws
1850, p. 597,) which seems (section 38, p. 615) to be  a careful
revision of all statutory provisions on the subject of the Act up
to that time.
  It is, in my judgment, clearly my duty to construe  these two 
11
laws, or such as may be substituted for one or the other of them,
together; so that both may stand, if  it be possible.  If that
cannot be done, if they are irreconcilably in  conflict, then it
seems  to me that the institution of the State, founded  almost
with the State itself, the object of its  bounty and its constant
legislative attention, presided over by officers carefully selected
by the highest  executive authorities  of the State, and who  are
vested with large powers and set apart for the performance of
highly important and delicate duties,  permanent, comparatively
speaking, in the tenure of their offices, presiding over the health
of great cities which are exposed to  infections by a widely ex-
tended commerce with all the ports of the world ; that institu-
tion is to be preserved, to be  kept in full vigor and efficiency;
it is not to be sacrificed to the local, limited Board of Health of
a town or  village, whose  members  may change from year to
year, meeting only when " in  the opinion of a majority of such
Board  the  public good requires it,"  and composed in many, if
not in  almost every case, of men not physicians, or familiar with
disease.
  It was expressly conceded on the argument, and had  it  not
been, I am bound judicially to notice, that that place  in  the
town of Castleton mentioned  in the regulation of its Board of
Health,  and there stated to  be  "commonly known  as  the
Quarantine  inclosure," is the  quarantine  establishment of  the
State, and that it  includes the Marine  Hospital mentioned in
section 1, of title 2, of chap. 275 of  the Laws of -1850, and in
section 1 of chap. 147 of the Laws of 1856.
  It is not to be denied, tbat very broad and extensive powers
are conferred upon the Boards of Health of the several towns
of tlit  State, by section 3 of the " Act  for the  Preservation of
the Public Health."  Sub. 4 of this section, as above  stated,
gives such Boards power " to  regulate  and prohibit or prevent
all communication or intercourse by and with all houses, tene-
ments and places, and the persons occupying the same, in which
there shall be -any persons who shall  have been exposed  to any
infectious or contagious disease."
  It was claimed on tbe argument that this authority was broad
enough to  warrant the framing of the regulation now' under
examination.  And so, indeed, it does in terms appear to be, 
12
  It must be remarked, however, that a comparison of the two
acts will not show any necessary conflict between them.  Their
provisions  harmonize.  As  they were passed  together, so it
seems to me they can stand together, if the  officers appointed
to carry them into effect act in the proper spirit.  But when a
comparison is instituted between this regulation of the  Board
of Health ox  Castleton and the statutes establishing and regu-
lating  the  Hospital and  Quarantine establishment, they  are
found to be  in  irreconcilable conflict.   The regulation must
therefore be void.
  This Board of Health, like  the directors of a corporation in
framing its by-laws, was bound  to frame them so as to accord
with, not to violate, the provisions of the  law.  The Legislature
had  a right to presume that the Board, in making their regula-
tions under this section, would act in obedience to other statutes,
instead  of attempting to suspend  or repeal  them.  The legal
obligation so to do is as apparent as if a proviso had been added
to the section  expressly declaring that tbe  ordinances  of the
Board were to be such only as should not conflict with the con-
stitution or laws  of the State.  It could never  have been the
intention of the Legislature to put into tbe hands of any Board,
or tribunal in the State, tbe  power  to suspend, or repeal,  or
override a statute ; and that  especially when the repeal would
be merely local  and temporary, like the sessions of the Board
of Town Officers in a sickly season.
