*1 8, No. 2039. Third Dist. Jan. [Crim. 1948.] al., Corpus. In re DOROTHY MARTIN et Habeas *2 Wyatt, Green & Carr for Petitioners. Watson, Attorney
Chester E. District (Stockton), and Louttit, Marceau, Louttit & Respondent. Wilson for
PEEK, J. petitioners allege quaran herein Joaquin tine order of the San Local Health District which imprisoned and restrained illegal without bail is in county (1) the health officer does not have reasonable cause to believe that of either them any is infected with of specified the diseases in sections 2554 and 2571 of the Health Safety and Code, and justification therefore there no for their deny them bail; (2) and Joaquin the San County jail improper place is an designated by to be the said health officer as place isolation, a of and at (3) the time of their arrest had no with prostitution connection any form and neither in fact was infected with of the diseases mentioned said sections.
By reason stipulation of the of counsel at the time this argued matter was the transcript proceedings of in the Su- perior Joaquin Court of County, application San where a like was made and denied, of part proceedings was subject herein, however, petitioners’ objection to certain testimony of one of the of county, health officers said testimony had been objection admitted over their in superior hearing. transcript
Said that on the evening Septem- discloses of 9, 1947, robbery ber reported having at occurred city
De Booms of Luxe located The follow- Stockton. ing morning Knight petitioners were arrested Officer day questioning. for taken to the station The next complaint charging was filed in Police Court the Stockton vagrancy bail fixed in the of $500 defendants with sum However, by subsequent each. reason of orders were refused their of the local officer both orders, release on bail because said and were held county. sheriff of said sheriff, Officer
When called as a witness Knight year for than been a testified that more one he had squad, personally member made one vice arrest prostitution and knew of three other arrests the same having living at De persons offense been made of Luxe petition- arrests Rooms but none said involved these February ; place 1947, ers that the latest arrest at although that time no had been made since arrest investigators attempts get were into rooms but room- always doors locked. He also testified that said ing reputation prostitution a house premises at the time examination *3 usually paraphernalia arrests disclosed various articles commonly things places found in such but that such were many lodging in Stockton. The witness fur- found houses pres- during a at which he was ther conversation stated chief the Police ent and the of Stockton between having as Kitty admitted worked a Department, Andrews years Dorothy last and that Martin prostitute during the two prostitution that the trying run a of but admitted to house any to do she did not have a chance so active were to the occasion she stated witness business; another The officer had no running De Rooms. she Luxe was petitioners. of either of the knowledge prior of arrests objec- district, over health officer of The assistant mentioned, was to counsel, permitted previously tion of of venereal diseases testify May, 1947, four cases that since at De Luxe contracted reported having been had been as the gave addresses who their Rooms, and three women disease, but for venereal De Rooms had been examined Luxe negative. No exception with all such examinations one if investigation said officer to ascertain actually reside there. women did Code, seq.) 2554 et
By
(Health and Saf.
statute
§§
all
mandatory duty
imposed upon
officers to take
is
necessary
of venereal
prevent
the transmission
measures
legislative
enforcement of this
mandate
disease and
quarantine.
such
power
officers are
with full
of
vested
unnecessary
delega
It would
state
seem
authority
tion
complete
of
funda
such
over one of the most
rights—the right
personal
mental of our
of
constitutional
liberty—must
necessity carry
obligation
powers only
exercise such
when,
unusual
under the facts as
brought
knowledge
authorities,
within the
“rea
of the health
ground
sonable
exists
support
person
that the
the belief”
(In
so held is infected.
Arata,
380,
re
P.
[198
814].)
However,
say
is
not to
order to
warrant the exercise of such powers
it is
for a health
officer to first determine that one is afflicted with such disease
subjecting
before
person
to quarantine, all that
re
quired is that
probable
there be
cause to believe the person
so held has an infectious disease mentioned in said statutes.
(In King,
re
In Arata what case the court would showing justify amount to a sufficient factual or warrant quarantine, might observed that such facts consist a show- ing suspected person exposed contagion or infectious influences or that someone contracted the quarantined from her; disease him or that the one was one who prostitution committed acts as shown conviction for that fame, thereby offense was inmate of a of ill house coming group, majority diseased, within that whom are as shown medical statistics.
