State v. Wordin , 56 Conn. 216 ( 1887 )

Pardee, J.

'The' legislature in the charter granted to the city of Bridgeport conferred power upon the court of common council to establish ordinances “relative to the cleanliness and health of the city;”' also, “relative to any and all other subjects that shall be deemed necessary and proper for the protection and preservation of the health, property and lives of the citizens.” Under the power thus given the court of common council ordained that “every physician, or person acting as such, who shall have any patient within the limits of said city sick with small-pox or varioloid or other infectious or pestilential disease, shall forthwith report the fact to the mayor, or to the clerk of the board of health, together with the name of such patient and the street and number of the house where such patient is treated; and in default of so doing shall forfeit and pay not exceeding fifty dollars for each and every such offense.”

The complaint charged that on the first day of December,' 1886, the defendant, a physician practicing in said city, had a patient within the limits thereof sick of a contagious and infectious disease known as diphtheria, of which fact he neglected to make any report to any person. Upon plea of not guilty there was a verdict of guilty, and a judgment that he should pay a fine and costs.

The defendant appealed, assigning as reason of appeal that the court refused to charge the jury in accordance with the following written request, namely:—“ That the ordinance in question is inoperative and void—1st. Because it is repugnant to and inconsistent with section nine of article first of the constitution of Connecticut, and the fifth and fourteenth amendments to the constitution of the United States, inasmuch as it takes the time of and compels work from each practicing physician, and hence arbitrarily deprives him of his property without due process of law. 2d. Because it is repugnant to and.inconsistent with section nine of article first of the constitution of Connecticut, and the fifth and fourteenth amendments to the constitution of the United States, inasmuch as it hinders and prevents the usual avocation of the physician, deprives him of his time, and restrains his lawful movements, and therefore deprives him of his liberty. 8d. Because it is repugnant to and inconsistent with section eleven of article first' of the constitution of Connecticut, and the fifth and fourteenth amendments to the constitution of the United States, inasmuch as it takes private property for public use, without making compensation therefor. 4th. Because it is repugnant to and inconsistent with the fourteenth amendment to the United States constitution, inasmuch as it imposes a burden upon a class, namely, physicians, and gives them no compensation therefor, and places no corresponding burden upon the rest of the public. 5th. Because it imposes a special burden for the public benefit upon a class, which burden is of no peculiar or special benefit to the class bearing the burden. 6th. Because it is repugnant to and inconsistent with the thirteenth amendment ,to the constitution of the United States, inasmuch as it forces the physician to labor for the benefit of the public without compensation and thus imposes a form of servitude. 7th. Because it is in contravention of the general law of the state and the United States, inasmuch as it takes private property for public use without maldng compensation, restrains the liberty of the citizen, and imposes a special burden upon a class without giving it some peculiar and special benefit. 8th. Because it is contrary to the principles of the common law and repugnant to the principles of fundamental right and natural justice, inasmuch as it takes private property for public use without making compensation, restrains the liberty of the citizen, and imposes a special burden upon a class without giving it some peculiar and special benefit. 9th. Because it is unjust and unreasonable, inasmuch as it takes professional knowledge for which it pays nothing ; deprives the physician of his time, which is his liberty, and compels the performance of labor, which is a taking of his property; brings him into unpleasantness with his patients and thus injures his business ; interferes with bis business; puts upon a class a public burden and hence is class legislation; and imposes a burden on physicians alone which might have been placed upon eacli householder, and for these reasons is an undue interference with a lawful business.”

In conferring authority upon the legislature of the city to pass the ordinance, the legislature of the state was in the performance of its duty and in the exercise of its power to protect its citizens from exposure to contagious, fatal diseases.

Of absolute necessity this power inheres in every organized community; otherwise there would be only organized suicide. It takes unwritten precedence of all provisions for the protection of rights of property, and includes the right to require as much of the services or property of each as may be necessary to the preservation of the lives of all, without provision for payment therefor. The people of this state have not by the constitution parted with any portion of this power which was in them, nor have they put any limitation upon themselves as to the exercise of it. It is now as fully in the legislature as at the beginning it was in the people.

