35 N.Y. Crim. 287 | N.Y. Sup. Ct. | 1916
The state having the ultimate power to protect and preserve the public health has the right to impose by statute reasonable regulations to accomplish that purpose (Fischer v. St. Louis, 194 U. S. 361; Jacobson v. Massachusetts, 197 id. 17; Lieberman v. Van De Car, 199 id. 552; Matter of Viemeister, 179 N. Y. 235; Matter of Walters, 84 Hun, 457, 460) and may delegate that power to local authorities for its more convenient exercise in political subdivisions’ of the state. Fischer v. St. Louis, supra; Jacobson v. Massachusetts, supra; People ex rel. Lieberman v. Van De Car, 175 N. Y. 440, 444, 445; affd., 199 U. S. 552; People ex rel. Shelter v. Owen, 66 Misc. Rep. 24; State v. Nelson, 68 N. W. Rep. 1066; 17 L. R. A. (N. S.) note 709.
In this case the state has delegated that power to the city authorities, not by the Public Health Law or
But the legislature by the charter of the city- has expressly conferred authority, with respect to the pro-' tection and preservation of the public health of the people of the city subject to limitations imposed by the Public Health Law or other statutes and the Sanitary Code, upon the common council, commissioner of public safety and the health officer. Laws of 1907, chap. 755. The common council may pass general rules and regulations on this subject and thus control or limit the action of the commissioner of public safety and the health officer except as they may be given specific authority by any provision of the charter. Id. § 340. If the common council does not
This authority and responsibility primarily rest upon the commissioner of public safety. The charter vests in the department of public safety, limited by general rules and regulations of the common council, the jurisdiction, care and responsibility of the health of the people of the city subject of course also to any limitations or restrictions imposed by any general • legislation or state regulations. It is for the commissioner of public safety therefore, the common council not having done so, to prescribe the requirements upon which a license shall be issued, and his requirements, unless arbitrary, capricious or unreasonable, must be observed.
The health bureau is made a part of the depart- : ment of public safety and the health officer is made its executive officer and as such he has the active - supervision and responsibility of the health of the
In this instance the question of delegation by the common council does not arise as the ordinance of the common council did not purport to delegate to the health' bureau any discretionary power to issue licenses but vested in it ministerial functions merely; nor does the question of delegation by the commissioner of public safety arise as the commissioner himself required this relator to submit to a blood test and denied him a license because of his refusal to comply with the condition imposed upon his right to sell milk and cream. The commissioner of public safety has asked him to submit a drop of his blood for microscopic examination for evidences of typhoid, as other applicants have done, in order to make sure that he is not a carrier of typhoid and this he has refused to do although but slight inconvenience will be occasioned to him thereby.
This test is but a part of the precautions among many others deemed necessary to provide for the people of the city a clean, pure and wholesome supply of milk and cream free from disease germs, and unless it can be said to be unreasonable and unjust it must be observed by those applying for a license to engage
The power to impose suitable and reasonable conditions for the sale of-milk and cream in the city •being in the commissioner of public safety, in the absence of any restrictive ordinances of the common council, statutes of the state or sanitary provisions of the public health council, he may act in anticipation of. any emergency and may under normal conditions of public health provide such measures as he may deem reasonably necessary to protect and preserve the public. He is not required to wait until an epidemic arises but may anticipate such a condition and may guard against it by such reasonable precautions as he deems necessary. The duty of the commissioner of public safety to foresee dangers to public health and to provide against them is quite as important, if not more so,- than that of eradicating an epidemic after it has arisen.
The character of the precautions that may be reasonably necessary in normal conditions of public health depends upon the circumstances and each requirement must be passed upon in the light of the conditions existing at the time of its adoption. Extraordinary measures adapted to emergencies are not suitable and would not be regarded as reasonable at ordinary times. Each requirement must be adapted to the circumstances of the condition and times and must not be unreasonable or oppressive. Good judgment and common sense must be employed and when the requirements meet this test and that of sound ■'reason they will be upheld. It has been held, for ■instance, that dairy and cow stables may be prohibited i within the limits of a city (Fischer v. St. Louis, 194 U. S. 361); that it is. not a denial of the equal pro
The present condition of the public health of the city with respect to typhoid is not abnormal and still the requirement of a blood test as a condition for a license to sell milk and cream seems to be a fair and reasonable precaution to protect the public against any increase of typhoid. Milk is a particularly sensitive product produced under conditions which if not regulated and controlled may carry and disseminate the germs of typhoid or other diseases and spread them in the community. It is the chief food of infants and lies at the basis of their health ■ and strength. It may be heated, sterilized or pasteurized but even then contact with unclean utensils or unclean human beings may make it the carrier of disease germs. Unlike other articles of food it cannot be washed and otherwise cleansed in the home. The impurities may be hidden from sight and thus a sense of security engendered which .may render it a still more serious
That typhoid is a contagious disease and may be transmitted by one afflicted with the disease is a matter of common knowledge and the court will take notice of that fact without proof. Hunter v. New York, O. & W. R. R. Co., 116 N. Y. 615, 623; People v. Lochner, 177 id. 169; Jones v. United States, 137 U. S. 202, 216; Matter of Viemeister, 179 N. Y. 235, 241. The court will also take notice of the fact that an examination of a drop of blood will reveal whether or not the person from whom it has been taken has had typhoid. This may not be universally held by scientific men or universally believed by the people, but until science disproves the value of the test it will be accepted by the courts as true. Matter of Viemeister, supra, and other cases cited above.
The imposition of this test with respect to this particular occupation and the requirement of this and any other test in any other occupation which may affect the public health rests in the sound discretion of the state or local authorities in whom the discretion to pass upon the subject has been vested. It is not an arbitrary or capricious discretion but one Which under the circumstances is reasonable and just. People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187; People ex rel. Cumisky v. Wurster, 14 App. Div. 556; People ex rel. Dorr v. Thacher, 42 Hun, 349; People ex rel. Shelter v. Owen, 66 Misc. Rep. 24; People ex rel. Moses v. Gaynor, 77 id. 576; 17 L. R. A. (N. S.) note 709.
This rule does not infringe upon the civil rights
It is important, therefore, to the whole community-that the supply of milk and cream should be kept clean, • pure and wholesome and should not be contaminated with impurities, or infected with disease, and it' is the duty of the health authorities to see that this is ■accomplished by the establishment of such reasonable regulations as may be necessary to meet existing conditions or to ward off impending dangers to the public health, and in imposing a blood test as a condition to á license- to sell milk and cream in the city the commissioner of public safety and the health officer acted within the scope of their authority and applicants for such a license should co-operate with the public authorities and assist rather than oppose' reasonable efforts to provide pure and wholesome milk and cream for the people of the city. The re-' quirement of á blood test"of an applicant for a license' is just a. step and a small one in- the direction of the protection of the public health, but every reasonable effort made, in this direction should be encouraged
Application denied, with costs.