
    William H. Young et al., P’lffs, v. Roswell P. Flower and William T. Jenkins, Impl’d, Def’ts.
    
      (Supreme Court, Special Term, Suffolk, County,
    
    
      Filed February, 1893.)
    
    Health—Fibe Island—Powebs of Health officeb.
    While, under the statutes relating to local boards of health, it was competent for tlie board of health of the town of Islip to formulate an order prohibiting the landing of cholera patients on Fire Island, that right is subordinate to the major right vested in the health officer of the port of New York, under the act of 1892. In cases of emergency and in the presence of immediate danger the latter, who is a state officer, may, for temporary purposes, bring persons suspected of being affected with cholera into another county of the state.
    The plaintiffs as individual members, and as a local board of health of the town of Islip, bring this action purely for injunctive relief, and they pray “thatthe defendants * * * be enjoined from bringing to the Surf hotel * * * any person, baggage,
    clothing or any other thing the subject of quarantine, brought from any vessel or quarantine station or elsewhere, or any person, matter or thing infected or supposed to be likely to he infected with cholera, or from using said Surf hotel * * * for quarantine
    purposes.”
    A preliminary injunction was obtained on September 12,1892, from a single judge at special term, but was vacated by the gen-
    
      eral term on September 13, 1892, upon the ground that there was no power vested in a single judge to issue an injunction against a, state officer. Code, § 605.
    The defendant Flower is the governor of the state; the defendant Jenkins is the health officer of the port of New York.
    The plaintiffs founded their right to the relief demanded upon the supposition that, they, as the board of health of Suffolk county, had a right to legislate respecting matters affecting the public-health within their county, and particularly they claim that they had a right to make the order of September 1Ó, 1892, which, in-substance, forbids the landing of passengers from cholera infected ships arriving at the port of New York at Fire Island, which is within their jurisdiction; and, secondly, upon the theory that-quarantine must be exclusively maintained by such health officer “ in the lower bay of New York, not on Staten Island, not on-Coney Island and not on Long Island."
    On the 10th of September, 1892, the plaintiff board made the-order just referred to, and recited among other things that the-landing of such passengers would be dangerous to life and health and to the public health and safety within the town of Islip, and thereupon they formulated a resolution “ prohibiting such landing under a penalty of $100 for every passenger so landed, and authorized the chairman of the board to appoint fifty special-sanitary police with full power to prevent by all legal means such-landing.”
    The two theories upon which the plaintiffs predicate their right-to maintain this action were challenged by the defendants, and they justified their action bv the powers given by chap. 486, Laws of 1892.
    For the purpose of simplifying the trial, every fact deemed, necessary for the consideration of the court was agreed upon.
    
      Fishel & Reed ( George W. Wingate, of counsel), for pl’ffs; William H.Clark, counsel to the corporation ; Charles Blandy and E. J. Freedman, for def’ts.
   Cullen, J.

I think that the plaintiffs can maintain this action-if the defendants’ acts are without authority of law. The contention that plaintiffs’ power to guard against the introduction of contagious and infectious diseases is limited to the-isolation and control of infected persons or things after they come-within the town, but is insufficient to prevent the bringing of such persons or things within the town, proceeds on a very technical,, and to me unsound, interpretation of the statute. The order made by the plaintiffs was, therefore, as to its general character within the scope of their authority, and its validity must be tested by the powers conferred by statute on the defendant, the health officer of the port of New York.

That the general scheme of the quarantine law for the port of New York not only contemplates that the hospital structures, buildings and wharves for quarantine purposes shall be located only in the lower bay of New York, and not on the adjoining lands of Staten Island, Long Island or Coney Island, but forbids the acquisition of land as a site for such purposes in any other place, is not only clearly apparent from the statute itself, but was «expressly decided by this court in Seguine v. Schultz, 31 How. Pr., 398, Mr. Justice Barnard, presiding.

That decision would be controlling on me if I had any doubt .as to the proper construction of the law, but in that decision I •entirely concur. That the detention of persons who may have been subject to infection from contagious disease is a part of the ■quarantine system, to the same extent as the isolation and care of those actually ill with such disease, was also decided in the case •cited. The only proper authority for the detention of such persons is that it is a part of the quarantine. I am entirely clear that there is no power in the quarantine officers to locate any part of the permanent quarantine establishment within Suffolk county, but this view does not control the disposition of the pre» sent case.

By the existing law, chap. 486, Laws of 1892, the general administration of the quarantine establishment of the port of New York is vested in the health officer. By § 13, article 11, of the statute cited, it is provided that “he shall, in the presence of immediate danger, take the responsibility of applying such additional measures as "may be deemed indispensable for the protection of the public health.” I agree with the contention of the plaintiffs’ counsel that such a power granted in general terms must be exercised, first, within the territorial limits of the jurisdiction of such officers, and, second, that the emergency must actually exist, of which the officer is not to be the sole judge, and that the act done or power sought to be exercised must be fairly sind reasonably appropriate for the emergency that has arisen.

