same land, he is deemed in possession who has the legal title, and the other is a trespasser. The owner of realty, having title downwards and upwards indefinitely, an unlawful interference with his rights, below or above the surface, alike gives him a right of action: Rev. Code, secs. 2962, 2965, 2966, 2969. The entering the dwelling-house of another without license is a trespass in the eye of the law. And if one enter the dwelling-house of another by permission, and continue there after he has been requested to leave it, he becomes a trespasser ab initio: Adams v. Freeman, 12 Johns. 408 [7 Am. Dec. 327]. This action may be maintained, not only against the party who did the act, but against all who direct or assist in the commission of it: 2 Leigh N. P. 1443. Thus a party may be sued in trespass in respect of his previous consent or request that the trespass may be done, as if A command or request B to beat or impress C, or to take his goods, or to commit a trespass on his land, and B do it, this action lies as well against A as against B: 1 Chit. Pl. 181; 7 Com. Dig. 515 c. There are no accessaries in trespass, but all are principals: Id.

The defendants in this case, however, seek to justify themselves for the alleged trespass on the plaintiff's property, on the ground that they were acting as the justices of the inferior court of Fulton County, and in their official capacity seized and took possession of the same for the purpose of establishing a small-pox hospital; and upon the trial of the case in the court below, the court charged the jury, amongst other matters connected with the trial, "that if you shall believe from the evidence that the defendants, as justices of the inferior court of Fulton County, did take possession of the plaintiff's property, and if you shall further believe from the evidence that the necessity was such that the public good required the seizure of the plaintiff's property at that time to prevent the spread of this contagion, then the defendants are not liable." This charge of the court is excepted to and assigned as error. By the act of 1862, the provisions of which are incorporated in the revised code, the justices of the inferior courts of each county in the state, within which the small-pox has appeared or may appear, are authorized and empowered to provide a suitable hospital for those so afflicted, and also to provide proper quarantine regulations to prevent the spread of the disease: Rev. Code, secs. 1411, 1412. The property of the plaintiff is alleged to have been seized on the ninth day of January, 1863, prior to the adoption of our pres

ent state constitution; but the constitution of the United States declares, “nor shall private property be taken for public use without just compensation." This great fundamental principle embodied in the constitution of the United States for the protection of the private property of the citizen was recognized to be of binding force in the courts of this state in Young v. Harrison, 3 Ga. 31. It is to be noted that the act of the legislature authorizing the inferior courts to provide suitable hospitals for small-pox patients makes no provision for compensation, from which we infer that it was not contemplated that private property should be taken or impressed for that purpose. The right of the inferior court to provide hospitals for small-pox patients, under the law, is one thing; but their right to seize or impress the private property of the citizen for that purpose is another and quite a different thing. No express power is given them in the law to do so, and we cannot give it to them by implication.

The main question involved in this case has already been decided by this court on an application for injunction between these same parties: Markham v. Howell, 33 Ga. 508. In that case this court said: "That the defendants were authorized to establish a hospital did not confer the right to impress. This is a too dangerous and extraordinary power to be conferred by mere implication; it must be expressly granted, and must provide in the grant the mode of compensation." The power to seize the plaintiff's property in this case is attempted to be derived from section 2200 of the revised code. That section of the code only extends to the taking possession of a house or surrounding it with a guard in which contagious disease exists, to prevent its spreading, -a mere quarantine regulation.

It has been insisted here that the defendants acted in their official capacity in good faith, in seizing the plaintiff's property for hospital purposes, under a pressing necessity to prevent the spreading of a loathesome disease, and that it will operate harshly to make them liable as trespassers in their individual capacity. We feel the full force of the argument; but the reply is, that the plaintiff claims before this court to have his constitutional rights protected, that his rights of private property have been invaded without lawful authority by the defendants, and demands redress therefor at our hands, and so believing, we are bound to give it to him so far as to adjudge the law in his favor. It is our judgment, that under

the law the justices of the inferior court of Fulton County had the power and authority to provide a suitable hospital for small-pox patients; but they did not have the power and authority, under the law and constitution, to seize or impress the plaintiff's private property for that purpose, as set forth in this record, and that the court below erred in its charge to the jury upon this branch of the case.

Let the judgment of the court below be reversed.

