Cooper v. Schultz

Daly, F. J. This injunction is claimed to be maintainable upon two general grounds: 1st. That the law organizing the board of health is unconstitutional and void. 2d. That if the law is constitutional, the acts sought to be restrained are not within the sanitary powers conferred by the law. I shall consider these objections in their order. The act creating the board of health ‘is alleged to be in conflict with the constitution of the state. 1st. Because it confers upon the board the right to deprive a citizen of his liberty and of his property, without due process of law. 2d. Because it confers upon the board powers of local legislation, which, under the constitution, it is insisted, can be conferred by the legislature only upon boards of supervisors, municipal corporations and incorporated villages. 3d. Because it confers upon the board judicial powers, in contravention of the sixth article of the constitution, which provides for and limits the judicial department of the government. That portion of the constitution known as the bill of rights, declares “no person shall be deprived of life, liberty or — 121 — property, without due process of law” (Art. 1, § 6). And it is urged that the provision in the fourteenth section of the act, which declares that the board of health may remove any building or thing, which in the opinion of the board, is a public nuisance, or dangerous to life or health, is in conflict with this constitutional provision. There is no ground for this assumption. All that is declared by the act is, that the board may remove or abate a public nuisance, which is merely declaring that it may do what, by the law, a private person may do. It was an established rule of the common law, long before the bill of rights was enacted, that a public nuisance might be removed, taken away or abated, by any person aggrieved thereby, if in so doing he did not disturb the public peace; and that he was not compelled to resort to legal proceedings for its removal. (Penruddock’s Case, 5 Coke, p. 101; Batten’s Case, 9 Id. 54; Finch’s Law Books, 3 ch. 2, p. 188 ; 2 Lily’s Abm. 305; Reeves’ History of the English Law, vol. 1, 344; vol. 3, 27, 112.) It is classed by Wood, in his institutes (B. 4, c. 3), among the remedies which a man has without suit; and the reason, says Blackstone, why the law allows this private and summary method of doing one’s self justice is, because injuries of this kind require an immediate remedy, and cannot wait for the slow progress ef the ordinary forms of justice (3 Com. 9). As this was a remedy which was always available without the process of the law, it was no violation of the constitution for the legislature to declare that the board of health'might make use of it; and the enactment declaring that they might do so, was no new exercise of legislative authority. More than fifty years ago, the body then known as the commissioners of the health office, were authorized by the act of March 30,1801, to order the removal, abatement or discontinuance of any manufactory, trade, work, business or repository, which, in their judgment, was a nuisance, or by which, in their opinion, the public health or that of individuals might be endangered; and if it were not removed within the time limited by them, then, upon their representation, the mayor or recorder was required to issue — 122 — a warrant commanding the sheriff to cause the removal or abatement of the nuisance forthwith. (1 Rev. Laws, 1801; R. and R. p. 373, § 32.) And by the act of March 26, 1813, the board of health might cause any cargo or part of a cargo to be destroyed, which, in their opinion, was dangerous to the health of the city (2 Rev. Laws of 1813, p. 534, § 25). These provisions continued in force down to the adoption of the Revised Statutes; and by the Revised Statutes, the board of health, or the mayor and commissioners of health, might cause to be destroyed any matter or thing within the city dangerous . to the public health, when they should judge it to be necessary (1 Rev. Stat. 441, § 3). The power of the legislature. to do so, it would seem, was not questioned during this long period ; on the contrary, it was distinctly recognized in the ease of Van Wormer agt. The Mayor, &c., of Albany (15 Wend. 262). “ The several acts of the legislature,” said Chief Justice Savage, “ confer upon the board of health very large discretionary powers, among other things, concerning the suppression and removal of nuisances. It is right that such a power should exist somewhere, to be exercised upon the proper emergency. H the civil authorities were obliged to await the slow progress of a public prosecution, the evil arising from nuisances would seldom be avoidedand it was held in that case, which was an action of trespass for pulling down certain buildings, which the board of health caused to be removed as a nuisance, during the prevalence of the Asiatic cholera in Albany, in 1832, that the plaintiff could not show in the action that the premises were not a nuisance, the point having been adjudicated upon by the proper tribunal, the board of health. The decision was, in fact, that the action of the board could not be questioned in a collateral proceeding. It may be reviewed to a limited extent upon a writ of certiorari (Ex parte Mayor of Albany, 23 Wend. 27); and should it order the removal of any