
    The People of the State of New York, Appellant, ex rel. George H. Goff, Respondent, v. Fremont Kirk, Sheriff of Tioga County, Defendant.
    Third Department,
    December 3, 1909.
    Public health — harvesting ice on waters used for public supply—constitutional law--taking private property without compensation.
    While the harvesting of ice may be regulated so that the purity of a public water supply shall not he endangered, yet a rule of the State Commissioner of Health absolutely prohibiting the cutting of ice on waters feeding a public water system is void as taking private property without due compensation.
    A clause of such order prohibiting horses and men from going upon the ice on such waters is also void, as ice cannot otherwise be harvested.
    Appeal by The People of the State of New York through the district attorney of Tioga county, from an order of the county judge of Tioga county, entered in the office of the clerk of said county on the 16th day of November, 1908, releasing George H. Goff from imprisonment upon a writ of habeas corpus.
    The State Commissioner of Health pursuant to section 70 of the Public Health Law promulgated a rule for the protection from contamination of the public water supply in the village of Waverly, which provided that the public reservoirs shall not be u,sed to supply ice for public or private purposes, and teams, cattle or men shall not enter upon the pond in winter for the purpose of cutting or removing and storing ice.
    
      Edward JR. O'Malley, Attorney-General, and Lawrence T. Jones, for the appellant.
    
      Frederick F. JELa/wkes, for the respondent.
   Smith, P. J.:

The able opinion of the learned county judge gives abundant reason for the order made. The right to take private property' without compensation for the public good is an extraordinary right, justified only by absolute necessity. Where the public good can be conserved by the regulation of a right the power to destroy does not exist. It would seem undoubted that the harvesting of ice might be placed under such regulations as to give substantial guaranty that the purity of the water would not be endangered. With the possibility of efficient regulation, to prohibit the cutting of ice, or of the necessary means thereto, is beyond the power of the health officer. A contrary holding would work both private and public mischief. Much of the ice throughout the State is harvested from lakes or ponds, which are to an extent the source of the water supply of cities and villages. The power to prohibit the taking of ice from such sources would deprive the public of a large part of the ice which is now furnished for its health and comfort. These considerations are not without weight in t"he condemnation of a health order so drastic as the one involved in the case at bar.

The appellant insists, however, that if that part of the order prohibiting the cutting of ice be void nevertheless the remainder may stand, to wit, that portion which forbids horses and men from going upon the ice. . It does not appear, however, that ice can be otherwise harvested. These are ‘the instrumentalities that are ordinarily used for that purpose. If their use be prohibited the harvesting of ice is practically enjoined. Upon the evidence the danger to the public health lies in the chance of contamination from typhoid germs, but horses -never have typhoid fever, and men so afflicted are not usually at work in ice fields. Even if it be assumed that a man might have typhoid for some time before it is diagnosed, the possibility of danger is so remote as not to be substantial. If this order, prohibiting men and teams from going upon ice where the water may be used for general purposes he valid, the cutting of ice may be stopped upon the Hudson river, and in fact upon any river in the State, which would be a result more deplorable than would come from the possible slight contamination by reason of the use of horses and men in harvesting ice under proper restrictions and regulations.

■We think, therefore, that the order must be affirmed, with costs.

All concurred.

Final order affirmed, with costs.  