  It was, however, insisted by the counsel for tbe people, that
this regulation, which " prohibits all  persons from passing from
within the  Quarantine inclosure into  any other part of the town
of Castleton," was not invalid or void, because the  inmates of
Quarantine might, by shipping, or boats  from its water front,
pass entirely round the town of Castleton,  and land in other
towns or counties.   It is at least very doubtful, upon a com-
parison  of the sweeping terms of this regulation with the boun-
daries of the county  of Richmond and  town of Castleton, as
fixed by law, (see 3 R. S., 3d  ed., p. 2,  pi. 4,  and p. 20, § 4,
pi. 1,) whether even that mode of exit from  Quarantine is  not
a misdemeanor,  punishable by fine  and imprisonment, if this
regulation  is valid.  For the  county and  town are  bounded
northwardly and eastwardly " by the middle of the main chan- 
                            13

 nel of the bay and harbor of New York."  And it will be dif-
 ficult  to establish that the  lands  and waters covering them,
 between the shore and the middle of the channel, are " within
 the Quarantine inclosure."  And on  the landward side, the
 town of Castleton wholly incloses  the  Quarantine.  Let  it be
 admitted, then, as contended,  that this argument is a verbal
 subtlety, and let  us assume that  egress from  Quarantine  by
 water is  not prohibited by this regulation  of the  Board of
 Health.  Yet, if this Board can do what they claim  the  right
 to do on the landward  side of Quarantine, may they not also
 on the seaward side ?   And  if not,  what this town does  upon
 one of the boundaries of Quarantine, may be done along the
 boundaries of every town in the State, if, in the opinion of the
 majority of the Board of Health of the town,  " the public good
 requires it."  What is, then, the state of things  in Quarantine ?
   At  some  seasons, we  know  that  emigrants  arrive there in
 great numbers, and the hospitals are filled.   A  panic is of easy
 growth. The inhabitants of the adjoining towns become alarm-
 ed ; it may be, with some just  grounds of apprehension; per-
 haps without such grounds.  If three out of the five men com-
 posing the Town Boards of Health shall be of the opinion that
 " the  public good requires it,"  (rather an indefinite rule of
 action,) they may pass an ordinance like the one  in question,
 and absolutely prohibit the  coming among them of any person
from Quarantine.  How, then, are  the Health Officer and the
 Physician of the Hospital to provide nurses, servants, attend-
 ants ; to obtain food, clothing, medicines ?  How are tbe pilots
 of  the port  to perform their duties ?  They are by law (sections
 8,  9, 10 of  chap. 147 of Laws of 1856)  to bring every vessel
 they find to be infected into the anchorage at Quarantine, and to
 report all the violations of that law, as soon as may be, to the
 Health Officer.   Can they,  by merely stepping on the deck of
 a vessel outside Sandy Hook, and going ashore from it at Qua-
 rantine, to report to the Health  Officer, be prevented by a re-
 gulation like this from pursuing their calling ?   For that is, or
may perfectly well be, the effect of such a prohibition.  And
what, then, becomes of the commerce of the port ?
  By section 15 of the same act, the Commissioners of Emigra-
tion are required to " remove from the Marine Hospital and 
14
take charge of all indigent emigrants whose quarantine has
expired, and who shall have  sufficiently recovered from the
diseases with which they were admitted, on the notification, in
writing, of the Health Officer that such removal will not, with
ordinary care,  endanger the safety  of the  individual or the
health of the community."  Suppose  such a notice to be given
by  the  Health Officer  to  the  Commissioners of Emigration.
One of them goes into the Quarantine inclosure, with proper
assistants and means of conveyance, to remove such  emigrants.
But on offering to leave quarantine, the way is absolutely closed
by this  ordinance of the town of Castleton.  He turns to the
next adjacent town on the Island, or  to the contiguous town in
Kings County, and finds, or he may find, if this  ordinance  is
valid, a similar barricade  blocking  his  way  there.  But the
statute requires that  he "shall remove" the emigrants and take
charge of them.  Whom shall he obey ?  The officers of these
towns or the statutes of the State ?