matter or thing, in a case where it clearly has no authority, the court may interpose and stay its action, as was held by Jus — 123 — tice Ingbaham, in the recent case of Hoffman agt. Schultz, in the supreme court of this district. The present act goes further than the rule of the common law, or the act of 1801 required, for the protection of the property of the citizen, by providing that except in cases of im'inent danger from pestilence, notice shall be given to the party to be affected, and an opportunity afforded to him to be heard, before the order of the board is executed; and the legislature having made this provision, courts of justice should act with great caution in interfering with the proceedings of such a body, and interpose only in a case when it is very plain that they are clearly acting without any authority. It is further urged, that the authority given to the board to order the arrest by'warrant, of persons violating the provisions of the act, or the regulations or ordinances of the board, is in conflict with the provision of the constitution, declaring that no person shall be deprived of his liberty without due process of law. The deprivation of liberty here referred to, does not mean the arresting of a person to bring him before the proper judicial tribunal upon the accusation of crime, for that may be done in certain cases without warrant, where one is taken in the act of committing a felony or a breach of the peace, or by an officer upon a reasonable suspicion of having committed a felony (2 Hawks. P. C. ch. 12, §§ 19, 20 ; 2 Inst. 186); or where it is allowable by the custom of particular localities (Mackally’s Case, 9 Coke, 65 b). The meaning of the words without due process of law, in this connection is, that no one shall be condemned to lose his liberty, unless by the presentment or indictment of a grand jury, and a regular trial according to the course of the common law. The words of magna charta, by the lato of the land, and the words, without due process of law, both of which are used in our constitution, mean, according to Lord Coke, the same thing, pertinent of good and lawful men (2 Inst. 50). And Chief Justice Ruffin, in referring to one of these synonymous terms, in the elaborate opinion which he rendered in Hoke agt. Henderson (4 Dev. H. 0.15), declares that it meant depriving a citizen of the rights of person or pro124 party without a regular trial, according to the coruse and usage of the common law; and that that is undoubtedly the meaning of these terms, will be apparent upon a perusal of the early English statutes in relation to personal liberty, the object of théir enactment being to prevent a man being deprived of his liberty or of his property, as Blackstone has expressed it, without accusation or trial. The arrest which this act allows upon the warrant of the board, is simply to bring the offender before a magistrate. The fourteenth section declares, that the order of arrest shall be executed as a warrant from a justice or judge, and that the party arrested shall be taken before a magistrate, and treated thereafter as having the rights and the liability of a party under arrest for a misdemeanor, a procedure which in no way deprives the accused of the rights secured to him by the constitution. The next objection is one that scarcely calls for a serious reply ; that the act of the board forbidding butchers to drive their cattle through the city, except at certain specified hours, is under the constitution, depriving them of their property. What the constitution means is, the taking away of a man’s property. The act of the board here simply regulates the manner of the use of it, so far as the interests of the public are concerned. This the constitution nowhere interdicts. Our statute books abound with laws of this description, and without them the ordinary objects of civil government could not be'effected. In Bosworth agt. Hearne (Cases Temp. Hardwicke, 405, Andr. R. 92), a regulation of this kind was held to be one that a municipal corporation might enact. The twentieth section of the act empowers the board to enact such by-laws, rules and regulations, as it may deem advisable, in harmony with the provisions of the act, and not inconsistent with the constitution and laws of the state, for the regulation of its action, and that of its officers and agents, in the discharge of its and of their duties, and for the protection of life and public health, and to alter, annul or amend the same from time to time; and it requires the board to make and publish annually, a “ code of health — 125 — ordinances,” for the protection of the public health, and requires all courts and tribunals, and any judges or justices thereof, to take cognizance of, and give effect to them, and that they may be enforced by a penalty not exceeding fifty dollars, to be recovered in any justices or district court. It is said that the power to make law is vested by the constitution in the senate and assembly, and that it cannot be delegated, except to the bodies named in the constitution, cities, incorporated villages and boards of supervisors. There is no express provision prohibiting the legislature from empowering public bodies or corporations to enact and enforce by-laws or ordinances for local purposes; but it is argued, because the constitution declares that the legislature may confer