they cannot be vested with authority to decide finally upon one's right to property, where they proceed to interfere with it as constituting a danger to health, yet they are vested with quasi judicial power to decide upon what constitutes a nuisance, and all presumptions favor their actions." And again, at page 742, in a note, citing authorities, he says: "Whether any particular thing or act is or is not permitted by the law of the state must always be a judicial question, and therefore the question what is and what is not a public nuisance must be judicial, and it is not competent to delegate it to local legislative or administrative boards. The local declaration that a nuisance exists is, therefore, not conclusive, and the party concerned may contest the fact in the courts. Dillon, in his work on Municipal Corporations (4th Ed.) § 374, says the authority to prevent and abate nuisances and its summary exercise "may be constitutionally conferred on the incorporated place, and it authorizes its council to act against that which comes within the legal nature of a nuisance; but such power conferred in general terms cannot be taken to authorize the extrajudicial condemnation and destruction of that as a nuisance which in its nature, situation, or use is not such."

In Wood's Law of Nuisances (section 740) it is said that, where the public authorities abate a nuisance under authority of a city ordinance, "they are subject to the same perils and liabilities as an individual if the thing abated is not in fact a nuisance. * * *It would, indeed, be a dangerous power to repose in municipal corporations to permit them to declare by ordinance or otherwise anything a nuisance which the caprice or interests of those having control of its government might see fit to outlaw, without being responsible for all the consequences; and, even if such power is expressly given by the Legislature, it is utterly inoperative and void, unless the thing is in fact a nuisance, or was created or erected after the passage of the ordinance, and in defiance of it."

In Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984, Mr. Justice Miller said: "It is a doctrine not to be tolerated in this country that a municipal corporation without any general laws, either of the city or the state, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city at the uncontrolled will of the temporary local authorities."

In Hutton v. City of Camden, 39 N. J. Law, 122, 23 Am. Rep. 203, it was held that the action of the board of health could not determine conclusively that a nuisance exists, and that such a conclusive determination could be made only in a regular course of law before an established court of law or equity.

In Underwood v. Green, 42 N. Y. 140, the action was to recover the value of dead hogs removed under the direction of the city sanitary inspector, an officer clothed with judicial discretion, and acting under a

city ordinance declaring that all dead animals "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"; and it was held that it must be shown, in order to justify the act, that the dead hogs were or would become in some way dangerous or deleterious to public health.

The following are also instructive authorities upon the same subject: Mayor, etc., of New York v. Board of Health, 31 How. Prac. 385; Clark v. Mayor, etc., 13 Barb. 32; Rogers v. Barker, 31 Barb. 447; Coe v. Schultz, 47 Barb. 64; Lawton v. Steele, 119 N. Y. 226, 23 N. E. 878, 7 L. R. A. 134, 16 Am. St. Rep. 813.

The result of these authorities is that whoever abates an alleged nuisance, and thus destroys or injures private property, or interferes with private rights, whether he be a public officer or private person, unless he acts under the judgment or order of a court having jurisdiction, does it at his peril; and when his act is challenged in the regular judicial tribunals it must appear that the thing abated was in fact a nuisance. This rule has the sanction of public policy, and is founded upon fundamental constitutional principles.

The way is now clear to the disposition of this case. The board of health did act, and had a right to act, upon its own inspection and knowledge of the alleged nuisance. It was not obliged to hear any party. It could obtain its information from any source and in any way, and hence its determination upon the question of nuisance is not reviewable by certiorari. People v. McCarthy, 102 N. Y. 630, 8 N. E. 85. * *

Our conclusion, therefore, is that the judgment of the general term should be affirmed, with costs. All concur.22

22 FINCH, J., in Board of Health of City of Yonkers v. Copcutt, 140 N. Y. 12, 35 N. E. 443, 23 L. R. A. 485 (1893), an action to recover a penalty for a violation of an ordinance of the board of health, said:

