
    HEALTH DEPARTMENT v. KNOLL.
    
      N. Y. Court of Appeals;
    
    December, 1877.
    Health Depabtment of the City of New Yobk.—Action fob Penalty.—Statute bepealed.
    The provisions of the statute relating to the Health Department of the city of New York, collected and reviewed.
    No penalty was imposed by the act of 1873,—creating the present board of health of the city of New York,—except in a single case, viz.: that of a violation of the sanitary code.
    No penalty is expressly imposed for the violation of a special order of the present board; and the amendment of the original charter of 1873, L. 1873, chap. 757,—declaring “that the authority, duty and powers conferred or enjoined upon the Metropolitan Board of Health” ■ by certain previous acts, “are hereby conferred upon and vested in or enjoined upon, and shall hereafter be exclusively exercised in the city of New York by the Health Department and Board of Health,” &c.,—does not have the effect to preserve the penalty imposed by those previous acts for violation of any special order of the board.
    The present board have, by virtue of that amendment, power to make a special order for the ventilation or other improvement of particular premises, but the penalty given by the former acts was no part of the “authority, duty, or power,” vested in the former board, and continued in the present board.
    A penalty cannot be raised by implication, but must be expressly created and imposed.
    The decision in the case of the Metropolitan Board of Health, 37 N. T. 661, re-affirmed.
    Appeal from a judgment of the N. Y. common pleas, affirming a judgment of the third district court of New York city.
    The action was brought by the Health Department of the city of New York against Adam Knoll, to recover a penalty of fifty dollars, for violating a special order of the plaintiff.
    The defendant was the owner of a tenement in New York city, which was five stories high, and contained sixteen families. • These premises were declared by the Board of Health, to be a nuisance and dangerous to life and health, and they were required to be altered and improved as follows :
    “ Ordered that Privy vault in yard at said premises be ventilated by means of an eight inch earthenware pipe laid at least six inches below the surface of the ■ yard from the said vault to the nearest wall of the building of the greatest altitude at or upon said premises and there connecting with a vertical metallic shaft of like diameter extending nob less than two feet above the top of such building.”
    The district judge, before whom the case was tried, held that the records of the Board of Health and its order were conclusive as to the fact of nuisance, and as to the propriety and usefulness of the order, and excluded evidence offered on these points, but admitted evidence as to whether or not it was physically impossible to comply with the order. He gave j udgment for the plaintiff, and this was affirmed by the-general term of the court of common pleas.
    From that judgment the defendant appealed to this court.
    