upon boards of supervisors such further powers of local legislation and administration, as they shall from time to time prescribe, and have made it the duty of the legislature to provide for the organization of cities and incorporated villages (Art. 3, § 17; Art. 8, § 9), that it follows by implication, that the naming of these bodies is an indication that it was not to be extended to any others; but the maxim expressio unius estexclusio alter ius, as was said by Justice Willabd in Barto agt. Himrod (4 N. Y. R. 492), is more applicable to deeds and contracts than to a constitution, and requires great caution in its application in all cases. The legislature is the depository of the original, exclusive and sovereign power of the people, except so far as it is restrained by constitutional enactments ; and to warrant the conclusion, where there is no express prohibition, that any part of it is taken away by natural implication, the intention should be as plain as if it had been expressed in words. “ The power of a state legislature,” says Cushing, “ is general and unlimited, and extends to all subjects of legislation, except in those particulars wherein it is expressly restrained; consequently, when a question arises, whether a given subject is within the constitutional power of a state legislature, the inquiry should be not whether it is conferred specifically, but whether it is withheld in terms, or by necessary implication. If it cannot be said affirmatively, that the power in — 126 — question is withheld, then it exists under the general grant. If the inquiry leads merely to a doubt of the power, the doubt is in favor of its being granted ” (Cushing on the Law of Legislative Assemblies, § 717,1. p. 282). The legislature constantly exercises the powers of conferring upon local bodies created for public purposes, the authority to make and to enforce by-laws or ordinances. From the year 1794 down to the time of the revision of the constitution in 1846, numerous acts had been passed by which various public bodies, the common council of New York, the commissioners of the health office, the commissioners of health and the board of health, first established in 1804, were empowered to make rules and regulations for the protection of the public heath, which were enforced with the effect of law. By the act of April 9, 1804, masters of vessels violating any of the regulations made' by the commissioners of the health office, were declared to be guilty of a misdemeanor; and an analogous provision in relation to the orders and regulations of the health commissioners, was contained in the act of March 6,1813. All these bodies were created by statute, and underwent many modifications and changes, in the course of subsequent enactment; but this piece of local legislation, as it has been called, or the right to adopt rules, regulations or ordinances, which were enforced as laws, for the preservation of the public health, was continued through the many changes and modifications in these bodies, and was of a very comprehensive character. (Laws of New York, 1794, 3 G. 149; 1796, Id. 308 ; 1797, Id. 368; 1798, J. & A. 403; 1799, Id. 587; 1802, 1 K. & R. 361, 369, 372; 1804, 3 W. 469 ; 4 W. 43, 410, 460 ; 2 Rev. Laws of 1813, pp. 524, 533. 1 Rev. Stat. 422, 440, 441; Laws of 1832, p. 582, § 5; Laws of 1820, pp. 607-8, Art. 1.) In 1828 the legislature conferred upon the trustees of the village of Albion, the right to make such prudential by-laws, rules and regulations, from time to time, as they should deem proper; and an action having been brought against the trustees for enforcing a by-law against bowling alleys, the question came up whether the legislature could confer upon the — 127 — trustees the right to make such local laws, and Justice Co wen disposed of it in these words: “ It is said the constitution gives the legislative power to a senate and assembly, which cannot delegate the right to make laws. The answer is, that the words of the constitution comprehend and imply ah the accustomed and acknowledged powers of legislation; among these is the power to create municipal corporations, with the right'to pass by-laws for local objects ” (Tanner agt. The Trustees of Albion, 5 Hill, 130.) The legislature having exercised a power of this nature for more than half a century, it would require something more explicit than the provision in the constitution upon which the plaintiffs rely, to show that it was the intention of that instrument to restrict, abridge or take it away. If it had been restrained under previous constitutions, then there would be ground for holding that a declaration in the constitution, that the legislature might confer it upon boards of supervisors, should be regarded as a constitutional permission which was limited to such bodies alone; but the legislature, as I have said, is the depository of the sovereign power of the people, except so far as it is restricted by the constitution, and it does not necessarily follow, because the constitution says that the legislature may confer a power upon the board of supervisors, that it is to be taken as a constitutional prohibition against their conferring it upon any other body which they may think it expedient, thereafter, for public purposes, to create. “ The conflict between a statute and a fundamental law,” said Judge Emott, in The People