3 Rob. 86 | The Superior Court of New York City | 1864
Lead Opinion
There is no dispute about the facts in this case. The carcases of the hogs in question were taken and carried beyond the city limits by order of an officer of the city inspector’s department. The defendant justifies the taking, under the seventh section of the ordinance of 1859, which is, “ He shall cause all dead animals, and every putrid, offensive, unsound or unwholesome substances found in any street or other place in the city, to be forthwith removed and disposed of by removals beyond the limits of the city, or otherwise, so as most effectually to secure the public health.” This ordinance has reference to the city inspector, and is his authority-in the action taken in regard to the property in question. If the mayor, aldermen and commonalty of the city of New York had the power to make and pass this ordinance, it is difficult to see any reason why the city inspector should not carry it into effect. The power to make exactly such an ordinance is found in section 2, Laws of 1850, page 608. The language is : “The mayor, aldermen and commonalty of the city of New York shall have full power and authority to make and pass all such by-laws and ordinances as they shall, from time to time, deem necessary and proper for the preservation of the public health of said city ; and also for the abatement and removal of all and every nuisance in said city, and for compelling the proprietors or owners of the lot or lots, upon which the same may be, to abate and remove the same.” All legislative powers heretofore vested by any existing law of this state in the board of health of the city of New York, are now vested in the mayor and common council of the city. (Laws of 1850, § 1, p. 597.)
This ordinance was deemed necessary and proper by the
In this great city, it would be impossible for one person to perform, individually, all the duties pertaining to the office of city inspector; hence the necessity of subordinates in various sections of the town, to perform the duty, and carry into effect the regulations of the board of health, and the ordinances of the common council. The property enumerated in the ordinance is to be removed forthwith, beyond the/limits of the city, and disposed of by removal.” The ordinances provide that this shall be done by the offal contractor, who is the defendant in this case. The declared object and design of this ordinance is “ to secure the public health.” It is very easy to see how important and wise a regulation this is, for the well being of every citizen. While the powers conferred by it should not be improperly exercised, nor enlarged, courts of justice should be careful to see that they are not so abridged and impaired as to prevent securing the end designed to be accomplished by its enactment.
The purpose of this ordinance was to prevent as well as abate all and every nuisance which might affect the atmosphere of the town, or the good or health of the citizen, and secures to the city clean streets, pure air and wholesome food. We think' the defendant was justified in removing the property from the city, and that the judgment should be reversed, and a new trial ordered, with costs to abide the event.
Monell, J. concurred.
Dissenting Opinion
The defendant does not claim that the property taken by him from the plaintiff was removed under or by virtue of any adjudication of the board of health
The state statute in question creates a board of health of the city of Hew York, to be composed of the mayor and common council, or any ten members thereof, sitting together as one body, and presided over by the mayor, and invests such board with all the judicial powers usually .conferred upon boards of health ; such as adjudging it to be necessary that any particular matter or thing within the city, that may be putrid or dangerous to the public health, shall be removed or destroyed ; determining, on notice of hearing to the party interested, that any business, trade, or profession, carried on by any person in the city, is detrimental to the public health, and to make its final and conclusive order thereupon, &c. (2 R. S. 5th ed. p. 1, §§ 1, 2 ; p. 15, §6) p. 13, § 1, subd. 3.) Another part of the statute, being that portion of it which is more particularly relied upon by the defendant, authorizes and empowers the mayor, aldermen, and commonalty of the city of Hew York, (that is, the corporation known by that name, and not the board of health,) “ to make and pass all such by-laws and ordinances as they shall, from time to time, think necessary
The ordinance of the corporation enacts and declares, that the city inspector shall cause all putrid and unsound beef, pork, fish, hides or skins, all dead animals, and every putrid, unsound, or unwholesome substance, found in any street or other place in the city, to be forthwith removed and disposed of, by removal beyond the limits of the city, or otherwise, so as most effectually to secure the public health.” (Vol. Ord’s of N. Y. p. 158, §7.)
The question for us to determine, as I understand it, is, whether this act of the legislature' and the corporation ordinance, legally empowered the officer of the city inspector to take possession of, and remove, the animals, or direct the defendants to do so ; for, unless such statute and ordinance, and the act of the officer, constituted that “due process of law” which is contemplated in and by the constitution of this state, (Const. art. 1, § 6,) the defendant is without justification and is a trespasser.
