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is the city of New York, assuming the court were free to enter upon the discussion, yet in a position to show that the particular sewage plants wii? inevitably be nuisances, or that the city will suffer irreparable injury if the same are constructed. “Injury, material and actual, not fanciful or theoretical or merely possible must be shown as the necessary or probable result of the action sought to be restrained." People v. Canal Board, 55 N. Y. 390, 397; Morgan v. City of Binghamton, 102 id. 500; Heaton v. Packer, 131 App. Div. 812; Vickers v. Durham, 44 S. E. Rep. (N. C.) 685; Columbia Ave. Savings Fund v. Prison Commission, 92 Fed. Rep. 801; Genet v. D. & H. Co., 122 N. Y. 505, 529.
As a lower riparian owner whose rights in the flow of the streams and condition of the waters are constitutional, and cannot be taken without compensation, the city of New York is entitled to have the waters come to it not in their natural state or entirely free from contamination, but subject to such slight pollution as may necessarily occur from a reasonable use by an upper riparian owner. City of New York v. Blum, 208 N. Y. 237; George v. Village of Chester, 202 id. 398. Whether the sewage plants will unreasonably contaminate, or contaminate in any degree whatever the waters of the Croton watershed must as before indicated await the operation of the works.
In conclusion and in categorical answer to your inquiry, I am of the view that the city of New York may not at this juncture prevent the construction of the sewage plants.
Dated July 8, 1915.
EGBURT E. WOODBURY,
To Hon. HERMAN M. BIGGS, State Commissioner of Health.
§ 25. Infectious and contagious or communicable diseases. Every such local board of health shall guard against the introduction of such infectious and contagious or communicable diseases as are designated by the state department of health, by the exercise of proper and vigilant medical inspection and control of all persons and things infected with or exposed to such diseases, and provide suitable places for the treatment and care of sick persons who cannot otherwise be provided for. It shall prohibit and prevent all intercourse and communication with or use of infected premises, places and things, and require, and if necessary, provide the means for the thorough purification and cleansing of the same before general intercourse with the same or use thereof shall be allowed. Every physician shall
immediately give notice of every case of infectious and contagious or communicable disease required by the state department of health to be reported to it, to the health officer of the city, town or village where such disease occurs, and no physician being in attendance on such case, it shall be the duty of the superintendent or other officer of an institution, householder, hotel or lodging house keeper, or other person where such case occurs, to give such notice. The physician or other person giving such notice shall be entitled to the sum of twenty-five cents therefor, which shall be a charge upon and paid by the municipality where such case occurs. Every such local board of health shall report to the state department of health, promptly, the facts relating to infectious and contagious or communicable diseases, and every case of smallpox or varioloid within the municipality. Health officers of cities, villages and towns shall report in writing once a month to the state department of health all cases of such infectious and contagious or communicable diseases as may be required by the state department of health, and for such reporting the health officer of a village or town shall be paid by the municipality employing him, upon the certification of the state department of health, a sum not to exceed twenty cents for each case so reported. The reports of cases of tuberculosis made pursuant to the provisions of this section shall not be divulged or made public so as to disclose the identity of the person to whom they relate, by any person; except in so far as may be necessary to carry out the provisions of this section. It shall provide at stated intervals, a suitable supply of vaccine virus, of a quality and from a source approved by the state department of health, and during an actual epidemic of smallpox obtain fresh supplies of such virus at intervals not exceeding one week, and at all times provide thorough and safe vaccination for all persons in need of the same. If a pestilential, infectious or contagious disease exists in any county almshouse or its vicinity, and the physician thereof shall certify that such disease is likely to endanger the health of its inmates, the county superintendent of the poor may cause such inmates or any of them to be removed to such other suitable place in the county as the local board of health of the municipality where the almshouse is situated may designate, there
to be maintained and provided for at the expense of the county, with all necessary medical care and attendance until they shall be safely returned to such almshouse or otherwise discharged. This section shall apply to all cities, towns and villages, except cities of the first class, notwithstanding the provisions of section thirty-two of this article. The health officer, commissioner of health, or boards of health of the cities of the first class shall report promptly to the state department of health all cases of smallpox, typhus and yellow fever and cholera and the facts relating thereto.
§ 35. Expenses, how paid. All expenses incurred by any local board of health in the performance of the duties imposed upon it or its members by law shall be a charge upon the municipality, and shall be audited, levied, collected and paid in the same manner as the other charges of, or upon, the municipality are audited, levied, collected and paid. The taxable property of any village maintaining its own board of health shall not be subject to taxation for maintaining any town board of health, or for any expenditure authorized by the town board of health, but the costs and expenditures of the town board shall be assessed and collected exclusively on the property of the town outside of any such village.
