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Historic Public Health and Communicable Disease Cases

Elected offical can be personally liable for seizing property without proper authority - Boom v. City of Utica, 2 Barb. 104, 1848 WL 4861 (N.Y.Sup.Gen.Term, 1848) - link to actual text of the case

(Trespass, Smallpox, Takings, Police Powers, Nuisance)

In April of 1840 Mr. Boom executed a lease with the city to live on a property for the sum of $10 a year. On the property was a vacant house. Harry Bushnell, the city alderman, took possession of the house and placed an immigrant family infected with smallpox in the house. This possession was without consent of Mr. Boom. Mr. Bushnell claimed to be acting with the authority of a committee of the city council. However, there was no written record of this committee or their resolution to quarantine families infected with smallpox found in the city council records. Mr. Bushnell said the council had decided to not make this a matter of public record for fear of panic. Although Mr. Boom did not occupy this house, the family's presence, because of the contagious nature of smallpox, prevented Mr. Boom's full enjoyment of the property. Mr. Boom sued the City in a tort action for trespass and was awarded seventy-five dollars. The Supreme Court reversed the decision on the basis of several reasons. First the court found that the award of seventy-five dollars was excessive because Mr. Boom only paid ten dollars a year rent. Second, the court found that Mr. Boom was not entitled to recover at all because the city council was without authority to authorize such a taking of private citizen's property. Because of this Mr. Bushnell was not acting as an agent of the city, but on his own behalf. Consequently, though Mr. Boom may be able to recover from those individuals who deprived him of his property, without proper authority from the city, the city could not be liable. The Court found that the city's act of incorporation only authorized the city council to "make, establish, publish, and modify, amend and repeal ordinances, rules, regulations and bi-laws" for twenty-two enumerated purposes. The court focused on number fourteen of these stated purposes; to abate and remove nuisances. However, they refused to recognize someone infected with a contagious disease as a nuisance. Furthermore, even if it were to be considered a nuisance, the incorporating act only confers legislative powers to make and amend rules, not to exercise police powers to execute the rules. They also noted that this decision is not meant to imply that a properly empowered board of health may not exercise such police powers for the purpose of containing contagious diseases. The city of Utica's city council, however was not vested with such powers. Therefor, the actions of Mr. Bushnell are his own and not the responsibility of the city. The court also said that even if the council did have the power to order the removal of a person afflicted with a contagious disease, "it by no means follows that they possessed the power to order a forcible seizure and occupation of the house." They recognized this action as an invasion of Mr. Bloom's rights, even though the house possessed was actually vacant. The Court noted "(I)n truth, if the exercise of such a power can be justified, then no man's house is safe from the intrusion of patients reeking with contagion, whenever the common council shall see fit to occupy it for such a purpose." Furthermore the court found upon the evidence that the council never intended to exercise this type of seizure. They had authorized their agents to "procure a suitable place and remove the sick persons to it." This should be assumed to mean that they were to secure a place lawfully and not to commit trespass on someone else's property. Because of these reasons, the court found that the city could not be held liable "unless the common council had the power to authorize the doing of the act complained of." Since they did not have such power, Mr. Boom's remedy must be from those who committed the trespass, that is Mr. Bushnell and the other actors who actually committed the trespass.

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