This case
Dayton,
was followed
In re
cited with eases. There the testimony petitioner that that court held therein was con ill in which ducting house of fame she was also an inmate participated in the unlawful on personally and acts carried ground reasonable the therein, furnished health officers quarantine against her. measures enforce by petitioners We not understand the two eases cited do (In Arata, Shepard, In re supra, re and way the 1077]) modifying changing as or in in petitioner rule as It that instance the stated. is true each discharged. therein it However, was in the Arata case was because the facts relied as the or sufficient warrant appeared by way respond der in the “narration” ent’s and not return which statement court stated could “proof charge against taken as petitioner.” of the made In the Shepard ease in it was held the facts were shown knowledge sufficient either to establish was infected or reason to believe Both reiterate the so. cases repeated much rule whether or not a order justified depends upon case, the facts and of each individual corollary may obvious thereof is to be appear that what person may sufficient to one not appear to be sufficient another. surrounding stripped
The ease, real in present issues stated, simply such issues circumstances immaterial health cause for the whether or there was reasonable officer infected with a. believe that these quar- stage at the time the venereal in infectious disease antine such reasonable issued, so, order and if whether hearing cause before continued to the time of exist at testimony and affidavits as shown physicians negated officers or affidavits of who subsequent examined them order to the reported partial negative finding. case and in Arata enunciated rules Under Clemente, In Dayton re In re approval cited with brought to in evidence basis supra, belief has sufficient such tending that the health officer show knowledge of the regarded as a house commonly question was
premises gen paraphernalia usual contained the prostitution; past establishments; within erally in such found reported diseases cases of venereal few months had been there; that several arrests contracted having been although not charges prostitution, premises at petitioners them further, petitioners; of these engaged prostitution either in having been admitted selves them prostitution, placing thus operating likely infected more to be of persons selves within class than not. analogous necessary proof this is cases
169 required to that preliminary mag- on a examination before a prior istrate to commitment charge, on a criminal the extent inquiry being of the merely as to the existence of reasonable pending opportunity cause investigation ex- further amination. contend that the above mentioned affi further
Petitioners who examined them indicate that physicians davits of the quarantine longer cause essential to warrant no reasonable the portion opinion thereof cite a the support In of exists. Johnson, Cal.App. 242, In re in case of the if Obviously, one who is detained so is not 644]. afflicted with infection he or would never has been she cannot said However, a writ. be be entitled to present in the in Prom of the facts disclosed record ease. testimony Malcolm, Dr. district of James C. assistant officer, Sippy as well affidavits Drs. John J. respec Chope, and H. D. district health officer and assistant tively, to the effect in order to determine the existence or stage contamination of a venereal disease an infectious necessary quarantined person is confined period days approximately eight under circumstances such as would restrict the individual contact or from sexual This, say, medication. the doctors is for the reason person by that a drugs the use of can local disinfectants or temporarily responsible mask or growth inhibit organisms prevent and thus a venereal dis the detection of ease. The affidavits filed insufficient to overcome this not evidence. It is not shown that could presence further, or-did not organisms, mask the of such respect Dorothy syphilis. report Martin there is no testimony If the predicated upon of the health authorities is knowledge light day drugs sound medical present techniques, treatment believe other we have no cause to wise, King case, then supra, the conclusion of the that a “person may legally until is held be detained exists,” sufficient showing longer probable cause no applies.
The final the San petitioners, contention made Joaquin County jail improper place designated is an to be place as quarantine order, of isolation under said is like wise merit. necessarily without It does follow from alleged by petitioners facts in relation to the conditions of Joaquin County the San jail, which facts in the main are con admitted the sheriff his return—its overcrowded legislative investigating ditions—its condemnation com mittee, jail by that their confinement at said reason of improper. order From examination applicable question sections of statutes to quarantine generally appear place it would discretionary would be with the health officers *6 any special persons. in provision the absence of for such jails, public institutions, “While were established for purposes persons, other than confinement of occa diseased emergency public quar lack sions of of other facilities for require jails quarantine.” places antine that be used as (4 Ops. Atty. p. 148.) Hence, 146 at in absence of Gen. special facilities, jail question, although use in of the admit tedly unsatisfactory, proper purpose for such under facts shown. We therefore conclude that the order was n
proper under showing by the circumstances and re spondent in his petition. return to the fixing The order bail petitioners’ appearance in requiring this court and them report to the Joaquin San Health District for examina tion at such times authority as that may suggest is therefore aside, set the writ discharged, petitioners and the remanded to the custody of the sheriff. Thompson, J., concurred.