      George F. Langbein, for appellant.
    I. As to the general powers of the plaintiff. 1. That in time of perfect health, irrespective of the fact, and without proof, the ex parte declarations of the plaintiff did not make a thing a nuisance, exclude all proof to the contrary, and subject the party to the payment of a money penalty, and his person to imprisonment. That the statute did not try the case. 2. That the plaintiff must make out a proper and necessary case by showing facts ; and that it has not uncontrollable, arbitrary discretion (Rogers v. Barker, 31 Barb. 447; Metropolitan Board of Health v. Heister, 37 N. Y. 670; Cooper v. Schultz, 32 How. Pr. 121, et seq.; 
      Tribune Assoc. v. Sun Printing and Publishing Assoc , 7 Hun, 175 ; Underwood v. Green, 42 N. Y. 140 ; Nat. Bank of Chemung v. City of Elmira, 53 Id. 54 ; Coe v. Schultz, 47 Barb. 64 ; Miller v. Roessler, 4 E. D. Smith, 234; People v. City of Brooklyn, 21 Barb., 484 ; L. 1866, p. 114, c. 74, § 14 ; L. 1874, c. 636, § 12). 3. That the fact of the nuisance or danger is jurisdictional. Its declaration to that effect is only prima facie evidence, and not conclusive, no exigency, or emergency existing. There must be some foundation in fact (Adams v. Ives, 1 Hun, 457, opinion of Taloott, J.; Tripp v. Cook, 26 Wend. 143, 152 ; Hogan v. Devlin, 2 Daly, 184).
    II. As to the special powers of the plaintiff. 1. That the plaintiff had no right or power to make a “special order” in this case (1 L. 1866, p. 133, c. 74, § 20 ; 2 Id. 1462, c. 686, § 1 ; 2 L. 1867, c. 956, § 10 ; L. 1873, p. 484, c. 335, p. 491, § 26, p. 505, § 80, p, 506, § 82 ; Sanitary Code, p. 41, § 22; Kneib v. People, 50 How. Pr. 141; People v. Potter, 47 N. Y. 375). 2. That the plaintiff had no power to make a “special order” at all (L. 1873, p. 491, c. 335, §§ 26, 80, 81, 82 ; Id. p. 1125, c. 757, § 12). 3. That there was, and. is, no penalty, by an existing law, for the violation of a special order (Kneib v. People, 50 How. Pr. 140; S. C., 6 Hun, 238; Laws, ante). 4. That if there was a penalty, the plaintiff has no right or power to sue for it (L. 1873, c. 335, art. VI. § 38, and laws above referred to ; Bodwic v. Funnell, 1 Wils. 233 ; 1 Burr. 235; 2 Kyd, 157; 9 Ad. & El. 356 ; Williamson v. Commonwealth, 4 B. Mon. 146, 151. 5. That the nuisances which the Board of Health can summarily control are such as are nuisances of themselves, which any citizen could abate, and that a privy vault is not of itself such a nuisance (Rogers v. Barker, 31 Barb. 447; Jacob’s Law Dic. ; and 2 Rolle’s Abr. 83 ; Hawk, book 1, p. 197, § 1; 2 L. 1866, c. 686, § 6; Coe v. 
      Schultz, 2 Abb. Pr. N. S. 196 ; Cooper v. Schultz, 32 How. Pr. 121; Gregory v. Mayor, &c. N. Y., 40 N. Y. 273 ; Rogers v. Barker, 31 Barb. 456; Tribune Assoc. v. Sun Printing, &c. Assoc., 7 Hun, 175).
    III. As to the constitutionality of the laws applicable to and creating “ The Health Department of the City of New York,” that they are unconstitutional and void. 1. That the case of Metropolitan Board of Health v. Heister should not be and is not an authority to the contrary (Metropolitan Board of Health v. Heister, 37 N. Y. 661; People v. Draper, 15 Id. 532; People v. Metropolitan Police Board, 19 N. Y. 193 ; People v. Albertson, 55 Id. 50; Hudson v. Caryl, 44 Id. 533; Rogers v. Barker, 31 Barb. 447; Underwood v. Green, 42 N. Y. 140; Mayor of New York v. Board of Health, 31 How. Pr. 385 ; Moody v. Board of Supervisors of Niagara Co., 46 Barb. 659; Cooper v. Schultz, and Coe v. Schultz, supra; Brady v. Weeks, 3 Barb. 157; Catlin v. Valentine, 9 Paige, 575 ; People v. Comr’s, 27 Barb. 94 ; Allen v. Crofoot, 5 Wend. 507; Jones v. Reed, 1 Johns. Cas. 20 ; Mills v. Martin, 19 Johns. 23 ; Stone v. Mayor of N. Y., 25 Wend. 157 ; Matter of Mount Morris Square, 2 Hill, 14 ; Johnson v. Moss, 20 Wend. 148 ; People v. Board of Health, 33 Barb. 344; Mullins v. People, 24 N. Y. 399; Nat. Bk. of Chemung v. City of Elmira, 53 Id. 59). 2. That the laws grant to the plain-tiif judicial but not legislative powers. 3. That the charter of 1873 takes away from the people of the city of New York, in effect, the right of self-government. The mayor, aldermen, and commonalty of the city of New York, from the time of the passage of the earliest Dutch charter in 1657, when the law respecting “ burghrecht” or municipal freedom was passed, down to February 26, 1866, possessed and always exercised the right and power to govern the health of the inhabitants of the city of New York, and it has never requested, consented, or assented to this right and power being taken away from it, and placing it where it now is or elsewhere. Neither did the people, or the mayor, aldermen and commonalty of the city of New York or the common council ever assent to or ratify the powers and rights taken away from them, and the sweeping and radical changes made by the Laws of 1866 and the amendments thereof. Neither the electors of the city of New York nor the mayor, aldermen, and commonalty of the city of New York or the common council ever asked for the charter of 1873, the same was never submitted to them for their vote, and they never ratified or confirmed the same, as was necessary, and as was done with previous charters. The State is not presumed to have surrendered a public franchise in the absence of proof of an unequivocal intention to do so (Charles River Bridge v. Warren Bridge, 11 Pet. 420; 9 Watts & Serg. 1. See also 1 Harr. [Penn.] 133; Angell & Ames on Corp. 53). By the Dongan charter, sections 7 and 16, the corporate authority of the city of New York was forever vested in the mayor, aider-men, and commonalty of the city of New York, and they were authorized to make laws, orders, ordinances and constitutions as to them shall seem necessary and convenient “for the good rule, oversight, correction and government of the said city,” &c. (Manual of the Corporation of the City of New York, 1858, pp. 18, 23). And by the Montgomerie 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; Cooper v. Schultz, Opinion of Daly, F. J., pp. 131, 132). Nearly all the charters passed by the legislature contained some provision continuing in force the Dongan and Montgomerie charters. Thus the charter of 1857, section 54, after repealing all other charters, said: “But the charters of the city of New York, known as the Dongan and Montgomerie charters, so far as the same or either of them are now in force, shall continue and remain in full force, and shall not be construed as repealed, modified, or in any manner affected thereby.” By the charter of 1873, section 119, it is enacted: “The charters of the city of New York, known as Dongan and Montgomerie charters, so far as the same or either of them are now in force, not inconsistent with the provisions of this act, shall continue and remain in full force.” (They are all inconsistent, except the right to regulate the streets.) By section 18 of article 1 of the constitution of the State of New York, as amended and in force January 1, 1875, any charters granted before October 14,1775, to bodies politic and corporate, shall not be affected by the constitution. All others after that date are declared null and void. In 1650, the committee of the States General