|||DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION
|||Crim. No. 12263
54 Cal. Rptr. 661; 246 Cal. App. 2d 553
|||November 18, 1966
|||IN RE ERIC HALKO ON HABEAS CORPUS
|||PROCEEDING in habeas corpus to secure release from the security side of
|||Bertram H. Ross, under appointment by the Court of Appeal, for Petitioner.
|||Harold W. Kennedy, County Counsel, and Gordon W. Treharne, Deputy County
Counsel, for Respondent.
|||Chantry, J. pro tem.*fn*
Files, P. J., and Jefferson, J., concurred.
[246 CalApp2d Page 554]
|||This is an application for a writ of habeas corpus by which petitioner,
Eric Halko, seeks release from the Mira Loma Hospital, security side.
|||Petitioner has a diagnosis of pulmonary tuberculosis, minimal active.
On July 1, 1964, he was served with a quarantine order of isolation confining
him to Mira Loma Hospital. He deserted that institution on August 1, 1964,
and was subsequently arrested, tried, and convicted of violating section
3351*fn1 of the
and Safety Code of California.*fn2
On August 20, 1964, he was sentenced to 180 days in jail by the judge of
the municipal court, Antelope Judicial District. The sentence was suspended,
and the petitioner was placed on probation for three years on condition
he serve the first 179 days in jail. Prior to serving the jail sentence
the petitioner was served with an order of isolation because of his tubercular
condition and returned to the Mira Loma Hospital, security side. Thereafter,
except for one interlude not pertinent to a determination of this case,
a public health officer of this county served Halko with successive orders
of isolation at Mira Loma Hospital for periods of approximately six months
each. These orders are dated January, June, and December of 1965 and March
1966. The petitioner on May 5, 1966, sought a writ of habeas corpus from
department 70 of the Superior Court of Los Angeles County. At the conclusion
of the hearing in that court the application for writ of habeas corpus was
|||Petitioner contends the right of the health officer to issue consecutive
certificates of quarantine and isolation for periods of six months each,
"without means of questioning and judicially determining" the
conclusion of the health officer, results in "continually depriving
one of his liberty." Therefore, section 3285 "is unconstitutional
in that it deprives this petitioner of his liberty without due process of
[246 CalApp2d Page 555]
|||We disagree with the petitioner's interpretation of the law and his assertion
that section 3285 is unconstitutional.
|||Chapter 5 of the
and Safety Code (sections 3279-3310) deals extensively with tuberculosis.
Pulmonary tuberculosis is declared to be an infectious and communicable
disease, dangerous to public health. Each city, county, or group of counties
may establish and maintain tuberculosis wards, hospitals and sanitariums
for the treatment of persons suffering from tuberculosis. Each person being
cared for at public expense in a public or private hospital or sanitarium
is subsidized by an allocation from state funds to the city, county or group
of counties affected.
|||Section 3285 of the
and Safety Code sets forth with some particularity the duties and powers
of the public health officer in treating with the control of tuberculosis
by inspection, examination, quarantine, or isolation. Each health officer
is directed to use every available means to ascertain the existence of,
and immediately to investigate, all reported or suspected cases of tuberculosis
in the infectious stage within his jurisdiction and to ascertain the sources
of such infection. In carrying out such investigations each health officer
is invested with full powers of inspection, examination, and quarantine
or isolation of all persons known to be infected with tuberculosis in an
|||The section also contains the following provisions:
|||(1) Whenever the health officer shall determine on reasonable grounds
that an examination of any person is necessary for the preservation and
protection of the public health, he shall make an examination order in writing,
setting forth the name of the person to be examined, the time and place
of the examination, and such other terms and conditions as may be necessary
to protect the public health. Any person served with an examination order
may have such examination made by a physician of his own choice under such
terms and conditions as the health officer shall determine on reasonable
grounds to be necessary to protect the public health. (3285, subd. (c).)
|||(2) The health officer may make an isolation or quarantine order whenever
he shall determine in a particular case that quarantine or isolation is
necessary for the protection of the public health. The isolation or quarantine
order shall be in writing, setting forth the name of the person to be isolated,
the period of time during which the order shall remain effective, the place
of isolation or quarantine, and such other terms and
[246 CalApp2d Page 556]
|||conditions as may be necessary to protect the public health. (3285, subd.
|||Any person who, after service upon him of an order of a health officer
directing his isolation or examination as provided in 3285, violates or
fails to comply with said order is guilty of a misdemeanor. (3351.) The
violator shall be prosecuted by the district attorney of the county in which
the violation was committed upon the request of a health officer as provided
in section 3355.
|||The duty of the state to protect the public from the danger of tuberculosis
is prescribed by the Supreme Court of this state in the following statement:
"It is a well-recognized principle that it is one of the first duties
of a state to take all necessary steps for the promotion and protection
of the health and comfort of its inhabitants. The preservation of the public
health is universally conceded to be one of the duties devolving upon the
state as a sovereignty, and whatever reasonably tends to preserve the public
health is a subject upon which the legislature, within its police power,
may take action. That tuberculosis is a dangerous and infectious disease
which attacks both human beings and domestic animals; that it is prevalent
throughout the state among both human beings and domestic animals; and that
it is communicated to human beings, especially to children, by milk and
other food products from infected animals, stand undisputed. . . . In other
words, health regulations enacted by the state under its police power and
providing even drastic measures for the elimination of disease, whether
in human beings, crops or cattle, in a general way are not affected by constitutional
provisions, either of the state or national government. (Lausen v. Board
of Supervisors, 204 Iowa 30, 33 [214 N.W. 682, 684].)
|||". . . . In construing such an act, the courts must presume that
the legislature has carefully investigated and has properly determined that
the interests of the public require legislation that will insure the public
safety and the public health against threatened danger from diseased animals
. . ." and human beings. "The determination of that fact is the
province of the legislature, and not of the courts. It is also the province
of the legislature, in the exercise of a sound discretion, to determine
what measures are necessary for the protection of such interests. [Citations.]"
