orders, and to enforce the abatement of the nuisance, although the cause arises in an adjoining municipality." The city of Rochester had, under legislative authority, acquired land in the adjoining town, and opened ditches thereon to carry off the drainage of the city. It dug the ditches and constructed sewers which discharged into the ditches near the boundary line, and the sewage was thus carried upon and over the town lands into a creek, creating the nuisance. The plaintiffs, constituting the Board of Health of Brighton, having made the order referred to, and caused it to be served upon the proper city authorities of Rochester, on the continuance of the nuisance and violation of the order, began this suit, in which they had judgment.

Consistent with the preventive measures of quarantine, and the safeguards used against the entrance and ravages of infectious and contagious diseases is the requirement of vaccination. Compulsory vaccination has been instituted in several countries, and by the laws of several States, in respect to minors. City ordinances regulate it, but the indirect methods of excluding children not vaccinated from schools and factories, or, in case of immigrants, insisting upon quarantine, and the offer of free vaccination with the constant supervision of the health officers are more effective. In England there has been the national vaccine establishment, and in 1867 penalties were prescribed for every parent or person having the custody of a child born in England who did not, within three months after the birth of such child, cause it to be taken to the public vaccinator of the vaccination district in which it was resident, for vaccination.' In Massachusetts parents and guardians must cause children to be vaccinated before they are two years old, and for every year's neglect are to be fined five dollars; and town authorities may require and enforce vaccination of all inhabitants wherever the public health shall require it, and are required to furnish the means of vaccination. Persons not sufficiently protected from small-pox shall be vaccinated in quarantine, or be detailed there until

1 30 and 31 Vict., chap. 34; see 3 and 4 Vict., chap. 29, an act to extend the practice of vaccination, July 23, 1840; 1 Russ. Cr. 108. In 2 Chitty Cr. L. 656, there is an indictment mentioned against an apothecary for keeping a common inoculating-house near the church in a town. Rex v. Vantandillo, 4 M. & S. 72; Mass. Pub. S., Preservation of Public Health, chap. 80, p. 443, §§ 54, 55; Revision of 1882, pp. 443, 560, 563. “Vaccination and security of life." N. Y. Laws, chap. 358, 1863, § 10; chap. 486, 1892, § 16; chap. 438, 1860; chap. 635, 1874; N. Y. San. Code, §§ 149, 150; see R. S. Mich., chap. 35, 45. France, Austria, the German States, and Sweden have obligatory laws with frequent inspections, and in some places a vaccinator's certificate is necessary to the public allowance of any charity or aid.

they have passed the incubative period from the last-possible exposure. The Sanitary Code of New York City is compulsory in form, but has been administered without coercion, save in extraordinary cases when contingent upon the isolation or quarantine or removal of persons in a tenement or lodging-house, where there has been great exposure and insufficient protection. The legislature of New York in 1860 enacted that the trustees and boards of common schools might exclude from the benefits of the common schools any child or person who has not been vaccinated, and until such time as they shall be vaccinated. In 1874 it passed "An act to secure effective vaccination in the city of New York and the collection of pure vaccine virus," providing for the organization of a corps of vaccinators, and the collection and preservation of pure vaccine lymph or virus for the thorough and systematic vaccination of all unvaccinated persons residing in the city of New York.

Litigation has followed these laws, principally, however, because of alleged ill-treatment or negligence in exposure by officials or persons under treatment or in vaccination, less because of any claim that vaccination was improper or illegal. Something has depended upon the choice or use of virus or lymph, because of the scientific questions involved in the increasing preference for bovine over humanized virus. It was this question in connection with others before the New York Superior Court in the case of Hickey v. The Cunard Steamship Company, in May, 1890, and in a similar case against the same company in Boston. It was charged that the plaintiff was improperly vaccinated with humanized virus, and in a careless manner, so that ulceration and fever followed of such a serious character as to destroy her health for a considerable time, but the plaintiff failed of a verdict and these cases were not pursued. A similar result was reached in the same court in Hallowell v. The Board of Health of the City of New York on like allegations in 1875. In Brown v. Purdy' the action was against the physicians who had diagnosed the plaintiff's case as smallpox and reported it to the Health Department, whereupon plaintiff was removed to the small-pox hospital and there discovered to be sick with measles and not with small-pox. The court on appeal held that the omission of patient's attending physician to use ordinary skill in diagnosing the disease before reporting it to the Board of Health as a case of small-pox, and the action of the Board of Health Inspector in caus

1 Brown v. Purdy, 54 Superior Ct. R. 109.

ing, under the laws governing his action in a case of small pox, her removal gave no right of action.

In Tormey v. Mayor the plaintiff in May, 1871, was, as she alleged, sick at her residence in New York of measles and was forcibly removed to the small-pox hospital. Negligence and "grave wrongs were charged against public agents and officials." Suit was brought against the city and came before the court on a demurrer to the complaint, which was overruled, with privilege to the defendant to answer over. The Health Department was afterward joined as a defendant, and upon a trial the plaintiff was unsuccessful. In Laubheim v. De Koninglyke N. S. M., it was held that in the absence of evidence of any carelessness or neg ligence on the part of a steamship company, in its selection of a sur geon for one of its steamships, it was not liable for the negligence of the surgeon.