reported, “That there should be within the city of Amsterdam a burgher government, consisting of a shout, two burgomasters, and five schepens” (Article 17 of the Report; 3 O’ Callahan’s History, 133, 135). In 1653 the directors granted a municipal government, according to the recommendation of this committee. The right of this municipal body to frame laws for the city was not immediately‘ allowed, but the burgomaster and schepens persevered for several years, and in 1653 they succeeded, and a provision was made, in accordance ‘with an agreement of the West India Company, that when the city increased to 300 families and upward they should themselves choose a common council of twenty - one persons to meet the burgomasters and schepens. The city of New York at this present date still chooses its common council of twenty-one persons, but they are stripped of all powers and rights by the charter in which they never had a voice, and their power and authority exists simply over the streets of the city and very little further. The departments of the city government are independent of them, and supreme over thém. In 1657 the law respecting burghrecht or municipal freedom was passed, and this was the earliest Dutch charter (Proceedings of City Convention of 1829, 1 Collect. Hist. Society, 291). In the year 1665 Governor Nicliolls, the first English governor, granted an act of incorporation to the inhabitants. In October, 1675, Governor Andros, by virtue of the duke’s letters patent, appointed certain persons to be mayor, aldermen and sheriff, with full power among other things “to rule and govern all the inhabitants of this city and corporation, and all strangers.” In November, 1683, the mayor, aldermen and commonalty presented a petition to Lieut. Governor Dongan, praying for a confirmation of all charters and for various other franchises and privileges. On April 22, 1686, a complete charter was granted, under which the city government was chiefly conducted until the Montgomerie charter issued in 1730. In the year 1732 the Montgomerie charter with all others was ratified and established by an act of the colonial assembly, and formed the foundation of the municipal government and rights of the corporation, down to the revolution and constitution of 1777. In 1777, the framers of the constitution expressly provided “that nothing therein contained should annul any charters to bodies politic, made prior to October 14, 1775.” The constitutions of 1821 and 1846 contain the same provision, changing the phrase “bodies politic” into “ bodies politic and corporate.” These constitutions placed the rights and franchises of the city of New York beyond the reach of future change, by either a constitution or a statute, with those exceptions in which every charter is inherently subject to legislative control (Rights and Estate of Corporation of the City of New YorJc, by Hoffman, vol. 1, pp. 35, 36). In 1830 a new charter was adopted. A resolution of the common council was passed on June 29, 1829, recommending to the citizens to meet in their several wards, and to choose delegates to a convention, for the purpose of amending and revising the charter in force. This was done. The common council carried out the suggestions of the convention, and applied for the act of the legislature, which act was passed April 7, 1830 (See pp. 36 and 37 Estate and Rights of the Corporation of the City of New York, by Hoffman, vol. 1). In the year 1846, an attempt was made to amend the charter in the same manner, through delegates and a convention, who met and reported. The report was submitted and rejected (See Id. pp. 38, 39). On April 2, 1849, the legislature amended the charter, through an application of the common council. The act, section 29, provided for its being submitted for the approval of the electors, and declared that “if a majority of all the persons voting thereon should vote in favor of the amendment, the act should become a law; if otherwise, it was to become null and void {Id. p. 39). In 1851, 1852 and 1857, the charters were “amended.” There was no application by the common council, nor were the acts submitted to the people for ratification. On April 15, 1861 {Bess. Laws, ch. 268) commissioners were appointed to consider and adopt such amendments to the charter as to them shall seem necessary and conducive to the good government of the city and welfare of the inhabitants. Section 4 provides for the submission of the charter as amended to the electors of the city, and if approved, for its transmission to the legislature, that it go into effect on the first day of May thereafter {Id. p. 41). Murray Hoffman, in his work On the Estate and Rights of the Corporation of the City of New York, vol. 1, p. 48, endeavors to state in detail the cases in which it has been held, directly or inferentially, that the legislature has the power of interfering with the charters. On page 61, he notices cases when the legislature may interfere with the concurrence of the corporation (See also Dillon on Municipal Corp. § 35, &c.). On page 63, he examines the question: “ Who are the parties competent to give such assent, and especially is the Common Council at present empowered to do so ?” (See Remarks on pp. 63 to 78). We leave it to this court to decide, whether the legislature, in the face of the former practice down to the year 1861, as far as we have had time to ascertain, can, without consent of the common council, or the electors of the city of New York, take away their long-established right to govern the health of the city of New York themselves, and by enacting an entire new charter in the year 1873, without submitting the same to them, without their request, consent, ratification or concurrence, take away the power of local government as to the health, from the mayor, aldermen, and commonalty of the city of New York, the direct elective representatives of the people, and place it in the hands of the plaintiff, an inferior body, yet independent and supreme of the direct representatives of the people, elected by them, and constituting the mayor, aldermen, and commonalty of the city of New York, or the common council.
    VII. Under the charter of 1873, passed by the legislature on April 30, 1873, the right of local self-government was taken away from the citizens of New York city. It exists only in name ; the most important legislative functions are assigned to bodies and officers not elected by the people. The only elective officers are the mayor and board of aldermen, but they have few actual powers. Section 17 of the charter is subdivided into twenty-six heads. These relate to the streets of the city, repair of the markets, licensing hackmen, &c., weights and measures. Subdivision 7 gives them the right “to regulate and prevent the throwing or depositing of ashes, offal, dirt or garbage in the streets.” Section 17 gives them the power to make and enforce obedience to ordinances by ordaining penalties in $100. By subdivision 36 they are to reduce the ordinances to a code. The plaintiff possesses like powers as to ashes and garbage, and the citizens, if this law is constitutional, can be sued by the mayor, &c., and by the plaintiff, for $100 in one action and $50 in the other.
    
