Underwood v. Green — 26 N.Y. Super. Ct. 86

Majority

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John Underwood, plaintiff and respondent, vs. John Green, defendant and appellant.

Headnote

1. Under the act of the legislature “ relative to the public health in the city of New York,” (passed April 10, 1850,) giving to the corporation of the city authority to make all such by-laws and ordinances as they shall from time to time deem necessary and proper for the - preservation of the public health, and also for the abatement and removal of nuisances,” &c,, (Zaws of 1850, p. 608,.$ 2,) the common council were authorized to pass the 7th section of the city ordinances of 1859, which directs the city inspector to “ cause all dead animals, &c. found in any street or other place within the city to be removed and disposed of by removal beyond the limits of the city,” &c.; such ordinance having been deemed necessary and proper by the city corporation, for the preservation of the public health. Barbour, J. dissented.

2. The city inspector has power, by the laws of the state, and the ordinances of the common council, with-the consent of the board of aldermen, to appoint health wardens, and such other officers as the common council or the board of health-’Shall direct, to carry into effect the rules and regulations of that board and the laws and ordinances of the common council, relating to the public health.

3. Whenever dead animals are found in any street or other place in the city, a case is presented for the exercise of the judgment and discretion of the city inspector, and he is bound to act. This is a duty imposed by law, is imperative, and in its nature judicial. For an error of judgment in the performance of that duty, while acting within his jurisdiction with power to determine, he is not liable to a civil action.

4. Any one who acts under the orders of the proper officer, in effecting a removal, stands precisely in the same position as the city inspector, and therefore is not liable in a civil action.

5. It is well settled that a public officer is not responsible, in a civil suit, for a judicial determination in a matter over which he had jurisdiction, however erroneous it may be, or however malicious the motive which produced it,

(Before Barbour, Monell and Garvin, JJ.)

Heard March 17, 1864;

decided December 31, 1864.

This action was brought to recover the valué of the carcases of forty-two dead hogs, alleged to have been taken and carried away by the defendant, in 1862. The case was tried before a justice of this court and a jury. It appeared upon the trial that a large number of hogs arrived on the cars at the Hudson river railroad depot in the city of New York, in November, 1862. That the hogs in question had died from suffocation,

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upon the passage from Albany. It also appeared that the defendant was offal contractor for the city of New York, and that as such contractor he was bound to remove from the city limits such dead animals and offal as he should be directed to remove by the city inspector. That the hogs in question were so removed from the city limits by the order of an officer of the city inspector’s department, (William Travers.) The defendant insisted, upon the trial, (1.) That the taking by the defendant was lawful. (2.) That without a demand and refusal the plaintiffs could not recover. (3.) That the defendant was entitled to a verdict. The justice decided otherwise, and refused so to charge the jury, to which the defendant excepted. The court charged that if the defendant took the hogs away, or directed the taking and carrying away, he was liable, and an exception was taken to the charge, and a verdict was found against the defendant; from the judgment entered on which he appealed, and such appeal was now heard.

John E. Develin, for the appellant.

I. The evidence fails to establish any conversion of the property of the plaintiff by the defendant.

(a.) It does not appear that the defendant ever saw the hogs in question, or that they were ever in his possession. The seizure and removal of them was made by Travers, the “ general inspector” of the city of New York, who, in directing the seizure, was acting under instructions received from his superior, the city inspector. The mere fact that the defendant’s servants and his carts carried the hogs away, cannot, under the circumstances of this case, render him liable to the plaintiff in this action. The defendant's duty was discharged and his contract was fulfilled when he furnished to Travers the men and carts necessary for the performance and fulfillment of his duties as a public officer. If Travers, either intentionally or ignorantly, employed them in the commission of a trespass, he, and not the defendant, should be responsible' to the injured party. The principle once established, that parties furnishing to public officers the means and appliances

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necessary and .requisite to enable them to discharge their public duties, are to be held responsible as principals for all the illegal and wrongful uses in which such means and appliances may be employed, would soon result in the refusal of all persons to furnish to such officers the facilities without which their public duties could not be performed.

II. The seizure and removal of the hogs was lawful. . .

(a.) The corporation of the city of Hew York, with which the plaintiff contracted to remove offal from the city, under the direction of the city inspector, are, by their various char.ters, authorized to enact such ordinances as they may deem necessary and proper for the good government of the city.

The mayor and common council of the city of Hew York are also vested with all the legislative powers of the board of health, and' when acting in relation to the public health of the city, are declared to be the board of health of the city of Hew York. (Laws of 1850, ch. 275, § 1.) They are specially empowered “ 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.” (Laws of 1850, p. 608, § 2.)

Towards the exercise of these powers, ordinances have been enacted and' regulations established ; among, others, the following, which are relied upon as a defense to this action: (Revised Ordinances 1859, p. 155, § 7 ; Id. p. 409, §§ 9, 10 ; Id. p. 410, § 13.) .