But the power existing by common law in even private individuals in the case of impending calamity from a pestilence or fire is great.. In Russell v. Mayor, 2 Denio, 474, it is said: “ The "best elementary writers lay down the principle, and adjudications have for centuries sustained, sanctioned and upheld it, that in case of actual necessity to prevent the spreading of afire, the ravages •of a pestilence or any other great public calamity, the private property of any individual may be lawfully destroyed for the relief, protection or safety of the many, without subjecting the actors to personal responsibility for the damages sustained.” In fact, there is no liability even in the public to indemnify the -owner of property for such destruction, except as created by statute. Mayor v. Lord, 17 Wend., 285. Legislation has now largely, if not wholly, removed this right from private individuals and intrusted it to public officers, and also provided for compensation from the public treasury, so that one may not suffer without indemnity for the relief of the many. I refer to the extent of the natural right of the community to show that the power, when entrusted to a public officer, should not be construed as limited by too narrow bounds.

It seems to me that an emergency had fairly occurred within the meaning of the statute. So many vessels had arrived from ports infected with cholera that the hospital accommodations of the quarantine establishment had become inadequate to receive people sick from the disease and those who had been exposed to danger. This is conceded by the agreed statement of facts. Persons who had been subjected to the influence of contagion had, therefore, to be either detained on the infected ships or other ships be obtained as a place for their detention, or it was necessary to land and isolate them at some other point than that provided by the-statute for permanent quarantine purposes. Certainly not only a regard for the lives and health of such passengers themselves, but regard for public health, required that such persons should not unnecessarily be longer subjected to the danger of contagion.

The question between vessels and a landing place was a fair-subject for the exercise of discretion by the health officer, and the statement of facts does not show that the officer had any vessels available for the purpose of floating hospitals or places of detention other than one steamboat. It seems to me that in the contingency that had actually arisen the health officer was justified in securing some appropriate site for the temporary landing and isolation of these passengers, and I cannot say that the site selected was inappropriate. Several sites were presented. Each, had advantages and each was subject to disadvantages, and it was for the health officer to determine which was preferable. If the hospitals of the quarantines should take fire, surely the health officer might land their occupants. Here the emergency was not so great or immediate as the one suggested, but still I think it was real and substantial.

All this proceeds on the theory that the health officer acted within his territorial jurisdiction, for an emergency as to a matter of public health occurring in one town or county would not, without legislative authority, authorize the local authorities to enter within the limits of another town or county. Otherwise I fear many localities would be disposed .to impose their hospitals- or pest houses upon their neighbors. In the case of People v. Platt, 117 N. Y., 159 ; 27 St. Rep., 149, the defendant was ousted from the office of commissioner of quarantine on the ground of his residence in the county of Tioga. The decision did not, however, proceed on the ground that the office was a local one, but because the office was statutory and it was within the power of the legislature to prescribe the conditions of eligibility to its en^joyment, the statute providing that such officers should be residents of the metropolitan police district.

In Ferguson v. Ross, 126 N. Y.; 459 ; 37 St. Rep., 836, it was decided that an act to prevent the deposit of carrion, dredged materials, etc., in New York bay and the North and East rivers, was not local, but general. In the opinion there delivered by Judge Andrews, it is said: “But are laws regulating quarantine in the port of New York or the landing of emigrants therein local in the same sense as laws relating to city courts or to a particular highway or street ? ■ The 8th section of the act of 1886 was-manifestly enacted for the protection of the harbor of New York in the interest of commerce and navigation. The citizens of New York city may possibly have a greater stake in the matter than citizens in other localities, but the destruction or serious impairment of the harbor of New York would directly affect the prosperity of the state. It would impair the revenues, imperil its system of river, canal and railroad transportation, and it is not too much to say that every industrial interest, agricultural or mechanical, would feel its blighting influence. A law having for its object the protection of navigation in the harbor of New York is, we think, general and not local. The act is limited territorially, but the subject is both public and general.”

I think that, under the principle thus declared, the health officer must be considered a state officer. This was the view entertained by the general term of this court when it vacated the preliminary injunction granted in this action. Hence, if, under the stress of exigency, the health officer could, in the disposition of persons suffering from disease or subject to contagion, go at all beyond the express area provided for that purpose by the statute, he could go to Suffolk county as well.as to any other portion of the state.

This view does not authorize the quarantine authorities to hold Fire Island as an annex to or for the overflow of the quarantine establishment of the port of New York. This would plainly be illegal under the existing statute. If the probability of the recurrence of the condition existing last fall can be foreseen, it is the duty of such authorities, under the existing law, to increase the local quarantine establishment so that it will meet the demands that may be imposed on it. But this litigation presents only the question of the right to land passengers at the particular time it was done in September last. For the reasons given, I think this act was in the power of the health officer, and the complaint should be dismissed.  