In Re Culver

LENNON, J.

In the justice’s court of the city of Berkeley, county of Alameda, petitioner, Laura Culver, was convicted on a complaint purporting to charge her with the commission of a misdemeanor. She was fined, with the alternative of imprisonment, and, accordingly, upon refusing to pay the fine, was taken into custody and imprisoned by the sheriff of Alameda County. Petitioner subsequently applied to this court for a writ of

habeas corpus

and was released on bail pending a determination of this proceeding.

In his return to the writ the sheriff of Alameda County, the respondent herein, raised several objections to a con

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sideration by this court of the merits of petitioner’s application for the writ. However, inasmuch as respondent apparently abandoned reliance upon these preliminary objections at the oral argument and counsel for petitioner and respondent addressed their discussion solely to the merits of the case both at the oral argument and in the briefs filed subsequent to the oral argument, any opposition to a hearing on the merits must be held to have been withdrawn. The first point before this court is, therefore, the contention that the imprisonment of petitioner is unlawful for the reason that the complaint does not charge the commission of any act constituting a criminal offense.

The complaint herein alleges that: The state board of health issued an order directing the quarantine of petitioner’s niece, who was a minor child residing at petitioner’s home in Berkeley, for the reason that said child had come in contact with cases and carriers of diphtheria. Upon receiving this order of the state board, a police officer of the city of Berkeley affixed a placard on petitioner’s premises reading:

“Diphtheria Contact.

“These premises are declared to be in a state of quarantine. All persons are forbidden to leave or enter these premises or to remove any article therefrom without the permission of the Health Officer. Persons removing this notice will be prosecuted.”

Petitioner removed the placard from the premises in the presence of the police officer. Such conduct, the complaint charges, constituted a misdemeanor under section 377a of the Penal Code, which provides: “Every person who after notice shall violate, or who, upon the demand of any public health officer, shall refuse or neglect to conform to any rule, order or regulation prescribed by the state board of health respecting the quarantine, or disinfection of persons, animals, things or places shall be guilty of a misdemeanor.”