      W. P. Prentice, for respondent.
    I. The plaintiff had power to make the order in question (Heister v. Metropolitan Board of Health, 37 N. Y. 661; Van Wormer v. The Mayor, 15 Wend. 263; People v. Justices of Special Sessions, 7 Hun, 214 ; City of Brooklyn v. Breslin, 57 N. Y. 591; Wenzler v. The People, 58 Id. 516).
    II. There is a penalty authorized by law for the violation of a special order made by the plaintiff,' and it has a right to sue for it in its own name (L. 1866, c. 74; L. 1874, c. 636, § 30 ; L. 1866, c. 686, § 1; L. 1867, c. 956, § 10 ; L. 1873, c. 335, § 81, also c. 757; L. 1870, c. 137, also c. 383 ; 41 Super. Ct. [J. & S.] 323).
    III. A repeal of all acts inconsistent with the repealing statute, does not affect a statute not specially mentioned, and which relates to the same subject-matter, and is not inconsistent with the repealing act (People v. Durick, 20 Cal. 94; State v. Branin, 3 Zab. 484; State v. Minton, Id. 539 ; Wood v. United States, 16 Pet. 342 ; Attorney-General v. Brown, 1 Wis. 513 ; Harford v. United States, 8 Cranch, 109; Fullerton v. Spring, 3 Wis. 667 ; Ely v. Holton, 15 N. Y. 595 ; Potter’ s Dwarris, 154-156, notes 4 and 5, and cases cited; Dean of Ely v. Bliss, 5 Bean. 582; Dore v. Gray, 2 T. R. 358).
    IV. The legislation relative to sanitary matters and the sanitary work in the city of New York, has a somewhat peculiar character. Construe the statutes relating thereto as strictly as possible, yet they must be so construed, if possible, to give them force.
   Andrews, J.