POWER OF MUNICIPALITIES AND OTHER PUBLIC BODIES, IN CASE OF CONTAGION, TO ESTABLISH PEST-HOUSES AND ENFORCE QUARANTINE REGULATIONS, AND TO COMPEL THOSE SICK WITH CONTAGIOUS DISEASES TO REMOVE TO PEST-HOUSES OR TO ISOLATE THEMSELVES. The preservation of the public health is everywhere regarded as an important function of government. Among modern nations, quarantine has been established and recognized by international law for the common protection of states against those diseases which are believed to be capable of being carried from one country into another: Baker on Laws Relating to Quarantine, 1. Quarantine, which was so called because the period of detention was in early times forty days, is said to have been established by the Venetians as early as the year 1484, to prevent the introduction of the plague into their city. But it was not until the plague of Marseilles, in 1720, that quarantine regulations became thoroughly understood: Id. 3.

Each state has, in the exercise of its police power, an undoubted right to adopt such means as to its law-making power shall seem adapted to the end, to secure security and protection to its citizens from the ravages of contagious or infectious diseases. Tiedeman, in his recent work, discussing this subject, says: "The right of the state, through its proper officer, to place in confinement, and to subject to regular medical treatment, those who are suffering from some contagious or infectious disease, on account of the danger to which the public would be exposed if they were permitted to go at large, is so free from doubt that it has been rarely questioned. The danger to the public health is a sufficient ground for the exercise of police power in restraint of the liberty of such persons. This right is not only recognized in cases where the patient would otherwise suffer from neglect, but also where he would have the proper attention at the hands of his relatives. While humanitarian impulses would prompt such interference for the benefit of the homeless, the power to confine and to subject by force to medical treatment those who are afflicted with a contagious or infectious disease, rests upon the danger to the public, and it can be exercised, even to the extent of transporting to a common hospital, or lazaretto, those who are properly cared for by friends and relatives, if the public safety should require it": Tiedeman on Limitations of Police Power, sec. 42.

And whatever powers of this nature the legislature of a state possesses, it may confer upon municipal corporations or other suitable public bodies for the purpose of preserving the health and safety of the inhabitants of the city or district over which they have control or jurisdiction: 1 Dillon on Mun. Corp., 3d ed., secs. 144, 369, 370; Dubois v. City Council of Augusta, Dudley (Ga.), 30; City of Clinton v. County of Clinton, 61 Iowa, 205; Staples v. Ply mouth County, 62 Id. 364; Harrison v. Mayor etc. of Baltimore, 1 Gill, 264;

People v. Supervisors of McComb County, 3 Mich. 475; Rae v. Mayor etc. of Flint, 51 Id. 526; Metcalf v. City of St. Louis, 11 Mo. 102; City of St. Louis v. McCoy, 18 Id. 238; City of St. Louis v. Boffinger, 19 Id. 13; Wilkinson v. Alany, 28 N. H. 9; Commissioners of Salisbury v. Powe, 6 Jones, 134; Aaron v. Broiles, 64 Tex. 316; S. C., 53 Am. Rep. 764; Harzen v. Strong, 2 Vt. 427. In Dubois v. City Council of Augusta, Dudley (Ga.), 30, it was held that a city ordinance prohibiting persons.coming in vessels from infected places to come direct to the wharf, and requiring them to remain at a certain point until they should be examined by a hospital physician, was not repugnant either to the constitution or to the general law of the state. It was further held that authority by charter to pass ordinances respecting harbors and wharves, and "every other by-law necessary for the security, welfare, and convenience of the city," gave to the city council power to pass ordinances requiring boats coming from infected places to anchor before landing, and to submit to an examination, and that such ordinance was not repugnant to a general law of the state prohibiting any person from coming into the state from an infected place, in violation of quarantine regulations. In Harrison v. Mayor etc. of Baltimore, 1 Gill, 264, it was held that the mayor and common council of Baltimore, by their charter, had full power to pass all laws necessary to preserve the health of the city, and to prevent the introduction of contagious diseases within the city, and within three miles of it. And it was said that they possessed all the power which the general assembly could have exerted, that they were the exclusive judges of the degree of necessity, and that the means and manner contributing to the end in view were committed to their sound discretion. In Rae v. Mayor etc. of Flint, 51 Mich. 526, it was said that the power of a city council in such matters is a police power, and is commensurate with their duty. In Metcalf v. City of St. Louis, 11 Mo. 102, it was decided that an act of the legislature authorizing the city of St. Louis to make quarantine regulations was not a delegation of legislative power, and that ordinances passed under such authority were not repugnant either to the constitution of the United States or to the constitution of Missouri. In City of St. Louis v. McCoy, 18 Mo. 238, and in City of St. Louis v. Boffinger, 19 Id. 13, it was held that an ordinance of the city of St. Louis requiring boats carrying more than a certain number of passengers to remain in quarantine not less than forty-eight hours nor more than twenty days, was not repugnant to the clause of the constitution of the United States reserving to Congress the exclusive right to regulate commerce. And in Aaron v. Broiles, 64 Tex. 316, S. C., 53 Am. Rep. 764, Delany, J., who delivered the opinion of the court, in referring to an ordinance providing for the removal from the city of persons infected with small-pox, said: "The right of the city council of Fort Worth, acting under legislative authority, to enact and to enforce the ordinance which was introduced in evidence, is not to be questioned." What has been said in the foregoing cases in reference to city councils applies equally to boards of health or other public bodies authorized by the legislature to act in these matters. Said Beck, J., in delivering the opinion of the court in Staples v. Plymouth County, 62 Iowa, 364, 366: "This statute requires and authorizes the board of health to 'make effectual provision, in the manner in which they shall judge best, for the safety of the inhabitants, by removing such sick and infected person to a separate house.' The law contemplates the isolation of infected persons, and directs that 'effectual provision' therefor shall be made by the board of health. This is demanded by humanity, and has long been known to be the effectual method