"The appellant also objects at the ordinance, which was directed against him specially, and affected his property rights, was invalid, because passed without notice to him and an opportunity to be heard. In another phase of this case, coming to us on certiorari for a review of the action of the board, we have decided that a hearing was not necessary, because the question of nuisance, or not, lies at the foundation of the jurisdiction, and the party proceeded against may always try that vital and decisive question in the courts, and is not foreclosed by the order made. This case well illustrates the doctrine in actual operation. The plaintiff did not rely on its orders or ordinances alone, or the presumptions which they raised, but proceeded to allege and prove that the dam and pond were a public nuisance. The defendant took issue upon that, and the battle was fought out over that question. The defendant has had his day in court, ample and abundant chance to be heard, better and more complete than any hearing which the board could give. But we have already decided the question adversely to the defendant's contention, and nothing needs to be added to the discussion which it has received."

See Harrington v. Board of Aldermen of Providence, 20 R. I. 233, 38 Atl. 1, 38 L. R. A 305 (1897); Hartman v. Wilmington, 1 Marv. (Del.) 215, 41 Atl. 74 (1894).

After an order has been made, notice must be given to the person affected

HEALTH DEPARTMENT OF CITY OF NEW YORK v. RECTOR, ETC., OF TRINITY CHURCH.

(Court of Appeals of New York, 1895. 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, 45 Am. St. Rep. 579.)

Appeal from the Common Pleas of New York City and County, General Term.

Action by the Health Department of the City of New York against the Rector, Churchwardens, and Vestrymen of Trinity Church, to recover a penalty for failure to supply the floors of a tenement house with Croton or other water. From a judgment of the General Term of the Court of Common Pleas of New York City and County (17 N. Y. Supp. 510) reversing a judgment for plaintiff, the latter appeals. Reversed.

*

The cause of action is founded upon section 663 of the consolidation act (Laws 1882, c. 410), relating to the city of New York, as such section was amended by chapter 84 of the Laws of 1887. After making various provisions in prior sections for the proper construction and ventilation of tenement houses in the city of New York, the Legislature, by the amendment of 1887, enacted as follows: "Sec. 663. Every such house erected after May 14th, 1867, or converted, * * shall have Croton or other water furnished in sufficient quantity at one or more places on each floor, occupied or intended to be occupied by one or more families; and all tenement houses shall be furnished with a like supply of water by the owners thereof whenever they shall be directed so to do by the board of health. But a failure in the general supply of water by the city authorities shall not be construed to be a failure on the part of the owner, provided that proper and suitable with it, before he can be charged with its violation. State v. Butts, 3 S. D. 577, 54 N. W. 603, 19 L. R A. 725 (1893).

See S. W. Peabody, Historical Study of Legislation Regarding Public Health in New York and Massachusetts (Chicago, 1909) pp. 94-97:

"Notice and hearing does not appear in New York laws as essential to the enforcement of orders of a board of health in regard to nuisances until 1850. In that year the law for New York City (Laws N. Y. 1850, c. 275, tit. 3, art. 1, 1, 3) required the city inspector, upon complaint being made of any trade as a nuisance and detrimental to health, to give notice to the persons concerned to show cause before the board of health why such trade should not be discontinued. The order of the board of health, given after a hearing, was final and conclusive, and disobedience to such orders was made a misdemeanor. When the law was brought before the courts for interpretation, they held that a resolution of the board of health directing a nuisance to be abated was void without such previous notice and hearing. People v. Bd. H. N. Y. City, 33 Barb. (N. Y.) 344 (1861). In cases arising under the law of the same year (1850) applying to the state at large, which made no mention of notice and hearing, it was held (Reed v. People, 1 Parker, Cr. R. [N. Y.] 481 [1854]; Rogers v. Barker, 31 Barb. [N. Y.] 447 [1860]) that the power to make regulations for the removal of nuisances did not include the power to make orders, on the ground that 'it is impossible to think the Legislature intended to confer on boards of health power to make an adjudication against an individual without notice and in his absence

FR.ADM.LAW.-10

in

appliances to receive and distribute such water are placed in said house. Provided, that the board of health shall see to it that all tenement houses are so supplied before January first, eighteen hundred and eighty-nine." The rest of the section is not material.

