Mitchell v. City of Rockland , 45 Me. 496 ( 1858 )

The opinion of the Court was drawn up by

Appleton, J.

The presiding Justice, in the trial of this cause, was requested to instruct the jury “ that the authorities of the city, or the board of health, had no legal right to take the absolute possession or control of the vessel or the cabin thereof, to use as a hospital or otherwise, and, if they did, the city would not be liable for such act or its consequences.”

This was given with the qualification, that “ they might lawfully take possession or control of the cabin, so far as was necessary for the relief of the sick man, if ho could not be removed without imminent danger.”

The presiding Judge further instructed the jury, that “the said (health) committee, in case there was no hospital in the city, or in case the condition of the man, who was infected with the small pox, on board the schooner, did not admit of his removal without imminent danger, had the right to appropriate such portion of the vessel for the accommodation of the infected person as they shoidd deem necessary for his relief, and to subject the portion of the vessel, thus appropriated, to the same regulations as they would be authorized to apply to hospitals.”

By the instructions, as requested, with the qualification, as given, the proposition is, that the authorities of the city may lawfully take possession or control of the cabin, so far as may be necessary for the relief of the sick man, if he could not, without imminent danger, be removed therefrom. The instruction, as given, recognizes the right to appropriate such portion of the vessel as the health committee may deem necessary for the accommodation of the sick man, in case his removal would endanger his health, or there was no established hospital in the city. As the portion of the vessel which may be deemed necessary depends upon the judgment of the committee, there is nothing to prevent their taking or appropriating the whole. The instruction, therefore, as given, amounts to this, that the city authorities, in certain specified contingencies, may take possession of, control and appropriate the whole or any portion of a vessel, as they may deem expedíent, without the consent or concurrence of the owner or master.

Neither the defendants, nor any officers of theirs, have any right to appropriate or interfere with private property, except so far as that right may be conferred by statute.

By R. S. of 1841, c. 21, provision is made to protect the inhabitants of a town or city against “ any person coming from abroad, or residing in any town,” who shall be or “ shall recently have been infected with any disease or sickness dangerous to the public health,” &c.

By section 18, vessels arriving “at any port,” having infected persons on board, are required to anchor “below the town of such port,” and no person or thing on board “ shall be suffered to be brought on shore until the selectmen of the town shall give their written permit for the same.” Penalties for the violation of these provisions are established by section 19.

By section 20, the selectmen of the town are authorized to establish quarantine regulations, for a violation of which penalties are prescribed by § 21.

By section 22, it is made the duties of pilots to give notice to the masters of vessels of the orders and regulations of the selectmen in relation to quarantine, and, by § 23, penalties are imposed for the evasion or violation of. quarantine regulations after notice.

By section 24, signals are provided by the selectmen, and, during the time prescribed for the quarantine, no person is allowed to go on board, except by permission of the selectmen.

These are the material provisions of the statute relating to the question under discussion, so far as they relate specifically to vessels. They give no authority to the selectmen or to the health committee, who, by § 26, are clothed with the same authority, to take possession of, to control or appropriate a vessel, or any portion of the same, as a hospital.

By section 28, hospitals may. be established or licensed “ within the town.”

By section 32, “ whenever the small pox or any other disease, dangerous to the public health, shall break out in any town” it is made the duty of the selectmen to provide a “ hospital or place for the reception for the sick and infected.” In case the persons sick and infected cannot safely be removed, it is provided that “ the house or place,” in which they may be, “ shall be considered as a hospital for every purpose before mentioned,” and the persons residing therein are made “ subject to the regulations of the selectmen.” In the latter case, “ the house or place is not to be regarded as a hospital, either established, licensed, or provided, within the statute, but it is to be “ considered” as one for the purpose of subjecting those residing therein to “ the regulations of the selectmen.”

It is apparent, therefore, that section 32 cannot apply to a case like the present. The power of health officers over vessels, “ when they arrive at any port in this State, having on board any person infected with a malignant disease,” is specially prescribed in previous sections. Having made all necessary regulations for this class, the Legislature, in the following sections, including section 32, proceed to provide for cases where the small pox, or other dangerous disease, should “break out” in any town. In such cases, any house or place, where the sick are to be, is to be “considered” as a hospital. Now, from this section, it is clear that a vessel is not to be regarded as a “ house or place” within its meaning. It is not a place in which persons reside, as, in a house. The Legislature first made provisions, such as were deemed adequate for vessels, and, having done this, they proceeded to make such regulations for hospitals in towns as the occasion seemed to require. All that the Legislature intended was to subject vessels to quarantine regulations, — not to require their seizure and conversion into hospitals.

The power to remove persons and things infected, and to “impress and take up convenient houses and stores for the safe keeping,” &c., of the persons and things infected, is given by § § 6, 7, 8, 9. But it is not pretended that there has been any action under these sections.

When this case was before under consideration, Tenney, C. J., in delivering the opinion of the Court, in Mitchell v. Rockland, 41 Maine, 363, says, “no authority has been found which allows health officers, by virtue of their power to cause quarantine regulations to be performed ex vi termini, to take the vessel, in which such contagious disease .is found, into their own possession and control, to the exclusion of the owner or those whom he has put in charge.”

The language of the statute requires that the vessel shall perform quarantine in the cases prescribed, and all having connection with the vessel, as owner, master, &c., are required to comply with the regulations of the selectmen or health officer. This clearly implies, at least, that the owner, and those having possession and control of a vessel under him) shall not be divested of this control and possession by the municipal officers.

The instructions given are at variance with what we regard the true construction of the statute, as heretofore deliberately determined, and a new trial must be had-.

Exceptions sustained.

Tenney, C. J., Hathaway, May, and Davis, J. J., concurred. Rice, J., did not concur.