agt. The Board of Supervisors (27 Barb. 593), "must be plain, beyond any reasonable doubt, before we convict the legislature, and annul their laws. These are obvious truths, which have been again and again repeated by court and judges, who have, perhaps, not in all cases, acted up to their requirement. Neither must it be forgotten that the power of the legislature is not derived from, nor conferred by the constitution of the state. That instrument does indeed organize a legislature, and transfer to them the power of legislation of the people of the state. But it does not — 128 — create the power, but only the instrument for its exercise. The power is the sovereign power of the people, and in a political and juridical sense, it is omnipotent and irresponsible, except where it is expressly restrained by the organic instrument. The constitution of the state is to be resorted to not to see what powers are conferred upon the legislature, but what are withheld; not how they are authorized to act, but in what respect they are restrained or forbidden to exercise power. Such restrictions and limitations ought to be clear and explicit. There is a wide distinction between such an instrument and a grant of limited powers like the constitution of the United States.” It was held in The People agt. Draper (15 N. Y. R. 533), that the legislature might constitutionally establish new civil divisions of the state, embracing the whole or part of different counties, for the general purposes of government, which in that case had been done by forming the counties of New York, Kings, Westchester and Bichmond, into the metropolitan police district, under commissioners, to whom were transferred powers previously exercised by bodies or officers in these different counties. It was held that there was nothing in the constitution which required that these local functionaries should always possess the same functions as when the constitution was adopted; that changes might be made by which power might be taken from the one and given to the other. “ H we were to establish the principle,” said O. J. Denio, “ that the legislature can never reduce the administrative authority of comities, cities or towns, can never resume in favor of the central power any portion of the jurisdiction of these local divisions, or change the partition of it among them as it existed when the constitution was adopted, we should, I think, make an impracticable government. It is the business of the legislature to adjust, in the interest of the whole people of the state, the distribution of the powers of government, taking care that no direct provision of the constitution is violated, and that no arrangement which it has made is incidentally disturbed.” The legislature followed a like course in creating the — 129 — present board of health, embracing the same territorial division of the state, and conferring upon a board of commissioners powers which had before been exercised by public bodies or officers within these respective counties. They had the right to do this; and there is nothing in the constistitution, in my judgment, which deprives the legislature' of the authority to confer upon the board the power to make by-laws, rules, regulations and health ordinances. The next objection that the law is unconstitutional, because it confers upon the board judicial powers, is equally unfounded. Even if such were the fact, it would not render the .law unconstitutional. The court of appeals have decided in Sill agt. The Village of Corning (15 N. Y. 297), that there was nothing in the constitution prohibiting the legislature from creating new courts; that they could not create courts of the like jurisdiction, or fulfilling the same general purposes as the courts for which the constitution had made provision; but that beyond that, the power of the legislature was unlimited; and they held that an act creating a local court for the village of Coming was constitutional and valid. All that the legislature have done in tln‘« case, has been to authorize the board, by its warrant, under its seal, and attested by the signature of its president and secretary, to order the arrrest of any person resisting its order, or violating any law, ordinance or order of the board, having first entered upon its minutes or filed in its records, what it may regard as adequate proof of such violation or resistance, and the person so arrested is to be taken before a magistrate, and treated as a person under arrest for a misdemeanor of the nature indicated by the order of the board. This is simply giving the board jurisdiction to order the arrest of offenders against the provisions of the act, or the regulations, orders or ordinances of the board; and this the legislature has the right to do, there being nothing in the constitution which expressly, or by natural implication, prohibits them from doing. Chief Justice Dmio, in declaring in the case just quoted, that the legislature had the power to create a court in the village of Coming, says: The — 130 — maxim, expressio unius est, exdusio álterius, has no application to the ease of local tribunals, established for the purpose of redressing a certain description of grievances, in particular limited localities. The state, as to subjects of a domestic nature, is a soverein political power, and the legislature can provide such agencies for the