New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1892-09-14
THE INJUNCTION SET ASIDE.

THE INJUNCTION SET ASIDE.
nt,crs1ov ny THE GENERAL TERN UPsETTING
JUDGE BARNARD'S RULING
The General Term of the supreme Court In Brook
Iyn dissolved the injunction yesterday afternoon when
Judre Barnard granted on Monday restraining the
Governor. the Health Ofhcer OF the Port OF New
York and Other persons from landing persons rom II
cholera infected ship upon Fire Island Inc app'oa
t,on for tho dissolution OF the Injunction was made
by W. y. Dykman. Corporation Counsel 'ehRh' OF
Brooklyn and Assistant Corporation Counsel CLARK
OF New.York Judges barnard. Pratt and Dykmah sat
in the General Term. Mr.. Dykman said he made the
appIcatIon in behalf OF Health Oficer Jenkins who
was restrained In tho exercise OF the duties OF his
Office.
Judge Barnard asked II It was an appeal from his
order but was told that It not so he was quail
fed to cit and hear the application. MT Dykmah
then stated that when an Injunction was granted
without notice in the present instance the oodc OF
Civil Procedure provided that the party enioned might
appIy without 1otice to have It vacated.
either by the Judge who granted II or
to the General Term. The Special Term which
granted the injunction was without power 10 do So
The laws provided that IN the presence oil immediate
danger II was the duty OF the health ofccr TO take
the responsibility OF adopting such mcHurrs a. he
deemed indispensable for the protection oil the puo'
health. There was immediate danger 10 this case and
VI.
court was without jurisdiction In arrc'ting Dr. jenkins
in the performance Of his duty. for he was State
officer and no State board or officer could be en-
Joined save by the General Term OF the Supreme
Court In the department where the board OF ofnoer
was situated and after due notice. In the presence
Of plague in this port the Health 0ncer had taken
such measures as he deemed wise and neccSsary. BY
the action of the people Of lslp n shameful state OF
affairs existed. The men, and childrcn OF
board the Cephcus kept there by mob, backed
by the injunction. without food and bidding In
closing oounse lsaid "The Health Officer OF this port
ia not asking too much when he requests the Ge1era
Term to suspend It's ordinary functions and decide
speedily this most important question
General George W. wlngate said he felt constrained
10 say something in behalf OF the Health Board Of
the town OF lsnp. who were charged with the duty
OF preventing cholera or other infectious disease from
entering the town. On Saturday this Board passed
resolution forblddng the bringing iuto the town OF
anyone from the cholera infected ships and due notice
Of this action given to the Health oMoer OF me
Port OF New-York. At the same time fifty special
officers were sworn in to prevent the landing OF any
person. who might be infected With choleD. II
after this action Or. Jenkins chose 10 put these
persons the Cepheus and send them to Fire Island
It was his fault. The blame was not upon the
local Officers As between the two authorities II VA
the duty Of the town Board Of Health 10 protect the
town against persons who might bring with them
seeds OF CONTAMINATION hHu u'atH' - 'h' 10 N''
emergency section Of the law went the port Of New
York was in New York waters. md the Health Officer
OF that port had more TO do with Sufolk County
than with Duchess County or FrankM County. In
purchasing Fire Isnnd he had secured no more
rights there than private citizen and Ind no more
right to land people there from cholera shIs Than
he did Mt the Battery in Ncwlork. The law said
that the vessels should remain in quarantine. and
DR.. jenkins had right TO go outside his iuris-
dction and 10 break into the town oflsnp. He
ceased to be- Health Officer when he left the port He
had mower 10 hire ocean steamers, n necessary. to
meet the emergency but no right to 60 into SUFFOLK
County. II small compared with New-Yoh
County and the property less valuable, but II was
all the people had and they bound TO protect It,
The business Of the demand for keeping cholera out
Of Suffolk County vas shown by the fact that men
like b. d. silllman had sig1ed petition to the
Governor 10 that effect.
Mr. Dyknan maintained that Cr jenkins was
state ofcer.
The opinion OF the court handed down in half an
hour was as follows, written by Judge Dyhman;
This Is an application TO the General Term. without
notice. 10 vacate an Injunction issued in this action
NJ the General Term. without notice. restraining the
defendants from bringing to the Surf Hotel TO any
OF sr place within the town Of Isp any persons bag
gage clothing any other thing the subject 81
sS@s Or any any persons e o
infected or supposed To be likely to be Infected with
cholera to said surf Hotel or any other premise.
any other premises within the town OF lslp as a
building buildings for quarantine purposes or for
the reception. cure or treatment OF persons rom
vessels In quarantine, or who may have been exposed
The application Is mnde TO tie General Term under
Section COB OF the Code Of civil Procedure which
provides that where duty !; imposed by statute upon
order 10 restrain him or them from the performance
Of their duty. or to prevent the execution OF the
Court at General Term thereof. sitting In the de
partment In which the officer board Is located. Or
The duty required 10 be performed: and upon notice |
Of the application thereof to the officer board or other
persons 10 be restrained.
This application 10 vacate the Injunction order Is
made upon tho papeI> upon which the order was based
by section 10. Chapter $50. Of the Laws OF 1892 |
II Is provided that the Health Officer OF the Port OF
New York shall have the general supervision and con
Il oil OF the quarantine establishment and the mode OF
visions OF this article he shall In the presence OF I'm
mediate danger. take the responsibility % applying
such additional measures as may be- deemed indls |
pensablc for the protection OF public health
We have reached the conclusion that the applca, |
tion for the Injunction should have bcen made 10 |
the General Term and not TO the Special Term, and
should be vacated for that reason.
Judge Pratt concurring: whether the Health |
Oicer OF Ncw.York, In attempting TO land passengers
on Fire Island was acting within Ills jurisdiction
Justice Dykman in the opinion that It was a qucs-
ton which should have been presented 10 the General
Term upon notice TO the defendants.
"Thc question OF jurisdiction upon which |
he entitled 10 be heard before the issuance OF |
merits
This DECISION does not go to the merits at all. |
but Is based entirely npon the view OF the pro
visions OF the Code OF the laws OF last winter"
Judge Barnard, dissenting e. think that under |
the existing laws the health officers OF NewYMk |
have no powers to land infected cholera patients |