ADAMS, P. J.I dissent. in which we us before proceeding original This is us whether before upon the evidence determine upon to called County Joaquin in the San petitioners further detention petition- herein petition filed verified In the justified. jail is Joaquin in the San imprisoned they were alleged that ers Joaquin Local Health the San order of County jail on an illegal in that imprisonment such District, reason not know or have county did health officer any of the dis- was infected that either of believe them Health and 2554 or 2571 of the in sections eases enumerated isola- justification is no for their Safety Code, and that there improper place for their iso- jail was an tion. Also that the condemned, there were jail had been lation since said quarters quarters occupied them which were girls they required six, but and that were designed to accommodate peti- of their arrest sleep bed; in a at time four any form, and prostitution in tioners had no connection with any diseases mentioned that neither was infected with petitioners denied aforesaid code sections. Both they them ever made ascribed to admissions were supe- Knight hearing in Police Officer testified at a who they they court, they verily rior averred that believed disease, any were free from infection of communicable they years exposed for several been infection; custody that their detention was not secure their physicians submission to examination connected willing with the district, report to their clinic examination, and submit to and treat- ment necessary, if at reasonable times. having petitioners having writ issued and re- been bail, on
leased on condition that submit themselves Joaquin authorities, the San examination Health District county the sheriff of made a merely return which recited posted bail released; bonds and been day hearing but set for before the said sheriff made an amended return, in alleged which he Martin had Joaquin County jail detained the San *7 pursuant signed by to an Chope, order Dr. assistant district health officer, on September 11, copy a of said order attached to the return; and that Andrews had been detained on by an order signed Malcolm, Dr. also an assist- ant officer, health copy a of which order was likewise attached as an exhibit. The return also hearing recited the the on writ in the superior court, transcript and attached thereto a of proceedings the therein. allegations petition the of the
Answering herein, he denied petitioners allegations that the been restrained because of vagrancy against them, charge asserting filed a of were of the orders the restrained because aforesaid. He denied alle- health know gations that the officers did not or have reason to petitioners infected, were the the reasons for believe that being the exhibits. He denied such denial orders attached as county jail improper detention, place that the was an but by legislative investigat- admitted it had been condemned a ing committee, greatly condition,’’ that it in “a crowded petitioners prisoners charged that were confined with with crime, prisoners required sleep and that were two in a bed, bunk which bunk were set in tiers. beds On information allegation petition that at the he the the
and belief denied petitioners pros- had no their arrest connection with time of infected. and that neither was titution presented also to this a motion set The sheriff: court bail, this court admitting petitioners aside the order of alleging, motion, of said had been support petitioners that by by were orders made health orders held officers which pursuant brought knowledge within of said issued to facts the officers, grounds support which furnished reasonable “a petitioners that and still infected with were, belief were stage.” said in an Attached to venereal disease infectious Sippy copies return Drs. amended were of affidavits made Chope, which will be hereafter considered. hearing stipulated by counsel At before us it was petitioners proceedings before the transcript superior court, might court be considered as evidence this that subject, however, objections interposed before admissibility pre- court as to of some of the evidence by respondent upon make inde- sented should pendent rulings. respondent Counsel for conceded on burden was authorities to show reasonable petitioners. cause for the detention of rulings subject In view of that concession and to our admissibility evidence, transcript of the we turn to the testimony trial before the court. Sep apprehended