The highest courts of this, as well as our sister states, in numerous decisions, have held that the legislature may create boards of health, and invest them with full power to adjudicate upon and condemn, and compel the removal- or other disposition of property, which, in their judgment, may endanger the public health; and that the adjudications and decisions of. such tribunals in regard to matters of which they have so been vested with jurisdiction, are final and conclusive, and justify their officers in carrying the same into effect. It may be considered as settled, therefore, that the decisions of those tribunals, and the proceedings had thereunder, constitute that due process of law of which the constitution speaks. But, I know of no method, other than such adjudication by a competent tribunal, whereby a person can, legally, be deprived of his property without his own consent, unless it shall be taken for
It is hardly necessary to consider the question, whether the legislature can invest a municipal or other corporation, not being a natural person, with judicial powers ; it is sufficient that they have not attempted to do so in the statute referred to. The judicial powers, those powers which enable a court to adjudicate upon existing facts and cases, and to apply the remedy in each distinct and several case, as the law and the necessities of the public require, are conferred by the act upon the board of health; while, so far, at least, as concerned this suit, the corporation of New York is clothed with legislative authority, merely; that is, authority to pass by-laws and ordinances, (applicable, however, only, to classes of cases thereafter to arise,) for the purpose of so regulating the uses of property that it shall not create nuisances, and become dangerous to the health or comfort of the citizens. (See 2 Kent’s Gom. 398.) For instance, under the powers granted by the legislature, the corporation was probably authorized to pass a by-Iaw,"or ordinance, if not unreasonable in its character, forbidding, under a penalty, to be enforced by a court of justice, the bringing of any dead animal into the city, or slaughtering one within its limits. But the statute does not, in terms, empower the corporation to declare the forfeiture of any property, or to direct the removal of it from the city, unless the same shall be a public nuisance ; (see 4 R. S., 5th ed. pp. 13, 14, §§ 2, 3;) which, as we have seen, is not claimed in regard to the subject matter .of this action; and, I may add, in passing, that this power to compel the removal of nuisances, could not
Boom v. The City of Utica, (2 Barb. S. C. Rep. 104,) was an action brought to recover damages occasioned by the alleged conversion of the plaintiff’s house into a small-pox hospital, under the direction of the common council. The court, ¡in deciding that the corporation had no legal right thus to dispossess the owner, say : “ We do not mean to deny the largest powers, and the most liberal discretion, to boards of public health, duly and legally constituted, to preserve the public health, and prevent the spreading of contagious disease, by the severest quarantine regulations. But, that question does not arise here. There is nothing in the act of incorporation, conferring on the common council any of the powers of a board of health.” * * “ The power conferred upon the common council is, merely, legislative; to make and publish ordinances, &c.” * * “ It is a mere grant of authority to adopt general rules and regulations.” (See also Dunham v. Trustees of Rochester, 5 Cowen, 462, and Clark v. Mayor of Syracuse, 13 Barb. 32.)
Assuming, for a moment, however, that the powers conferred upon the corporation in this regard, were not merely legislative, but judicial, so as to authorize it to adjudicate upon, and, by its ordinance, to direct the removal of property from the city, because dangerous to the public health; it seems to me clear that no such adjudication had been had in relation to the animals embraced in this suit. For, not only is the ordinance of the corporation, a legislative act, a mere law or rule of action for the government of the city inspector in future cases, but there is no pretense that any action whatever was had by said body, touching this particular property, by way of condemnation or otherwise.
For these reasons, I am of opinion that the defendant wholly failed, upon the trial, to justify the act complained óf, and,
Although I am content to rest the decision, so far as my own opinion is concerned, upon the views above expressed, there are further questions suggested by the arguments on appeal, which it may not be amiss to consider.
An ordinance of a municipal corporation, like a statute of the state, must be construed, where its meaning is doubtful in regard to some of its provisions, whether because repugnant to the general scope and object of such ordinances, or otherwise, according to the intention of its makers ; and that is to be ascertained upon and by a consideration of the evil sought to be removed or avoided, the remedy to be applied, and the reason of such remedy. (Heydon’s case, 3 Co. Rep. 7. Purdy v. The People, 4 Hill, 384.) The guide to that intention is, in this case, found in the statute concerning the public health of the city of Hew York, which confers upon the corporation the power to pass ordinances relating to that matter, as well as in the ordinance itself, for we are bound to assume that the corporation acted honestly, and designed, in good faith, to carry into effect, by its ordinance, the intention of the legislature; and, clearly, the great object and design of the latter was to preserve and protect the public health of the city, by preventing the influx, and providing for the removal or regulation of such deleterious substances and matter, as, if left uncontrolled, would injure or endanger the public health, and nothing more. I may add, no authority to pass ordinances was given to the corporation by the statute, except such as, in their opinion, were necessary and proper for the preservation of the health of the city. Considering this, and assuming that the common council designed to pass ordinances of that character only, it is much more reasonable to believe that the words “ all dead animals," used in the ordinance in question, were intended to include those animals only, which are valueless when dead to the owners, and which he has no pecuniary interest in removing, such as horses, dogs, &c. than it is to suppose the mayor and common council designed to cover, by these terms, all the
Even if this were otherwise, however; if it could be assumed that the mayor and common council designed to include all dead animals, of every description, in the direction to the city inspector, which is contained in the ordinance, or even animals like those in question, which are valuable to the owner for lawful and proper purposes, and which he is pecuniarily interested in so appropriating, I should have no hesitation in holding that such ordinance was unreasonable, and not within the powers conferred by the statute, and, therefore, to that extent, at least, void. For, to be valid, an ordinance or by-law of a municipal corporation'must be not only conformable to its charter or the statute conferring its authority, but it must also exhibit a reasonable execution of such powers. (2 Kyd on Corp. 107. Dunham v. Trustees of Rochester, 5 Cowen, 462.) The words “ such by-laws and ordinances as they shall think necessary and proper,” imply a direction to exercise a sound and prudent judgment, and restrict the common council to the enactment of such by-laws and ordinances only, as shall be reasonable and best calculated to effectuate the grand design and object of the statute; that is, to preserve the public health. In the case last cited, although the corporation of Rochester had been empowered by the act of the legislature, in terms, “ to make such prudential bylaws, rules and regulations as they, from time to
I think the judgment appealed from should be affirmed.
New trial granted.