The New York herald., 1866-09-11

nHIy-NOtjON for an Injunction against the
Board Denied COnst ituffonality of the
BeRith Law. Sc.
COMMON rrKAs-cnAxB,Rs.
Before Judge Daily.
Charlie Cooper e al ~ Jackson s. Scauls IT al In
this plaintiffs, who ere butchers made application
the for injunction restraining the Board OF
Health from interfering with their business regards
slangh,erng and driving cattle through the streets.
The argued At length some two weeks
s,uce. Yesterday Judge DAILY delivered elaborate
opinion denying the motion for injunction. He dis
cusses the powers conferred on Health Boards and
health regulations, almost Msgua Chara in English
law and to lie early Dutch settlements IN Manhattan
End bringing their history down 20 tho present day. IN
ot be reviews ench objection taken 10 the law and his
decision y in favor OF lis validity He treats almost
with contempt the argument that the power Of the
Road 70 building that s public nuisance s
against the bin Of right hasng HE deison on the CON
mon law right Of any one 10 sunmariy remove nui-
sauces and showing historically, that since Iso SINH
lar power has been vested in health ocem lie cites
the in Is Wend ne, 10 sho~ that the Board of
Health was the tribunal TO decide WHIST s nni-
tance only 70 be wed on ,>,stGri ~ Wend. ST.
u de ides that the in question T. careful
than the common law or the rights ~ the citizen In
the he dsposes ~ The srgrment hsed on tie
phrases ny due process OF la" aud by he sw Of the
land by show ing from rracedcn, that only
deprvinr person Of The rights Of person Woperfv
whou, regular trial That the arrest provided for in
the bot the ordinary preliminary arrest for mis-
dencanor and no violation ~ the law ne Gays ta ne
objection that fcfbiddina the bnth r. 10 drive cattle
through the streets except al certain hours " depNh
on II their properly, scarcely crlinr for scr
reply. IL simply regulates tho use 81 H. He for
hsr decides that the make health ordinances
V no, ii conflict with the constitution snd that the con
ferrng Of legislative powers by the Legislature nfe
rinr bodies fofo dden ard shows thai hes boon
hcre orore conferred on bn.rd. ~ health and o'brr
bodies during than ffiv years The objection
10 the Board the srorrd " its local ma
turs II cvcrruled ~ J-dge nav In accordance with
tho principles laid down IN tho Metropolis tan ro'ice
ac, The object tina, Judicial powers conferred
the Board held 20 have no Application siuce he isgs
N'We u prohibited ffoIn crestnC courts IN New
York He therefore holds the act constitutional and
valid This discussion or the cousli onsliy cf the act
occupies shout half OF the opinion. The res' OF the
opinion is occupied with the special violations OF " 70 this
cage and he holds thai the ordinance relative 10 The
deng OF cattle at certain hours and in certain numbers
aud With other restrictions s within the scope and object
by tho officers exercising the powers the Board OF
Health That has beon shown that the driving 81 cattle
dangerous ife notwithstanding that butchers have
known OF any accident arising from " and the ordl
nance " within the powers conferred on the Board
He holds the regulation requiring butchers TO take out
n p.rm,t more doubtful, hut after careful review of
the power exercised by the CITY nom the eacs, periods
os sim lar character dccfdes that far this power
Waes 10 the protection of Tie or health or the ire
venon Of dlscase, 10 is taken from the city and con-
fered exclusively on tho Board OF Health snd with u
ali Incidental powers conferred He expresses, how
ever great doubt this point and holds that " not
essential 10 him Pass ~ as the proper remedy of
the butchers f wronged " bv action and not bv nunc
ticu He holds that the act confers on tho Board Of
Health power 10 10 such extent they may pro-
vide Tor the greater protection and security or health
and Ire, and f they should think necessary for that
purpose 10 remove the slaughter houses, any court
A. the time he holds that slaughter house is not
nuisance per sr and deprecatcs the general removal
He fully sufans the supervising power Of the Board Of
Health yer the slaughter houses, and on all rolnv d.
A.. f..a. a. na.