New-York tribune., 1878-06-08
TIE HEALTH BOARD INDICTMENT.


ARGUMENT on MorIoN TO QUAsH Ir-REMARKs
or COLONEL PRENTICE, DIsTEIcT-ATroRNEY
PHELPS AND a. J. YANDERPoEL-
The indictment against the Health Board
mas been reranserred TO the Court o. General Sessions,
and Yesterday a motion 10 quash 1t was made before
City Judge Sutherland. The indicted members Of the
Board are Professor Charles +. Chandler Dr. Edward g.
Janeway General william r. Smith and Health officer
( Oakley Vanderpoel Colonel William r. Prentice
presented tho motion in their behalf lie said that
while the Commissioners eager 20 meet the
issue on the merits at trial, their counsel had felt II
their duty TO advise them that tho indictment was
clearly defective should not be permitted TO interfere
with their duties important at all times but especially
so at this season Of the year The Court would notice
that no corruption or intentional wrong doing
charged IN the Indictment and the question was whether
I'm the absence Of such charges indictment for neglect
TO abate n nuisance was valid.
There ia no duty eDjOined the Board by statute,
said Colonel Prentice to abate and suppress such nus
ances as those mentioned indictment. The indct-
ment charges that having the power and duty TO sup
press certain nusances and knowing OF them, the Com
issoners wiifully and cOntemptuousy neglected and
refused to abate them There two counts In the same
FORM one referring 20 a fertilizer factory In East
Forty ourth-st. the other TO the ship Algonquin at the
foot OF West Thrty-nnth-s The Board OF Health was
created by charter OF 1873 by sections So 81 and
So nut in them nothing said Of the Commissioners
mowers or duties The amendatory act section H. gave
them the same powers those conferred on the Metro
polltan Health Board by chapter "a OF the
laws OF 1866, and the acts amending the
same and directed that they be exercised
In the same manner prescribed In that act BY that
act # appears that TO be exercised within
certain limitations 40 such extent and in such man
ner as prescribed The fourteenth section of
prescrbes that II buildings excavations vessels, etc,
are, the opinion OF the Board dangerous To life or
injurious health IL may take proof and issue order
Tor abatement OF the nuisance to be served on the
hO three daYs 10 appeal the Board
ana after hearing HIM the Board may modify It's order
The only section containing prescription OF duty Is the
efforts protect the health OF the city, It'll permitted
10 execute It's orders through IT'S own OGcrs but section
20 nf tbe charter prohibits any expenditure by any de-
parment without appropriation FOR the purpose. So
that the Board had gone through al the forms 10 de-
nusanCcE, IL would have been
pOwerless 10 abate them without an appropriations
The Court OF Appeals had decided thai the Board conld
moi enforce penalties for violation OF It's orders by suit
All the powers given 10 the Board were discretionary
and judicial How they shouiu % VAeIe'sea cO9d NOT
I eerned n there was no corruption. So far as the
~ 1t,cnt shoyyed they might have used every power
given them and yet failed TO abate the nuisance. The
case of the Harlem fats signal instance OF
6ei Vant of power and yet according the theory OF
tbis Indictment the continuance OF that nuisance was
crime IN the members Of the Board II dOes not follow
Board has neglected It's duty, ana the only offence
charged II that IL has not abated TWO nnisances.
Hu the Indictment Is defective In form. IL does not
set what particular acts the Commssioners should
have done and did not do The Indictment does not say
at the time, but that they were such as
deleterous. II does not say they we're so
no corrupt motive The Grand Jury has no power to
review the discretion OF the Board OF Health and SUBJ
sute ia Judgment for that OF the Commissioners The
opinion OF the Board Is the foundation Of all is right 70
act.
the indictment that the present Board OF Health
succeeded 20 all the powers or the former Board Among
these powers the power TO abale oil nusances at
least an nuisances deleterous 10 lie and health. SO
tbe ComnlissiOners had the power 10 abate these
nuisance Every power entrusted TO public officers Tor
the benefit OF the Dublic carried with II the duty
of using it whenever the circumstances arose call
ing for its exercise In this tho Grand
Jury had found two nuisances dangerous to life
and health within the power, and therefore within
tie duty OF the Board OF Health suppress II the
Com mmissiOners failed 20 suppress them. they were