The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-09-17
SUPREME c0UaT-cHAMSeas.
The Board Of Health and the Soldiers Mes
senScr Compuny-The Right to Erect Booths
Anirmed-Thc Maudanus Denied.

The Board Of Health and the Soldiers aIcs.
senscr Compnny-The Right to Erect Booths
Afiirmed-Thc Mandamns Denied.
Before Judge Clerke.
The Ps1ple rel The Soldiers Business Messenger end
Despatch Cmpang The Metropolitan Beard of Hea TIL
The motion for mandamus In this and the argu-
ments on tho motion were fully reported in previous
issue Of this paper decision has been rendered by
Mr. Justice Clerke, which, as win be seem while denying
the motion, fully susains the rights of the relator The
facts are set forth In the following opinion
The Legislature by the act Incorporating the REALTORS
among other franchises granted them the right erect
and MAINTAIN covered stands booths the OF
the cities and villages in the said district he Meropo
tan Police distrct except Broadway in the city of New
York, directing that the number, size and location of
said stands booths shall be determined BY the Metro
potan Board Of Health. The latter the defendants
this action refuse to act upon this direction the
ground that the LEGISLATURE In passed subseQuen
~ 10 the same session, April u.s. 1851 have revoked
power Tho 18th section of that invests tho Board
OF Metropolitan Police with the powers possessed by the
Mayor snd Common Council OF tho city Of Now York.
OF granting Licenses to In respect to certain pur
poses and caIngs, and the said section contains the
for said Board Of Metropolitan Police nor any other
board or ohcers after the passage Of this act to grant
permits, nor shall permits be granted eny person
to occupy obstruct any portion any pub
lie street, sidewalk, pier, wharf, bukhead place in
said CITY, The refusal OF the defend based this
provision they maintain that revokes or repeats the
act Incorporating the REALTORS This latter act must be
borne In mind invests the REALTORS with important fran
chses OF which the right to erect and maintain covered
stands or booths the is the most prominent
The authority or discretion given to the Board Of Health
10 an essential constituent of this franchise; for
not be consummatcd without their action. Can It be
supposed that the Legislature intended to revoke
this practice BY language so general as Is
employed In the provision contained in the
twelfth section of the act giving power TO the Metro
poan Board OF Police to grant lcensesf No right Of
franchise can ever be revoked in general and
uncertain. Second, even II tho first act was uncon
nscted with the bsstowa Of franchise the language Of
. subsequent act would not amount repeal Repeal
by implication, a. all know IL not favored and the
earlier statute remains In force unless the latter
testify repugnAnt 10 and inconsistent with It, unless
the later act takes some notice Of the former plainly
indicating an intention to abrogate It. The provision
the twelfth section Of the act relating to power gwen
to the Metropolitan Board OF Police contains nothing
pugnant - the earlier act and does refer any
way whatever Third, besdes this section forbids cer
tad boards and officers from granting permits occupy
given TO the defendants in relation to the booths or
stands which the REALTORS are authorized TO and
maintain In the streets is not q power to grant
permits, but direction or authority to determine
locality Of which shall be previously selected and 1xed
the eaors with tho consent Of be lessee OF the
property adjoining or against the boo or stand have
hesitation therefore, for these and other which
unnecessary to specify hcr y deciding that tho de-
PENDANTS Ter obligation comply with the re.
poratins the REALTORS. But a. the permits OF the
and lessees OF the adjoining property TO the localities
selected by the REALTORS not IN my opinion properly
authenticated a. to show the defendants sufficiently
for which the Attorney General appliea viii add
that clearly the defendants have ample discretion
determining the number size and location the booths
and stands only that they refuse to take
any action In the performance Of duty which tho Iegs.
lature has devolved them Notion denied without
costs.