It on shows that defendants had been fixing 11th, charged vagrancy, tember held justice peace, the defendants were bail a called virtue of orders. Knight witness Police who testified that he had Officer years, and for more than Stockton officer for year petitioners, were assigned squad”; to the “vice he had Stockton; arrested at De Luxe Rooms year; prostitution period over of a one arrest there for general place was a reputation there, prostitution; that he had arrested house of being taken to beds; in their while *8 Kitty if she police, Andrews was asked office of chief of and she “tried to prostitute, had ever a she said worked as much ran and chippie up but down the stairs business.” On cross-examina she didn’t have a chance to do De Rooms situated within tion he said that the Luxe A.; that he had the T. C. block of the court house M. Dorothy Martin for more than a and had never year, known any her, had he arrested nor information that she had ever gone night arrested; place that officers had been reported robbery; before in connection with a when ar rooms; rested were alone in that he was their Kitty An placed quarantine against first one order against Dorothy Martin; drews but not that no others place since, prostitu been arrested at this and no evidence of tion had been On peti obtained. redirect he that when stated they premises—but tioners were arrested found on the occupied by petitioners—what rooms known “trick beds,” a money wall, glasses box on the kitchen 1‘ ’’ prophylactic guns, solutions and number and an enormous towels; but on recross-examination he said that these could be rooming found in in Stockton; that other than mentioned he had nothing upon which to base a against order petitioners—that general all he had was sus picion that might possible that they were infected with a communicable disease. Malcolm, Joaquin
Dr. assistant health officer of the San District, called, Local Health was then and a order against petitioner signed by Andrews, Chope, issued Dr. officer, district health assistant recited that introduced. It information “based received office this the said Dorothy Martin, suspected infected with a venereal stage.” (The disease in an infectious words “known to be” in place “suspected” out; were crossed kind venereal suspected disease stated.) is not The order then Dorothy quarantined directed that Martin be examination if necessary, county jail being designated treatment place as the quarantine. regarding Kitty Andrews, signed by order
A similar district health officer, as assistant was then introduced. witness permitted objection was then over peti- The witness testify year past that within the tioners to premises him his from reported question office cases of venereal infection men reported four who acquired address, parties infection was at that but these their quarantined; they also that were not had examined three gave their Rooms, women who addresses as the De Luxe but he examination determine made no whether or not there; infected, resided found none of them quarantined; one of them was that he had never *9 174 petitioners; present these that he found
examined greater situation no reason for than he found in cases; experience quarantine the aforesaid it is his is many that there in which venereal but instances nothing confinement; without disease is treated that there by person indicating him re- presented to or other Dorothy Martin; prostitution part cent on the nor Kitty by anything participation to indicate recent Andrews, except report the arrest stated that ad- she Dorothy living with Martin in Luxe and mitted the De Rooms working prostitute. as a questioning by admitted Under superior court this witness said that routine was to their girls county jail women examine and who were in the after following arrest, positive symp- hours their if and no found, toms were them hold for a second examination, one shortly reason cleansing because of mechanical jail, by before arrival at the drugs, signs and use might masked, disease it then from two took to five days masking. to overcome the stated,
As above respondent attached his notice of copy motion a of an affidavit by Sippy by Dr. and one Dr. Chope. They nothing add goes to the record before us that justification quarantining show for petitioners. one grounds states that “reasonable support exist continue to the belief that each of said persons [petitioners] is afflicted with a venereal disease stage”; infectious and the other “upon recites that information received affiant and officeof the District Joaquin Health Officer of the Local San District, Health grounds affiant has reasonable to believe and affiant suspect does Dorothy the said Martin Kitty said Andrews and both of them are infected with a venereal disease in an stage.” Upon infectious what these opinions suspicions are based is not stated. The affiants respect furnish no support evidence to the conclusions asserted. showing upon by relied against respondent,
As petition of these women denies that made the verified Knight. They them Officer also ascribed to admissions reputable certificates two doctors presented to this court admitted, stated, qualifications which certificates whose had been examined them on Dorothy as to Martin she September September 22d, 19th and and that smears and negative gonococci infection, were both for cultures Wasserman and Kline negative (for tests were syphilis). And Kitty Andrews, Sep- that she had been examined on 19th, tember and that both negative smear and culture were gonococci infection. report syphilis was no There for the latter. argument by respondent’s us it
On the before was conceded question counsel that the essential whether not the health or have authorities now reasonable cause to believe *10 petitioners were or are infected with a venereal disease stage. an infectious corpus He conceded that habeas ais proper proceeding question, and for the determination of this also concedes that the upon respondent burden is to that show such reasonable cause existed or now exists. signally meet my the evidence before us to opinion