Where a person coming from another state and not having yet gained a residence here, who is dependent upon his daily labor for support of himself and his family but who has never been a public charge, is stricken with a contagious disease and quarantined by the health authorities in pursuance of the provisions of the Public Health Law, and being unable to work is supplied with necessaries for the care and support of himself and family until he recovers from his disease, upon the order or direction of the town board of health to charge the same to the town, the cost of such necessaries is a proper charge against the town and should be levied, collected and paid in the same manner as other town charges. Supreme Court, October, 1911, Bellows v. Board of Supervisors, 73 Misc., 566.
§ 36. Relief of indigent Indians in case of epidemic. Whenever an epidemic of a contagious or infectious disease shall prevail among the Indians of any nation, tribe or band in this state, the overseer of the poor of any town in which the reservation of such nation, tribe or band, is wholly or partly situated, may in
accordance with rules and regulations adopted by the state commissioner of health, cause needed medical attendance, provisions and maintenance to be furnished to any indigent Indian residing in the town, who, or a member of whose family, is afflicted with such disease, while such disease shall continue; and the cost thereof after being audited as herein provided shall be a state charge. A verified statement of any expenses incurred under this section shall be transmitted by the overseer of the poor to the state commissioner of health. Such commissioner shall examine into the matter, and if satisfied that such expenses were properly and necessarily incurred in accordance with the rules and regulations of the state commissioner of health, shall audit and allow the same, and when so audited, the amount thereof shall be paid by the state treasurer on the warrant of the comptroller to such overseer of the poor.
Public Health Law, Section 36-Relief of Indians - Sufficiency of Appropriation.
The Commissioner of Health is authorized to pay out of the appropriation for his department the expenses for the care of an Indian family ill with typhoid fever.
A claim has been presented to the Commissioner of Health amounting to $314, for food, team hire and physician's services incurred through the care of a family of St. Regis Indians suffering from typhoid fever and residing on the reservation in the Town of Bombay, Franklin county. The family was cared for by the health officer of the village of Hogansburg and the items have his approval.
May the Commissioner of Health pay the claim out of sums appropriated for his department in 1912?
Section 101 of the Poor Law provides for the temporary care of Indians under the direction of the State Board of Charities where their physical condition prevents their removal to an almhouse. The section is not applicable to this case however, in view of the provisions of section 36 of the Public Health Law. It provides:
"§ 36. Relief of indigent Indians in case of epidemic. Whenever an epidemic of a contagious or infectious disease shall prevail among the Indians of any nation, tribe or band in this state, the overseer of the poor of any town in which the reservation of such nation, tribe or band,
is wholly or partly situated, may in accordance with rules and regulations adopted by the state commissioner of health, cause needed medical attendance, provisions and maintenance to be furnished to any indigent Indian residing in the town, or a member of whose family, is afflicted with such disease, while such disease shall continue; and the cost thereof after being audited as herein provided shall be a state charge. A verified statement of any expenses incurred under this section shall be transmitted by the overseer of the poor to the state commissioner of health. Such commissioner shall examine into the matter, and if satisfied that such expenses were properly and necessarily incurred in accordance with the rules and regulations of the state commissioner of health, shall audit and allow the same, and when so audited, the amount thereof shall be paid by the state treasurer on the warrant of the comptroller to such overseer of the poor."
I am of the opinion that this is meant to exclusively apply where the disease is contagious and infectious and its control comes within the peculiar duties of the State and local health departments. I believe that the term "epidemic" should be construed to apply to a case of this kind and not be defined as applying only where the disease spreads over a larger portion of territory.
The bill submitted when properly audited is therefore clearly payable under this law. The only question then, is whether or not the legislature has provided funds out of which it may be paid. At page 1165 of the Appropriation Bill for 1912 (chapter 546), it is provided:
"Suppressing epidemics. For the suppression, control and prevention of epidemics of infectious and contagious diseases and tuberculosis exhibits in the several municipalities of the state thirty thousand dol lars, or so much thereof as may be necessary..
.$30,000." This provision I believe to be broad enough to include those expenses and they should be paid out of that fund, if not already disbursed. Dated February 28, 1913.
To EUGENE H. PORTER, M. D., Commissioner of Health, Albany, N. Y.
Registration of Nurses.
Section 250. Who may practice as registered nurses. 251. Board of examiners; examination; fees.
252. Waiver of examination.
253. Violations of this article.
§ 250. Who may practice as registered nurses. Any resident of the state of New York, being over the age of twenty-one years and of good moral character, holding a diploma from a