110 N.E. 439 | NY | 1915
This is an action to recover a penalty imposed on the defendant by the board of health of the village of Carthage.
The defendant had a cesspool on his land, and emptied it in ways offensive to his neighbors. The board of health adopted a resolution that he must not again pump his cesspool over the ground, and that he must abate the existing nuisance, and the village attorney was directed to draw up a notice to that effect. No penalty was prescribed in the event of disobedience. The resolution was followed by the service of a notice which we think was sufficient in form, and which warned the defendant that he was forbidden to pump the contents of his cesspool upon the surface of the ground. The defendant disobeyed the order, and was directed to show cause why a penalty should not be imposed. He appeared before the board; a hearing followed; and a resolution was adopted that the amount of the penalty to be imposed be fixed at $50, and that it be paid forthwith. Whether the penalty is legal, is the question to be determined.
By section
The order directed to the defendant was not a general one. It was an order in an individual case. It did not prescribe any penalty. It simply announced a command. We think the board was without power, after the order had been disobeyed, to prescribe for the first time a penalty for a wrong already done. The statute is not man datory, but permissive. It does not require the board to prescribe any penalty whatever. It merely authorizes the board to prescribe one. If the board had "prescribed" a penalty in advance of the offense, it might have "imposed" the penalty after the offense. Even then, its finding that the offense had been committed, would be subject, of course, to re-examination by the courts (People ex rel. Copcutt v. Bd. ofHealth,
The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., HISCOCK, COLLIN, HOGAN and POUND, JJ., concur; SEABURY, J., dissents on dissenting opinion of KRUSE, P.J., below.
Judgment affirmed.