In fails imposed upon respondent rea- to show proof the burden of that are now or believe were at sonable cause to incarceration with venereal disease the time of their afflicted Giving showing stage at all. an infectious effect, respondent its fullest it shows no than that one more (Officer Knight) person testified that the De Luxe Rooms was reputed prostitution. testimony my to be a house of His inis unworthy opinion since, admittedly, credence if had he knowledge nothing that had ever been about it until a done robbery reported was to have been there. committed He ad- knowing women, appears mitted these and for all that there just apprehending was as much reason for them six months September year. Furthermore, they before as of this practicing prostitution charged not arrested for but were vagrancy. with The evidence that three other women who stated had, lived at the De Luxe Rooms some months before, submitted themselves for the health examination authorities, pure hearsay was petitioners. as to these Further- more, the fact that infected, those women were found not to be and one of them quarantined, was indicates that necessary authorities do not find it to in all cases quarantine in order to reach a conclusion to whether person is infected. The evidence offered four men who that stated subjected place to infection at this reported some time before to the health authorities examination, hearsay is peti- the rankest kind as to these tioners, and furthermore it conceded is that the men were not quarantined.
In In Shepard, re 1077], the return alleged Shepard corpus was isolated of habeas
to writ . syphilis . . being infected with “suspected hospital ’’ infection, that in opinion respond- and gonococcus necessary her to isolate until an examina- it doctor was ent infected; whether determine she was made to tion was “reasonable cause” believe was she deputy relied that a infected. was so evidence negro three sailors were some that there was told sheriff Shepard, whose at the residence of Mrs. girls to be found days out; deputy they pointed that two later the went to indulge Shepard in sexual house, Mrs. if she would' asked consideration, said him for a and she she intercourse with would, arranged deputy return sheriff should charged conducting with a house later for act. She jail, then purpose prostitution, and taken to city 51: hospital. said, page The court ordered nothing here to certainly “There is in the record show Shepard diseased, knows Mrs. to be he has sufficient reason believe that we cannot see that she just guaran regard Paying diseased. constitutional liberty security, right personal personal ties suspicion it must be asserted that more than a mere individual is afflicted an isolable disease is person give an officer‘reason to believe’ that such is so afflicted. *11 lacking the The circumstances disclosed us here in are suspicion elements to establish even a well-defined alleged Mrs. return.- The Shepard that is diseased as in the language purview facts before us come within the of the parte (In re 44 Milstead), Cal.App. the court Ex Dillon P. 239 [186 170].” discharge
Her followed. Arata, 814], In In re 52 Arata was charged in police city the court with violation' ordinance of a making prostitu- a an offense for woman to act of commit an arraigned trial, tion. She was and a date set for her bail being fixed; by police, but her release bail was the refused they asserting department that the health had ordered her until purpose held she submitted to an examination the for determining quarantinable whether she was infected with a petition corpus alleged disease. The for that she habeas infected, prosti- that so she was not and never had been tute, charged her. against did not commit the act Pacts by in the upon stated return and relied were that by Arata, occupied had directed officer to room gone that there and Arata offered to commit an he price act of sexual intercourse and fixed a which the officer paid; thereupon she was arrested and order of the department placed city health jail, the held department “to be examined health officers of the . disease”; . . to determine her freedom from . . . venereal that she had refused to submit to and had been examination pending ordered held determination of her freedom from such disease. It was further stated in the return that the health department had experience determined from over per cent of women apprehended prostitution infected, and that the rules department required of the health health officer city of the cause examination to be made all such persons to determine their from freedom such disease. said, page 383: possess place
