Metropolitan Board of Health v. Heister

Hunt, C. J. The first point made in the case before us is, that the act establishing the metropolitan board of health is in violation of the second section of the. tenth article of the constitution of this state. That section is in these words: “All county officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of the respective counties, or appointed by the boards of supervisors, or other county authorities, as .the legislature shall direct. All city, town and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for by this constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct.” This provision has been before this court on several previous occasions, and certain positions in relation to it may be considered as settled. Its plain meaning, that all the local officers referred to, whose offices were in existence at the adoption of the constitution, shall be elected or appointed by the local authorities of which they are the representatives, *has been fully sustained. So, it has been held, that to change the name, or to divide up and partition the duties among several, or to take parts of the duties of several offices and combine — 776 — them in one, will not be permitted. If the offices in question are county or city offices, and were in existence at the adoption of the constitution of 1846, it is not competent to vest the appointment of the incumbents in the governor and senate. It belongs, exclusively, to the local power, to fill the offices, either by election or by appointment, as the legislature may direct. (People v. Draper, 15 N. Y. 532; People v. Raymond, ante, 428; Hoffman v. Schultz, 31 How. Pr. 385.) As early as 1796, and by repeated statutes, from that time down to the adoption of the revised statutes, in 1830, the duty of attending to the health of the city, to cases of infectious disease, to vessels from unhealthy ports, to establishing and regulating slaughter-houses, has been given to, and exercised by, the Mayor of the city of New York, the Mayor, Aldermen and Commonalty thereof, commissioners of health, health-wardens for the city, or some other local officers of that city. (3 Greenl. ed. Laws, ch. 38, p. 305; 1 R. L. 1813; Laws of 1850, ch. 275.) If the act of 1866 (ch. 74), which we are considering, was an act for the regulation of these subjects, in the city and county of New York alone, it would be difficult to sustain it, under the decisions of this court. The act commences as follows: “ So much of the territory of the state of New York, and of the cities, villages and towns thereof, as now compose the metropolitan police district of the state of New York, shall constitute, and is hereby declared, a district to be known as ‘ The Metropolitan Sanitary District of the State of New York!” By the act of April 15th, 1857, “to establish a Metropolitan Police District, and to provide for the government thereof” (ch. 569), the counties of New York, .Kings, Westchester and Richmond were united ■in a district, to be called the “Metropolitan Police District of the State of New York.” The district over and upon which the powers of the newly-created authority — 777 — now before us are to be exercised, consists, ^therefore, of the four counties of «New York, Kings, Westchester and Richmond. In People v. Draper (supra), it was held, that the legislature may establish new civil divisions of the state, embracing the whole or parts of different counties, and that, when so established, the provision of the constitution under consideration, relative to county officers, is not applicable to such district. It was distinctly stated, in the opinions delivered in that case, that the offices which were affected by the act of 1857 were county offices, and that, if the district over which the new commissioners* were appointed had consisted of the county of New York alone, the act could not have been upheld. The validity of the act was sustained, upon the ground, that the legislature had authoritj to create new civil divisions of the state, embracing more than one county, for purposes of temporary or permanent civil government, not impairing, however, the county organizations, and that officers over such newly-created district could legally be appointed by the governor and senate. That case is decisive of the validity of the present act. It is not in the least shaken, but sustained and confirmed, by the other cases more recently decided in this court. The same distinctions are there recognised, and the same principles are upheld. (People v. Metropolitan Police, 19 N. Y. 188; 26 Id. 316; People v. Pinckney, 32 Id. 377; Metropolitan Board v. Barrie, 34 Id. 657.) There is, therefore, no objection to the constitutionality of this act, as being in conflict with the provisions of section two, of the tenth article of the constitution of this state. It is further objected, that the act violates the second section of the first article of the state constitution which declares that “ the trial by jury, in all cases in which-it has heretofore been used, shall remain inviolate for ever,” and the sixth section of the same article, which — 778 — provides that “no person shall be deprived of life, liberty or property without due process of law.” The jgument on this point has been conducted by. Mr. Heister’s counsel, chiefly upon the allegation, that on dues^on n'uisanee or no *nuisance, the party complained of had a right to the opinion of a jury, before his rights could be finally disposed of. It was admitted on the argument, by the