New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1866-08-04
The FAITH oiliug Nuisance.

FAT MELTING DbCLAkbD INJUhiOUo III
BOILERS REFUSED AN INJUNCTION.
In the Superior Court yesterday, the case of Rey-
uods tat METER against the Board Of Health in which
Reynolds asked Court continue to interfere In his
behalf and prevent Board Of Health from closing bis boil
ing place. decided by Judge Mccain. who held that lat
melting establishments are luxurious to Poonc health ana
time is not Injurious when conducted properly ine io"0"
ing ia the case with the decision:
Reynolds agt The Board of Health.
This motion to perpetnaie an injunction wne,e .ne
Board Of Health threaten to prevent the Pan1h LON Oun
The Judge began by stating that the Board OF Health was
Instituted for great public purpose ana @as vsseu ~
hs purpose TO stay the progress OF Peseace an oosc'
unity and \, is tho duty OF the competent Authorities
make provision against the Invasion Oh tbs as
In time OF war the military authorities warranted in
sacrificing M and property 70 the maintenance OF the public
equal for the preservation Of the public wei
fare whether against the spread Of cohaagraton or the con-
This property is freely DESTROYED and the personal
liberty o the cszen restricted by quarantine regSatlous
and it the day OF the ndydn to surrender his rights 10
the eKgeucles Of the general safety
The Legislature to whom the theory Of our Government IN
and declared that the OF cholera IN this country pre-
occasion o the exercise OF extraordinary powers IN
progress the most formidable enemy Of the
race Hence tho enactment Of the Law under
and the establishment Of the Board whose authority we are
nov to define ...,.. -. p..., ,u..,,
and investing u WITH certain anomalous powers rs est
and constitutional exercise OF the Legislative authority
But it cannot be pretended authority of the Board
o. Health is absolute and unquestionabe that It's action
Is exempt from Judicial criticism and control An absolute
power without restrictions and without responsibility Is ofthe
our lstpQns tolerate no man above the law The highest
magistrate Ia the land Congress itself amenabe TO the
port Of the cSnstaon And is Within The jurisdiction and
duty Of the courts to protect private right against awless
IT. then case be presented the Wherein under
pretense OF promoting the public health this Board wantony
and should uerpose the arbitrary eneroachmen
and shield tho threatened right And am therefore clearly
OF opinion that for the courts 10 ascertain and define the
powers Of this Board and to guarantee the protection OF the
law to every individual
that authority declared by law determined by the ext
gncy the The powers impaired to tie Board are
qualified by circumstances and Tor the courts TO say when
circumstances Justify exercise OF these powers. Other
repeat the Board would be armed with absolute and
Applying these principles which elementary and of uni
versn operation In all well constructed
principles the before mel forced 10 the
cuon that duty 10 ntepose and protect the plaintiff
Board Of Health satisfied beyond doubt from the evil
denoo before that bis business is not 70 the
public health and that its suspension by the Board would be
arbitrary and Illegal invasion OF private right
must not be understood to determine that the plaintiffs es
tabshment is not a nuisance the that It affects the
public convenience dsnbs others in the enjoyment OF their
rights. That question Is not before me.
Ii establ stmon be either public or private nuisance,
being simple effective and open TO them all Except
be injurious the public health the Board Of Health have
with IT, and cannot assist r suspendng its opera
tons
That II is njurious-that it in way produces
disease clearly and concusiyely exhibited by
The testimony well Of those who acquainted with It's
operations by experience of those whose scientific skill
abes them 10 ascertain It's effects without experiment
And this Is the precise language of the law which
the Board OF Health and defines Its oits the third
the statute the very section Under which tho Board
acting; IL shal be the duty Of the City Inspector
complaint being made him. whenever he shall deem any
business trade profession carried by any person or
persons in the City Of New York detrimental 20 the public
health notify such person persons to show cause before
the Board of Health time and place TO be specified IN such
notice why the should not DO discontinued or removed
These words decisive OF the point IN discussion can
AID nothing TO their effect.
Let IN order permanent injunction be entered restricting
tho defendants from interfering with the operations oil the
plugths establishment.
In the cases and weshener agt Schultz and
others. the Judge said; ,
Having held in the case OF Reynolds ag the Board OF
Health that powers OF the Board are legitimate consttu
ona and proper the only question remaining IN these cases
whether melting business carried on by the lantn
is Injurious or detrimental TO the public health
have carefully examined all the evidence IN these cases
scientific and otherwise and have concluded that would not
be Justified in interfering with the exercise OF the proper pow
ers II the Board Of Health -, ,r. ,.. -.
The testimony on part Of the different witnesses who
made oath the defendants and even some ~ the am
on the part Of the plaintiff clearly establish the fact
that the smell arising from these places is detrimental to the
health Of citizens In the vicinity.
The sought FOR IN these TWO cases must therefore
be denied, with costs.