We think this action cannot be maintained, for the reason that no penalty is now prescribed by law for the omission of the owner of premises to comply with a special order relating thereto, made by the Health Department of the city of New York. 1st. The present health department was created by Laws of 1873, chap. 335, known as the city charter. Its organization and powers are defined in sections 80, 81, and 82. The principal duty and authority imposed upon and granted to the board by the act is found in section 82, which makes it the duty of the board “immediately upon organization under this act, to cause to be conformed to this article the sanitary ordinances then or lately adopted by the existing department of health, which shall be called the ‘sanitary code,’” and authorizes the Health Department to add additional provisions for the security of life and health, which additions are directed to be published. The section then proceeds, “ Any violation of said code shall be treated and punished as a misdemeanor, and the offender shall also be liable to pay a penalty of fifty dollars, to be recovered in a civil action in the name of the mayor, aldermen, and commonalty of the city of New York.”

Section 119 contains this provision : “ And the city of New York is hereby excepted from the provisions of the act entitled an act to create a metropolitan sanitary district and board of health therein, for the preservation of life and health, and to prevent the spread of disease, passed February 26, 1866, and of the acts amendatory thereof, and any sections of statutes and provisions of law which created said district are hereby repealed.”

The supplementary act, Laws of 1873, chap. 757, amended section 82 of the original act, chapter 335 of the laws of the same year, and greatly extended and enlarged the powers of the board, by adding thereto the following provision: “The authority, duty and powers conferred or enjoined upon the metropolitan board of health by chapter seventy-four of the Laws of 1866” (passed February 26, 1866), “ and the several acts amendatory thereof, and by any other subsequent laws of this State, and upon the several officers and members of said board, not inconsistent with the provisions of this act are hereby conferred upon and vested in or enjoined upon, and shall hereafter be exclusively exercised in the city of New York by the health department and board of health created by this act and by the officers of the said board of health and the said health department, and the same are to be exercised in the manner specified in the said chapter seventy-four of the Laws of 1866, and the several acts amendatory thereof,” &c., “and in conformity to the provisions of this act.”