  But this is not  yet a full statement of the case.  The Health
Officer himself, as well  as the Physician of the Hospital, and
all  their deputies, assistants, nurses  and orderlies, are clearly
within  the  terms of the  regulation, and are absolutely pro-
hibited from passing out  of  the Quarantine inclosure.  The
Health Officer is, by section 4 of chapter 275 of the Laws  of
1850, made one of the Commissioners of  Health of  New York
city.  By other provisions of the statute, he is required  to at-
tend  the meetings of the  Commissioners, at the  City Hall,  in
New York, daily ; while he is also required by law " to reside
within the Quarantine inclosure."  How  is he to  comply with
these several requirements ?  If he can be  prevented from
making use of  the streets of Castleton, its docks  and  wharves,
and the same ferry accommodations that  other residents of that
town avail themselves of, in passing to and  from his  duties  in
New York, is he not seriously crippled in the performance of
functions of the most vital importance to tbe  whole population
of all these cities and towns ?  He is, in  my judgment, clearly
entitled to enjoy  every facility for the discharge of his onerous
duties ; and this as well from the clear spirit of the law as from
the express provisions of the statute, that "it shall  be the spe-
 cial duty of all magistrates and civil officers and of  all citizens 
15
of the State to aid, to the utmost of their power, the Board of
Health, and all the  Health Officers mentioned in this  act, in
the performance of their  respective duties."  (Laws  of 1850,
p. 615, section  36.)  But  if this regulation is valid, a similar
act of tlie Board of Health in New York may prohibit his land-
ing on  any wharf, or passing through any street in that city,
and absolutely prevent the performance of his statutory duties.
  It was, however, contended on the argument that he had no
right  or power to perform any official  act or discharge any
duty, outside the Quarantine inclosure.  There are many other
provisions of law than those above referred to, which show that
he may, if they do not clearly require that he shall, go abroad
from tbe inclosure to perform his duties.   (See chap. 147 Laws
of 1856, sections 12 and  13, sub. 1,2,  3, 4, section 14, &c.)
But were the position correct, it is at least a matter of grave
doubt  if  that officer, whom the  State has selected to ward off
infection and disease from its whole  people, can, by the Board
of Health of a city or town, be declared to  be so  dangerous to
the public health by reason of the mere performance of his
statutory duties,  that he  may be absolutely prohibited from
leaving the Quarantine inclosure.  If he may, then the Board
of Health in Northfield or Southfield might impose the like re-
straint on the physician who has been appointed Health Officer
of Castleton by its Board of Health, should it be  found that he
was attending a case of small-pox or infectious fever.
  But it was also contended, in  argument, that this regulation
might be void so far as the Health Officer was concerned, and
yet be good as to the prisoner and others.
  Although I cannot admit the soundness of tbe  position,  nor
allow that a prohibition to all persons means, and shall include,
only certain  classes  of persons, and may  therefore  be valid;
still, it may be proper to treat it for a moment as sound, and to
look at the regulation from another point of view.
  Suppose a person,  no matter whether  he be a destitute sea-
man or emigrant, or  the wisest, best and richest  citizen in the
State, has arrived  at the anchorage ground in a vessel, and has
been found sick with the yellow fever ;  has been sent by  the
Health  Officer to the Marine Hospital;  has been  attended
there by its physicians and  nurses, and  has been reported by 
16
the Physician to the  Health Officer " as  sufficiently recovered
from sickness to be discharged  from the  Hospital."  (Laws of
1856, page 239, sec. 35, sub.  3.)  Suppose  him, also, to have
received from  the Health Officer such a  discharge  as  that
officer is, by section  14 of the  same act, authorized to grant.
What are the rights of such a party?  The State has  subjected
him to along confinement, it may be, to a very onerous one, at
great loss in a pecuniary point of view, and to the  deprivation
of many comforts which he  might have enjoyed at his  own
dwelling, outside the Quarantine inclosure.   To  have gone out,
even  to  his own house, would have  made  him " guilty of a
misdemeanor, punishable with or by fine and imprisonment."
