New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1866-07-16

liable to lead results detrimental TO the public or dangerous
10 life or health the prevention Of accidents by which life or
health may Dc endangered and generally the abatng Of all
nussnccs There can be no doubt IN adopting the principle
powers conferred by acts ere all intended
necessary 10 the alton Of the public health and
ollie; and that this the object for which the statutes
passed Iso then in asceraining powers
conferred be- governed solely by the inquiry whether
they relate to the object which the Legislature bad IN view In
passing The laws and v the authority 10 remove Obstruc-
lions matters in public streets sidewalks other
public places Is OILY 20 be considered granted with view
carry the general purposes OF the under
sheraton Il pretended the argument that this
action OF the Board Of Health In removing any portion OF
the market preservation Of the pubic
health the protection OF e but understood the eoan-
SCI The objection TO the stalls sought 10 be removed was upon
the suggestion Thar distraction upon pub
lie street. and nuisance the opinion Of the Board Of Heath
detrimental 10 e such too, the allegation ~ the answer
setting entry IN is records this subject but
what thai entry was not particularly stated in toe answer
except the general conclusion ~ was intended To rely
health the records fr such should be stated
that might appear the Board had before them evidence
upon which such decision could DO formed There Is re-
port from the officers OF The Board stating that IN their opinion
the stall, impeded ventl ton.
shall Doyever consider the powers OF the BOARD as exer'
csed IN this matter upon The ground stated, that the stas
were either al oostraon upon the puohc street or nu'
saDce.
have already stated thai in my Judgment the act is to be
construed applicable only 10 such distinctions as were
dangerous 10 lie health and not Of that Character that
1t did not apply.
That it wouli be Nuisance II it unlawful obstruc
ton Of a public street must be conceded. and when
that Is the 1t does not need the power OF Board
Of Health 70 remove IT, ANY citizen has night 70 abate
pablo nuisance II he does 1t IN proper manner.
bat a which the law holds TO be such and
merely declared by Board or individual 1t
must De nuisance Judged 10 DO such by law IL may
wen be doubted whether the Legislature delegate to any
body OF men the power to declare what Is or what u NOT
Such power would be equal TO to declare
what saoud be criminal ACT because 1t Is crime to main
tain public nuisance and the Legatnre can delegate 10
individuals power define they delegate TO
them the power to make acts criminal when are LOT 80 Dy
law Such a power be delegated to Others by the
Legislature They NAV authorize boards OF heiu 20 pass
ordinances for the objects OF their cre1oa bat they
cannot delegate them the 10 dehne what shan be
nuisance make acts criminal which the Law hciS to DO
innocent
a nuisance. that they distractions IN The pnblo
streets Whether they unlawful distractions IS not by
any means free from doubt. Tie power 10 keep mar
ter. aud afterwards in the charter OF I'Jo the
power 10 the Common Council 70 establish markets
more uy granted 20 as TO authorize markets 10 De hed
In the public streets which named they then existed
and with authority to have hold ana keep sqeh ana 20 many
other markets at such places IN the city as shall IRON time 70
time be orderd established erected ana appointed W the
Under tbs authority the Corporation frequently erected
markets la the public street, II - net beyond the memory
Maiden lane near Broadway and nom Water to Southsts
OGp IN Waist and 10 the street near where the pres
Washington Market is erected
These mar kes were not r ascertain, erected
under any other authority than that contained M the Quarter
~ the city not prcpred therefore 70 say shat Az eH
tension OF one Il these markets over the Sidewalk sne m
obstruction Of the public street thai may on account OF ITO
iIegaiy De deelred pubic nuisance On ,ae contrary
until otherwise uciay determined should be inclined 10
bold extension Of tie market to be NiAn me chaered
~ ues,,h n cos II ~ be- npsnce Tor that cause they
saoud obtain Jaacal eeierms tlon la te les s,se
Legislature regulate aud control tie public markets but
that power limited VIZ $50 far as rltea 10 the
C,anuess ventilation and drainage tlcreoi ara 20 the pre-
ycniou fhe sale Offering or sale OF improper articles
ihcFoG This limitation Of their power over INC markets. eh
clule al night interfere with th2n unless some oter
authority ioand To- H. DO not eonsei to DC etaer
an unawfu Upon the trces or nuisance as snch
= defined 10 BE- b. law authority Dy winch
the defendants under powers vested Ia them can order
them u be removed consider the POWERS OF
oar Health be very extensive and % some respects
vthon control bot these powers only Az connection WITH
the gbect matter which Board Is called into exist
encc but they beyond such authority and attempt TO
control regulate the public affairs irrespective OF the pres
ervatou pnl beah they attempt the exercise pow
es vested them 90 which tie courts should 10
=, "a
II was urged before me- that the Board o. Health
and should do injury 10 the city property 10
which they exceeded ler powers that there vas remedy Dy
81 dsmare and therefore an injunction
proper renedy Sucn rule may be- proper as to IN
di'duas hos not think. applicable 10 where the
p1Tcs both represent the public aud where the oSs must fall
upCn the public whoever succcrdA
II j. well 10 apply sBcb ille 10 where the loss IN
be paid o the treasury for the purpose Of
allowing different public bodies invested with powers for the
OF the cry IN contest between them
seves and % cert their powers against each oiher
such would oc much 10 the inter
proper OF public duties these different bodies
should hArnonousy promote TIE public welfare
accordance provisions OF Law rather t1an 10 waste
the public property unnecessary distraction by cosL
litigation.
The motion dissolve the injunction Is denied.
W T. Alien and A. X Lawrence IT, for PLAINTIFF {. Tracy
A. j. Nanderpoe and g. Biss for defendants