The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-12-27
THE COURTS.
Quashing an Indictment Against the
Board of Health.
A SOLDIERS LEGAL FIGHT.

The Grand Jury in May last found an Indictment
against the members of the Board of Health-Pro-
lessor Charles +. Chandler Professor Edward q.
Janeway. Health Officer s. O. Vanderpoel. and Will
lam f. smith president of the Police Board-charging
them with misdemeanor. i'll having allowed the manu-
facture OF offensive fertilizers the hulk Algonquin,
which lay at the foot of Thirty ninth street. North
River thereby sanctioning the existence OF a nui-
dangerous to the health OF the residents OF the
city. Counsel for the Board OF Health subsequently
made. motion to quash the indictment which
was resisted by District Attorney Phelps. Judge
Sutherland filed his decision yesterday quashing the
indictment against the Commissioners. The Judge
holds that the first count Of the indictment does not
set forth of criminal indictable neglect of
official duty. of any duty legal or moral official or
unofficial. In view Of the statutory powers and du-
ties of the Board OF Health nusances he could
not that the allegation Of neglect Of duty IN the
authorized by the allegations of fact and
holds that the logic of the count is poor and
its conclusion of wilful neglect OF official duty lame
The question whether the manufacturing business
complained of not nuisance was, the
Judge holds. Judicial question to be determined
by the circumstances OF the case-a view evidently
concurred in by the Legislature The allegation that
the manufacturing business complained OF was .
common nuisance he holds 10 be the conclusion or
the grand jurors who found the Indictment. and the
setting forth that the defendants individually knew
that the nuisance complained or was nuisance and
dangerous to the health OF the city OF New York
knew of certain facts which should reasonably have
led them to believe 1t was not alleged that the
Commissioners had met as board or had adj
judged the manufactures complained OF public
nuisance dangerous to health, and until they had
done so lie could not how they had any official
right power to abate it, or, in fact, any more
power right to abate it than any unofficial citizen
The wilful neglect of official duty charged in the
count. he holds, is neglect to abate the alleged
nuisance and wilful neglect to meet
q board and determine whether 1T not
public nuisance He holds further that it may be
meet as board and determine that question. The
defendants might have been compelled TO meet as a
board and determine the question, but OF course
could not have been coerced by mandamus or any
other process to determine declare their opinion
be that the alleged nuisance or was not
such q nuisance. III the Indictment against the
defendants should not be quashed and they should
be tried and convicted under the first count he could
how they could be sentenced without giving
the verdct-in effect finding the alleged nuisance
have been and to be nuisance OF the kind alleged
IN that count-an post tacto force and operation
All that had been said to the first count OF the in
dictment applied to the second. II the defendants
had demurred the counts severally plain was 1T
that they ought TO have judgment IN their favor
the demurrer that he thought it his duty to quash
the Indictment and he would therefore, direct that
AN order to that effect be entered