Article October 2, 1920 Issue

[Dissenting opinion of Associate justice Nourse of the District Court of Appeal of California, in re Travers]

I dissent

I dissent. The undisputed facts are that petitioner was arrested on a charge of vagrancy, was taken from her place of abode to the police court where she pleaded not guilty, and, without trial or judgment, was ordered into the custody of the health officer. She was then taken to the city and county hospital where, in direct defiance of a penal statute, she was subjected to a medical examination by an unlicensed employee illegally styling himself a doctor. As a result of such examination she was ordered confined in the city and county hospital for an indefinite period and was so detained without warrant or judicial commitment when released on bail by order of this court.

The power to quarantine diseased persons for the purpose of preventing the spread of communicable diseases need not be questioned. The power to imprison a citizen in a public hospital without trial or commitment is obnoxious to every American principle of right and justice. It is one of the fundamental principles of both our federal and state constitutions that no person shall be "deprived of life, liberty or property without due process of law." "It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard" (Galpin v. Page, 85 U. S. 350, 368). ...

The broad scope of the main opinion is atrocious in its consequences. Having approved the farcical and unjudicial pretense of a trial in the police court, the effect of the opinion is that any citizen may be taken from his home, and, with trial or judgment, confined in a public hospital during the will and pleasure of the health officer if some unlicensed employee of the institution believes that he is afflicted with some contagious disease. During such confinement the victim may be denied the right to call in his own physician, but is forced to subject himself to such medical treatment as the employees of the hospital may choose to give him.

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