In Allan v. S. S. Co. it was said that a "person is not legally responsible for any unintentional consequential injury resulting from a lawful act, when the failure to exercise due and proper care cannot be imputed to him, and the burden of proving such lack of care when the act is lawful is upon the plaintiff," and that it was not necessary to discuss the duty of the defendant at common law, but the duty was assumed under the statute known and cited as the Passenger Act. The court says, when the ship-owner has employed a competent physician, and has placed in his charge a supply of medicines sufficient in quantity and quality, we think it has performed its duty to its passengers, and from that time the responsible person is the physician. "The work which the physician does, after the vessel starts on the voyage, is his and not the ship-owner's."

The presumption that under the law and ordinances cited the vaccination was a lawful act, would appear conclusive from these cases, and the only questions which would remain are those of negligence and willful wrongs such as were alleged, but not proven, in the Tormey, Hickey and Laubheim cases above mentioned. It was said in 1874, in the reports to the Registrar-General of the operations of the Scottish Vaccination Act, that "in Scotland there is but little of that unreasonable opposition to the practice of vaccination by which some opinionative men are elsewhere moved," and our courts have of late years been as little troubled with it.

1 Tormey v. Mayor, 12 Hun, 542; 107 N. Y. 228; O'Brien v. Cunard S. S. Co., 28 N. E. R. 266; 132 N. Y. 91-99.

A municipal corporation is not liable for neglect of attendants in a public hospital, nor where damages are claimed because of infection from a pest-house. The duties imposed by statute upon officials in caring for the public health are to be performed according to their discretion, and when this is fairly exercised, no liability to damages arises from misfortunes consequent upon their errors.'

Richmond v. Long, 17 Gratt. 375; Brown v. Inhabitants of Vinalhaven, 65 Me. 402; Cain v. City of Syracuse, 95 N. Y. 83; Freeman v. Cornwall, 10 Johns. 470; but where there is a failure in duty, see Bassett v. Fish, 75 N. Y. 303; People, ex rei. Loomis, v. Board of Town Auditors, 75 N. Y. 316; Tormey v. Mayor, 12 Hun, 542; see Cavanagh v. Durgin, 156 Mass. 466; Gordon v. Becker, 54 N. Y. St. R. 731; Culver v. City of Streator, 130 Ill. 238; 22 N. E. R. 810; Fisher v. Boston, 104 Mass. 89: Caldwell v. City of Boone, 51 Iowa, 687; Elliott v. Philadelphia, 75 Pa. St. 347; Little v. City of Madison, 49 Wis. 605; Kansas City v. Lemen, 8th Cir. Ct. App., Sept. 18, 1893, 57 Fed. R. 905. The argument and the reasoning of the court in this case, respecting the nuisance of a circus on ground set apart for a graveyard. that "the act of the municipality was an exercise of a power vested in it to promote the public welfare," reminds one of the statute of Winchester, A. D. 1285, § 6. excluding fairs and markets from such inclosures. Statutes of the Realm I, 96-98; select charters, Stubbs' 7th ed. s. v. Statute of Winchester, § 6.

CHAPTER VII.

PROTECTION OF PURITY IN WATER, IN FOOD, AND AGAINST DANGER FROM INFLAMMABLE OILS, AND EXPLOSIVE SUBSTANCES.

These special subjects of police powers are often provided for by statutes directing the same authority to frame and to supervise the en forcement of the regulations for the public welfare. In New York State, the State Board of Health is charged with this duty. City and village ordinances usually cover them. It does not follow because the legislature may have increased the offenses in each class, given additional safeguards, and added penalties, that the common-law remedies, where applicable, are suspended, and, in many instances, both civil and criminal prosecutions have been preserved, as under the health laws. Where a new offense is created and a penalty is given for it, or a new right is given, and specific relief given for the violation of such right, the punishment or remedy is confined to that given by statute; but giving a superadded penalty for the erection or continuance of a nuisance, does not prevent the common-law right of the public to have it indicted and removed; nor does it prevent it being abated in the usual way by individuals at the peril of showing that it was a nuisance, and that they did no unnecessary injury in removing it.'

In Regina v. Cotton, the court, referring to a special procedure under the Nuisance Removal Act, remarks that: "It would be most dangerous to take away from the regular tribunals the investigation of such a question, often a most complicated and important one, and to

1 Renwick v. Morris, 7 Hill, 576; Stafford v. Ingersoll, 3 Hill, 41; 2 Story Eq. Jur., SS 921-927; People v. Sturtevant, 9 N. Y. 269; 105 N. Y. 49. "It is an indictable offense to carry the refuse of gas into a great public river, and thereby render the waters corrupt, insalubrious and unfit for the use of man; and the managers and directors of a gas company are responsible for the acts done by their superintendent and engineer under a general authority to manage the works." Rex v. Medley Co., 6 C. & P. 292; 1 Russ. Cr. 110; State v. Frieberg, 49 Ohio St. 585; Kellogg v. City of New Britain, 62 Conn. 232; Columbus & H. C. I. Co. v. Tucker, 48 Ohio St. 42; Indianapolis Water Co. v. American S. B. Co., 53 Fed. R. 970; Schriver v. Village of Johnston, 54 N. Y. St. R. 573.