The purpose of assembling in communities being the promotion of the welfare of all, the legislature is under obligation to place the resulting burdens as equally as possible. It is not to subject one to requirements so much more burdensome than those placed upon others as to violate the great principles of common rights, the fundamental principles and purposes of the social compact, or shock the sense of .justice. To this test all laws may be subjected.

Tried by this, is an ordinance which requires one to lose a small portion of his time that the lives of many may be saved, offensive to the constitution ? An ordinance requiring the person who in the night season should first discover a dwelling-house in the city to be on fire, to turn aside and arouse the inmates and sound the alarm without compensation, would not shock any one. Nor, we think, does one requiring the person who first discovers in a crowded street the presence of a contagious, fatal disease, to notify, without compensation, the official charged with the duty of preserving health and protecting life therein. If to compel this gratuitous service is to violate the principles of the social compact, it would be better to dissolve and reorganize.

The constitution of the Ünited States protects the individual from the taking of his property without due process of law; from the taking for public use without just compensation ; from slavery or involuntary servitude; and secures to him the equal protection of the law. In effect, that neither life, liberty nor property may be taken except upon judicial determination made upon hearing, according to established rules of justice and precedents of courts, applied equally to all; that neither service nor property may be taken from any one for the pecuniary advantage of the public except upon just compensation ascertained upon hearing in due process of law; that no one may be compelled to render service to another ; and that the eye of the law shall not see any distinction of race or color. But these provisions place no limitation upon the power of the legislature of this state to require gratuitous service from one member' of the community in the protection of the lives of all, other than that which would have been equally upon it in their absence, namely, that it shall not violate the fundamental principles and purposes of the social compact.

These provisions, and our legislative enactments for protection of life from fatal pestilence are on different planes ; they move upon parallel lines ; they never conflict.

Courts in many instances have approved of laws forbidding the use of buildings for specific purposes; forbidding individuals from exercising certain trades within specified limits; restricting them as to the manner in which they shall carry on certain kinds of business; all this upon the principle that no one may be permitted so to use his property as to injure the health or peril the life of another.

In case of fires in cities the public authorities have been protected in the destruction of a building, for the purpose of breaking the combustible chain of communication, without compensation to the owner, because his property had become a source of danger to that of others, although without fault of his. Individuals are compelled to suffer a ,modified imprisonment because some person afflicted with a contagious, fatal disease has, without their knowledge, come into their presence and made them possible means of communicating it to others. The state may compel a citizen to resist invasion ; to assist the sheriff in the protection of life, in the enforcement of process and in the preservation of public peace. Under these circumstances, the constitutional right to compensation for service stands in abeyance.

Equally so when the matter in hand is the defense of the public from a coming fatal pestilence. In these several instances, not because the individual is using either his property or his time to the'injury of any other; hot because he is a source of danger to any other: but for this equally well-grounded rfeason, namely, that he alone happens to be in a position where he could serve the community in an emergency involving life ; and in such case it is the duty of the state to make use of him as its most effective instrument. 1

In his concession that the ordinance would be valid in the ravages of pestilence, under presence of an overwhelming necessity to prevent public calamity, the defendant concedes the whole ease. An ordinance of this character .must be intensely practical; a proper regard for human life demands that a contagious, fatal disease shall be barred rather than •driven out.

■ The inequality of burden of which the defendant complains is only in sfeeming. Persons offering their services to tlie public as healers of disease and requiring' pecuniary compensation therefor, thereby assert their ability to detect the presence of it when the great mass of the people cannot. The people accede to the truth of their assertion, and in the matter of life surrender themselves to their keeping. Of course an ordinance in the interest of life must detect the presence of a fatal contagious disease at the earliest possible moment. Therefore with impartial action it compels that member of the community who is the first to have sight and knowledge of it, to give note of warning to others from whom its presence is hidden. It would be idle to require, indeed there would be danger in accepting, this service from those who cannot see or do not know. The burden is made to rest upon every member of the only class which is in a condition to contribute anything to the accomplishment of the purpose of the ordinance.

There is no error in the judgment complained of.

In this opinion the other judges concurred.