New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1866-11-14

line p0udfttc Dy ilb nhihH uultef IOnt
Feb 90 ise 10 forthwith discontinued until the mode Of
OF fumes could escape into the external er, and further
dcTed such order be executed by tho Mrorohen Board
Police and temporary injunction granted restrain
ING the execution Of said order. Tie plaintiff IN
is oonrlll insists that the business or manufacturing
process carried by him, in respect nuisance
The defendants in their answer insist that said business or
manufacturing process public nuisance and rot only
dsngreeabe but infectious HE and health On the hearing
Of motion before me TO continue the Injunction mGD! ahd
ys the part OF the defendants tending To show
that the said business process Of manufacturing was ana
hadbeen for some time public nuisance and not only dis
agreeable and annoying TO many persons residing we ne
borhOod aud 10 persons passing and cpsng but also IN
furious 70 public health aud many adaits on te PIt OF s
painuh tending 70 snow th9t me said business or
manufacturing not had not been and could not De- IN
said hat considering them oud The prescriptions "a 9sVr
Of the defendants as public officers having great pnone duy
perform should not feel justified in continuing the lnc
ton on the ground that he thing or oct ordered 20 Ge G
nued altered as public nuisance Was not OF eo hot 20
constitutional objections Act under which me ded
had acted and to their proceedings under It AS to The PERU
then prepared 20 udgoas 70 such constitutional objections,
only heard the counsel al large but permitted Inn 10 submit
elaborate written brief careful consideration OF tle case
and OF the common law md common Law decisions as 70 pu
and of the counsels brief has led me TO link that nav
| ing substantially Lcd at the hearing that At appeared
that the manufacturing business o. proc e carried on ny We
he public health ought s once 70 have vacated the tempo
rnry Injunction and denied Che motion to continue ~ NhGus
considering tho constitutional questions that IS irrespective
OF thom unless indeed assume that lanuh counsel lh
taking and in giving the point that The execution OF mo oa
oflaw Intended so far as 10 say Tint s State Con
stituton had abolished the common law pIncipa et ay
subject citizen has the nght OF ms mooh snhalu! 70
abate public uuisance constitutional construction 90 noim
and SO utterly without any 9ooToS Una" sgPpSa9
At law private nuisance was tort; public OF com
ciSe dTHion of public or common nuisance was that
public annoyance; but extended definition was tbat
oeuse against the public either by dong hing when
tends 20 tho annoying The public and against all or by
neglecng do anything which tho common good requires
See Jacobs Law Die and Roll ABR 81 Hawk, Book l. p
1877 It principle OF the common law thlt onyone
III found 10 be
jury in or by any preliminary legal Piococauf hsMHr
isI; Hart ag The Mayor &c, Of Albany Wend 5;lSss
$50 SIS and authorities there cited WeimoIe az" lIa
"a Wend 80 OF course any who undertook even IA
good faith, thus summariy 70 abate pablo nuisance
Of his own mooS y ms aet sn1 ,' aoce '1 but he
ncyehetess took upon himself by his act tle work OF being
able to show in proper action by me IliE whose iI n
nuisance IL seems however to havo been held that in plea
show that the defendant did o. little damage asmight
Sect 2 before cel and this clearly shows the ayor Win
n pae pVisance No one has probably ever suggested
that Magma Charta nierferd with this process o. sgnnay
pTaton Of property the deprived OF bis property
tby due process OF law # the thing ataicd was public nui
authorized by the common law and any process oa
as Sopd 5y a Ou BE state S GSS and
thar summary process Of ahating public nnsanoe
there moi room for doab hat Il Is process within
he mcuing Of our state Constitution IL was ,nlIIanlNy
the Mayor &C. of Abanysuprh The temporary injunction
the defendants from interfering With TIE
property OF ne business % tse lhi ~ "a,
ter PCiu The defendants hare usiinod o. undertaken to
poen SANITARY act but Il TIC business OF manufacturing pro
cess Of the plaintiffs public nuisance how can IN decid