' 2nd. No penalty was imposed by the act of 1873, creating the present board of health, except in a single case, viz. : the violation of the sanitary code. The sanitary code was first enacted pursuant to section 20 of chapter 74 of the Laws of 1866, and section 10 of chapter 956 of the Laws of 1867, under the metropolitan district system. The section last referred to declares, that the code of sanitary ordinances, which the Metropolitan Board of Health was by the act of 1866 authorized to enact, “may embrace all matter and subjects to which and so far as the powers and authority of said board of health extends.” The code enacted by the Metropolitan Board of Health, so far as it was applicable to the city of New York, has been continued in force by subsequent legislation, subject to the powers vested in the present Health Department of the city, to add to or amend the same. It now congists of one hundred and eighty-eight sections, and embraces regulations on a general variety of subjects connected with the protection of the public health. It prescribes the duties of individuals in the use and care of their property and tenements ; regulates the construction, ventilation and drainage of buildings and lands; provides securities against the spread of infectious and contagious diseases ; in short, it is the permanent code of health laws, covering all the ordinary contingencies and circumstances which require the intervention of public authority for the security of life and health. The violation of this code is made, by the act of 1873, a misdemeanor, and subjects the offending party to the penalty therein prescribed. No penalty is expressly imposed for the violation of a special order of the present board. If any penalty exists for such violation, or for an omission to comply with a special order, it must be for the reason that the amendment of the original charter of 1873,—which confers upon the present board of health “ the authority, duties, and powers,” vested in the metropolitan board, ex proprio nig ore,—re-enacts all the penalties given in the acts creating that board, and this is what is claimed by the plaintiff to be the effect of that amendment.

3rd. This construction is not admissible. Section SO of the act, chapter 74 of the Laws of 1866, as amended by chapter 686 of the Laws of 1866, contains this clause: “ And every person, body or corporation that shall violate or not conform to any ordinance, rule, sanitary regulation, or special or general order of said board, duly made, shall be liable to pay a penalty not exceeding fifty dollars for each offense,” &c. The power of the present board to make a special order for the ventilation or other improvements of particular premises in a condition dangerous to life or health, when the case is not provided for by the sanitary code, cannot be questioned. This power was clearly given to the metropolitan board by section 14 of the act of’ 1866, and was vested in the present board by the act of 1873. But the penalty given by the act of 1866, for a violation of a special order of the metropolitan board, was no part of the “ authority, duty or power,” vested in that board. It was imposed by the law as a punishment upon the offender. The imposition of the penalty was, in a sense, in aid of the execution of the order, and tended to insure compliance on the part of person to whom it was directed; so, also, did the provision in section 30 of the act of 1866, which declared certain acts to be misdemeanors. But it cannot be claimed that offenses made such by that act, survived its repeal, and are saved by the clause conferring upon the present board the ‘ ‘ authority, duty, • and powers,” possessed by the former one. Again, the rule is well settled in accordance with the general' rule of construction of penal statutes, that a “penalty cannot be raised by implication, but must be expressly created and imposed” (Jones v. Estis, 2 Johns. 379 ; Bell v. Dole, 11 Id. 171).

4th. The legislature in the act of 1873, expressly imposed a penalty in one of the cases provided for in section 30 of the act of 1866, viz. : for a violation of the sanitary code. It omitted to impose a penalty for a violation of a special order: The legislature con-

sidered the subject of penalties. Can we say that the-omission was not designed, and may not the legislature have considered that only the violation of the permanent code of health laws should constitute a public offense,' and subject the offender to a penalty %

The existence of a penalty for the violation of a special order is not essential to the execution of the powers conferred upon the board. Ample authority is given to the board in the statutes, to cause their orders to be executed by their own officers, and to" collect the expenses from the persons, or ont of the property effected by them.

For these reasons, we are of opinion that this action cannot be maintained, there being no penalty given by law for the omission of the defendant to comply with a special order of the present board of health.

The other questions need not be considered. Many of them were involved in the case of the Metropolitan Board of Health, 37 N. Y. 661, and were there considered and decided, and that case should be regarded as settling the law upon the points involved in the decision.

The judgment is reversed, with costs.

Miller, J., concurred in the result. Rapallo, J., not voting.

All the other judges concurred.  