| N.Y. Sup. Ct. | Oct 23, 1891
The plaintiffs, as the board of health of the town of Franklinville, bring this action to recover a penalty of the defendant, who was a practicing physician in that town, for omitting to report to the board of health a case of diphtheria, as required by the town board of health. The answer puts in issue all of the allegations of the complaint. After hearing such evidence as was offered and received, the court, at the trial, on motion of the defendant’s counsel, granted a nonsuit, holding, as we gather from the report of his oral remarks at the hearing, that there was not competent, evidence of the fact of an adoption by the plaintiffs, as the board of health, of any regulations affecting the preservation of health and the registration of vital statistics; and, secondly, that the board of health had failed to exercise the power conferred upon it by statute to impose a penalty in their regulations for the offense alleged to be committed by the defendant. There is attached to the case (Exhibit A) a paper purporting to be an account of the organization of the local board of health of the town of Franklinville, but which in reality seems to be nothing further than a statement of the things enacted by chapter 270 of the Laws of 1885. Among the duties imposed upon the board of health of towns by this statute was the making from time to time and the publication of orders and regulations which the boards should think necessary and proper for the preservation of life and health, and the successful operation of the statute, (section 3, subds. 6, 9,) “to impose penalties for the violation of, or non-compliance with, their orders and regulations, and to maintain actions in any court of competent jurisdiction to collect such penalties, not exceeding $100.00 in any one case, or to restrain by injunction such violations, or otherwise to enforce such orders and regulations. ” The only penalty imposed by any supposed order or regulation made by the board of health appears in Exhibit A, as follows:- “The local board of health will enforce compliance and inflict a penalty, not exceeding a hundred dollars, ($100.00,) for non-compliance with, or violation of, its lawful regulations and orders.” This action, it must be borne in mind, was not brought upon the statute, but upon an alleged order or regulation alleged to have been made by the board of health in pursuance of the powers conferred upon it by the statute. It will be seen that the supposed order or regulation, which it is now claimed in behalf of the plaintiffs was an imposition of a penalty for the violation of the law committed by the defendant, was not the exercise of the power given to the board by the statute, but is a mere repetition of the language of the statute itself. It would be impossible for the
All concur.