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People v. Bellinger

Supreme Court of New York, Appellate Division

May 3, 1911

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,
v.
FRED BELLINGER, Respondent.

APPEAL by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 3d day of June, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the Oneida Trial Term.

COUNSEL

Thomas Carmody, Attorney-General, and Henry Selden Bacon, Deputy Attorney-General, for the appellant.

W. T. Dunmore, for the respondent.

ROBSON, J.:

The purpose of this action is the recovery from defendant of a penalty for an alleged violation and disregard by him of the

Page 142

terms of a notice issued by the Commissioner of Agriculture declaring the existence in the town of Forestport, Oneida county, of the infectious disease known as rabies, which is specified in the notice. That the notice in due form was issued by the Commissioner of Agriculture is not questioned. Among other things it contained an order made by the Commissioner that all persons owning, having charge of, or harboring dogs in that town should 'so seclude, confine or muzzle such dogs as to make it impossible for such dogs to bite or inoculate other animals or persons.' Plaintiff proved defendant's actual knowledge of this notice and his violation and disregard of its terms. The nonsuit was granted on the ground that this notice was not published and posted as required by section 91 of the Agricultural Law (Consol. Laws, chap. 1 [Laws of 1909, chap. 9], as amd. by Laws of 1909, chap. 313). That part of the section material to the present inquiry reads: 'Commissioner to issue notice. He shall issue and publish a notice stating that a specified infectious or contagious disease exists in the State or in any designated county or other geographical district of the State, and warning all persons to seclude in the premises where they may be at the time all animals within the * * * district, * * * that are of a kind susceptible to contract such disease, and ordering all persons to take such precaution against the spreading of the disease as the nature thereof may in his judgment render necessary or expedient, and which he may specify in such notice. Such notice shall be published in such newspapers and be posted in such manner as the Commissioner may designate, and as, in his judgment, are most likely to give notice thereof.' The trial court held that the effect of the last sentence above quoted was that the Commissioner was thereby required personally in each instance when the existence of an infectious disease was declared by him to designate in writing the newspapers in which the notice was to be published and the manner in which it was to be posted. It was conceded that no written designation by the Commissioner of the manner in which this notice was to be posted was made. The nonsuit was granted solely because of that fact and on that ground.

Section 90 of the act (as amd. by Laws of 1909, chap.

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312) has this caption: 'Suppression of infectious and contagious diseases.' One of the provisions of this section is as follows: 'Whenever any infectious or contagious disease affecting domestic animals shall exist, be brought into or break out in this State the Commissioner of Agriculture shall take measures to promptly suppress the same, and to prevent such disease from spreading.' The duty is imposed upon local boards of health of notifying the Commissioner of the existence of such diseases in the districts subject to their jurisdiction. Manifestly the purpose of the statute is to give to the Commissioner power to determine not only the existence of such a disease but also the geographical district of the State liable to be affected thereby. Having ascertained and determined these facts it is then his duty to issue the notice prescribed by section 91 above quoted. Though this section also provides for the posting and publication of such notice, yet it would seem that the district designated in the notice is effectually quarantined (adopting the terminology used in section 96, as amended by chapter 352 of the Laws of 1909) as soon as the Commissioner makes his determination and issues the notice, and before publication and posting of the notice are completed. This must be true, if the purpose of the statute in requiring the Commissioner to take measures to promptly suppress the disease is to be effectuated. For, if the quarantine is not effectually established until the notice has been posted and published for a reasonable length of time, then prompt action in suppressing the disease is impossible, and incalculable damage might be the result. This conclusion is corroborated by the provisions of section 97, which relates to fines and penalties. This section (as amd. by Laws of 1909, chap. 352) reads in part: 'Any person violating, disobeying or disregarding the term of any notice, order or regulation issued or prescribed by the Commissioner under this article shall forfeit to the People of the State the sum of not less than fifty dollars nor more than one hundred dollars for every such violation.' It will be observed that the penalty is incurred by a violation of a notice which has been 'issued; ' and the statute does not, in terms at least, indicate that a violation of the notice can be established only when it is shown

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that the notice has been published and posted. The implication and plain effect of the provision are to the contrary.

It is apparent that the purpose of the requirement as to posting and publishing the notice is that knowledge of its contents may be given to those persons whom it affects. If it has been duly published and posted, that fact imports notice sufficiently brought home to every one, and actual knowledge of it need not be shown. But in this case plaintiff does not depend alone on this constructive notice to defendant, but shows that he had actual knowledge of the notice and its terms. Proof of actual knowledge of the notice is as effectual and quite as satisfactory as the constructive notice implied from its publication and posting, and is sufficient for the purposes of this action.

It seems also that the notice was in fact duly published and posted as the statute provides. Due publication thereof, as directed by the Commissioner in writing, was proved. More than one hundred copies of it were publicly posted in different places throughout the town, complying with verbal general directions given by the Commissioner to his assistant commissioners as to the manner in which such notices should be posted. If the Commissioner had in writing directed the ...


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