Village of Flushing v. Carraher — 67 N.Y. St. Rep. 680

Majority

p. 680

Village of Flushing, Resp’t, v. Patrick Carraher, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 13, 1895.)

Headnote

Boaed of health — Ohdinanoe.

Section 21, chapter 661 of 1893, does not authorize a hoard of health to make a regulation, forbidding any one from keeping cows within 200 feet of any dwelling without a special permit from the board.

Appeal from a judgment entered in favor of plaintiff.

C. A. S. Van Nostrand, for app’lt; Joseph Fitch, for resp’t.

This is an appeal from, a judgment of the county court in favor of the plaintiff, entered on a verdict directed by the court. This action is to recover fifty dollars, as a penalty for violating the following section of the health ordinances enacted by the board of health of the village of Flushing:

“Mo cows shall be kept within two hundred feet of any dwelling in the village of Flushing without a special permit obtained from the board of health. Any violation of the provisions of this ordinance shall be punished by a fine of'fifty dollars.”

There is no doubt of the fact that the defendant did violate this ordinance. The defendant, however, claims that, to subject him to the penalty prescribed, it was necessary to show more than a mere violation of the ordinance; that it was incumbent on the plaintiff to establish by proof that the keeping of the cows was a nuisance. And, further, the defendant challenges the validity of the ordinance itself. It is true that the declaration of a board of health that'a particular thing is a nuisance will not make it such, if in law it is not a nuisance, and that the question of nuisance is still open to determination in the courts. People ex rel. Copcutt v. Board of Health of the City of Yonkers, 140 N. Y. 1 ; 55 St. Rep. 416 . This case does not fall within that principle.- The ordinance is in the nature of a general police regulation, if justly within the police power, can be enacted by the legislature itself, or committed by the legislature to the board of health. Health Department of City of New York v. Rector, etc. of Trinity Church, 145 N. Y. 37 ; 64 St. Rep. 507 ; Polinsky v. People, 73 N. Y. 70 . That such an ordinance as the one under the review should be valid, it is necessary that it should be reasonable. There was no proof offered by defendant to show that the ordinance was unreasonable. Certainly the presence of cow stables may affect public health, and if the locality was densely populated, might even justly the prohibition.

But there is one vice in this ordinance that renders it, in our judgment, invalid. The powers conferred upon the local boards of health (section 21, chap. 661, Laws 1893) are:

“Every such local board shall make and publish from time to time all such orders and regulations as they may deem necessary and proper for the preservation of life and health, and the execution and enforcement of the public health in the municipality. It shall make without publication thereof such orders and regulations for suppression of nuisances, and concerning _all other matters in their judgment detrimental to the public health in special or individual cases, not of general publication, and serve copies thereof •35’

The powers thus granted are of two distinct characters, — the first the power of general regulation, or quasi regulation; the second, the power to abate a particular nuisance. A failure to obey any valid exercise by the health board of the first power would, under the case of Health Department of City of New York v. Rector, etc., of Trinity Church, per se, subject the offender to punishment. But, on a violation of an order of t health board under the second

p. 682

power, the party would, under the authority of People ex rel. Copcutto v. Board of Health of City of Yonkers, supra, still have the right to contest in the court the question of the existence of a nuisance. The board of health, by the ordinance under re view, has not forbidden the keeping of cows within two hundred feet of a dwelling house, but so keeping cows without a special permit. In other words, the board has taken to itself the power of licensing now stables. Ho such power has been granted it by the legislature. If the matter is such that a general ordinance can be passed upon the subject, then such ordinance should be enacted, and all will be bound by it. If not susceptible of general regulation-, then the board should proceed by special order in the particular case, when the person attacked may defend himself in the courts. The powers vested in the board of health are very great, — probably necessarily so. But to give these boards the licensing power, or power to dispense with their own general regulations, in behalf of some favored individual, might lead to the greatest abuse and jobbery. So a by-law providing that no person should keep a slaughterhouse without a special resolution of the council was held invalid as creating a monopoly. In re Nash, 33 U. C. Q. B. 181. So, also, where the trustees of a village were authorized to fix a fire district, within which frame buildings should not be constructed, and an ordinance was passed fixing a district within which such buildings should not be erected without the consent of the trustees, we have intimated that the. ordinance was bad. Village of New Rochelle v. Lang, 75 Hun, 608 ; 59 St. Rep. 616 .

The judgment appealed from should be reversed, and the complaint dismissed, with costs.

All concur.

Cases cited

People ex rel. Copcutt v. Board of Health 140 N. Y. 1 N.Y. 1893-11-28 p. 680