It appeared upon the trial that the defendant was the owner of certain houses in the city of New York, known as "Numbers 59, 77, 84, and 86 Charlton Street," and on the 20th of March, 1891, the plaintiff caused to be served on the agent of the defendant a notice requiring the defendant, in conformity with the provisions of the Sanitary Code, to alter, repair, cleanse, and improve the premises above mentioned, and directing that suitable "appliances to receive and distribute a sup

volving penalties, and that 'the Legislature never designed to commit power to a board of health to conclude a thing was a nuisance and order its destruction without opportunity to be heard.' Nor were the powers of city councils acting under city charters interpreted more broadly. Under the charter of Syracuse (Charter of Syracuse, Laws N. Y. 1847, c. 475; Clark v. Syracuse, 13 Barb. [N. Y.] 32 [1852]) it was held that the city council had no right, 'without trial or notice to the party interested, to destroy large and valuable property, under pretense that it is a nuisance endangering the health of the city,' and that an injunction to restrain the board would be given. None of these cases reached the Court of Appeals, but the lower courts were quite consistently of the same opinion-that notice and hearing were necessary to the enforcement of orders.

"The laws of 1866 and 1867 establishing the metropolitan board of health brought the whole subject of quasi judicial powers prominently before the courts. Section 14 of the law of 1866 (Laws 1866, c. 74) especially was at tacked as being unconstitutional. In the course of the decisions rendered the courts declared that the quasi judicial functions conferred upon the board to issue warrants, give notice and hearing, and compel witnesses (Laws N. Y. 1867, c. 956) did not constitute a court, and that redress from its actions could always be had in the regular tribunals. Cooper v. Schultz, 32 How. Prac. (N. Y.) 107; Coe v. Schultz, 47 Barb. (N. Y.) 64; Reynolds v. Schultz, 34 How. Prac. (N. Y.) 147; Met. Bd. v. Heister, 37 N. Y. 661. See, also, Golden v. H. Dept., 21 App. Div. 420, 47 N. Y. Supp. 623. In the only case among those brought against the metropolitan board in which the question of hearing was definitely brought up (Reynolds v. Schultz), it was

Laws N. Y. 1866, c. 74; Laws 1866, c. 686; Laws 1867, c. 700; Laws 1867. c. 956. In the cases brought against the metropolitan board of health the attack was made on three grounds: (1) That the law delegated legislative power to an appointed board; (2) that it delegated judicial authority; (3) that the summary powers granted to abate nuisances were contrary to the constitutional requirements of "due process" and trial by jury. In upholding the constitutionality of the law the courts held with regard to these objections: (1) That the Legislature could create new sanitary districts with appointive officers (Met. Bd. v. Heister, 37 N. Y. 661 [1868]). (2) That the power to make regulations was not true legisla tion, such regulations being in the nature of administrative by-laws (Cooper v Schultz, 32 How. Prac. [N. Y.] 107 [1866]: Coe v. Schultz, 47 Barb. [N. Y.] 64 [1866]); but for the board to declare a thing a nuisance which was not such at common law was legislative and ultra vires (Mayor v. Bd. of H., 31 How. Prac. [N. Y.] 385 [1866]; Schuster v. Met. Bd., 49 Barb. [N. Y.] 450 [1867]). It is to be noted in this connection that, while the regulations of boards of health are not strictly legislation, they may become such by adoption, and the law may be built up in great part by such regulations. (3) That, while it was within the province of the Legislature to establish new courts and fix their jurisdiction, the quasi judicial powers conferred on the board did not constitute it a court (Met. Bd. v. Heister; Cooper v. Schultz). (4) That abatement by the board was not a taking of property without due process (Cooper v. Schultz: Weil v. Schultz, 33 How. Prac. [N. Y.] 7; Coe v. Schultz), and was less objectionable than abatement by private persons (Coe v. Schultz). (6) That a jury was not customary or necessary for determining the fact of a nuisance (Reynolds v. Schultz; Met. Bd. v. Heister).

