
    The People of the State of New York ex rel. Orville L. Buckbee, Individually and as Trustee of School District No. 16 of the Town of Queensbury, Warren County, New York, Relator, v. Hermann M. Biggs, State Commissioner of Health of the State of New York, and Others, Respondents.
    Third Department,
    January 18, 1916.
    Public health — establishment of county hospitals for treatment of tuberculosis—Public Health Law, section 319, construed — notice of hearing — State Commissioner of Health necessary member of board to approve or disapprove establishment of such hospital — action to prevent expenditure of public funds without jurisdiction.
    Under the provisions of the Public Health Law for the establishment of county hospitals for the care and treatment of persons suffering from tuberculosis a special notice should be given to each member of the board of health of the town and the health officer at least twenty days before the date fixed for the hearing, and a general notice to all of the people of the town by publication.
    Under section 319 of the Public Health Law, providing that the State Commissioner of Health and the local health officer shall constitute a board to approve or disapprove the establishment of a county hospital for the treatment of tuberculosis, the State Commissioner of Health has no authority to delegate his powers to act as a member of such board to a deputy or any other person, and a board of which the Commissioner is not a member has no jurisdiction.
    A deputy appointed under the provisions of chapter 559 of the Laws of 1913, who is to “ perform such duties as may be prescribed by the Com' missioner,” is not and cannot be authorized to perform the duties of this specially-constituted board, nor is the Commissioner authorized to make his assistant a member of the board.
    Such a board has no jurisdiction where one member of the town board of health has not been given a written notice at least twenty days before the hearing. This is true, although said member declared that he did not care to be served and was not interested in the matter.
    
      It seems, that if a proceeding by certiorari had not been taken in this case, and the board had been permitted to act, although without jurisdiction, a proper party would have been entitled to bring an action to prevent the expenditure of the public funds, for where an act is done without jurisdiction even the consent of a party does not operate to give jurisdiction.
    Certiorari issued out of the Supreme Court and attested on the 9th day of January, 1915, directed to Hermann M. Biggs,
    
      as State Commissioner of Health of the State of New York, and others, commanding them to certify and return to the office of the clerk of the county of Warren all and singular their proceedings had on a hearing for the approval of a certain site for the establishment of a hospital for the treatment of persons suffering from pulmonary tuberculosis, in the town of Queens-bury, Warren county, H. Y.
    
      Chambers & Finn [ Walter A. Chambers and Beecher S. Clother of counsel], for the relator.
    
      Egburt E. Woodbury, Attorney-General [James S. Y. Ivins, Deputy Attorney-General, of counsel], for defendants Biggs and Chapman.
    
      Loyal L. Davis, for the defendant Dunlop.
   Woodward, J.:

On December 4, 1910, a resolution establishing the hospital in question was passed. In August, 191», proceedings were taken to carry into effect such resolution. The proceeding brought here for review was instituted by a petition of the board of supervisors of Warren county, requesting the State Commissioner of Health to fix the date and place for a hearing upon the petition of said board under the provisions of section 319 of the Public Health Law (Consol. Laws, chap. 45 [Laws of 1909, chap. 49], as amd. by Laws of 1909, chap. 171). By the provisions of section 45 of the County Law the boards of supervisors of the several counties are authorized by a majority vote to establish county hospitals for the care and treatment of persons suffering from the disease known as tuberculosis, and when any such board has voted to establish such a hospital it is authorized to purchase real property for such purpose, and “2. To erect all necessary buildings, make all necessary improvements and repairs and alter any existing buildings, for the use of said hospital, provided that the plans for such erection, alteration or repair shall first be approved by the State Commissioner of Health.” (Consol. Laws, chap. 11 [Laws of 1909, chap, 16], § 45, as added by Laws of 1909, chap. 341.) Intermediate the establishment of the hospital in question and the commencement of the proceedings to effect the purchase of a site, sub-

