Seattle v. Cottin, 144 Wash. 572, 258 Pac. 520 (1927).

 572    SEATTLE v. COTTIN.
                Opinion Per HOLCOMB, J.           144 Wash.

      [No. 20479. Department Two. August 9, 1927.]
      THE CITY OF SEATTLE, Respondent, v. A.F. COTTIN,
                     Appellant. «1»

[1] HEALTH (6) - MUNICIPAL CORPORATIONS (313) - CONTAGIOUS
DISEASES - REGULATIONS - VIOLATION. A conviction of a
drugless healer, who had been exposed to smallpox and had not
been vaccinated for fifteen years, of breaking quarantine in
violation of a city ordinance, exempting "physicians," is
sustained, where such exemption in the ordinance must yield,
under state law, to the general regulation of the state board
of health which exempts from quarantine in such a case
exposed immunized persons only if successfully vaccinated
within seven years.

Appeal from a judgment of the superior court for
King county, Paul, J., entered October 14, 1926, upon
a trial and conviction of violation of a health ordinance.
Affirmed.

Farrell, Meier & Meagher, and Charles D. Donnelly,
for appellant.

Thomas J.L. Kennedy and Hugh R. Fullerton, for
respondent.

                     SEATTLE v. COTTIN.                573
 Aug. 1927              Opinion Per HOLCOMB, J.

"Then and there being the said defendant did wilfully
and unlawfully refuse to remain in quarantine
as ordered so to do by the chief quarantine officer of
the city of Seattle, Washington; all of which is
contrary to ORDINANCE No. 15957, Sections 14 and 53 of
the city of Seattle, entitled:

"'AN ORDINANCE providing for the preservation
and protection of the public health in the city of Seattle,
and providing penalties for the violation thereof,'
approved May 10, 1907, and against the public health,
welfare and good order of the city of Seattle."

The facts are not in dispute. Appellant admits that
he refused to remain in quarantine as ordered by the
chief quarantine officer of Seattle, but contends that in
so doing he was not committing any unlawful act under
the provisions of the ordinance.

The sections of the ordinance affecting the matter
(except section 53, the penalty section) are as follows:

"Section 6 as amended by Ordinance No. 37928, approved
November 21, 1917. PEST HOUSE; QUARANTINE:
- Whenever it shall come to the knowledge of the
commissioner of health of the city of Seattle, that any
adult therein has chickenpox, or any person therein
has smallpox, varioloid, syphilis, gonorrhoea, or any
other contagious, or infectious disease of a similar,
or different kind from that herein specified, or any
disease, or sickness dangerous to the public health, said
commissioner is hereby authorized and empowered,
and it shall be his duty to forthwith, whenever in his
judgment it is safe, expedient, and practicable, cause
such infected person to be removed to and kept in a
hospital, sanitarium, a separate house, or such place
as may be designated by the commissioner of health,
or as may be by law or ordinance provided therefor,
and cause said person to be properly treated and cared
for, and to make such other rules and regulations as
may be necessary or advisable for the protection of the
public health, and in case, in the judgment of said
commissioner of health, it is unsafe, inexpedient or
impracticable to remove such person to such hospital,

 574    SEATTLE v. COTTIN.
                Opinion Per HOLCOMB, J.           144 Wash.

sanitarium, separate house, or such place as has been
designated by the commissioner of health, or as may
be by law or ordinance provided therefor, it shall be
his duty to forthwith establish and enforce such
quarantine or other regulations as are necessary for the
protection of the public from such disease."

"Sec. 8. VISITING PERSONS SICK WITH CONTAGIOUS
DISEASE: It shall be unlawful for any person to visit
a person sick with typhus fever, ship or yellow fever,
Asiatic cholera, smallpox, diphtheria or membraneous
croup, measles, scarlet fever, or scarlatina, or bubonic
plague, or an adult sick with chickenpox, and afterwards
appear upon the streets, alleys or other public
places in the city of Seattle, or go into any house,
building or other place in said city where they would
be likely to aid in spreading said disease, until they
shall procure from the health officer of the city of
Seattle a certificate that they are free from danger
of communicating the disease to which they have been
exposed; Provided, however, that this section shall
not apply to physicians, quarantine inspectors or the
health officer when in the exercise of their duties as
such physician or officers."

"Sec. 14. REFUSAL TO OBEY OR INTERFERENCE WITH
HEALTH OFFICERS: It shall be unlawful for any person
to violate or refuse to obey any lawful order or
regulation of the board of health, the health officer or
any quarantine officer made within the powers conferred
by the charter or ordinances of the city of Seattle
upon the officer making such order, or to in any
manner obstruct or interfere with the board of health,
health officer or any appointee of the board of health
in the performance of duties imposed by the charter
or ordinances of the city of Seattle."

