Copcutt v. Bd. of Health of City of Yonkers

• Decision Date: 28 November 1893
• Citation: 35 N.E. 320,140 N.Y. 1
• Parties: PEOPLE ex rel. COPCUTT v. BOARD OF HEALTH OF CITY OF YONKERS.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 1

35 N.E. 320

PEOPLE ex rel. COPCUTT

v.BOARD OF HEALTH OF CITY OF YONKERS.

Court of Appeals of New York.

Nov. 28, 1893.

Appeal from supreme court, general term, second department.

Certiorari by the people of the state of New York on the relation of John Copcutt to review the action of the board of health of the city of Yonkers in enacting an ordinance declaring certain mill ponds owned by relator in such city to be public nuisances, and directing the issuance of a warrant authorizing the proper officer to remove and abate the same. From a judgment of the general term (24 N. Y. Supp. 629) affirming the proceedings of the board, relator appeals. Affirmed.

The other facts fully appear in the following statement by EARL, J.:

The Nepperhan river is a small stream of water flowing through the city of Yonkers, and across the stream there were several dams, to furnish power to drive machinery. Much complaint having been made to the board of health that these dams created nuisances, the members of the board resolved to hold a meeting on the 27th day of March last to consider the condition of the dams, and they ordered notice to be given to the owners of the dams to show cause at that time why the dams should not be removed. In pursuance of this resolution, notice was served upon the relator, who owned or was interested in two of the dams and the ponds and water powers thereby created, called the ‘5th’ and ‘6th’ water powers, and he appeared before the board at the time and place in person and by counsel, and he gave evidence tending to show that the two dams were not nuisances, and did not create nuisances; and there was also evidence in conflict with the case made by him. After hearing the evidence, the board made its determination that the dams were nuisances, and ordered them removed. The relator then instituted this proceeding by certiorari to review this determination. The board made return to the writ, setting forth all its proceedings and the evidence taken by it, and stated in its return that its determination and action were based ‘not only upon testimony given by the witnesses, but that the determination of the said board of health, and the members thereof, has been based mainly upon the individual knowledge and experience of the members of said board of health concerning the ponds in the Nepperhan stream, and the condition thereof, inasmuch as each member of the board of health, in performance of the duties imposed by law, has personally inspected and has examined and inquired into the condition of said ponds and of said stream, and that the conclusions reached by this board have been reached and depend largely upon personal knowledge and experience of the individual members of this board, and for this reason it is apparent that this board cannot certify to and reproduce before this court all of the proofs, nor all of the grounds of the determination of said board, nor any considerable part thereof.’ Upon the return and the papers filed therewith the general term affirmed the action of the board, and then the relator appealed to this court.

R. E. & A. J. Prime & Burns, (R. E. Prime and Calvin Frost, of counsel,) for appellant

James M. Hunt, for respondent.

EARL, J., (after stating the facts.)

The disposition of this case turns largely upon the effect and the construction of the statutes constituting the board of health, and defining its powers and duties, and we will therefore first give attention to the statutes. By chapter 184 of the Laws of 1881, (an act to revise the charter of the city of Yonkers,) it is provided in title 9 that the mayor, the supervisor, the president of the common council, the president of the board of water commissioners, the president of the board of police, and the health officer shall constitute the board of health of the city; and the board is given power, among other things, ‘to suppress, abate, and remove any public nuisance detrimental to the public health,’ and, in addition to other remedies which it may possess by law, it is empowered to issue its warrant, whenever necessary, to the sheriff of the county of Westchester, or to any policeman of the city, authorizing and commanding him to forthwith suppress, abate, and remove such public nuisance, at the expense of the lot whereon the nuisance exists, and of the owner thereof, to be enforced and collected as in the act provided. It is further provided that, in addition to the powers expressly granted in the act, the board shall ‘have and exercise all the powers now or at any time hereafter conferred upon boards of health in cities by any general law;’ and it is authorized to make ordinances, rules, and regulations to carry into effect its powers, and to enforce observance of them by penalties, and by action instituted in its name to recover penalties and to restrain and abate the nuisance. By chapter 270 of the Laws of 1885 (the general act for the preservation of the public health) it is provided that the board of health in any city of the state, except the cities of New York, Brooklyn, and Buffalo, shall have the power, and it shall be its duty, ‘to receive and examine into the nature of complaints made by any of the inhabitants concerning nuisances or causes of danger or injury to life and health within the limits of its jurisdiction; to enter upon or within any place or premises where nuisances or conditions dangerous to life and health are known or believed to exist, and by appointed members or persons to inspect and examine the same, and all owners, agents and occupants shall permit such sanitary examinations, and said board of health shall furnish said owners, agents and occupants a written statement of results or conclusions of such examinations; and every such board of health shall have power, and it shall be its duty, to order the suppression and removal of nuisances and conditions detrimental to life and health found to exist within the limits of its jurisdiction,’ and ‘to make, without the publication thereof, such orders and regulations in special and individual cases, not of general application, as it may see fit, concerning the suppression and removal of nuisances.’ It is further authorized to abate nuisances, and it impose penalties for the violation of its orders and regulations, and the violation of them is also made a misdemeanor, and it may commence actions to restrain and abate nuisances, and to enforce its orders and regulations.

A careful examination of the two acts shows that there is no provision for a hearing before the board on the part of any person who is charged with maintaining a nuisance upon his premises. The right to such a hearing is not expressly given, and cannot be implied from any language found in either act, or from the nature of the subjects dealt with in the acts. Boards of health and other like boards act summarily, and it has not been usual anywhere to require them to give a hearing to any person before they can exercise their jurisdiction for the public welfare. The public health might suffer or be imperiled if their action could be delayed until a protracted hearing could be brought to a termination. There is no provision in the acts for calling or swearing witnesses, and there is no general law giving them power to do so. Section 843 of the Code of Civil Procedure is not...