“That authorities power persons restrictions under have reason- whom contagious cause to believe are afflicted with able infectious or coming diseases within the definition set in Political forth Code, 2979a, general as a right, may questioned. section not be equally It is true that exercise of power, this unusual infringes upon right liberty which individual, of the personal restraint can imposed where, be under facts brought within knowledge authorities, of the health ground support reasonable exists to [Italics belief person is afflicted as claimed; whether as to court] justified such order is depend will upon the facts each person individual case. Where a her restrained of his or liberty questions power of the health impose authorities to restraint, the burden is immediately the latter to justify by showing support facts in might It order. proved, instance, suspected person had been exposed contagious influences; infectious that some person had contracted such disease her, from him or as the might case proof be. Such tangible ground would furnish for the person belief was afflicted claimed. And we emphasize wish here to proposition, un- law, answerable in that a suspicion, imsupported mere *12 giving probable rise to reasonable or cause, will facts afford justification no at depriving persons all liberty their subjecting them imprisonment to virtual pur- under ported order quarantine.” (Italics mine.) said, page 385:
It also our guaranteed under important rights most “One of the citizen, liberty is involved constitution, that of the over, can encroachments lightly passed nor be cannot that, argument under the right be tolerated even one. The law sought is a beneficent main, general result inten- the best may defiance, even to subserve be set at taken an oath effort; who have much officers tioned less was not offered hearing proof this writ uphold it. At the of her arrest petitioner was at the time to be made that return, in the ill The narrative contained woman of fame. cannot part, be alleged acts in which the officer took against petitioner in the charge made proof taken that the police court true.” discharged. thereupon
Petitioner was 170], on habeas Milstead, In In re in quaran- petitioners’ detention corpus it was contended their arrest pending investigation of their condition after tine The ordinance city illegal. for violation of a ordinance was etc., any rooming-house, unlawful resort to it with one other than purpose having sexual intercourse alleged practice to spouse. The return that it was the ex- brought jail charged with a violation persons amine all involving ordinance, charged with such or other offense quar- immoralities, from sexual to determine their freedom being so disease, petitioners were antinable venereal and that held. said, page 242, commenting after charged persons
event refused to submit to examination confinement, conjectural long they might kept how quarantine are persons subjected that sick who are to such every with and are be treated not deemed to be criminals reasonably pro- consideration and afforded conveniences assuming that Also, that, under the circumstances. curable relating legally made, and that under the laws the arrest was quarantine by duly con- public inspection to the knowh, it is may “where stituted health authorities be made sub- ground, person appears upon or reasonable contagious jected inspection or is afflicted 2979a in section diseases, as enumerated infectious re- Code,” justify detention the of the Political order to why reason should show some further turn of the officer
179 persons suspected detained are afflicted (p. 244) disease. It also said that where sufficient reasonable person quaran- cause exists believe that is afflicted with disease, right no tinable there is doubt of the of the health and, proper way, authorities to examine into the in a case preliminary investigation the fact. But such determine must if delay, and, quarantining be made without is found to be justifiable, may such measures be resorted to as reasonably necessary protect public health, remember- ing persons that the so affected are be treated patients and not as criminals. The conclusion was that the health authorities did not have reasonable cause to believe contagious afflicted with or infectious disease warrant- ing quarantine; discharged. and were ordered Dayton,
In In re
cited majority in the opinion, the court said that testimony reputation the house conducted petitioner was a house of ill fame; that she was an inmate thereof personally participated in the unlawful acts carried on therein; and that the health officers, having information, ground reasonable believe that was affected with venereal disease, and that was all that was department authorized have the health to en- against
force measures her. showing, apparently, peti- case there was no In that part, afflicted; and, stated, tioner’s that she was not so participated showed that she had in the unlawful evidence carried on in the house. acts 694], King,
In In
P.2d
also cited
re
majority opinion, petitioner
in the
was arrested on a morals
charge,
physically
examined
to be
with a
found
afflicted
disputed
finding
venereal
disease. She
demanded a
*14
said,
petition
second examination which was denied. It
on
was
corpus,
requires probable
for habeas
that the law
cause
person
justify
to believe that a
has such disease, to
detention
quarantine
showing
until there is
prob-
sufficient
that such
longer
comparable
able cause no
exists. That case is not
to
petitioner
this
been found to be infected before she
sought
corpus.
release on habeas
parte Hardcastle,
In Ex
84
531,
Tex.Cr. 463
S.W.
