People v. Bellinger, 129 N.Y.S. 92

People v. Bellinger

129 N.Y.S. 92 | N.Y. App. Div. | 1911

Robson, J.:

The purpose of this action is the recovery from defendant of a penalty for an alleged violation and disregard by him of the *142terms of a notice issued by the Commissioner of Agriculture declaring the existence in tbe town of Forestport, Oneida county, of the infectious disease known as rabies, which is specified in the notice. That the notice in due form was issued by the Commissioner .of Agriculture is not questioned. Among other things it contained an order made by the Commissioner that all persons owning, having charge of, or harboring dogs . in that town should “so seclude, confine or muzzle such dogs as to make it impossible for such dogs to bite or inoculate other animals or- persons.” . Plaintiff proved defendant’s actual knowledge of this notice and his violation and disregard of its terms. The nonsuit was granted on the ground that this notice was not published and posted as required by section 91 of the Agricultural Law (Consol. Laws, chap. 1 [Laws of 1909, chap. 9], as amd. by Laws of 1909, chap. 313). That part of the section material to the present inquiry reads: “ Commissioner to issue notice. He shall issue and publish a notice stating, that a specified infectious or . contagious disease exists in the State or in any designated county or other geographical 'district of the State, and warning all persons to seclude in the premises where they may be at the time all animals within the ⅜ ⅞ ⅜ district, ⅜ ⅜ ⅜ that are of a kind susceptible to contract such disease, and ordering all persons to take such precaution against the spreading of the disease as the nature thereof may in his judgment render 'necessary or expedient, and which he may specify in such notice. Such notice shall be published in such newspapers and be posted in such maimer as the Commissioner may designate, and as, in his judgment, are most likely to give notice thereof.” The trial coxirt held that the effect of the last - sentence above quoted was that the Commissioner was thereby required personally in each instance when the existence of an infectious disease was declared by him to designate in writing the newspapers in which the notice was to be published and the manner in which it was to be posted. It was conceded that no -written designation by the Commissioner of the manner in which this notice was to be posted was made. The nonsuit was granted solely because of that fact and on that ground.

Section 90 of the act (as amd. by Laws of 1909, chap. *143312) has this caption: “Suppression of infectious and contagious diseases.”. One of the provisions of this section is as follows: “Whenever any infectious or contagious disease affecting domestic animals shall exist, be brought into or break out in this State the Commissioner of Agriculture shall take measures to promptly suppress the same, and to prevent such disease from spreading.” The duty is imposed upon local hoards of health.of notifying the Commissioner of the existence of such diseases in the districts subject to their jurisdiction. Manifestly the purpose of the statute is to give to the Commissioner power to determine not only the existence of such a disease hut also the geographical district of the State liable to be affected thereby. Having ascertained and determined these facts it is then his duty to issue the notice prescribed by section 91 above quoted. Though this section also provides for the posting and publication of such notice, yet it would seem that the district designated in the notice is effectually quarantined (adopting the terminology used in section 96, as amended by chapter 352 of the Laws of 1909) as soon as the Commissioner makes his determination and issues the notice, and before publication and posting of the notice are completed. This must be true, if the purpose of the statute in requiring the Commissioner to take measures to promptly suppress the disease is to be effectuated. 0For, if the quarantine is not effectually established until the notice has been posted and published for a reasonable length of time, then prompt action in suppressing the disease is impossible, and incalculable damage might be the result. This conclusion is corroborated by the provisions of section. 97, which relates to fines and penalties. This section (as amd. by Laws of 1909, chap. 352) reads in part: “Any person violating, disobeying or disregarding the term of any notice, order or regulation issued or prescribed by the Commissioner under this article shall forfeit to the People of the State the sum of not less than fifty dollars nor more than one hundred dollars for every such violation.” It will be observed that the penalty is incurred by a violation of a notice which has been “issued;” and the statute does not, in terms at least, indicate that a viola- , tion of the notice can be established only when it is shown *144that the notice has been published and posted. The implication and plain effect.of the provision are to the contrary..

It is apparent that the purpose of the requirement as to posting and publishing the notice is that knowledge of its contents may be given to those persons whom it affects. If it has been duly published and posted, that fact imports notice sufficiently brought home to every one, and actual knowledge of it need not be shown. But in'this case plaintiff does not depend alone on this constructive notice to defendant, but shows that he had actual knowledge of the notice and its terms, Proof of actual knowledge of the notice is as effectual and quite as satisfactory as the constructive notice implied from its publication and posting, and is sufficient for the purposes of this action.

It seems also that the notice was in fact duly published and posted as the statute provides. Due publication thereof, as directed by the Commissioner in writing, was proved. More than one hundred copies df it were publicly posted in different places throughout the town, .complying with verbal general directions given by the Commissioner to his assistant commissioners as to the manner in which such notices should be posted. If the Commissioner had in writing directed the notice to be posted exactly as it was shown to have been posted, it is conceded that it would have been properly posted.

It cannot well be doubted that this statute was intended to promote the safety and well being of the public and of the property of persons owning domestic animals. Enactments having such purpose have generally beeh accorded an equitable construction; i. e., a construction which will give effect to the clear purpose of the statute rather than one which will nullify it, if the language used permits such a construction. (People v. Abraham, 16 App. Div. 58.) The act does not in terms require the Commissioner’s designation of the manner in which the notice should be posted and published to be in writing. In effect it would seem to be' optional with the Commissioner whether the designation should be made in writing or verbally.. It may be that a written designation would be more in accordance with usual practice; but the statute does not point to that as the only effectual way in which it can be made.

*145The judgment should be reversed and a new trial granted, with costs to the appellant to abide event.

All concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.