New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1868-07-15
THE PUBLIC HEALTH.
THE BUTCHERS AND THE BOARD OF
HEALTH.

STREETS.
No. I. The Metropolitan Board of Health
agt Jacob Hester. Claims for penalty for violating
order. No . The Metropolitan Board of Health agt
Jacob Hester Claims for penalty for violating ordi
nances No s. Jacob Hester agt. the Metropolitan
Board Of Health. Application for injunction TO stay
Board from enforcing ordinances No4 Jacob Holster
against the Metropolitan Board Of Health Application
for injunction to stay Board from preventing slaughter
The absve four were submitted TO the General
Term OF the supreme Court the First Judicial District
by the parties under the Code, for the purpose OF pro
curing decisions upon questions that had arisen between
Them and which are also involved III several 0Iher pehu
ing suits
CASE No. I'm this case the Board claims to recover
the penalty given by the statute, against one VINO mas
violated It's order The defendant when the order was
made engaged a butcher in the business pursuit
FOurthst the city NewYork, which said slaughter
house was in the densey populated portions OF said city
plaintiff sald day as contemplated by the first sub
~ OF laws 1860 aud filed among its records what
(he being written evdenee) the plaintiff regarded
Gs sufficient proof TO authorize lis declaration that the
same he using Of said saughterhouse for said pusuO
dangerous TO health, and also public nuisance
Said proof consisted Of statements Of competent per-
soils under OATH that said business endangered health
Of the people OF the vicinity offensive their
and rendered their life uncomfortable and Of facts sus
Gaining such statements" The Board thereupOn cor
dered said business TO be discontinued and said nuisance
he abated but directed that the order should not be
executed iii the had been served the defendant.
and he had been afforded an opportunity TO be heard
This order duly served on the defendant ana ls al
united that the defeneant might have applied Tor ana
have had the opportunity ana hearing contemplated IN
said section but did not at time apply for the same,
bat declined omitted do that the plaintiff waited
than three days, as provided by law, after such
service and before commencing the execution OF said
order.
the Board, which out at length The police were
directed TO execute this order and the execution OF e
order was duly commenced" and all the dOings and
proofs and order of said Board in the premises appear
among it, archives, as the law provides" The snbml5
sion 10 the court below formally made by both par
ties The defendants theory sustained, ana Judg-
oreed in his favor and an appeal has been taken
Id
CASE 2This action Is 20 recover penalty lot vlo-
lang the ordinances OF the Board OF Health relative 10
saugherpg cattle in the city The case Is different rom
No i'm this That that related 10 the power OF the
Board to make special orders on notice ana opportunity
of hearing which may be specifically enforced; but No
only involve the liability TO pay penalty OF SoO ana aiS
now attempted 10 be enforced otherwise than IN CIVIL
proceedings
The leading facts are ,,,,., a..
o. That the ordinance in question prohibited first,
the driving and second the saughteIng of cattle in the
CITY Of NewYOrk south of FOrtiehst and the defend,
ant was slaughtenng at No. 95 Fourthst' on paced
street south OF FOrtieth-st.
M The defendant carried his business in the "ordi
az That one party claims the business is dangerous to
life and the other denies it, That the premises where
me va fSe v n MAJ paved street. and hat there are
sueent |aciesJo sGaghterg animals at places an ne
a. That the business of slaughterng and driving "ani
mails in the city imRars the OF me on He p1
If need be TO prevent bad meat being sOd causes large
@ tbat 1nheaitT exhaiaons are generated Sc and
that on trial the opinions Of large number OF the leading
-,
that Strengthening was dangerous TO health, &C, Mhle
only medical opinion was offered to the contrary
ercised its discretionary power OF passing e onanSe
in question: and it is admitted to have been duly PUB
s tbs then admitted that the defendant violated the
said ordinance Of the Metropolitan Board of Health on
two several days viz on the 18th, and the sd of
August 1861 Aud one Of the questions is, whether
penalty can be recovered for each of the two days
Violated for only one; the penalty for both being
a. formal submission Of the is made by the par
Isl decision was made, and appeal taken, as in
CASE No 3-This case arises under similar ordinance
the last and is based on like facts in several partc
lars and 10 further found, that the driving OF cattle
through the equened streets Of said city is attended
with peril human life, and that cattle driven
below Forleth-st from the zoth OF august Ioo 10 tine
making of the submission of the case which was IN Jan
But instead Of being like that, suit by the Board to
recover penalty for violating the ordinance, u is an
the ordinance preventing the driving OF cattle below
Foreth-st This relates soely to driving and MOI
solely slaugherng The former is by the Board for
{ncfion AGAINST the Board preventing driving cattle
from Fortehst TO his place in Fourthst The decision
in favor Of the plaintiff and the deIenGahtS appe"
CASE No 4-Ths case arises the state Of facts
and relates TO the same order as Case NO i 0H instead
1t is suit by the butcher against the Board for an
INDUCTION prevent the Board enforcing its order FORBID
ding ughterng the place 10 which the order relates
The case only differs from No at the point where the
plaintiff states his claims and demands ms remedy me
Board found the same facts as 70 the business Delng
dangerous TO health" made the same ORDER ana gave
plaintiff the opportunity AcdIlHs' WHICH
he declined as in Case No. /.
It appears that the record Of the and pro-
be aeson Of the General Term was in favor OF Helster
and the Roard OF Health bring their appeal 70 this court
ID b. Eaton and George Bliss for appellants NJ " -.
Wooxson for the respondent. Ira shafer and John III
Reynolds other butchers in the same situation with
HTST. CHI 1.-THE first point made in the before
us that the act establishing the MetIeposn board OF
article Of the Constitution OF this state That section 10
in these words: IAN county officers whose election IS
MOI proyded for by this Constitution shall be elected by
The electors OF the respective counties or appointed Dy
the Boards OF OF o.e f1u o and sge
officers whose election or appointment Is not PROVIDED
for by Constitution shall be elected by the electors
OF snch elites towns and villages, OF division
thereof appointed by such authorities thereof as the
Legislature shall designate for that purpose.
All other officers whose election appointments not
provided for by this Constitution and All officers whose
Inv the people, or appointed the Legislature may dr.
rect" This provision has been before this court sew
10 II may be considered settled The plain meaning
that all the local officers referred 70, whose offices were
in existence at the adoption Of the Constitution, shall
be elected appointed by the local authorities OF which
they are the representatives. has been fully sustained
so il has been held that TO change the name, or 70
divide up and partition the duties among several or 70
part Of the duties Of several offices ana combine
them in will not be permitted II the oihces IN ques
ton county or city Offices and Were IN existence az
vest the appointment OF the neunbents IN the
Governor and Senate IL belongs exclusively TO the local
newer 10 III the Offices either by election appointment
rs the Legislature may direct Che People agt Draper
l5 N Y. r. $50. The People agt Raymond)
The MAYOR agt the Board OF Police aud Acton As early
as 1895 aud by repeated statutes from that time down 10
the adoption Of the Revised Statutes In $780, the duty OF
disease TO vessels from unhealthy ports to establishing
and re guafng saughtcrhOuses, has been 20 and
Mayor, Aldermen, and Commonaity thereof, Commits.
sioers Of Health Health wardens for the city, some
other local officers OF that city. g. Greeneaf Ed Laws,
CHI 49, D. sos 1. Rev Laws 1913, Laws 1850, ch. 275J
the act Of 1885, ch, "a, which we are considering was
County VI NewYork alone, IL would be difficult to sus
tain IT, under the decisions OF ms court Inc ace So