administration of the law and the maintenance of public order as it shall judge suitable, where no prohibition expressly made or ■ necessarily implied, is found in the constitution. The provision in the fourteenth section, that the action, proceedings, authority and orders of said board shall be regarded as in their nature judicial, and be treated as prima facie just and legal, was also, upon the authority of the case above quoted, within the power of the legislature to enact. This disposes of all the constitutional objections which shave been taken to this act; and holding it, as I do, to be "constitutional and valid, it remains now but to consider whether it has conferred upon the board the power to do the ¡acts which this injunction was granted to restrain. The first as the prohibition in the forty-fifth section of the health ordinances, that no cattle shall be driven in the built up portions of New York or Brooklyn, except during certa,in specified hours, and then only in certain numbers, and shall be ■driven in streets. and avenues leading to their destination, where they will least endanger the lives of human beings. ‘The powers of the board are very extensive. The object of the act as expressed in its title, is “ to create a metropolitan sanitary district and board of health therein, for the preservation of life and health, and to prevent the spread of diseaseand to accomplish the object of its creation, all the authority, duties and powers, possessed by bodies and public officers previously existing in the district, for the purpose of preserving or protecting life or health, or preventing disease, are conferred exclusively upon the board, to be exercised as se't forth in the act, to such an extent, and in such place and manner as the board may provide, for the greater protection and security of health and life in the district, and the appropriate parts of it. If the driving of cat131 tie through the city be at all attended with danger to life or health, a regulation of this kind by the board is clearly within the powers conferred upon them. This has been shown upon the motion; and though numerous affidavits by butchers long established in business in this city have been read, to the effect that they have never known or heard of any accidents in this city arising from such a cause, there has been evidence adduced on the part of the board, showing that' such accidents have occurred during the past two years, and that the breaking loose and running through the streets of wild or mad cattle, to the danger of the lives of citizens, has been not of unfrequent occurrence. This is sufficient to show that the subject is one within the jurisdiction and power of the board, and that they have a right to make such a regulation respecting it. The next is the provision in section thirty-nine of the ordinances, that no person shall become, continue or engage in the business of a butcher, cattle dealer, or vegetable dealer, at or in any public or private market or stand in New York or Brooklyn, without a permit from the board. This is a more doubtful power. From the earliest colonial period the corporation of the city of New York, by virtue of the municipal authority with which it was invested as a body politic and corporate, exercised the right of determining who should be butchers, within what part of the city or corporate limits cattle might be slaughtered, and ordinances were passed forbidding any one to follow the calling of a butcher without the consent or license of the city authorities. An ordinance of this character existed under the Dutch as early as 1656 (City Records); and under the first of the English governors in 1665, butchers were required to take an oath that they would slaughter no cattle without “ a ticket of consent,” or as one would express it, a permit from the agent of the corporation (City Records). This exercise of corporate authority was specifically confirmed both by the Dongan and the Montgomery charters, in the first of which instruments, after a confirmation of all their previous powers, the corporation were authorized to pass ordinances for the good — 132 — rule, oversight, correction and government of the several tradesmen, victuallers, &c.; and by the Montgomery charter, ordinances for declaring how the inhabitants should “ use, carry and behave themselves,’’ in their functions and business (Kent’s Charter, pp. 10, 26, 93). And the corporation would have possessed the power if there had been no such grant, for a municipal corporation may regulate the manner of carrying on any trade or business within the municipality, so far as to prevent monopoly, the sale of unfit commodities, and to insure proper conduct in those who practice it (Willcock on Municipal Corporations, 141). Thus, it has been held that a by-law that there should be no butchers or tallow chandlers in a particular street, or that no butcher should slaughter any beasts within the walls of a city, or expose fresh meat for sale within certain limits, or upon a particular day, or excluding brewers carts from the streets during certain hours, were not laws in restraint of trade, but public regulations, which a municipal corporation had the right, if they thought proper, to establish. (Pierce agt. Bartrum, Cowp. 270 ; Player agt. Jenkins, 1 Sid. 284 ; Bosworth agt. Hearne, Cases Temp. Hardwicke, 405; Andrews’ R. 92; 2 Strange, 1085 ; The Butchers’ Company agt. Morey, 1 H. Bl. 370 ; Comyn’s Digest, Action on the Case for Nuisance, c.) The corporation of the city of New York, from the year 1676 to 1789, passed various ordinances, by which at first cattle were required to be slaughtered outside the city wall, the present Wall street, then at the public slaughter house, the location of which was gradually removed by successive enactments as far as Corlear’s Hook, when being found productive of great inconvenience to the butcher and to the citizen, the public establisment was abandoned, and the butchers from that time forward, were allowed to have their own private slaughter houses (De Voe, The Market Book, vol. 1, pp. 54, 81, 264, 297, 368). By the act of April 9, 1813, section 272, the corporation were empowered to regulate the butchers of the city of New York, to prohibit and restrain them from carrying on their business at any other times and places than such as might be -designated — 133 — for that purpose by the common council, and to prohibit and restrain all and every person or persons, other than licensed butchers, from carrying on the business or calling of a butcher, or any part or branch thereof, within the limits of the city; and a similar law was passed in 1834 for the city of Brooklyn, the validity of which, and of the ordinances under it, was sustained in the case of The City of Brooldyn agt. Cleves (Lalor’s R. 231). The corporation of New York, by repeated ordinances, have carried out these provisions, by providing that no person shall exercise or carry on the trade or business of a butcher in the public market under the penalty of $50, unless licensed by the mayor, or permitted to do so by the authority of the common council; together with numerous regulations as to the time when, and the place where, meat may be sold; the kind or quality; the weights and measures to be used ; prohibiting the sale of any article or thing in the public market without a registered permit; enactments against forestalling, and other enactments too great in number to be here enumerated; the rigid compliance with which is enforced by the enactment of numerous penalties (Revised Corporation Ordinances of 1845, from page 91, to 117). This power of determining who should be butchers, and how and where their trade should be carried on, had its reason, no doubt, in the prejudicial effect which such occupation might have in compactly built cities, upon the public health, if not properly conducted, but not wholly so. It was but a part of that general power which municipal governments have exercised from their earliest institution, over all trades or occupations, so far as they affected the public interest, and which is essential for the preservation of good order and the' general purposes of government. So far as this power relates to the protection of life and health, or the prevention of disease, it is taken away by this act from the corporations of the cities of New York- and Brooklyn, and “ conferred exclusively ” upon the board of health, by whom, after the passage of the act, it is to “ be exclusively exercised,” and with it is necessarily granted all such inci — 134 — dental power as may. be requisite to give effect to, and carry out the intent of the legislature. Whether this grant is broad enough to empower the board to declare that no man shall carry on the business of a' butcher without their permission, is a point upon which I confess, I entertain considerable doubt. This power existed in the corporations of Hew York and Brooklyn; and if the defendants possess it, they possess it exclusively, for whatever power has been transferred to them is vested in them exclusively. It cannot exist in both bodies ; and if, as the defendants assume, it has passed to them, the license of the mayor is unavailable, as it would be of no effect or use without the permission of the board of health. If the board possess this power alone, then much of the legislation referred to, of the corporations of Hew York and Brooklyn upon the subject of butchers and markets, would be abrogated; and as those ordinances were designed to accomplish other objects besides the preservation of health and the prevention of disease, it would be very difficult to determine what part of them remains, and what portions have ceased to exist. But it is not essential that I should pass upon this question in this action. The plaintiffs ask that the board of health should be enjoined from compelling them or any butchers to take out permits to carry on their business, and this the plaintiffs áre not entitled to, as they have ample legal remedy if the defendants have no authority to make such an ordinance, and should undertake to enforce it. If arrested by the warrant of the board for refusing to comply with the provision, an ample opportunity is afforded to avail themselves of this defense, and there is no reason why a court of equity should interpose by injunction. The plaintiffs set forth that they are informed and believe, that the defendants threaten and give out that they intend to compel the removal of the slaughter houses of all the butchers in the city of Hew York to some remote part of the island of Hew York, and that if this threat is put into execution, they and the butchers generally will sustain great injury. The act declares that