The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-07-02
THE BUTCHERS AND THE BOARD OF HEALTH.
Ruling of the Court Of Appeals.

Ruling Of the Court Of Appeals.
The following very important opinion has just been
rendered by the Court Of Appeals. Its immediate
effect will be, Of course to put an end to slaughter
ing and cattle driving In the city; but it will be per-
ceived that the decision establishes principles Of
much broader application even than this. In BRIEF
the court decides that the creation Of the Metropolis
tan Board Of Health constitutional exercise
OF legislative power; that the Board may pass and
enforce by actions for penalties general ordinances
on the subject Of health, and that when the Board
makes an order for the abatement Of any nuisance
the removal OF anything which Is in Its opinion
detrimental health there is right to review this
decision by jury trial or to interfere with its en-
forcement by injunction. The only course is by ceg'
tiOrdr.
Four ca3es of Jacob Husts against the Board OF
Health were submitted to the General Term of the
Supreme Court In the First Judicial district by the
parties under the CODE FOR the purpose OF procuring
decisions upon questions that had arisen between
them and which are also involved in several other
In case No / the Board claims TO recover the PEN
atty given by the statute against one who has vo-
lated its order The defendant, when the order was
made, was engaged AZ butcher in the business pur
suit OF Strengthening cattle at his slaughter house.
No 95 Fourth street. IN the city OF New York which
said slaughter house was in the densely populated
portions Of said city and was upon paved street."
contemplated by the first subdivision OF section IL
OF the Metropolitan Health law chapter "a OF the
laws OF 1850, took and filed among its record
plaintiff regarded sufficient proof to authorize its
declaration that the the using OF said slaughter
was also public nuisance" said proof cons listed
OF statements OF competent persons under oath that
of the vicinity was offensive to their senses and
rendered their lives uncomfortable, aud OF facts
sustaining such statements. The Board thereupon
nuisance to be abated, hui directed that the order
should not he executed till the had been served
on the defendant, and he had been afforded an op
portunity to be heard. THIS order was duly served
on the defendant, and 1t Is admitted that the defend
! ant might have applied for and have had
| the opportunity and hearing contemplated In said
section, but did not at any time apply for the same
but declined or omitted 50 to 10; mat The plaintiff
waited more than three daJ 5, provided by law,
| after such service and before commencing the exc
cuion OF said order And thereafter a inal order
was IN due course made 10y the Board. which IL set
| out az length The police were directed to
| execute their order ANA the execution of the
order was duly commenced aud all the doinas and
proofs and order OF said Board In the premises
| appear among its archives the law provides
| The submission to The court below was formally
madc ny both parties ne defendants theory was
sustained, aud judgment ordered in his favor. and
! an appeal has been taken to this court by the
/ plaintiffs.
THAT OF M. Is TO recover pcuaty for violating
the ordinances Of the Board OF Health relative to
Strengthening cattle In the city. The ease is different
from No. In this, that that related 10 the power of
the Board TO make special orders Oh notice aud op-
portunlty of hearing. which may be specifically en-
forced, but No. relates 10 IT, power TO pass general
ordinances which only Involve the liability TO
pay penalty of $50. ana are not now at
/ tempted 10 be enforced otherwise than IN
/ civil proceedings The leading facts are:--Thai the
ordinance in question prohibited the driving and the
Strengthening OF cattle IN the city OF New York south
OF foriicth street and the defendant was slaughter
ing at no eS Fourth street on paved street, south
| or fortleth street. The defendant carried
| on his business IN the ordinary manner
| THAT one party claims the business is dan.
| gefOus 10 life aud the other denies IT, That
the premises where the Strengthening was done
are In a thickly settled portion OF the city, on
paved street and that there are sufficient facilities
for saugherinH animals AZ places in the city above
Forteth street That the business " Strengthening aud
driving animals in the city mpalrs the enjoyment OF
life on the part OF large numbers of peopie. makes
more difficult than II need be TO prevent bad ea,
being Sold causes large amounts OF blood and oal to
go into the sewers, &C., that unhealthy exhala.
tons are generated &C. and that trial the opinions
OF large number OF the leading phy sic lans of the
| city were read In evidence TO the effect that
Strengthening was dangerous TO health, &C. while
only one medical opinion was offered TO the contrary.
On the basis OF such facts the Board OF Health exer-
cised its discretionary power OF passing the ordi-
nance In question, and II is admitted to have been
duly published according to law. II is then admit
ted that the defendant violated the said ordinance
OF the Metropolitan Board OF Health on
two several days-vlz, on the 18th and
Is whether penalty can be recovered each OF the
two days II was violated for only one penalty for
both being claimed. formal submission OF the case
is made 10y the parties decision was made and an
appeal taken as IN the former case.
case No. 3 arises under similar ordna TO the
last aud Is based like facts m several particulars;
but instead Of Being like that suit by the Board to
recover penalty Tor violating the ordnance IL IL an
action To prevent the Board from enforcing the part
OF the ordinance preventing the driving Of cattle
below Forteth street. This relates solely
TO driving aud No. Z solely IN saughierng, The
former II by the Board for penalty for slaughter
ing; this by the butcher for an Injunction against the
Board preventing driving cattle from Fortieh street