additional counsel, that a court of equity could give final judgment, without calling in a jury. It will be observed, that in each of the cases now before us, it was alleged and decided, that the proceeding was “ dangerous to the public health.” This was in addition to the charge that it was a nuisance. No one has been deprived of his property or of his liberty by the proceedings in question. The commissioners have provided that cattle shall not be driven upon certain streets, except at certain hours of the day. They have also provided, that the business of slaughtering cattle shall not be carried on in the city of New York, south of a designated line. These regulations take away no man’s property. If Mr. Heister owns cattle, his ownership is not interfered with. He may sell, exchange and traffic in the same manner as any other person owning cattle may do. If he owns a slaughter-house, his property remains intact. He may sell it, mortgage it, devise it or give it away, and may use it just as any other man or all other men in the state combined may do. Simply, the health regulations of the district operate upon his cattle- and his slaughter-house, in the same manner that they do upon live property owned by all others, and the use of the streets for dangerous purposes or the prosecution of a business dangerous to the public health is regulated by the ordinances in question. This practice is not forbidden by the constitution, and has been recognised from the organization of the state government, and is to — 779 — be found in nearly every city or village charter which has been granted by the legislature.2 Nor, in my judgment, is there any greater plausibility in the argument, that the act violates the right of trial by jury. The constitution recognised the fact, that there were certain classes of cases which had not been and need not be tried by a jury. Thus, it does not say that the right of trial by jury shall exist in all cases, but in all cases “ in which it has been heretofore used.” Equity cases, certain attachment proceedings, *and proceedings under the absconding debtors’ acts, references, appraisals of real estate taken by corporations, and many others, were well understood to have been usually determined by another tribunal, and were allowed to remain undisturbed. (Sands v. Kimbark, 27 N. Y. 147.) Passing by the question whether a court of equity, of itself, may determine the question of nuisance or no nuisance, without the aid of a jury, on which question those appearing for the respondent do not agree, and passing by the point that any individual or body may abate a nuisance, provided he commits no breach of the peace, I hold it to be clear, that in questions relating to the public health, where the public interests required action to be taken, a jury had not been the ordinary tribunal to determine such questions, prior to the adoption of the constitution of 1846.3 As early as 1784, an act was passed “ to prevent the bringing in and spreading of infectious distempers in this state” (1 G-reenl. ed. 117), and in 1794 (3 Greenl., ch. 53, p. 144), it was amended, so that “ the governor, and, in his absence, the mayor of New York, was authorized to do every other act and thing which may be thought necessary to carry into effect the object of this act.” No jury was had or was provided for. In — 780 — 1796 (3 Greenl., ch. 38, pp. 305, 308), the legislature enacted, that “ it shall be lawful for the mayor, &c., in common council convened, from time to time, as they shall judge advisable, to make by-laws and ordinances for filling up or raising lots, * * * cleaning and scouring streets, alleys, sinks, * * * and for regulating all man factures of soap, candles, glue, leather and all other manufactures, and all works, trades or business causing noxious, effluvia or vapor, in respect to the manner in which the places or spaces within the limits of said city, where such manufactures, works, trades or business shall be carried on or used, and whereby to preserve general health in the city, * * * under such processes of fines and forfeitures as shall be reasonable.” See also, the act of March 30th, 1798 (Andrews’ Laws, p. 403, as cited by Mr. Eaton); the act of April 9th, 1804, and 2 Revised Laws of 1813 (p. 534, § 25); 1 Revised Statutes 1830 (p. 441, § 3), authorizing the mayor *°r com™ss^orLers remove or destroy anything that may be dangerous to the public health. The laws of the same character, relative to the city of New York, in 1850 (ch. 275, p. 597), contained provisions more extensive and more rigid than those now under consideration. The amended charter of the city of Brooklyn (Laws of 1854, ch. 384) gives the common council power to compel the owner or occupant of any slaughter-house to cleanse, remove or abate the same, from time to time, and as often as may.be necessary for the health or comfort of the inhabitants. These acts show that, from the earliest organization of the government, the absolute control over persons and property, so far as the public health was concerned, was vested in boards or officers, who exercised a summary jurisdiction over the subject, and -who were not bound to wait the slow course of the law;. and that juries had never been used in this class of cases. The governor, the mayor, health-officers under various — 781 — names, were the persons intrusted with the execution of this important public function; and they were always empowered to act in a summary manner. Scarcely a year passes, or did pass prior to 1846, in which the