the powers conferred upon — 135 — the board for preserving health and life, or for preventing disease, may be exercised to such an extent and in such a manner as they may provide, for the greater protection and security of health and life in the district; and if the board have, or should determine that such an act is necessary for that purpose, I think any court of justice would and should hesitate to interfere with the decision. It is made by the legislature, the tribunal to determine to what extent, and in what manner its powers are to be exercised for the greater protection and security of health and life in the district Which the statute has created; and though its determination upon such a subject may not be beyond control, little short of the abuse of its powers, or a case where it was palpably . acting without authority, would justify an interference upon the part of the courts. The course of legislation from 1801 to the present time, has been to confer upon bodies of this description large discretionary powers, to be exercised upon emergencies for the public welfare. They have been authorized as I may express it in general terms to do or cause to be done, whatever might be necessary for the preservation of the public health; and if the present board have come to the conclusion that the removal of the slaughter houses, as suggested, is necessary for that purpose, it is certainly a matter upon which they may fairly exercise their judgment, and with the fair exercise of it no judicial tribunal should interfere. (Birdsall agt. Phillips, 17 Wend. 164; Allyn agt. The Commissioners of Highways of Schodack, 19 Id. 342; Simpson agt. Rhinelander, 20 Id. 103; Ex parte Mayor of Albany, 23 Id. 277.) Of the propriety of this course on the part of this court as a judicial tribunal, I entertain no doubt, while at the same time I doubt exceedingly the utility or necessity of the removal of all the slaughter houses, in the manner proposed, as a measure essential to the preservation of the public health; for a slaughter house is not in itself a nuisance, thought it may become so by the manner in which it is conducted. I find but one reported case in which a slaughter house was indicted as a nuisance, and that was one for the slaughtering of horses (Rex agt. Cross, 2 C. — 136 — & P. 483), while the books abound with proceedings for the removal of other trades or manufactories as nuisances. Mr. Thos. De Yoe, in a paper read before the Polytechnic Association of the American Institute, has collected many facts upon this subject, and among others, he refers to a letter of Dr. Hosack, an eminent physician, who writing in 1822, during the prevalence of the yellow fever in this city, notices as remarkable, that in the north-eastern part of the city, occupied by the slaughter houses, though the air was loaded with the offensive vapors arising from the decomposition of blood and the other offal of these establishments, yet the streets there were remarkable for their salubrity, and had in no instance been the seat of pestilence, even when it was prevailing in the vicinity of the wharf; also to similar experience in Bio Janerio, during the severe yellow fevers which prevailed there in the years 1851, 1852 and 1853; to the testimony of Dr. Smith, before a committee of the New York Assembly, in 1865, declaring that in the seventeeth ward of the city, inhabited chiefly by the wealthier classes, and where there are fifty-six slaughter houses, the per centage of death was seventeen in one thousand, or that of a rural town, while in the fourth and sixth wards, where there are no slaughter houses, it is very large, being from thirty-five to forty in one thousand; and to the report of a committee of the national institute of France in 1805 (9 Med. Repositary, 341), who after investigation of the subject, declare that slaughter houses are not injurious to the health of the vicinity, where they are properly conducted. These facts, together with the absence of reported cases in the books of proceedings or actions against such establishments as nuisances, would seem to indicate that they are not necessarily prejudicial to health, although otherwise offensive and unpleasant. An action for a nuisance, says Comyn, a very great authority in the law, will not lie against a butcher for the use of his trade, though it be to the annoyance of his neighbor, for it is but a reasonable exercise of his right if he use his trade in a convenient place (Comyn's Digest, Action on the Case for a Nuisance [c.]). Butchers, by municipal regulations, might be — 137 — required to carry on their business in a convenient place, but not necessarily for the reason that it is injurious in its nature to the public health, but because there are parts of a city especially devoted to residences, the comfort and enjoyment of which would be lessened by the unpleasant odors arising from such places, when they can as conveniently be located elsewhere. Of the supervising power of the board of health over slaughter houses, and of its right to enact and enforce such regulations as will secure them being conducted in such a manner as to prevent any injury to the public health, there can be no doubt, and the board would even be restrained from doing this by the very general terms of this injunction. The motion to dissolve the injunction must, therefore be granted.