
    Ex parte HARDCASTLE.
    (No. 5230.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.)
    1. Habeas Corpus <®=>13 — Persons Held Under Quarantine.
    Relator, held under order of city health officer by virtue of quarantine regulation established in accordance with Acts 35th Leg. (4th Called Sess.) c. 85, under a statement of order of arrest that according to information of health officer she is affected with gonorrhea, had the right to have the legality of her detention inquired into in a habeas corpus proceeding.
    2. Health <§=»21 — Police Power — Quarantine Regulations.
    Legislature under police power has authority to authorize establishment of quarantine regulations for protection of the public against contagion, and incident thereto to authorize arrest and detention of persons, whose condition is such as to spread disease.
    3. Constitutional Law <@=»306 — Due Process — Persons Held Under Quarantine.
    Under Acts 35th Leg. (4th Called Sess.) c. 85, as to quarantine regulations for prevention of contagion, the proper health officer may issue a warrant by virtue of which a lawful arrest may be made without affording the person affected -a preliminary hearing.
    Original application for a writ of habeas corpus by Emma Hardcastle.
    Writ ordered granted.
    Fred N. Cowen and Leonard Brown, both of San Antonio, for appellant.
    B. E. Looney, Atty. Gen., D. A. McAskill, Dist. Attjr., of San Antonio, Geo. M. Thurmond, Asst. Dist. Atty., of Del Rio, and W. A. Keeling, C. M. Cureton, and E. B. Hendricks, Asst. Attys. Gen., for the State.
   MORROW, J.

This is a habeas corpus proceeding in which the relator is held under an order of the city health officer of San Antonio, by virtue of quarantine regulations established in accord with chapter 85 of the Acts of the Fourth Called Session of the Thirty-Fifth Legislature under a statement of the order of arrest that, according to the information of the health officer, relator is affected with gonorrhea.

The form of the order is not involved, the agreed statement of facts containing the following: ■ ■

“It is further agreed that the sole issue iu the case is whether or not the decision of the proper health officer is final or whether the same can be inquired into by writ of habeas corpus.”

The Legislature, under the police power, has authority to authorize the "establishment of quarantine regulations for the protection of the public against contagion from those persons whose condition is such as to spread disease, and, incident thereto, to authorize the arrest and detention of such persons; and such, we understand, is the purpose of the statute in question. Under its terms, the proper health officer may issue a warrant by virtue of which a lawful arrest may be made without preliminary thereto affording the person affected a hearing; but if, after arrest, such person challenges the right of the authorities to continue the detention, the fundamental law accords him the right to have the legality of his detention inquired into by a proper court in a habeas corpus proceeding. The law denies to no one restrained of his liberty without a hearing the right to prove in some tribunal that the facts justifying his restraint do not exist. Ruling Case Law, vol. 6, p. 435, § 449. The health authorities causing the arrest of relator derive their power to do so from the alleged existence of the fact that the relator is affected with the disease mentioned, and that her detention is required in the public interest to prevent contagion. If those facts do not exist, the officer has no jurisdiction to continue the restraint and the court in the habeas corpus proceeding has authority to inquire whether the facts essential to jurisdiction exist. Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111.

The decision of the Supreme Court of Washington (State v. Superior Court for King County, 174 Pac. 973), to which we have been referred as illustrating an exception to this rule, does not, we think, extend so far as to support the contention of the respondent that the decision of the health officer who ordered the arrest of the relator is conclusive against her right to an inquiry in a habeas corpus hearing touching the existence of the facts ‘upon which such officer acted. The Washington decision construed a statute passed under a special provision of the Constitution of that state, authorizing the “establishment of boards of health with such powers as the Legislature may direct.” Const, art. 20, § 1. The statute enacted under this power did not make the initial order of arrest conclusive, but established the board of health as a forum of appeal, and specially provided that its •decision reviewing that of the health officer ■should be final.

Our Constitution, unlike that of the state ■of Washington, contains no special provision •on the subject; but the power to establish quarantine, as existent under our Constitution, is an incident of the police power vested in the Legislature under the gener■al power to pass laws. Our statute does not declare that the initial order of arrest shall be conclusive; nor does it designate any tribunal to whom one detained under an order of arrest issued by the health officer may appeal for a hearing. The fair and reason•able interpretation of the statute under which relator is held, we think, is that which accords the health officer the power to order the arrest and detention, leaving to the person detained the right to invoke the decision of the established judicial tribunals of the state on questions raised, either of fact ■or law, involving the validity of the detention.

We conclude that under the act of the Legislature in question the relator had the right to a hearing on writ of habeas corpus, and therein to prove the nonexistence of the facts necessary to authorize her continued detention and thereby obtain release. Pacts essential to determine whether she should or should not be held not being available in this court, it is ordered that the writ of habeas corpus prayed for be granted, and that it be referred for hearing to Hon. R. B. Minor, Judge of the Fifty-Seventh judicial district of Texas. 
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     