(Patrick v. Riley,
209 Cal. 350
, 354, 356 [
287 P. 455].
|||"The determination by the legislative body that a particular regulation
is necessary for the protection or preservation of
[246 CalApp2d Page 557]
|||health is conclusive on the courts except only to the limitation that
it must be a reasonable determination, not an abuse of discretion, and must
not infringe rights secured by the Constitution. [Citations.]" (DeAryan
119 Cal. App. 2d 674
, 682 [
260 P.2d 98].
|||The Legislature is vested with broad discretion in determining what are
contagious and infectious diseases and in adopting means for preventing
the spread thereof. (In re Johnson, 40 Cal. App. 242 [180 P. 644]; Abeel
84 Cal. 226
24 P. 383].
) In order to accomplish the purpose for which this law was enacted, the
court should give it a broad and liberal construction. (39 C.J.S., p. 811,
|||The act here in question was obviously passed by the Legislature for a
public purpose. It is a law for the suppression of a contagious disease
and the promotion of the public health. The provisions of section 3285 of
and Safety Code seem reasonable and necessary for the protection and preservation
of the public health. It does not appear to us that the Legislature has
abused its discretion or violated the terms of the federal or state Constitution
by enactment of section 3285.
|||We now turn to the question of the public health officer's right to restrict
the liberty of petitioner to the Mira Loma Hospital by successive isolation
or quarantine orders. Petitioner does not dispute the finding of the health
officer that he was, when subjected to quarantine regulations, and is now
afflicted and suffering from pulmonary tuberculosis which is declared by
section 3285 to be an infectious and communicable disease and dangerous
to the public health. The petition filed here does not allege that he is
free of the disease.
|||Subdivision (d) of section 3285 directs the health officer to make an
isolation or quarantine order in writing, specifying the place of quarantine
and other appropriate terms. In re Culver,
187 Cal. 437
, 442 [
202 P. 661]
, states that the verb "quarantine" means '"to keep persons,
when suspected of having contracted or been exposed to an infectious disease,
out of a community, or to confine them to a given place therein, and to
prevent intercourse between them and the people generally of such community."'
|||Under former Political Code section 2979a and former Health and Safety
Code section 2554*fn3 health
officers were given the power to quarantine persons found to have a venereal
[246 CalApp2d Page 558]
|||Persons who were confined in county hospitals or jails pursuant to quarantine
orders issued by health officers under those statutes have been denied release
on habeas corpus, where the evidence showed reasonable cause to believe
that the person was infected. (In re Martin,
83 Cal. App. 2d 164
188 P.2d 287]
; In re King, 128 Cal. App. 27 [16 P.2d 694]; In re Fisher, 74 Cal. App.
225 [239 P. 1100]; In re Travers, 48 Cal. App. 764 [192 P. 454].)
|||On the other hand, a person quarantined without reasonable grounds is
entitled to relief by habeas corpus. (In re Arata, 52 Cal. App. 380 [198
P. 814].) But in that case the court was careful to point out that the issue
is a factual one. The opinion states at page 383: "That the health
authorities possess the power to place under quarantine restrictions persons
whom they have reasonable cause to believe are afflicted with infectious
or contagious diseases coming within the definition set forth in Political
Code, section 2979a, as a general right, may not be questioned. It is equally
true that in the exercise of this unusual power, which infringes upon the
right of liberty of the individual, personal restraint can only be imposed
where, under the facts as brought within the knowledge of the health authorities,
reasonable ground exists to support the belief that the person is afflicted
as claimed; and as to whether such order is justified will depend upon the
facts of each individual case."
|||Section 3285 does not contain any limitation or prohibition respecting
the period of quarantine or the power of the health officer to issue consecutive
certificates of isolation. The law reasonably assumes that consecutive orders
for quarantine may issue so long as any person continues to be infected
with tuberculosis and on reasonable grounds is believed by the health officer
to be dangerous to the public health. (In re King, 128 Cal. App. 27 [16
|||There is nothing in this record to indicate the health officer issued
any of the respective quarantine orders without probable cause or that petitioner
does not at this time have an infectious and communicable disease which
is dangerous to the public health.
|||The writ is denied.
|||*fn* Assigned by the
Chairman of the Judicial Council.
|||*fn1 "Inasmuch as
the order provided for by Section 3285 is for the protection of the public
health, any person who, after service upon him of an order of a health officer
directing his isolation or examination as provided in Section 3285, violates
or fails to comply with the same or any provision thereof, is guilty of
a misdemeanor. . . ."
|||*fn2 All references are
and Safety Code unless otherwise indicated.
|||*fn3 See present sections
3053, 3194, 3195.
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