1 N.Y.S. 725 | N.Y. Sup. Ct. | 1888
The action was to restrain the defendant from discharging, or permitting the discharge of, the contents of certain sewers upon or over any of the lands in the town of Brighton, or into any of the creeks, streams, or waters of that town. The judgment awarded a perpetual injunction restraining the defendant from discharging, or permitting the discharge of, such sewage into Thomas creek, in said town, or into any sewer, drain, ditch, or stream leading to or emptying into said Thomas creek. The action was brought in 1884 by the board of health of the town of Brighton, organized under the provisions of chapter 431 of the Laws of 1881; and the right of action was claimed by the plaintiffs by virtue of the provisions of chapter 351 of the Laws of 1882. That act, amending section 3 of the act of 1881, by subdivision 3 of the amended section, gave to the boards of health in towns the power to make orders and regulations concerning the suppression and removal of nuisances injurious to public health, and, by subdivision 9 of the same section, to maintain actions, in any court of competent jurisdiction, to restrain by injunction the violation of such orders and regulations. That the action was well brought, and might be maintained under the provisions of the act of 1882, was held by the court of appeals in a decision rendered in March, 1887, and reported under the title of Gould v. City of Rochester, 105 N. Y. 46, 12 N. E. Rep. 275. That decision reversed the judgment of the general term of this court, rendered in 1886, (39 Hun, 79,) which sustained the judgment of the special term, rendered in May, 1885, dismissing the plaintiff’s complaint. Upon neither of the appeals above referred to was there any discussion, either by counsel or by the court, of the effect of'the act of 1885, (Laws 1885, c. 270,) which the defendant now insists wdiolly repealed the act of 1882, and deprived the plaintiffs of any right of action given thereby. That objection was made on the second trial of the action, and the principal question presented on this appeal relates to the effect of the act of 1885, above cited. The repealing clause is found in section 9, and is as follows: “Chapter 152 of the Laws of 1847; chapter 324 of the Laws of 1850, and the several acts amendatory thereof; chapter 512 of the laws of 1880, excepting subdivision 34 of section 1 of said act; and all other acts or parts of acts, general or special, inconsistent with the provisions of this act,—are hereby repealed. ” The acts of 1847 and 1880 here mentioned relate only to the registration of vital statistics, and have no reference to the matters now under consideration. The act of 1882 is entitled “An act supplemental to chapter 431 of the Laws of 1881, entitled ‘An 'act to amend chapter 324 of the Laws of 1850;’ ” and in its first section the act of 1882 declares that it amends the act of 1881 which amends the act of 1850. There can be no question but that the act of 1882 is one of the acts amendatory of the act of 1850, which are repealed by the act of 1885. Counsel's contention that the act of 1885 repeals only such portions of the act of 1850, and the acts amendatory thereof, as are consistent with the provisions of the act of 1885, cannot be sustained. It is plain that the words “inconsistent with,” etc., qualify only the words “all other acts and parts of acts,” etc., and that the effect of the latter clause of the section is to add to, and not to qualify, the preceding enumeration of the acts repealed. It is unnecessary to inquire whether the act of 1882 would have been repealed by implication, if not expressly repealed, by the act of 1885. It was expressly repealed. The only question is, what was the effect of such repeal upon this action, and the right of action asserted therein ?
A brief review of the course of legislation in this state on the subject of boards of health may assist to a correct decision of that question. Prior to
All concur.