The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-12-11

t6O9ul6UI
70 life and health, and unless after this Judgment Of
condemnation y pronounced the owner can sAsisfy
thom Of their error. becomes their duty % execute
their Judgment BY an abskemsnt of the tenement do
hesitate 20 pronounce this FEATURE Of the act uncon
sutionai and VOID. and hold that the condemnation
is unlawful furnishes no justification whatever
the defendants. me defendants have condemned,
and have executed thor JUDGMENTS by closing them up
II be borne In mind that tho defendants not
slaughter houses or 70 ike tensmsnts II the act in
question 70 constitutional, there Is not building IN
this city nor business pursuit followed therein, over
which they may not precisely the same juris-
dcon and control which they exercising in refer
ence 70 the saughterins and driving q cattle tsno
answer 70 assert that In reference 10 other pursuits the
defendants will rot interfere. The question Is one Of
power, not OF disposition volition. The constitu-
lection contemplates due and reasonable notice
to appear and answer in court before judg.
has the question we have been considering been
decided otherwise as some have supposed by the Court
1884, 135 1874 In that case the comp amt alleged upon
Information and belief, that the defendants intended
from the city 70. losl. Upon the allegations or tho
complaint . temporary Injunction issued which the
defendants moved % dissolve upon full and explicit
be cited TO show that the defendants entitled
to dissolution Of Tho injunction because the whole
fully, explicitly and positively denied But Judge
Day. Notwithstanding such denial proceeded to express
an opinion upon the question, AZ though the intention
charged existed and the threat alleged had been
The view thus expressed by the Judge upon
the the record, cannot be- regarded as an authority
binding upon this court Tho fourteenth section the
sr N 70 my X. = yoa upon another
what ID not nuisance Instead Of defining nuisance
the Legislature conferred upon the defendants that
power The Legislature cannot thus delegate Its powers
Healih 81 How, R. r., ssS, asS The ordinances j. void
TO pass the ordinance In question legislative power
The functions sought TO DO exercised by defendants
municipal authorities It the time Of the adoption Of the
constitution and the Legislature has authority what
ever @ vest Il in the dsfendsns who are local officers
appointed by State authority The Legislature
the legislative func,ions enjoyed ana possessed
adoption OF the constitution. II The legislative power
claimed for the defendants exis. il competent for the
law making power TO transfer 10 tho Board or Health
full and complete control and supervision Of all
cipal matters Il confer upon this body OF ap
coun,ableto the citizens OF New York, absolute and
Unlimited judicial and legislative authority over the
great commsrciai emporium To such a doctrine i !
cannot yield assent The defendants so far as they
brace the police force undoubtedly possess certain we'll
ercse in regulating the busne Of the plaintiffs and OF
other persons similarly situated; but they cannot
business to be a nuisance and to pass laws
and ordinances which in effect make unlawful
and enjoyed in this city from time immemorial
II the plaintiffs premises not nusance--if thcy
severed ventliatcQ. offensive
to the senses injurious life hoath-it would
be arbitrary and despotc the
IRON Carrying 90 .ne % pur,a a. suen pace
possess this unlimited power, and they insist that they
exercise It by legislative authority without any
gard to the sani,ary aspects Of the question While 1t II
the plain and manifest duty Of the courts to uphold
every valid and constitutional act OF the Legislature
is equally incumbent tho properly constituted
tribunals OF justice condemn and declare void act
Of the Legislature clearly violation of the provisions
OF the fundamental law and may here take occasion to
". become
been growing disposition displayed by the State
,.nno',s ysh, se,sgovorros sne and
TO transfer their political and civil rights rresponsi
bic boards and commissions TINS disposition 70
encouraged, but should be condemned at war with
the spirit ana genius OF our institutions and as an nrsc
ia Shuster's case, People vs. Police, 80 How. SO;
affirmed in Court Of Appeals For these reasons and
ordinance In question void, and that the defendants
should be restrained - prayed for from enforcing IT,
strained The defendants arm the pIaintis' premises
to be nuisance and their business pursuit dangerous to
s @ ana Is aasuosd 'Ss
both parties. The issues Joined are undecided
and yet the defendants claim the right to apass the at
tho universal practice Of the courts restrain the abatc
mont Of toe alleged nuisance until tho question OF fact
Is determined (iogers Baker, 81 Barb AT. Mayor,
&c., the Board OF Health, 81 How. Moody tho
gsard \, o. ,aE er ;hs &C. 40 gsS so wSus
Is void because dcprves the plaintiffs Of their prop
sy wsCss due pr @ Of law also SssaS, = . an
constitutionaly they could not exercise aad in
pec Of the question, so ong the fact Of nuisance in
Il. Tho defendants nsst that for plain
ts and others TO drive cattle in the city since the pas
cage OF the Of 1867 except by their perm The
defendants after the passage OF the bed By
ordinance tho time and manner Of driving the number
be driven Al given time, and the streets and
nues OF the city through which they nigh. be driven
and such ordinance enforced al the time or the
ana Ss
the permission contemplated by the act and there s
change the regulate us aud 70 alter them think Their
powers were spent and exhausted when they
made the Regulations before mentioned tFhe
people tho New York aud Harlem Railroad
Company, IS Barb ~ ISL But mon anolhsr
ground the plaintiffs are entitled drive Cattle
10 their slaughter houses. The act Ia question: IL the
defendants vieHs sound, delegates to the defendants
the discretionary power Of permitting or preventing the
have already shown the Legislature cannot do consist
entity with tn provisions Of tue constitution That the
municipal authorities possessed the power sought be
conferred upon tho defendants the tine adop-
ton q the STATE constitution may be conceded That by
Legisleure intended 70 transfer the IN question
the defendants also be conceded but they
Legislature Is aborve and nugstory see opinion IN
Shusiers case tho People the Police rs How Pr.
r. 81 The act OF 1867 delegates To the defendants Abe
authority to adudge and determine whether given act
may or may not DO unlawful add criminal within
the limits OF the Metropolitan Police District.
"yor nay lawfully drive cattle through tho streets OF
New YORK Il the defendants do not decide otherwise If
they determine shall not, your disregard of their
determination will bs unlawful yon will be Guilty Of
misdemeancr and VIII he tablet Indictment and pun
ishncnt crirninais" eary IL 10 beyond tho powers
OF the Legislature 10 confer upon acy body Of men,
although selected BY gny itself powers
The Legislature may denonnce given az criminal,
and prescribe appropriate punishment hut n cannot
delegate TO these defendants any such power auho-
rity. The Mayor, &C. the Board Of Health 81
How, 3s5-3e6, per Ineraharn yussics) In effect the
Legislature has oonded defendants the autho.
riy determine whother no< the OF 1867 shall
90 into operation Tho Cou Of Appeals has condemned
legislation OF this character orsttutionaI and
void. lBsrlo Himrod, . Seldom. asa Bank Of
Romo VI. the village Of Rome, Is ~ ", 5-ol.
Clark vs.Ihs Cy o. Roehcsses - r. eos, Gag People
OF 1867 provides that song the defendants shall
permit the Strengthening Of cattle, south Of rortsth
street. IL shall BE- lawful 20 drive The defendants con.
tend that they do not permit Strengthening south OF
Eorteth street and therefore II a unlawful for the