division 2 of section 45. of the County Law was amended so as to read as follows: “Erect all necessary buildings and alter any buildings, on" the property when acquired for the use of said hospital, provided that the plans for such erection or alteration shall first be, approved by the State Commissioner of Health.” (See County Law, § 45, subd. 2, as amd. by Laws of 1913, chaps. 166, 379, and Laws of 1914, chap. 323.) How this consent of the State Commissioner of Health is to be obtained is provided by section 319 of the Public Health Law (as amd. supra), which declares that “A hospital, camp or other establishment for the treatment of patients suffering from the disease known as pulmonary tuberculosis, shall not be established in any town by any person, association, corporation or municipality except when authorized as provided by this section.” This provision of the Public Health Law went into effect on the 10th day of April, 1909, but prior to that time it had been recognized that the establishing of such hospitals was in the nature of a menace to the people of the locality where they were to be located, and it had been provided that such a hospital or camp for the treatment of the disease should not be established in any town by any person, association, corporation or municipality,, unless the board of supervisors of the county, and the town board of the town, shall each adopt a resolution authorizing the establishment thereof, and describing the limits of the locality in which the same may be established.” (See Public Health Law [Gen. Laws, chap. 25; Laws of 1893, chap. 661], § 218a, as added by Laws of 1903, chap. 638; re-enacted by Public Health Law [Consol. Laws, chap. 45; Laws of 1909, chap. 49], § 319.) In other words, the Legislature recognized the principle of home rule, and made the consent of the local authorities necessary to the lawful establishment of such a hospital within the limits of any town in this State, and, in construing the statute, we should give effect to its letter and spirit. Every man takes his property subject to the rule that he must use it so as not to injure his neighbor by anything in the nature of a menace to health, and recognizing that a tuberculosis hospital or camp is of this character, the Legislature has sought

to protect the residents of the towns against such an establishment without their consent, where the facts reasonably permit of objection. Finding the original provision unsatisfactory, in April, 1909, the rule fixed by section 319 of the Public Health Law (as amd. supra) was put into effect, and the relator objects to a determination made under the petition of the board of supervisors, on the ground that the proceedings have not conformed to the requirements of the statute, and in this contention we believe he is entirely right.

Section 319 of the Public Health Law (as amd. supra), after providing that the person, association, corporation or municipality desiring to establish such a hospital shall petition the State Commissioner of Health, setting forth a description of the locality, etc., and requesting the fixing of a date and place where a hearing may be had upon the petition, provides that the State Commissioner shall fix a date and place for such hearing, and that “A. notice of such hearing specifying the date and place thereof and briefly describing the proposed site for such hospital, camp or other establishment shall be mailed to the person, association, corporation or municipality proposing to establish the same and to the health officer and each member of the board of health of the town in which it is proposed to establish such hospital, camp or other establishment at least twenty days before the hearing, and also publish {sic) twice in a local newspaper of the town, or if there is no such paper published therein, then in the newspapers of the county designated in pursuance of law to publish the Session Laws.” It is then further provided that “At the time and place fixed for such hearing the State Commissioner of Health and the local health officer [who by a previous provision have been constituted a board “to approve or disapprove the establishment of such hospital ”] shall hear the petitioner and any person who desires to be heard in reference to the location of such hospital, camp or other establishment, and they shall within thirty days after the hearing, if they are able to agree, approve or disapprove of the location thereof and shall notify the person, association, corporation or municipality of their determination.” This determination, if they agree, is made final and conclusive, with a further provision for dealing with the subject in the event of their failing to agree, not necessary to be here considered.

While the statute is not clear upon the point of publication, we are of the opinion that the law contemplated a special notice to each member of the board of health of the town and the health officer at least twenty days before the date fixed for the hearing, and a general notice to all of the people of the town, by publication. The act provides that at the hearing the “petitioner and any person who desires to be heard in reference to to the location ” shall be heard, and it would seem to follow that all were entitled to the like length of notice. It is conceded that there was no paper published in the town of Queensbury, Warren county, and it is not disputed that the publication of the notice in two newspapers was not completed twenty days prior to the date of the hearing. It is also to be noted that it does not appear from the record that the two newspapers in which these notices were printed were the newspapers designated by law to publish the Session Laws, and the record is defective in this regard. However, in the view we take of the matter this need not be the point of decision.

