80 N.Y.S. 834 | N.Y. App. Div. | 1903
The gist of the crime of which the defendant has been convicted is the disobedience of a lawful order of the board of health. Unless, then, the order disobeyed was one lawfully made by the board of health, the defendant has been guilty of no Crime. There-is no proof that this refuse from the sanitarium for consumptives is any more dangerous to the community when exposed than the refuse from any hotel, and we cannot assume such ■ to be the fact in sustaining this conviction. Has the board of health, then, the right to forbid a person from bringing into the village refuse from a. hotel or any other public house ? Under the evidence in this case, such refuse, while it is fresh, is wholesome food for hogs and fowls. The menace to the public health lies in permitting it to remain until it decays, and throws pff a stench which is prejudicial to the comfort of the community if not to its health. As long, therefore, as the mere bringing into the community of fresh refuse from a public place .has in it no element of threatened danger to the public health or comfort, I am unable to see by what authority the board of health is permitted to prohibit the same. For this reason the People have failed to prove the commission of a crime, and the judgment of conviction must be reversed.
All concurred.
Judgment and order reversed and new trial granted.