The facts admitted are that, on or about July 10,
1925, appellant, a drugless healer, having a certificate
to practice his pursuit, issued to him August 18, 1919,
as a practitioner of mechano-therapy, in his professional
capacity visited a person in Seattle infected
with smallpox. This fact became known to McGee,

                     SEATTLE v. COTTIN.                575
 Aug. 1927              Opinion Per HOLCOMB, J.

chief quarantine officer of the city, who requested
appellant to submit to vaccination or go into quarantine.
Appellant, at first, agreed to go into quarantine, but
afterwards refused to remain in quarantine, left Seattle
for a time, going to Portland, and after remaining
away about eighteen days returned and was arrested,
upon complaint and warrant.

It was also admitted in the court below that, at the
time of being exposed to smallpox, as alleged in the
complaint, appellant had not been vaccinated for a
period of fifteen or twenty years and had had no
previous infection from smallpox.

Upon the decision of the trial court that, upon the
facts shown in the case, appellant was guilty of the
charge, appellant moved for an arrest of judgment and
moved for a new trial, both of which were denied.
The foregoing adverse rulings and entering judgment
against appellant are the only errors assigned.

It will be recalled that section 8 of the ordinance
excepts physicians, quarantine inspectors or the health
officer, when in the exercise of their duties as such.

A regulation of the state board of health (subd. (e),
SS 25, Rules and Regulations of State Board of Health)
was stipulated in the record below, adopted July 27,
1921, which provides:

"(e) Persons not living on the premises who are
susceptible (not vaccinated nor having had previous
infection), and who have been exposed, shall be isolated
or kept under the observation of the health officer
or physician for a period of eighteen days. Exposed
immunized persons are exempt from isolation,
if successfully vaccinated within seven years, or if they
have had the disease. Submission to vaccination exempts
the individual from isolation."

Appellant contends that, having been legally qualified
to practice a certain system of healing, under

 576    SEATTLE v. COTTIN.
                Opinion Per HOLCOMB, J.           144 Wash.

certain statutes relating thereto, he is entitled to be
included within the class known as physicians and within
the exception under section 8 of the ordinance. Much
learned and able discussion is advanced and many decisions
cited to sustain the contention that he is, and
entitled to be called, a physician. We are not disposed
and do not find it necessary to enter into that field of
discussion.

[1] There is no doubt, and it is not denied, that
the city had the power to enact the ordinance here in
question and had the power to create health and quarantine
officers, as it has done, by the charter and ordinance
provisions. Both the city and the state board
of health, which is given very comprehensive powers
by our state statutes (Rem. Comp. Stat., SS 6001), have
made rules and regulations for the quarantine of persons
liable to infection from smallpox, if not vaccinated
within seven years, or if not previously immunized
by infection from the disease. This very
ordinance, No. 15957, and an amendatory ordinance,
No. 37928, have been before us and were upheld as
valid. State ex rel. McBride v. Superior Court,
103 Wash. 409, 174 Pac. 973. Another ordinance, No.
32444, was also considered in connection therewith, and
the powers of city and state to order the quarantine
of persons suspected of infection with contagious diseases
upheld.

[2] In so far as the ordinance of Seattle exempts
physicians of any kind or school, it must yield to the
superior authority of the state board of health which
has adopted the rule, subd. (e), SS 25, above quoted.
Under those provisions, no one is exempted except
exposed immunized persons, those who have been
successfully vaccinated within seven years, or those who
submit to vaccination - under none of which classes
can appellant claim exemption.

                     SEATTLE v. COTTIN.                577
 Aug. 1927         Dissenting Opinion Per TOLMAN, J.

We consider further discussion of the questions
raised in this case unnecessary.

The judgment is affirmed.

MACKINTOSH, C.J., FRENCH, and PARKER, JJ., concur.

TOLMAN, J. (dissenting) - This is a prosecution under
the city ordinance, not under the state law. While
a city ordinance may not go beyond the state law and
make unlawful that which the legislature has not made
so, yet it may extend only to certain things and leave
uncovered other things which the state law forbids.
Therefore, the question here is, did the appellant
violate the city ordinance?

The majority wisely refrains from saying that one
permitted by state law to treat disease may be forbidden
to do so by city ordinance; and, in my judgment,
no such holding could be justified. I therefore dissent.

19 - 144 WASH.