In re Smith

• Decision Date: 03 May 1895
• Citation: 40 N.E. 497,146 N.Y. 68
• Parties: In re SMITH et al.
• Court: New York Court of Appeals Court of Appeals

146 N.Y. 68

40 N.E. 497

In re SMITH et al.

Court of Appeals of New York.

May 3, 1895.

Appeal from supreme court, general term, Second department.

Application by William H. Smith and another for a writ of habeas corpus, directing S. Taylor Emery, health commissioner of the city of Brooklyn, and others, to produce petitioners before the supreme court, that the cause of their detention might be inquired into. From a judgment of the general term (32 N. Y. Supp. 317) reversing the judgment of the special term, petitioners appeal. Reversed.

This was an appeal from an order of the general term of the supreme court in the Second department, which reversed an order of the special term, made in habeas corpus proceedings, discharging the relators from the custody of the health commissioner of the city of Brooklyn. The relators alleged in their petition that they were imprisoned or restrained of their liberty at their house in the city of Brooklyn, not by virtue of any judgment or process issuing from any court, but upon the order and direction of the respondent, the commissioner of health of the city of Brooklyn. They alleged as the cause for their imprisonment, which was effected by a detail of policemen to watch the premises, that they had refused to permit themselves to be vaccinated. They also alleged that they had been exposed to no contagion, and were not afflicted with any disease, contagious or otherwise. In the return made by the commissioner of health to the writ of habeas corpus issuing upon the relators' petition it is stated that the relators were placed under quarantine by his orders, and by virtue of the authority vested by law in him to take such precautions as are necessary for the protection of the public health against smallpox; that the relators were detained in quarantine by reason of their refusal to permit themselves to be vaccinated; that for several months previously smallpox had been present to an alarming extent in the city of Brooklyn, and had been epidemic in that city; and that the utmost precaution and most thorough preventive measures were necessary in order to prevent the spread of the disease beyond control. It is then alleged in the return, as a well-established scientific fact, that vaccination is a preventive of that disease. The health commissioner then proceeds to state as follows: ‘That, as I was informed and believed, before ordering the quarantine to be placed upon the said premises, and that said persons be detained therein, the said William H. Smith [one of the relators] is the proprietor of an express delivery business, and that the said Cummings [the other relator] is employed by him in said business, and that they are both actively engaged in the prosecution thereof in the cities of New York and Brooklyn, and especially in Greenpoint, and the Eastern district of said city of Brooklyn, which latter has been one of the worst infected centers of said city. That said business is of a general nature, and may include the carrying of trunks, bedding, furniture, and numerous other articles which may come from infected centers, and be infected with the germs of smallpox; and it became at once apparent to me that the said Smith and Cummings were unusually exposed to such contagion, and that they might be seized therewith, and, by communication with others, spread the same; and that it was, therefore, of special importance that they should be vaccinated at once.’ The return then goes on to state that a quarantine was ordered to be placed upon the premises and the persons contained therein, until they consented to be vaccinated, and that such measures were taken in order to protect the citizens of Brooklyn, in the belief that if the said Smith and Cummings were permitted to continue in their said business without being so vaccinated they might be the means of most serious and fatal consequences to other citizens. The return alleges that there had been at least 28 cases of smallpox in and about the Seventeenth ward of the city, and that a proclamation of great and imminent peril had been made by the mayor and the president of the Medical Society of the County of Kings. The proclamation, to which reference is made in the return, is annexed, and refers to the measures and acts declared to be necessary by the commissioner of health, and approves of them, and declares that the peril from an impending epidemic of smallpox shall be deemed to exist, etc. The acts and measures, which that declaration approves, are stated over the signature of the commissioner of health, who declares them necessary to be taken for the preservation of the public health from the impending pestilence of smallpox. They are stated to be: ‘First. Thorough and sufficient vaccination of every citizen, who has not been successfully vaccinated within such period of time as, in the judgment of the commissioner of health, renders such person immune, should be procured. Second. Wherever any person in said city shall refuse to be vaccinated, such person shall be immediately quarantined, and detained in quarantine until he consents to such vaccination.’ The relators demurred to the return, and, after a hearing, were discharged from the commissioner's custody. They appealed to this court from an order of the general term, which reversed the order, etc., discharging them.

Charles J. Patterson, for appellants.

Alexander H. Van Cott, for respondent.

GRAY, J. (after stating the facts).

The question presented, like all those which involve the right to restrain the citizen in his personal liberty, or to interfere with his pursuit of a lawful avocation, demands a careful consideration of the provisions of law under which the right is alleged to be conferred. Where such a right is claimed, it must appear very clearly and satisfactorily, not only that it has been conferred by the law, but also that in its exercise the...