The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-06-08
THE BOARD OF HEALTH.

ARGUMENT ON THE NOTION TO QUAeH THE
INDICTMENT AGAINST THE COMMISSIONERS
Alter recess the Court Of Gsnsral Sessions ysstsr
day Judge Sutherland presiding, Colonel Prentice.
couDsslto the Board Of Health, moved TO quash the
Indictment recently found against Professor Chandler
DR.. Janeway, Police Commissioner Smith and Health
officer vandsrpoel, the members Of that body, for
misdemsanor In having, as alleged, wfuy negiscted
their DUTY BY permitting nusancss detrimental to
health TO exist IN the city. There was not q large
crowd in attendance The prosecution was repre-
scented by District Attorney Phelps and Assistant DIS
Z trict Attorney Rollins
s fst n. POINTS OF THE ARGUMENT.
In moving to quash tho Indictment counsel argued
that the nrst place, there was duty enjonsd by
law upon those public officers named In the indict.
mont to a0ats the nuisance - set forth. He also
claimed that the avsrmsnts In tho indictment were
detective the offence In regard the alleged neglect
Of duty complained OF, not being sufficiently de-
lined, the law requiring all the circums tances to DO
fully set forth. Counsel read tho various counts In
tho indictment, which have already boon set forth,
dwelt 1t some length on the laws governing and
defining the du.ies Of tho Board or Health under tho
charter oil 1878. Counsel read from chapters 80, 81
and 80 OF the laws referred to, and chapter "a Of tho
Laws OF 1906 setting forth that II the Board shouldro-
solve abats any nuisance they must arsi, before
executing the same, II they have the necessary
permit them special funds, and counsel submitted
that tho Board had fully discharged It's duty whom It
had complied with the requirements OF the law
TALL sas THE ALGONQUIN
The Indictment was framed under the Revis ed
Statutes charges that the defendants did wifully
and contsmpuously neglect to perform It's duties ~
the cases Of certain premises al East Forty-tourth
street and q certain vessel known a. the Algonquin.
The orders OF the Board OF Health could NOS DO
forced by law the main power vested in the Board
being 10 secure penaltios Tor the violation or the
Sanitary Code The Board OF Health had the right 10
cxQ
charged. and there was NO charge OF corrup-
sioa IN me % nG poar asa 81 ,ns nI
duty, 80 Tar as II was IN IT'S power SO 70 do. For
instance should the members Of the Board In session
dlsagree to whether certain estAb Ement was
or was not nuisance, and should vote
TWO each for and against. no action could
Counsel urged that the Indictment was faulty because
the power vested IN the persons accused was entirely
Discretionary aud special violation OF law was set
down IN the indictment II should set forth aioga-
tions oil facts and should not be too general AZ IN
should also be specified, since criminal intent must
proved before actual crime could BIO established.
sances were dsicterious aud DANGEROUS to lie and
health although did not set forth mat the defend
ants knew them 10 DO So Counsel concluded bis areu
by urging that The Indictment should be Quashed
on the grounds as substantially set lortn
NOTION OPPOSED.
District Attorney Phelps resisted the motion, claim.
ing that The Board OF Health as at present constituted
aud Commissioners created by the act OF 1878 had
succeeded aud exercised all the powers and PROVISIONS
OF Boards OF Health. All the lowers existing under
tbs original 1866 now vested Tho pros
ent Board. Again, by the provisions OF the act,
which Sill renamed IN force, certain powers were IN.
trusted 10 bo exercised by the Board Under tho
twelfth section Of the act tho Board OF Health
empowered abate nuisancss generally. 1t set
forth that the Board had the power 10 abato any nu
sance dangerous LIE and heath. ln The
next place, Whenever 10 any puOiic officer
powers are entrusted 10 be exercised, then
becomes his duty 10 exercise them whenever
circumstances arise which call Tor the exercise Of
such power II Tor tue public good Again. by tho nnd.
Ing Of tho Grand Jury there existence the
day ncd III the indictment Two nuisances IN Tho
CITY OF New YORK which dangerous 10 lite ana
heatn; those nuisances IL witnin the power and
therefore became the duty Of the Board OF Health
aoate that failing to abats them, they charge
able with negiect Of duty. and therefore indictabie
tor a misdsmeanor. II was not necessary that pub
lie officer should be corrupt TO DO guilty
OF q msdsmeanor HIS inaction might render
him liable TO indictment-his failure to DO nothing
al all The Grand Jury charged the Board with iaIi
ing TO abate the nusapcss and thersfors win wiliu
neglect OF duty, they being aware OF the existence OF
such nuisapces The Board must snow that tney mad
exhausted all their powers 10 abato the nuisance
charged. That was matter TO go before Jcry.
Tho District Attorney quoted numerous authorities IN
support Of his argument.
Mr. 4. J. Vsnderpoel replied on the part OF tho
Board OF Health supporting the motion 10 Quash the
tudictmsnt. claiming that NO specification had been
made ~ 10 what part OF the duty Of mo Board OF
Health had been neglected.
Alter hesring tho arguments Judge Sutherland ad-
journsd the Court, reservinH his decision.