Haverty v. Bass

• Citation: 66 Me. 71
• Parties: MARTIN J. HAVERTY et ux. v. JOSEPH P. BASS. 1875.
• Decision Date: 18 April 1876
• Court: Maine Supreme Court

66 Me. 71

MARTIN J. HAVERTY et ux. v. JOSEPH P. BASS.

1875.

Supreme Judicial Court of Maine.

April 18, 1876

ON REPORT.

TRESPASS for an alleged assault upon the female plaintiff, on April 15, 1873, by the defendant, who was then mayor of Bangor. The assault complained of consisted in the action of a police officer and a city physician, under the direction of the defendant, in taking out of the arms of the mother, her child which was believed to be sick with the small pox, for the purpose of removing it to the city hospital. In so doing, the defendant was executing an authority and directions committed to him by the mayor and aldermen of Bangor, at a special meeting previously called to provide for the exigency required by this case of sickness.

For the purposes of presenting the question of law involved in this case, it is not denied by the plaintiffs, that the child was sick of the small pox; and that the mayor and those concerned with him, in doing what they did, used no more force than was reasonably necessary to accomplish what they did; and that the mayor and aldermen, in ordering the removal, acted in good faith, and for what they thought best for the safety of the inhabitants of Bangor; and that the child could be, and was, removed without great danger to its health.

But inasmuch as the servants of the defendant, by force, after a reasonable demand for entrance, broke and entered the husband's house (which was fastened against the officers,) and took the child away from the mother, by virtue of the provisions of R. S., c. 14, § 1, and without any warrant as provided in § 5, of said chapter, the plaintiffs contend that the defendant was a trespasser, and therefore liable for such entry and subsequent acts.

If the defendant was a trespasser, because not having such warrant the action to stand for trial; if he was not, then the plaintiffs to be nonsuit.

T W. Vose, for the plaintiffs.

W. H. McCrillis & C. P. Stetson, for the defendant.

PETERS J.

By R. S., c. 14, § 1, the municipal officers of a town, in which any person is infected with a disease dangerous to the public health, are required, if they think it best for the safety of the inhabitants, to remove such person to a separate house, provided it can be done without great danger to his health. By § 5, it is provided that " any two justices of the peace may issue a warrant, directed to a proper officer, requiring him to remove any person infected with contagious sickness, under the direction of the municipal officers of the town where he is."

The plaintiffs contend that the power of removal granted by § 1, can be legally exercised only by the use of the warrant described in § 5, and that municipal officers who without such warrant remove a sick person against his will, are trespassers. We do not think this construction of the statute the correct one.

The power committed to municipal officers by § 1, is, in the terms of the statute, unconditional. It is not qualified by any other section. On the contrary, enlarged powers are given to such officers by other provisions in chapter fourteen. Thus, by § 29, when the small pox breaks out in a town, they are to provide hospitals for the sick and infected; they shall cause the sick and infected " to be removed" thereto, unless their condition will not admit of it without imminent danger; they may make a hospital of any man's house, where a sick or infected person is found (if deemed best,) subject to hospital regulations; and the municipal officers must act " immediately," and with " all possible care" for the public safety. And so, in our opinion, § 5 was designed, not to cripple and impair the powers conferred upon town officers under § 1, but to make such powers more effectual. It gives municipal officers extra means wherewith to execute the authority entrusted to...