The passage of these ordinances was within the powers conferred upon the corporation by the act of 1850. They are also reasonable in themselves toward the • accomplishment of the objects of the statute. (City of Rochester v. Collins, 12 Barb. 559 .) :Their reasonableness is to be determined by the court. (Commonwealth v. Worcester, 3 Pick. 473 .) That is, the court will determine whether or not the means employed in the exercise of power granted will tend to accomplish and realize the purpose or end for which the grant of power was made. And in the absence of proof to the contrary, the reasonableness

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of ordinances should he* presumed. (Shaw v. Cummiskey, 7 Pick. 76 .) The uses to which the evidence shows that smothered hogs are daily put, is a complete vindication of the reasonableness of the ordinances and regulations under which the hogs in question were seized and removed. Ordinances and regulations similar in their provisions and character exist in Boston, and have been approved as reasonable and sustained as valid. ( Vandine’s case, 6 Pick. 187 .)

The city inspector’s department, as one of the executive departments of the municipal government, has especial cognizance of all matters relating to the public health, and is charged with the duty of enforcing the ordinances enacted for its promotion and preservation. (Charter, 1857, § 27.)

(5.) The corporation in the exercise of its powers declares what shall be removed, and prescribes the manner in which the removal shall be effected. The city inspector, in the discharge of his duties, superintends the removal, and the contractor, in the fulfillment of his obligation, performs the work. There is thus constituted a system complete in itself for the removal from the city of all matters and substances likely in any manner to prove detrimental to the public health. It is in the nature of a police regulation, established for the public benefit, and designed to preserve and promote the public health. It is submitted, therefore, that, if the defendant is to be regarded as the principal in the seizure and removal of the plaintiff’s property, he was justified by the authority under which he acted.

III. There is no foundation for the argument and claim, that the ordinances and regulations, in pursuance of which the plaintiff’s property was removed, deprive the plaintiff of his property. It is clear that the evidence in the case fails to show any such deprivation.

(a.) The smothered hogs were transported from the depot to the “ offal docks,” thence to be removed from the city. This proceeding in no degree affected the plaintiff’s property in the hogs. For important public reasons, his right to their possession was suspended until they should be removed from the

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city. It is of the nature of all police regulations to interfere somewhat with private rights, hut such interference does not render them invalid. In such cases, individual convenience and interest must yield to the public benefit. (Baker v. City of Boston, 12 Pick. 192 .)

IV. The defendant’s possession of the hogs being lawful, he could not be guilty of a conversion until they had been demanded from him by the plaintiff, and a refusal on his part to deliver thereon. (Gurney v. Kenny, 2 E. D. Smith, 132. Wilson v. Cook, 3 id. 252 . Hall v. Robinson, 2 Comst. 293.)

{a.) Under the circumstances of this case, and within the principles established by these authorities, it is insisted that the defendant could in no event be found guilty of a conversion of the plaintiff’s property, except by proof that, after the hogs were removed from the city, they were demanded of him by the plaintiff when in his possession or under his control, and he refused to deliver them. There is no proof in this case.

Henry H. Anderson, for the respondent.

I. The act of the defendant was wholly without justification. His contract with the corporation did not authorize him to do what the corporation itself had no authority to do.

(a.) Neither the laws of the state, nor the ordinances of the city passed pursuant to such laws, authorize, or could authorize, the act of the defendant. (Laws of 1850, pp. 607, 608.)

(5.) It was not pretended, upon the trial, that the hogs taken were in any respect nuisances, or prejudicial to the public health; they were not exposed upon the public highway, nor in the markets, nor intended to be so exposed. The mere fact that life has departed from a person or animal does not justify the offal contractor, or his employees, in entering upon private premises, and carrying the body away, as a nuisance. Some additional facts must be shown in justification, or the act from beginning to end will be a trespass. This case is without the slightest justification on the part of the defendant. He has pocketed the value of the plaintiff’s hogs. For this, the plaintiff had judgment below,, and desires it here.-

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II. The evidence (admitted under plaintiff’s objections and exception) that smothered hogs are sometimes stabbed, and taken to the slaughter house, and exposed for sale, affords no justification to the defendant in this case.