of arresting the spread of contagion. Public policy demands that the spirit of the statute shall be regarded and enforced. The board of health is authorized to do whatever is necessary in order to make 'effectual provisions' for the isolation of infected persons. In order to isolate the patient, he may be removed to a separate house. If no suitable house may be had, or if a temporary pest-house or hospital may be erected at less cost than the rent of such house, the board of health, in the exercise of wise discretion, may provide such temporary building. This they would be authorized to do in the exercise of these general powers under the section, for it is incidental thereto. They could not otherwise make 'effectual provision for the safety of the inhabitants."

But while the power to establish pest-houses, to enforce quarantine regulations, and to compel persons infected with contagious diseases to remove to pest-houses or hospitals, and to isolate themselves from other persons, is undoubted, it must nevertheless be exercised in such a manner as to cause as little hardship to the unfortunate class of persons upon whom it is exercised as the exigencies of the occasion and a proper regard for the public welfare will permit. The detention of persons in a lazaretto, or pest-house, is virtually imprisonment, without the commission of any offense by the party so detained. It ought, therefore, to be as brief and as light as possible, consistent with the safety of the public whose good it is designed to promote. If city authorities cause the removal of persons afflicted with small-pox or other contagious diseases, and in doing so fail to exercise the care and caution which the circumstances of the case demand, and the death of the patients results from their negligence, they will be responsible in damages, even though they acted under a city ordinance: Aaron v. Broiles, 64 Tex. 316; S. C., 53 Am. Rep. 764. It is the duty of a city and of those to whom it intrusts the business of removing unfortunate persons afflicted with contagious diseases to make every reasonable provision for their safety: Id. In that caso it was held that there is nothing judicial in the act of removing diseased persons from a city, and that the question in the case was, whether there was a wrong done in the manner of the removal.

The right to impress property to be used in taking care of persons infected with contagious diseases can only be exercised when expressly granted: Pinkham v. Dorothy, 55 Me. 135. In that case it was decided that the Maine statute did not authorize the impressment of a stage-coach for the removal of such persons. It was held in Harrison v. Mayor etc. of Baltimore, 1 Gill, 264, that the corporation could cause a vessel and all persons on board of her to be taken possession of and controlled until their disinfection was complete, and impose upon the captain, owner, or consignee the expenses incurred in disinfecting. But under the statutes of Maine and of Massachusetts it is held that health-officers are not authorized to take vessels in quarantine or buildings in which persons sick with contagious diseases are being cared for into their own possession and control, to the exclusion of the owners: Mitchell v. City of Rockland, 41 Me. 363; S. C., 45 Id. 496; S. C., 52 Id. 118; Lynde v. City of Rockland, 66 Id. 309; Brown v. Murdock, 140 Mass. 314. ln the case last cited, Devens, J., delivering the opinion, said: "But the mere fact that small-pox existed on the plaintiff's premises did not authorize the defendant thus to control them in the absence of any contract with or authority from the owner. While, when such a disease exists in a town, the board of health are to use all possible care in preventing the spread of infection, and to give public notice by displaying red flags,' and 'by all other means which