PENDANTS citizens aha the nuisGncei see principle
which can Sc Pen1ag pgt BSon WsnS al
not abolish or impair Che common law TYR. or remedy SWe
and VOID could not Hence NY conclusion that having de
tormned at the hearing that tie Junction ought 10 H. be con-
cess Of plaintiff nuisance might have decided
tho motion, without considering Tie constitutional oeeetoga
doubt the correctness Of this conclusion 10 TIC pro-
leiy Of resting my decision eTeasiSey upon tHe eoamoh Law
sbae The nuisance considering the great Putc pgye and
The case and briefly examine the constitutional objections as II
the injunction was be continued unless tho de.onlns were
wonld deYrfye tie rlainF Of his property without
IDS process oV Of law am not Wiling 20 cosecd
milton OF public nuisance unknown 70 The common r dec
sions I am not wiling 10 couoedo that the Legislature
can pOnstutonsy declare net thing 20 be common
or Is not AMI can not 6e under any circumstance
common nuisance By toe e9anea s@ a,anloe or common
turc corsti1iioualy declare or authorize any SANITARY
WAY of sugar or vinegar 70 DO common nuisance
one sweet and the oiher sour q ior any other nson y
be deprived Of his property without compensation nrd without
any elaborate Pee1t tis ne pnDle god required s.ca Si
DIV there might b. legislator thinking tlc Of wltcr On
an wsy 10 he Nuisance But my construction. Of the Metro
/ uotsn' San,ary Act a. Nat II does net authorize
/ and IVES lot Intended 20 authorize tie ElsId or
nusnce or TO declare On act OF iiug 10 DO common uu
snce which clearly under any circusancc not or cannot
alorcl effort y section and other plrts OF he sct give
tio Roard foil and complete power abte suspend
ater improve and purity anything dangerous To- DO OF benin
question vhpLcr The thing Which has been 20 Dr. removed
abated &c, dangerous 20 lie ~ health, Is
public nuisance uridcona question bit Of eolse indie
pendent o. spec prov sion n the this eject consul
ong lai the act pot only g'q. power but impose great
public iuts on auc Qurs.ol an rcslmptu0us aud should
be IN favor Of the Board This lppcars 20 have been Justice
og the Board fIed One part of opinion oiJudgc DAILY
in Charlie Cooper and GnoLT ngt Jackson = schultz and
others goos 10 show ue; was d. construction This being
the construction OF tho ActcoAced. for the purpose OF
swcging This constitutional oil ou that tie execution Of tho
order ~ the Board IN question might or would deprive &c
plaintiff OF ns propuyyet IL Is clear TINT ~ oaruot be said
that the plaintiff would thereby be deprived o. Lis properly
without due process CLAW If he bu.lss manufacturing
process Of the plaintiff public nuisance for II cannot DO
doubted that the Legislature hid the power - give the Board
the night TO do and 20 make their duty 20 do the thing
which any citizen might do Of bis notion Tho history oi
the Health laws relating 10 this city from 1924 20 the passage
Of tho Metropolitan Act shows that The Legislature have from
time 20 time exercised this power and 1 suppose
| the charter OF municipal corporation carries with
life health inhabitants OF the municipality from nuiE.
anees If then the summary abatement Of public nuisance
including the deprivation OF property by citizen Of bis swn
motion, and without preliminary tia BY Jury At common
law due process Of law then The execution OF he order
is execution might deprive TIE plaintiff Of bis property without
compensation I'd AS 70 the constitutional objection mat he
act establishes an inferior local court within Tie prohibition
implied by Article VI Of tho Constitution. In the first place
though the powers conferred By the act are ulqucsonaby
mainly judicial yet do moi think tnt tho BOlTd con properly
he called Court but Otherwise there two decisions 81
ihe Court Of Appeals which prevent mo from sustaining
ion People agt Draper 70. New York r., SEQ and
he Other is SIN sgt ne Village Of Corning gS
power % create this neg political o. Governmental district
t6e cpet is Officers The second sioTs nat lis Iss
tdct not being city, though including Qa cy The
loe ' co1y IN ri AZ 10 e eag.oua OH s
lection that the act auihoses the Board 20 pass laws II Is