III. The charge of the judge was unexceptionable. The judgment below should be affirmed, with costs.

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

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mayor, aldermen and commonalty, for the preservation of the public health, and they have discharged a high and important obligation by making and passing it. The city inspector has power, by laws of the state and ordinances of the common council, to appoint, with the consent of the board of aldermen, health wardens and other officers, as the common council or the board of health shall direct, to carry into effect the rules and regulations of the board of health, and the laws and ordinances of the common council of said city, &c. relating to the public health. (Laws of 1850, sub. 1, § 1, article. 1, title 3, p. 607.) It is thus shown: 1. That the power to pass the ordinance in question is clearly derived from the statute. 2. That the ordinance itself, in express terms, authorized and required the city inspector to remove the property from the city limits. 3. That the order was given by the proper officer of the city inspector’s department, who was, and is authorized to give effect to the ordinance under consideration. It was seen that it would be necessary, in order to give effect to' the regulations and ordinances of the board of health and the common council, that there should be health wardens and other officers appointed by the city inspector, In this view of the law, and the undisputed facts, a case was presented for the exercise of the judgment and discretion of the city inspector, within the terms of the ordinances, and obnoxious to the mischiefs it was intended to prevent, It was for him to act; he was bound to do so ; it was a duty imposed by law, and imperative, and in its nature judicial, and he is no more liable to a civil action for an error of judgment, than would be jurors, judges, or any other officer performing judicial duties, while acting within his jurisdiction with power to determine. It is well settled that a public officer is not responsible in a civil suit for a judicial determination in a matter over which he had jurisdiction, however erroneous it may be, or however malicious the motive which produced it. (Weaver v. Devendorf and others, 3 Denio, 117 , and cases there cited.) If the officer is corrupt he may be punished criminally, but a civil suit cannot be maintained for what he does in the performance of a

Dissent

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judicial duty. If this action had been brought against the city inspector, under the same proofs against him, it would have been the .duty of the court to have directed a verdict for the defendant, or .dismissed the complaint.. The defendant, having acted under the orders of . the proper officer, stands in the same position as the city inspector, and is, therefore, not liable in this action.

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.

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

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of the city of Hew York, or under any order or direction made by such board. Hor is it pretended that the dead animals in question were, when so taken from, the plaintiff’s possession, putrid, or in a state of decomposition so as to injure or endanger the public health; nor, even, that they were in such a condition that they could not have been removed by the plaintiff and converted into grease, lard oil, or stearine, before decomposition should have taken place to any dangerous, injurious, or obnoxious extent. In-other words, the defendant does not claim that any evidence was given upon the trial tending to show that the animals were, or were likely to become, a nuisance, in the condition they were in when carried away by him. But, on the contrary, he bases his justification of the alleged trespass, wholly upon the statute of the state relating to the public health of the city of Hew York, an ordinance of the mayor, aldermen and commonalty, and a direction given by one of the officers of the city inspector to the defendant's employees, to take possession of and remove the animals.

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

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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.” (Id. p. 13, § 2.)

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

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public use. Chancellor Kent, in treating of this constitutional provision, says : “ The words, by the law of the land, as used originally in magna charta, in reference to this subject, áre understood to mean due process of law, that is, by indictment or presentation of good and lawful men; cand this/ says Lord Coke, 1 is the true sense and exposition of those words.’ The better and larger definition of due process of law, is, that it means law in its regular course of administration through courts of justice.” (1 Kent’s Com. 612, § 13 and n.) Indeed, the rule in this regard is too well settled to require discussion.

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

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have been given for the purpose of protecting the persons employed in such removal, inasmuch as every man is justified in abating a public nuisance, but, only, in order that the corporation might impose the duty of performing such abatement upon such officers as should be designated for that purpose.

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,

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therefore, that the charge of the court, which is excepted to, was quite correct.

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

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thousands of animals which are daily slaughtered in, or brought dead to, the city for the sustenance of its inhabitants, and to make it the imperative duty of the city inspector to seize every one of those animals ; and that, too, without having previously passed any ordinance forbidding the killing of animals in the city, or the bringing of dead ones into it. It seems to me, therefore, that the ordinance in question could not have been intended by its makers to include dead animals of the-description of those embraced in the complaint; animals of very considerable value, and in the removal of which by himself, before decomposition should have commenced, the owner was pecuniarily interested to such an extent as to render it in the highest degree improbable that any action in that regard, on the part of the city authorities, would be necessary.

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

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time, should deem meet and proper relative to taverns, gin-shops and huckster shops, and relative to anything whatever that might concern the good government of the village,” yet, the Supreme Court held that a hy-law requiring grocers, hucksters and .victuallers to take out licenses from the trustees, was unreasonable, and, therefore, inoperative, because in restraint of trade. If, then, a by-law which is clearly authorized by the strict letter of the statute is unreasonable and void because it is in restraint of trade, how can we uphold a corporation ordinance which not only prevents the owner from selling his property for legitimate and proper purposes, to a soap boiler or candle maker, as in .the case before us, but actually divests him of his possession; and that, too, by a mere direction to one of its own officers, and without making any provision for the return of such property to the owner, either within or beyond the city limits, or even for giving him such information touching the place to which it has been, or is to be, conveyed, as will enable him to recover it ?

I think the judgment appealed from should be affirmed.

New trial granted.

Cases cited

City of Rochester v. Collins 12 Barb. 559 N.Y. Sup. Ct. 1850-12-03 p. 88
Clark v. Mayor & Common Council 13 Barb. 32 N.Y. Sup. Ct. 1852-04-05 p. 97