¶1 I dissent. The undisputed facts are that petitioner was arrested on a charge of vagrancy, was taken from her place of abode to the police court where she pleaded not guilty, and, without trial or *769 judgment, was ordered into the custody of the health officer. She was then taken to the city and county hospital where, in direct defiance of a penal statute, she was subjected to a medical examination by an unlicensed employee illegally styling himself a doctor. As a result of such examination she was ordered confined in the city and county hospital for an indefinite period and was so detained without xvarrant or judicial commitment when released on bail by order of this court.
¶2 The poAver to quarantine diseased persons for the purpost of preventing the spread of communicable diseases need not be questioned. The power to imprison a citizen in a public hospital without trial or commitment is obnoxious to every American principle of right and justice. It is one of the fxxndamental principles of both our federal and state constitutions that no person shall be “deprived of life, liberty or property without due process of law.” “It is a rule as old as the laxv, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportxxnity to be heard.” (Galpin v. Page, 85 U. S. (18 Wall.) 350, 368, [21 L. Ed. 959, see, also, Rose’s U. S. Notes].)
¶3 In the present case the petitioner, having been charged with the crime of vagrancy, was entitled to a trial and judgment upon that charge. It matters not that she consented to go to the city and county hospital for medical examination on the promise of the judge of the police court that he would dismiss her case if foxind free from disease— and the implied threat-that if she did not consent she would be convicted and sentenced. The magistrate xvas xvithout power to make any such promises. It was his duty to try her for the offense of which she was charged and find her either guilty or not guilty of that offense. The presence of disease is no element of the crime of vagrancy, except in certain instances defined in section 647 of the Penal Code, xxdiich are not material to this case. If, as claimed in argument, the petitioner was a prostitxxte, then, under section 647, she was a vagrant. That was the issue which was presented to the magistrate and upon that issue she *770 was entitled to a trial. She did not have a trial upon that or any other issue.
¶4 The broad scope of the main opinion is atrocious in its consequences. Having approved the farcical and unjudicial pretense of a trial in the police court, the effect of the opinion is that any citizen may be taken from Ms home, and, without trial or judgment, confined in a public hospital during the will and pleasure of the health officer if some unlicensed employee of the institution believes that he is afflicted with' some contagious disease. During such confinement the victim may be denied the right to call in his own physician, but is forced to subject himself to such medical treatment as the employees of the hospital may choose to give Mm.
¶5 Section 2979a of the Political Code, the section under wMch the health officer is acting, authorizes him, when acting as an inspector under the state board of health, to “take possession or control of the body of any living person” upon being informed of any of the contagious or infectious diseases mentioned in the section. Among the diseases therein mentioned are tuberculosis, pneumonia, diphtheria, measles, chiekenpox, whooping-cough, mumps, and “any other contagious or infectious disease.” Thus a parent whose child is afflicted with any of the many contagious diseases prevalent among children may be denied the right of caring for his child in his own home and of calling a physician of his own choosing. All that is necessary, under the main opinion, is for the health officer to be informed that some contagious disease exists. Then he may take possession and control of the “body of any living person” (not necessarily one afflicted with the disease), remove him from his home and the care of his family, and confine him in the county hospital, without commitment, until such time as the employees of the hospital may determine that his illegal imprisonment might cease. If such be the law, one who is afflicted with tuberculosis may suffer a greater punishment for his offense than one who has committed a burglary.
¶6 The provisions of section 2979a, in so far as they attempt to authorize the imprisonment of the individual for an indefinite term without trial and without commitment, are unconstitutional and void. The petitioner is detained by the *771 health officer solely under the authority of that section. Her imprisonment in the city and county hospital is without the semblance of a legal confinement and she should be discharged.
¶7 A petition for a rehearing of this cause was denied by the district court of appeal on August 24, 1920, and the following opinion then rendered thereon:
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