The relator appeared specially at the hearing and objected to the jurisdiction of the board on the grounds, among others, that the board assuming to act at the hearing was not composed of the State Commissioner of Health and the local health officer; that there was no authority to delegate the powers of the State Commissioner of Health to any deputy or any other person; that no notice was mailed to each member of the board of health of the town of Queensbury at least twenty days before the hearing, nor was such notice published as required by law. It seems to us that the contention of the relator is sound, and that the board as constituted at the time of the alleged hearing, on the 23d day of September, 1914, was without jurisdiction to determine the question upon which the right of the petitioners to proceed depended. Looking for the intent of the Legislature we find, in an act to take effect on the 10th day of April, 1909, that a tuberculosis hospital shall not be established “ except when authorized as provided by this section.” It then provides that the moving party shall petition the State Commissioner “describing the character thereof, stating the county and town in which it is to be located and describing the site in such town for such proposed hospital, camp or other establishment, and requesting the Commissioner to fix a date and place for a hearing on such petition before the State Commissioner of Health and the local health officer, who shall constitute a board to approve or disapprove the establishment of such hospital, camp or other establishment in accordance with such petition. * * * At the time and place fixed for such hearing the State Commissioner of Health and the local health officer shall hear the petitioner,” etc. At the time this provision was made there was no provision in the statutes for a deputy commissioner; the Commissioner was authorized by section 3 of the Public Health Law to appoint such assistants as he might need and to •“ designate, in writing, one of his assistants who shall possess the powers and perform the duties of Commissioner of Health during his absence or inability to act, or during a vacancy in the office,” but this gave him no powers except in the absence or inability to act on the part of the Commissioner, or during a vacancy in the office. We may, therefore, conclude that at the time the amendment to section 319 of the Public Health Law by chapter 171 of the Laws of 1909 was enacted the Legislature did. not contemplate authorizing the State Commissioner of Health to substitute a deputy or agent on the board provided for in the section. The language of the statute is “ the State Commissioner of Health and the local health officer, who shall constitute a board to approve or disapprove the establishment,” etc., and this certainly did not provide that some one designated by the State Commissioner of Health would do just as well. A discretionary power, requiring the exercise of responsible judgment, was vested by the statute in a board to consist of the State Commissioner and the local health officer, and that board could not be constituted by a deputy and the local health officer, any more than a board to consist of the Governor and a local health officer could be made up of the Lieutenant-Governor, as such, and a local health officer. This is not a question of whether a deputy may discharge the duties of the chief officer, but whether a board to be constituted of a particular officer of the State, in conjunction with a local officer, may be

constituted by the deputy of the State officer and the local officer, and we are of the opinion that it may not. The Legislature has pointed out a particular officer to act, not as State Commissioner of Health, but as a member of a board specially constituted to perform a particular duty. He performs no duty assigned to the State Commissioner of Health; his only duty is that of a member of a specially created body for a definite purpose. He is selected because he holds the particular office, but his duties are not those of State Commissioner of Health, but of a member of this board, and a deputy appointed under the provisions of chapter 559 of the Laws of 1913 (amdg. Public Health Law, § 2), who is to “perform such duties as shall be prescribed by the Commissioner, ” is not, and cannot be, authorized to perform the duties of this specially constituted board. The Commissioner is not authorized to make his assistant a member of the board provided for in section 319 of the Public Health Law (as amd. supra); that is another and different office from that of the State Commissioner of Health, and the rule is well established that in the exercise of a public as well as a private authority, whether it be ministerial or judicial, all the persons to whom it is committed must confer and act together, unless there be a provision that a less number may proceed. (Powell v. Tuttle, 3 N. Y. 396, 401.) So we see that the board or the local health officer acting by himself could not gain jurisdiction, and where the duties of the office involve a trust and confidence, or involve judicial powers, there can be no delegation. (Board of Excise v. Sackrider, 35 N. Y. 154, 157; Ontario Knitting Co. v. State, 205 id. 409, 416, and authorities there cited.)

If we are right in the above view, it is unnecessary to determine the other points suggested by the relator; but it seems obvious that where a statute prescribes that certain conditions must be performed in order to give jurisdiction to act, there must be a full compliance with the statute, unless there is some legitimate and controlling excuse for non-performance, as in Walden v. City of Jamestown (178 N. Y. 213). Here it is conceded that one of the members of the local board of health was not served with notice, though the statute requires that each member shall be so served; but it is urged that this particular member did not care to be served, and was not interested in the matter. But it is not a question of the desires of Julius F. Hicks personally. The law required that each member of the town board of health should have a written notice at least twenty days before the hearing, and whether Mr. Hicks had or had not a personal interest in the matter is of no consequence. As a public officer of the town he was required to have notice, and the board could not get jurisdiction of the subject-matter of the petition without such notice.

Whether, certiorari was the best way of presenting this question is only of incidental importance. If the relator had not proceeded by certiorari, and had permitted the proceeding to go on without further protest, it would doubtless have been urged against him that he had waived his rights, although it is probable that an action to prevent the expenditure of the public funds could be maintained by a proper party at any time, for, where an act is done without jurisdiction even the consent of a party does not operate to give jurisdiction (Matter of Walker, 136 N. Y. 20, 29; Knickerbocker Trust Co. v. Oneonta, C. & R. S. R. Co., 201 id. 379, 384, 386), and a jurisdictional question may be raised at any stage of the case. (Davidsburgh v. Knickerbocker Life Ins. Co., 90 N. Y. 526, 529; Callahan v. Mayor, 66 id. 656; Kamp v. Kamp, 59 id. 212, 216, and authorities there cited.)

The determination of the persons assuming to act as a board to determine the location of a hospital in the town of Queens-bury should be set aside as having been made without jurisdiction.

All concurred.

Determination annulled, with fifty dollars costs and disbursements. 
      
       Since re-enacted by Laws of 1915, chap. 133.— [Rep.
     