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a time she made the discovery that the hospital was not, in her opinion, properly
managed, and that some of the attendants were drunk. She thereupon removed
the child, which had not been sent to the hospital by order of Justices. The
mother took the child home and made there very good provision against infection.
Thereupon a medical officer procured ex parte from a Magistrate, under Section 124
of the Public Health Act, 1875, an order to remove the child again to the hospital.
The mother prevented this order being obeyed, and the proceedings against her
were taken under Section 124. On the hearing before the Magistrate it was
contended that the Justices had no power to go behind the order, and a case
reported only in "The Times" was cited to that effect. The case was "Booker
v. Taylor," November 21, 1882, which was decided ex parte. That case bound the
Justices to say that they could not inquire into the facts on which the order was
made. It had been pressed upon the Court that this was arbitrary, but the
question was, had a person the right to obstruct the execution of the order, and
at the hearing of a summons against her for so doing raise the whole question of
the facts ? The Legislature meant to protect the public from infectious diseases.
The whole legislation would be useless if the operations in such cases were dilatory.
If persons could obstruct and delay the operation of the order the whole purpose
of the Legislature would be defeated. What was meant was to give a summary
remedy. In the opinion of the learned Judge the case cited was rightly decided,
and the Magistrates had no power to go behind the order. But, as under the
circumstances it did not appear that anything more than a nominal fine would be
inflicted on the mother by the Justices if the case came before them again, it was
not worth while to direct the Justices to state a case.
Mr. Justice Channell concurred. He thought "Booker v. Taylor" right. As
to a general principle of law an order could not be made in respect of the person
or property of any one without his being heard upon the matter. But there were
exceptions—namely, when it could be seen from the words of an Act of Parliament
that the thing might be done ex parte. That was allowed in cases when it was
necessary to act promptly, as, for instance, when diseased meat had to be destroyed.
The removal of a person suffering from infection was very similar in character.
Prompt action was equally necessary. He thought that in strictness the
Magistrate making the order of removal ought to satisfy himself not only of the
existence of the due medical certificate but also to the other conditions—namely,
that there was a suitable hospital within a convenient distance, and that the person
suffering was without proper lodging or accommodation. The matter was one of
urgency, however, and the offences charged consisted in a person wilfully disobeying
an order for removal under those circumstances. Though ex parte orders were
often made on insufficient grounds the Justices could not go behind an order such
as that in this case. It would seem to have been wrong, if the circumstances were
such as were described, for the Medical Officer to have procured an ex parte order
against the mother who had removed her child because the attendants were drunk.
There must be some mode of questioning such an order, probably by certiorari, or
by writ of habeas corpus, but the Magistrates were wrong in thinking that they
could go behind it. He agreed, however, that it was not worth while to call on
them to state a case.