(Section 13 of same chapter.)  But he has submitted to all the
requirements of the State authorities, and has  passed through
the period of quarantine.  Has not the State, by imposing these
penalties, incurred reciprocal duties ?  Shall it not in return
assure to him the right  of restoration to civil and social life ?
Can it be that upon the  outside of the wall there are another
set of functionaries, who may subject him  to another similar
detention ?  But let him submit  to that in Castleton.  Is he
still safe?   When he  reaches Northfield  or  Southfield,  or
crosses into New Utrecht, may not each of those towns in  suc-
cession " put him to his  purgation ? "
  And where shall this state of things stop ?  Clearly, if it may
exist in Castleton, it may in every town between that and Cana-
da.  The result shows the entire  absurdity  of the attempt to
assume such powers.  It shows  that the decision of the proper
officers  in  Quarantine is  final  and conclusive.  That at least
there is not, and in the nature of things cannot be, any such
board of appeal from those decisions as the  town authorities of
Castleton have sought to set up.
  I have said that this illustration shows the entire absurdity of
the regulation in question.  That, however,  is not strictly true.
For the regulation " prohibits all persons  from coming from the
Quarantine inclosure into any other part of  the town."  It does
not allow to the outside Board of Health  themselves, or to any
other authority, either the right or the power to examine persons
offering  to leave Quarantine ;  to  decide that  some are fully 
17
cured and may, therefore, again  mingle in life, while others
are not yet  fully freed  from infection, and  therefore require
further  care, and to be sent to the lazaretto of the  town, that
their cure may be completed.
   The Health Officer can send to the Hospital only those that
are sick,  and can retain in quarantine only for limited periods
those who have been exposed to infection.  But this regulation
sentences all persons, well or sick, whether exposed  to infection
or not, to an unlimited imprisonment.  That imprisonment, too, it
may be added, is not such an one as under any quarantine law can
be adjudged to be valid.  For it is one where the restraining pow-
er does not take, and cannot by possibility take, any  measures
whatever either to support the  life or improve the health of the
party confined, or to free him from infection;  that at some
future period he may again enjoy the privileges of a member of
society.
   Such a regulation is  clearly not a compliance with the pro-
visions of the statute constituting the town Boards of  Health.
With the power to prohibit is given, also, the power to regulate.
 The fourth subd.  " authorizes  them to regulate and prohibit or
 prevent  all  communication or intercourse," &c.  In  my judg-
 ment, they must exercise the powers of regulating and of pro-
 hibiting  together. They can exclude from their limits not " all
 persons," but such only  as, on a proper examination,  may be
 found dangerous  to the health of the town.  Certainly no per-
 son can look through the numerous statutes which the  Legisla-
 ture have so carefully framed for the regulation of their officers
 at Quarantine, and can observe with what caution  every provi-
 sion is made subservient to the comfort of patients and to their
 prompt restoration to sound health and to their duties  in soci-
 ety, and be blind to the fact that this regulation, now sought to
 be enforced  by fines and  imprisonments,  is at open war with
 the whole policy of the State from its foundation.  It  assumes
 powers and claims rights and  privileges never yet  arrogated by
 the supreme legislative body of the State—that fountain whence
 this Board derives not only its authorities, but its very existence.
 To sustain such  assumptions is to create in  every town in the
 commonwealth an irresponsible tribunal, whose only rule of ac-
 tion shall be, what in their opinion " the public good requires."
        3 
18
  The public health is doubtless an interest of great delicacy
and importance.   Whatever power is in fact necessary to pre-
serve it, will be cheerfully conferred by the Legislature, and
carried into full effect by the Courts.
  But it can never be permitted that, even for the sake of the
public health, any local, inferior board or tribunal shall repeal
statutes, suspend the operation of the Constitution, and infringe
all the natural rights of the citizen.
  I feel no hesitation in declaring this  regulation void.   Dis-
obedience to it constitutes no crime. The prisoner is discharged.