ply of water for domestic use be provided on the top floor of No. 59; the basement, first and second floors of No. 77; the basement, first, second, and third floors of No. 84; and the basement and attic of 86." And the defendant was required to comply with the requirements within five days from the receipt of the notice, and it was also stated in the notice that any application for a necessary extension of time, or for the suspension of any part of the requirements contained in the written. notice, should be made to the health department, at the time and place designated in the notice.

This action was brought against defendant as owner of houses Nos. 77 and 84 Charlton street. The defendant claims that the houses in

held that upon refusal to fix a day for a hearing of the party affected a mandamus would lie, and that it was a matter of grave doubt whether the Legislature could 'constitutionally authorize any person or body to destroy property * without providing for a hearing before con

demnation, or compensation.'

"Such notice and hearing were not explicitly required in the later general laws for local boards, although the power to make orders for the abatement of nuisances was given, as well as other judicial powers, i. e., to issue warrants and subpoenas, compel witnesses, administer oaths, with the same powers as justices of the peace in civil actions, and prescribe and impose penalties for violations of or failure to comply with orders or regulations (Laws N. Y. 1893, c. 661, § 21); but for many years the courts held that such notice was essential and was implied in the statute (People v. Bd. H. Seneca Falls, 58 Hun, 595, 12 N. Y. Supp. 561 [1891]; People v. Wood, 62 Hun, 131, 16 N. Y. Supp. 664 [1891]). The statute does not in words require notice, but this is clearly implied. ** * The accused must be enabled to defend himself before final judgment.'

"But although the necessity for notice and hearing had been the steady doctrine of the lower courts, when the matter came before the Court of Appeals after the cholera scare of 1892,‡ the opposite view was taken-that notice and hearing by the board of health were neither implied or essential; that there could be no final determination as to the fact of the nuisance, except by a regular court, nor without the appearance of the parties in such a court. 'A hearing was not necessary because the question of nuisance or not lies at the foundation of the jurisdiction, and the party proceeded against may always try that vital and decisive question in the courts, and is not foreclosed by the order made.' The same doctrine was laid down again in the famous case of N. Y. H. Dept. v. Trinity Church, and more emphatically in the later case of Cartwright v. Cohoes N. Y. Dept. v. Trinity Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710 (1895); Cartwright v. Cohoes, 165 N. Y. 631, 59 N. E. 1120 (1901). "The board was not obliged to hear anybody. It could have acted upon its own inspection and knowledge of the premises.' But hand in hand with the advancement of the doctrine that notice and hearing by a board of health were not necessary nor implied in the law went the other doctrine that the question of the fact of the existence of the nuisance was always subject to investigation in court and that boards of health or health officers acted at their peril in abating a nuisance without the sanction of a court decision. Where, however, even at the present time, local charters require notice and hearing by the board before the abatement of nuisances, lack of such notice will be held to invalidate the action of the board. Eckhardt v. Buffalo, 19 App. Div. 1, 46 N. Y. Supp. 204 (1897); also Cushing v. Bd. H. Buffalo, 13 N. Y. St. Rep. 783 (1887)."

People v. Bd. H. Yonkers, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37 Am. St. Rep. 522 (1893): "When pestilence is forcing a way into our harbors, and danger and death approach through all rot and filth, it is the condition with which boards of health must grapple, and the condition which must be abated and removed without regard to the question who caused the trouble." Bd. H. v. Copcutt, 140 N. Y. 12, 35 N. E. 443, 23 L. R. A. 485 (1893).