The New York herald., 1866-08-04
TINE FAT MELTING AND LIME BURNING ESTABLISHMENTS.

Opinion by Judge NIcounn.-He Declares Fat
Netting a Great Nuisance and Refuses In
functions Against the Board oil Health
Lime Burning TO be Tolerated.
sUxRIoR COURT CHAMBERS.
Before Judge McCunn.
Aue. 3--Reynoldi ys ZAe Board Of Feg,M Judge
McCunn to-day rendered the following decision in this
CASE
This was motion to perpetuate an injunction where
the Board Of Health threaten to prevent the plaintiff
from burning shells into lime
The Judge began by stating that the Board or Health
was instituted for great public purpose, and in
vested with powers appropriate and adequate to tho
compshmcnt OF that purpose To stay the progress of
pestience object of the highest possible interest
every member Of the community and II is the duty
OF the competent authorities to make commensurate
provision against the invasion OF this as OF
every other pnbhc enemy. In time Of war the
military authorities warranted in sacrificing
life and property to the maintenance Of the pub
lie security In timo Of peace other functonares
are empowered to exact equal sacrifices for the prese
ton OF the public welfare whether against the spread Of
conagraiion the conagion OF 4choera To this end
property Is freely destroyed and the personal liberty OF
the citizen restricted as by quarantine regulations and
il Is the duty OF the Individual surrend his rights
he exiuences Of he general saf w. The legislature TO
whom the theory of our government entrusIs the
guardianship Of the public interests has determined
ond declared that the presence Of cholera in this
country presents occasion for the exercise OF ex-
raordnary powers in stance TO the progress of the
of the law under consideration and the establishment
OF the Board whose authority now TO define.
Ny opinion is that the statute creating the Board OF
Health and investing it with certain anomalous powers
Is legitimate and constitutional cxcrtlon Of the legisa
tive authority and that it l. the duty OF the Court 70
facilitate the beneficial, exercise those powers But
cannot be pretended that the authority Of the Board Of
Health absolute and unqucsonable that its action
is exempt from Judicial criticism and control An abso-
lutte power, without resri tions and without responsi
biy, Is " tho very essence OF TYRANNY Our instu-
tions tolerate man above the law The highest ma
hin
to the restraints Of Judicial authority acting in the
interest and support OF the constitution. And It is
protect private right against lawcss usurpation II,
then. case be presented to the courts wherein,
under pretence OF promoting the public health, this
Board wAntOuly and unnecessarily invadcs private
properly the courts may and shod nterpose TO arrest
the arbitrary cncroachmen and shield the threatened
right And am, therefore, clearly Of opinion that IL Is
for the courts ascertain and define the powers OF this
Board and to guarantee the protection OF the law to
individual Tho Hoard bcvond the scope Of is
authority and that authorv as declared by law Is de-
termined By the exigency o~ he case. The powers i'm
parted tn the Board quacd BY circumstances; and
It fDr the courts 70 say when circumstances justify thu
exercise Of thcse powers Otherwise repeat the Board
would be armed with absolute and uncomfortable aatho
these principles which arc eemcn ay and or universal
operation in all well constructed governmens-
APPLYING these principles 70 the case bel before .r me
pose and protect the plaintiff against the unnecessary
and unwarrantabic action Of The Board Of Health am
satisfied beyond Doubt from the evidence before me.
that his business detrimental TO tho public health
and that It's suspension by Board would be arbi
trary and illegal invasion OF private right must not
mont not nuisance IN the sense thai Il Affects the
pnblc convenience disurs others In tho enjoyment
OF their rights That quest IL not before me. II this
esabshment be either public private nuisance, II
may be abatcd by the ordinary process OF the conrs
snch process being SIMPLE effective and open them
all. Except II be Injurious 10 the public health,
the Board OF Health have concern with II,
and cannot assist In suspendng its operations That II
gates disease Is ary and conciusvey exhibited by tho
testimony, wcll OF those who acquainted with its
operations by experience, OF those whose scientific
skill enables thcu TO ascertain Its cecs without expert
ment And this the precise language OF the law which
creates the Board or Health and defines its powers
cite the third section OF the statute, the very section
under which the Board IL acting oIt shall be the
duty Of the City Inspector complaint being made to
in the ci'y OF New York detrimental TO the public
health TO notify slch person persons TO show cause
before the Bosrd Of Health time and place to be
specified in such notice why the same should not be
discontinued removed These words decisive Of
the point In discussion add nothing their effect
Let an order Of permanent Injunction be entered re
s'rctng the defendants from interfering with the opc
raiions OF the plaintiffs establishment In the NJ
Esnr and Westhefmer SCHULZ and others the Judge
said:Having held In the Of Reynolds the Board
OF Health that the powers OF the Board legitimate,
constitutional and proper the only question remaining
In tier Is whether the fa melting business carried
OF hy the plaintiff IS injurious detrimental TO the pub
lie health have carefully examined all the evidence
in thesr cases scientific and otherwise and have conca
ded that would not be jsiihcd In interfering with the
exercise OF the proper powers NJ the Board of Health
The testlmony the part of the dit witnesses who
have made oath for the defendants and OF
the adnvis the part OF the plaintiffs clearly estab-
s the fat that the smell arising from these places Is
detrimental 10 tho health OF citizens in the vicinity
The rlunctons sought for in these cases must
fore be denied, with costs