84 Cal. 304 | Cal. | 1890
Petitioner, who is health officer of the city and county of San Francisco, is arrested and held under a warrant issued out of the police court of said city and county, upon a complaint charging him with misdemeanor, for that he, “as such health officer, did grant and issue a permit to deposit the body of said Ah Tin in the city cemetery, in said city and county of San Francisco, and to inter said body in said city and county, ■without requiring, receiving or obtaining, or filing, and without the issuance of the certificate of the death of said Ah Tin, signed or issued by an attending physician, or by the coroner of said city and county of San Fran
Order No. 2162 referred to is entitled as an order “ regulating the granting of certificates of death and the issuance of permits for interments.” It provides that no person shall deposit in any cemetery, or inter in said city and county, any human body, without first having obtained and filed with the health officer a certificate of death signed by a legally qualified attending physician, nor without having obtained from said health officer a permit to deposit or inter said human body; that if there be no attending physician, or he be absent, such certificate may be issued by the coroner, or by a physician authorized by the coroner to grant such certificates; that in case of death in maternity homes, lyin'g-in hospitals, or other similar institutions, the certificate shall be issued only by the coroner, or a physician authorized by him to grant certificates of death; that no permit to deposit or inter shall be granted or issued by the health officer until he shall have received the certificate of death required by the order, and that any violation of the provisions of the order shall constitute a misdemeanor, punishable by fine of not more than five hundred dollars, or by imprisonment not more than six months, or by both such fine and imprisonment.
On the part of the people it is claimed that the passage and enforcement of such an order is fully authorized by article 11, section 11, of the constitution, which reads: “Any count}', city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.”
(Although “cities and counties” are not mentioned in this section, this and all other provisions of the constitution not inconsistent or prohibited to cities are made
On the part of the petitioner it is claimed that the provisions of this order are in conflict with the provisions of sections 3012, 3025, and 3084 of the Political Code, and of section 377 of the Penal Code, all of which are general laws, and that in so far as the provisions of the order do conflict with these general laws, they are unauthorized and void. That they are unauthorized and void, if such conflict exists, cannot be doubted.
All these sections of the Political Code are found in title 7 of part 3. That title is in relation to the “general police of the state.” Chapter 2 of the title relates to “preservation of the public health,” and article 3 of that chapter relates to “ health and quarantine regulations for the city and harbor of San Francisco.” This article consists of sections 3004 to and including 3035. Section 3005 provides for a board of health for the city and county of San Francisco, to consist of the mayor, and of four physicians, to be appointed by the governor, to hold office for five years. Section 3007 provides for the appointment, by the board, of a health officer, and section 3008 makes him the executive officer of' the health department. Section 3012 reads as follows: "The board of health have general supervision of all matters appertaining to the sanitary condition of the city and county, including the city and county hospital, the county jail, alms-house, industrial school, and all public health institutions provided by the city and county of San Francisco; and may adopt such orders and regulations, and appoint or discharge such medical attendants and employees as to them seems best to promote the public welfare; and may appoint as many health inspectors as they deem necessary in time of epidemics.”
So much of section 3025 as needs to be considered here reads as follows: “No person shall deposit in any cemetery or inter in the city and county of San Fran
It is very clear that by this article the legislature has undertaken, as a part of the provisions of the general law “relating to the public health,” and through a local department of the state government, to wit, a board of health for the city and county of San Francisco, all of the members of which, except the mayor of the city and county, are appointed by the governor, to manage and control certain—we do not say all, but certain — of the sanitary regulations of the city and county and contiguous harbor of San Francisco, and by section 3025 has particularly undertaken to manage and control the condition and terms upon which permits for the interment of human bodies within said city and county may be issued, and by whom.
So much of section 3005 as prescribed the term of five years for the officers of the board appointed by the governor has been declared to be unconstitutional. (People v. Perry, 79 Cal. 105.) But it was expressly held that this did not affect the validity of the balance of the act.
It follows that any order or ordinance, or provision of any order'or ordinance, of the municipality which conflicts with the provisions of this general law is prohibited and forbidden to the municipality,—is unauthorized and void. Is there a conflict between the provisions of this order and of the general law ? We think so. The order punishes the health officer as for misdemeanor if lie issues a burial permit upon the certificate of any person other than a legally qualified attending physician, except
The law also recognizes the fact that there is a profession called midwife, and imposes upon midwives certain duties, both as to deaths and to births. (Pol. Code, secs. 3024, 3075.) It has not only granted to them the right to issue death certificates (sec. 3025), but it compels them to report deaths to the health officer in San Francisco (sec. 3024), to keep a registry of births and deaths occurring in their practice (sec. 3075), and to report the same to the county recorder (sec. 3077). (The last requirement possibly does not apply in San Francisco, xvhere they are required to make such report to the health officer, and he to file their reports in the office of the county recorder.) If ample proxdsion is not already made to protect the public against impostors in that profession, no doubt it may be done in that as in the other. But so long as the general law recognizes it as a legitimate profession or calling, and authorizes the health officer to grant burial permits on midwives’ certificates of death, he cannot be punished as for a crime for so granting them.
Section 3084 of the Political Code is a part of chapter 3 of title 7, above referred to,—a different chapter from that to xvhich the article belongs which we have been considering. That chapter relates to the “registry of births, marriages, and deaths,” and generally, as to its provisions, has no application to the city and county of San Francisco. It is claimed on the part of the people that the section referred to, like the balance of the chapter, has no application to this municipality. Without finally deciding that question, for we do not deem it necessary to decide it in this case, it is sufficient to say that if it does apply to this city and county, the order is in conflict with its provisions equally with those of section 3025.
Holding, as we do, that the order, in so far as it attempts to punish the health officer for granting permits upon certificates authorized by general law, is in conflict with the general law, and void, it follows that the complaint, which is based on the order alone, fails to state facts constituting a public offense, and the prisoner must be discharged.
So ordered.
McFarland, J., Paterson, J., Sharpstein, J., and Works, J., concurred.