legislature did not charter some city or village, and give to the local powers full authority, by their own action and in their own way, to regulate, abate or remove all trades or manufactures that might be by them deemed injurious to the public health. I have examined the statutes from 1832 onward, and find that scarcely a year passed by in which these powers were not given to many cities or villages, by original authority or by amendments to their charters. I see, among the laws of the session just closed, several of the same character among them, one to incorporate the village of Gouverneur, which gives the trustees full power to prohibit and abate nuisances, to compel the owners of a butcher’s stall, sewer, privy, or other unwholesome thing, to cleanse the same, or cause the same to be removed, or otherwise disposed of, as may be necessary for the public good. (See also, 15 Wend. 262.) I do not doubt, either, that upon general principles of law, and considering them as nuisances, the right of regulating *the use of the streets by droves of cattle, and of removing houses for their slaughter from particular locations, as the public health required, was within the power of the common council or other local authorities, independently of the statutes by which it was given. (Van Wormer v. Albany, 15 Wend. 262; 3 Bl. Com. 5.) It would be difficult, then, to say that the power given by this act of 1866, was a new exercise of authority, not allowed b}7 the constitution, or that it was a case in which a jury trial had theretofore been had. Before leaving the consideration of this constitutional objection, it ought, perhaps, to be observed, that the act provides for notice to the party affected, before the judg — 782 — ment finally passes against him. In substance, the board, upon the -evidence before it, determine that a primd facie case exists, requiring their action. In the present instance, after such preliminary determination made, notice was given to Heister of what had been done, and that he could be heard upon the subject, with his witnesses, at a time designated. This gave the same protection to all his rights, as if notice had been served upon him before any preliminary proceeding had been taken. • He refuses to litigate before the board, the question whether his pursuit is dangerous to the public health, but places himself upon their want of power over the subject. He cannot complain now, that their judgment upon the facts is to be held conclusive upon him. It is further insisted, that the act in question is invalid, in that it confers judicial power upon the metropolitan board of health. If I understand this argument, it is this : the constitution says (art. 6, § 18), “ All judicial officers of cities and villages, and such judicial officers as may be created therein by law. shall be elected at such times and in such manner as the legislature may direct,” and as judicial power is here given to officers who are not elected, but are appointed by the governor and senate, the appointment is invalid. The same argument is drawn from the general distribution of legislative, executive and judicial powers in the cons^uti°n> *that the provision that the legislature may establish inferior local courts in cities, and that they shall be uniform, except for the cities of New York and Buffalo. These,arguments are earnestly pressed, and when the case occurs where they necessarily arise, will be carefully considered and decided. In my opinion, they do not now arise. The power to be exercised by this board upon the subjects in question is not judicial in its character. It falls more properly under the head of an — 783 — administrative duty. It is no more judicial than the action of commissioners of highways in laying out or refusing to lay out a highway, or in determining the necessity of rebuilding a bridge in their town. It is no more judicial than is the action of commissioners of excise in the country, or of the metropolitan police board, who, as commissioners of excise, discuss the question of whether a license shall be granted to an individual to keep an inn, or to sell spirituous liquors. The qualifications of the person are scanned, the place proposed for the sale of liquors, and whether the applicant has the accommodations required by law, the public necessity or propriety of such permission to sell, are examined into and determined. But such powers have never been held to be of a judicial character. The power of the metropolitan board to act upon the latter subject has been distinctly sustained in this court. (Metropolitan Board v. Barrie, 34 N. Y. 657.) It does not affect this, nor any point in the case, that the board have made these ordinances for the city of New York alone. They have full power to make them for the other parts of their district, when and as the necessities of the case may require. That the legislature possess the entire control over the streets of the city of New York, and that it can delegate such portions of its authority to the local organizations, and in such measure, form and under such- restrictions as it thinks proper, has been frequently decided. (Darlington v. City of New York, 31 N. Y. 164; People v. Kerr, 27 Id. 188.) The judgment of the general term in each case should be reversed, and judgment ordered for the appellants, and in ^number two, judgment should be entered for the two penalties demanded in the action. Footnotes [2] See Cronin v. People, 82 N. Y. 318; s. c. 20 Hun 137. [3] See Kennedy v. Board of Health, 2 Penn. S. 366.