New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1868-07-15

that no person shall he deprived OF le, VI P'P
The aTrUment on mis- point has been conducted by Mr.
Holsters counsel chiefly upon tne aSsa.Ut t T wa
OF had right to the opinion OF jury before the nights
could be finally disposed o. was s ae9eu s on t Tor ar
could give final Judgment without calling in jury IL
Will he observed that each Of these before
ms II was alleged and decided that the proceeding was
dangerous the public health This was In addition 70
| the charge that 10 was nuisance, -
No one has been deprived OF bis property or Of HIS
liberty BY the proceedings in question. The Commis
sionefs have provided that cattle shall not DO driven
upon certain streets except upon certain hours OF te
day. They have also provided that the business OF
saughtering cattle shall not be carried the City OF
Newiork south OF designated line. These regulations
take away no mans property.
If Mr. Hester cattle his ownership is not inter
Tered WITH lie may sell, exchange ana traihc IN INC
same manner any other person owning cattle may 40
II he owns saughterhouse his property remains In
tact lie may sell IT. mortgage IT, divide IT, or give
away and may II just as any other man. or all Oter
men the state combined may do. Simply the health
regulations OF the district operate upon his cattle ana MS
slaughterhOus0 the same manner that they DO upon
like property owned by all others, and the use OF the
streets dangerous purposes and Of the prosecution OF
business dangerous TO the public health Oy
the ordinances IN question This practice is not zen
by the Constitution ana mas Dcen recoB1oV tho sS
organization the State Government and TO be tOund
in every city village charter which has been granted
by the Legislature 49,,
Nor in my Judgment s there any greater pausiby In
the argument that The act violates the right OF tai Dy
jury The Constitution recognized the 1act that tere
certain classes OF cases which had not Deen anu
that the right of trial BY Jury Shall exist in all but
in all cases in which il has heretofore been used
cases,
eeedngs under the absc0ndng debtor aels references
apprasas of real estate taken by corporations ana many
others well understood TO have been usually deter
mined by another tribunal and were allowed TO remain
northumberland agt. Kimbach, q N. Y, 47.
Passing by the question, whether court or equity OF
itself may determine the question Of nuisance or no
nuisance without the aid Of jury, on when question
passing by the point that any individual body
abate nuisance provided lie commits no breach OF the
peace hold it TO be clear that in questions relating 10
the public health, where the public interests required aG
ton to taken, jury had not been the ordinary t
OF Constitution of 1896 As early as lS an act was
passed to prevent the bringing in and spreading OF lnec
tious disempers in this State Greeneaf I'd, ll7) And
in 1894 % Greeneaf CHI 49, D. 14 was amended so that
the Governor and in his absence the Mayor
was authorized To do any other act and thing which
be thought necessary to carry into oect the OBJECT
OF this act No Jury was had provided for In 1876
IA Green CHI So D. 3O5 $685. the Legislature enacted that
it shall be lawful for the Mayor &c. in Common COun
Gil convened, from time to time as they shall Judge adj
yisable make bylaws and ordinances for filling up or
raising lots. Cleaning. securing streets, al
leys sinks. . And for regulating all manufac-
lures of SOAP candles glue leather. aud all other manu-
features and all works trades business causing
the places or spaces within the limits of said city, where
such manufactures works trades or business shall be
carried on or used and whereby to prevent general neaa
in the city. Under such penalties OF hnes ana
see also the act OF March 80 IIgS' AhureW laws, p
1857 cited by Mr. Eaton; the act OF April 1904 ana
D. AL sec. 8; authorizing the Mayor or Commissioners
TO remove or destroy thing that may De 10
tive to the CITY Of New-York IN $780, CHI 25 p 59 CON
tanned provisions extensive and more rigid than
mon Council power TO compel the occupant OF
any slaughterhOuse TO cleanse, remove or aDate the
same from time time, and often may be neces
sary for the health comfort OF the inhabitants
the Government the absolute persons and
property far as the public health was concerned was
vested In boards officers, who exercised a summary
jurisdiction the subject and who were not bound to
wait the slow course OF the law aud that Jury trials had
never been used In ths class OF The Governor,
the Mayor Health Officers under various acts were the
persons ntrusted with the execution of this important
I,,bli empowered
Scarcely year passes or did pass prior TO 1896 in
which the Legislature did not charter some city or vii
lage and give 70 the local powers full authority by their
action ard in their own way TO regulate abate or
remove all trades and manufactures that might De- by
them, deemed injurious TO the public health have ex
ARMED the statutes from 1892 onward. and ma that
scarcely a year passed which these powers were not
given TO many city villages. by original authority or
by amendments TO their charters see among the cases
Governeur which gives the trustees fun power to pro
hbt and abate nuisances 10 compel the h G
to cleanse the same or cause Inc sas ~ II the uSie
good See also IS Wend. 262.
do not doubt either. that upon general principles of
law and considering them az nnsanees the rght OF regu
atng the OF the streets by droyes OF cattle and OF
removing houses for their slaughter from particular oca
tions as the public health required within the power
Of the Common Council or other local authorities lnde
pendently Of the Statutes by which u MAS gwen van
Warner agt. Albany, IS Wend, 26l: BLACK Coh y, ~
would be difficult then, 10 say that the power gwen by
this act Of 1866 new exercise OF authority nor az
lowed by the Constitution, that case In which
ry tai had Heretofore been had Before leaving The
consideration of this constitutional o9lecu9n, ~ Ought
perhaps Do observed that the act PROVIDES LOT hoee
TO party affected before the Judgment hnay passes
substance the Board upon the evidence before II,
determined that primo Jdce exists requiring their
In the present instance, after suGh prennal
determination made, notice given 10 Hester OF what
had been DONE and that he could be heard upon the sub
feet with his witnesses at trial designated Inns gave
served upon him before any RTemna Pr4Geeags mo no
question whether the pursuit Is dangerous 10 te pnDnc
health but places himself upon their want Of powerOyer
the subject He cannot complain now that their Judg
ment upon the facts is TO be held conclusive upon him
III IA further insisted that the act in question invalid
Hoard Of Health II understand theY argument it is
this The Constitution says art g. sec 49,, All judicial
"a NAV be created there by law shall be elected at such
time and in such the Legislature may direct
elected but are appointed by the Governor and Senate
the appointment is invalid. The same argument 10
tive and judicial powers in the Constitution and the pro
vision that the Legislature may establish inferior local
the cities OF New York and Buffalo.
These arguments earnestly pressed, and when the
fully considered and decided In my opinion they do
not arise do not consider the power to be exer
eia IN It's character IL falls more properly under the
head OF administrative duty Is no more judicial
out or refusing lay out highway, IN determining
the necessity Of rebuilding bridge In their town IL is
no more judicial than Is the action OF the Metropolitan
Police Board who as Commissioners Of Excise question
IL whether license shall be granted TO an individual to
10
lions of the person scanned, tho place proposed for
sale Of liquors. and whether the applicant has the ac
cOmmodaOns required by law, the public necessity or
prOprey OF ssch permission TO sell, are examined into
and determined. .
The power Of the metropolitan Board to act upon tho
latter subject has been distinctly sustained IN this court
metropolitan Board agt. Barrie "a, n. y, 657 1t does
not affect this any point In this that the Board
have made these ordinances for the City OF New 0rk
alone They have full power 10 make them for the other
parts Of their district when and the necessities Of the
| case may require
soff Jtv ~
lion and in such measures from and under such resrc-
tons as they deem proper has been frequently decided.
| The MAYOR. 81. N ". X. lH Poodle aRt.