Pinkham v. Dorothy

55 Me. 135

Opinion

Appleton, C. J.

By K. S., 1857, c. 14, § 1, the municipal officers of a town are authorized to provide for the safety of its inhabitants, " by removing” any person infected with any disease or sickness dangerous to the public health, to a separate house, &c.

By § 26, they are authorized to provide hospitals for the reception of persons having the small pox or other disease dangerous to the public health.

By § 29, hospitals are to be provided on the breaking out of any infectious disease "and they shall cause such sick and infected to be removed thereto, unless their condition will not admit of it without imminent danger; in that case, the house or' place where the sick is shall be deemed a hospital for every purpose aforesaid.”

By § 7, provision is made for the removal of infected articles and for the impressing of "convenient houses or stores for the safe keeping of such infected articles.”

Ill none of these cases is the power given to impress the means of removal, whether the removal be of the sick or of iniected articles. The officer is to provide the means of removal; not to impress them. The removal is commanded. The officer is to discharge this as he does other duties. IIo provides alike for the removal of the sick; of infected articles; and of debtors and convicts, in such mode and manner as he judges most expedient.

By § 5, " any two justices of the peace may issue a warrant directed to a proper officer, requiring him to remove any person infected with contagious sickness, under the direction of the municipal officers where he is; or to impress and tabe up convenient Jiouses, lodgings, nurses, attendants and other necessaries for the accommodation of the sick.”

This section is in the alternative. In case the condition of the sick will admit, they are to be removed under’ § 29 to the hospital. If not in condition to be safely removed, authority is given to impress " the house or place where the sick is.”

The first clause of the section authorizes the issuing a warrant " directed to a proper officer, requiring him to remove any person infected with contagious sickness, under the direction of the municipal officers where he is.” This gives the power to remove. It gives no authority to impress for the purposes of removal. The authority for removal is given, but the proper officer is to discharge the duty as he does other duties, by means of his own procurement. The right to impress is not to be inferred. It is only to be exercised when expressly granted. The whole power of removal. is given in this clause, and it contains nothing from which a right to impress can possibly bo inferred.

But it may not be expedient to remove. The situation of the infected may be such that removal would be dangerous. Accordingly, provision is made when removal for any cause becomes inexpedient, by the latter clause of § 5, in these words, — "or to impress and take up convenient houses and lodgings, nurses and attendants, and other necessaries for the accommodation, safety and. relief of the sick.” This provision is for the relief of the sick in the houses, &c., impressed. The subject of removal is provided for in what precedes. The removal is to the hospital. The impressment is authorized as to specific things, and the authority to impress is not to be enlarged by construction, upon any recognized principles of interpretation. " Other measures for the accommodation, safety and relief of the sick,” are for the sick in the houses or lodgings impressed. They do not include horses or carriages. The context nega-‘‘ fives this. The right to impress is given after the authority to remove. The last clause neither expressly nor impliedly has any relation to the subject of removal. It refers to the sick who cauuot be removed, and, not being removable, the house, or lodgings in Which they are, is impressed, together with "other necessaries” for their accommodation.

Exceptions overruled.

Cutting, Kent, Dickerson, Barrows and Daneortii, JJ., concurred. Walton and Tapley, JJ., did not concur.