[208
2
1539],
corpus,
A.L.R
on habeas
relator was held
virtue
quarantine
a
order.
court
right
said
that she
a
have the existence of the
allegedly
to
disease for which she was
quarantined,
inquired into on
corpus,
habeas
and that “If
exist,
do
jurisdiction
those facts
not
the officer has no
to con-
restraint,
tinue the
and the court in
corpus pro-
the habeas
ceeding
authority
inquire
has
to
whether
essential
the facts
jurisdiction
to
exist.”
It went
say
on to
that the decision
of the health
who
officer
ordered the arrest was not conclu-
sive;
right
that relator had the
prove
nonexistence
facts'necessary
to authorize her continued detention.
Wragg Griffin,
In
v.
“It be said at the outset objection raised necessarily does not challenge validity any statute or rule of the board authority given quarantine persons is who afflicted contagious disease, segregate or to remove dis- person or or separate detention in eased from his own home for far hospital and detain him he has so detention until longer the health recovered his health as to be no a menace to community. purposes All may, such measures for the case, of this be sustained as a wise and exercise of valid police power general good. admitting such But, for case, be the does it follow that known to person not be so (so showing diseased and far visible appears) as here no evidence, sign, symptom may subjected disease, of such arrest, imprisonment, person no violation of his better reason than ‘suspected,’ by that he is some one whose identity revealed, satisfy is not diseased, to be board of health or fact some its officers whether there inis any ground for suspicion? extraordinary If such authority drastic exists, it must be found in the statute or in some valid rule or lawfully prescribed by rules the board of health.” Judge dissenting opinion of Nourse in In re
Also see Cal.App. 764, Travers, 768-771 454]. respondent’s Malcolm, witness, the assertion Dr.
As for necessity holding these as to the days eight least order that the health authorities for at or not ascertain whether are afflicted with a venereal may disease, it weakened his admissions that imposed others, one of whom at admitted least *15 quarantined. and that the men examined prostitute, were not may Furthermore, suspected persons for his assertion that mask or conceal evidence of venereal disease the methods referred, I to which he see no reason assume that these any petitioners would have motive desire to conceal evi- or They criminals, dence of disease. are not detained as provisions 1963(1) under the of section Civil of the Code of presumed wrong. be Procedure are innocent of crime or Important may persons as it be considered that those who prostitution may protected houses of have recourse to be from danger of infection from venereal as a result of disease indulgence, my opinion equally impor- their it is at least con- deprived should not of their that these women be tant right jail and that to freedom from detention in stitutional restraint, they compelled, pain be on indefinite not should per- rights privacy of their to submit to invasion of their pur- case as sons, more than has been shown in this without detention, particularly justification their further ported indicating presented behalf view evidence on their they are afflicted not with venereal disease. protests As for the respondent parties detained should not bail, orders not be admitted to it is precedent without for a seek- court to so release a ing by way corpus. appears relief in several of habeas It cases, not elsewhere, petitioners in this state but See, instance, Johnson, so released. In re ; Travers, Wragg In supra; Griffin, re v. 644] supra. my opinion
In respondent has failed to show reasonable probable or cause to believe these infected petitioners any exposed venereal disease or that have contagion, or that one has such disease from contracted them,' have committed prostitution. acts of question whether, before us is reliance the portions may record before us now be found justification possible petitioners, some for the detention whether, but upon competent us, we, evidence before fact, finders of are satisfied that has shown rea- (not suspect) petitioners sonable cause believe these stage. are infected with a venereal disease in an infectious prostitute Even a of those protection entitled to the liberty our principles fundamental the basis of which are ought political an officer institutions; civil and and the zeal of rights permitted never to transcend the constitutional discharged. of an accused. The should be 8, Dist. 3805. Fourth Jan. No. [Civ. 1948.] JESSIE v. al., Respondents, FRANK M. SABATHE et Appellant. GALE,