
    S. Hatch Gould et al., as Board of Health of Town of Brighton, Appl’ts, v. The City of Rochester, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 8, 1887.)
    
    Municipal corporations—Board on health of a town—Action by, to MAINTAIN ACTION TO SUPPRESS NUISANCE—LAWS 1850, CHAP. 824.
    The city oí Rochester huilt sewers discharging into ditches, which carried the sewage over lands in Brighton, creating an offensive and dangerous nuisance. The plaintiff passed a regulation prohibiting the discharge of sewage upon such lands, and declaring the discharge of sewage thereon by the city of Rochester to be a nuisance, and ordering it to be suppressed. Meld, that the city of Rochester was, within chapter 324, Laws 1850, “an occupant of premises in the town,” and that the board of health of the town of Brighton was authorized to maintain an action against said city to enforce its regulations and restrain the continuance of the nuisance.
    Appeal from judgment supreme court, general term, fifth department, affirming judgment dismissing complaint, entered on decision made at Monroe special term.
    
      The action was brought to obtain an injunction restraining the continuance by defendant of the discharge of sewage on to land in the town of Brighton and for damages.
    
      Walter S. Hubbell, for app’lts; Ivan Powers, for resp’t.
    
      
       Reversing 39 Hun, 79.
    
   Andrews, J.

The city of Rochester adjoins, on the east, the town of Brighton. It constructed sewers which discharged into ditches near the boundary between the city and town, which carried the sewage upon and over lands in Brighton, and ultimately into Thomas creek, a small stream running through the town and having its outlet at Irondequoit bay. The ditches were constructed by the city - under a general legislative authority to acquire land outside of the city limits, and open ditches thereon to carry off the drainage of the city. It is found that the discharge of the sewage through the ditches and into Thomas creek created a nuisance in the town of Brighton, dangerous to the public health.

On the 1st day of August, 1884, the plaintiffs, constituting the board of health of the town, enacted a rule or regulation prohibiting any person or corporation discharging or causing to be discharged upon any of the lands, or into any of the streams in the town of Brighton, the contents of any sewer in which is drained the contents of any privy, water closet or urinal, under a penalty. On the same day the board passed a resolution declaring that the discharge of the sewage of the city of Rochester from the Monroe avenue sewer and the East avenue sewer upon lands in the town of Brighton, and from thence into Thomas creek, was a nuisance, the ’ suppression and removal of which was necessary for the preservation of the public health, and ordering that the nuisance be suppressed, and imposing a . penalty for the violation of the regulation, and also authorizing the prosecution of any person or corporation violating the same, or the commencement of an action to restrain such violation, or otherwise to enforce the regulation. By, direction of the board, a copy of the regulation was posted in the town and served upon the city of Rochester, by there delivering it to the proper authorities of the city.

It is sufficient to state, without entering into details, that - the discharge of the filth from the sewers into the open ditches, and from them into Thomas creek, created an offensive and dangerous nuisance in the town. The sole question here presented is, whether the board of health of the town of Brighton is authorized to maintain an action against the city to enforce its regulation and to restrain the continuance of the nuisance. It is clear that there is a remedy by indictment and also by civil action at the suit of persons sustaining special injury by the unlawful acts of the defendants. The right of the board of health of the town of Brighton to maintain the action is challenged on the ground that it has no general capacity to sue, but only such as is specially conferred by the law under which boards of health are organized, and that the circumstances of this case do not bring it within the authority conferred. It would seem that an action by the body representing all the inhabitants of the town, invoking the equitable power of the court to restrain the continuance of a wrong so vitally affecting the interests both of individuals and of the public at large, would be most appropriate. But it is undoubtedly true that the power to maintain the action, if it exists, must be found in the statute, and it is, therefore, necessary to ascertain what statutory powers are conferred upon boards of health and whether they include an authority to maintain an action under the circumstances existing in this case.

The original statute (chapter 324, Laws of 1850) “For the preservation of the public health ” and providing for the organization of health boards in cities, villages and. towns, conferred upon such boards, among other things, the power to make and publish rules and regulations for the “suppression and removal of nuisances” (section 3, subds. 3, 6) and prescribed a penalty for the willful violation of any regulation “so made and published.” Section 4. But the act conferred no power upon boards of health to maintain any action to enforce their regulations, and it was held that actions could not be maintained by the board. People v. Supervisors of Monroe County, 18 Barb., 567. The powers of boards of health were, however, subsequently enlarged by amendments to the original act, and the powers of boards of health, as they now exist, are declared in the supplementary act, chapter 351, Laws of 1882. By the third section they are empowered “ to make orders and regulations in their discretion, among other things, for the suppression and removal of nuisances, and all such other orders and regulations as they shall think necessary and proper for the preservation of the public health,” and to enter upon, any place or premises where conditions dangerous to the public health are known or believed to exist, for the purpose of inspection, and also “ to receive and examine into the nature of complaints made by any of the inhabitants concerning causes of danger or injury to the public' health within the limits of its jurisdiction.”

Subdivision 6 of the same section confers the power and. makes it the duty of the boards of health “ to publish, from time to time, ail such orders and regulations of general obligation as they shall have made, in such manner as to secure early and full, publicity thereto, and to make without publication thereof, such orders and regulations in special and individual cases, not of general application, as they may see fit concerning the suppression and removal of nuisances, and concerning all other matters in their judgment detrimental to the public health, and to serve copies thereof upon any occupant or occupants of any premises whereon any such nuisances or other matters aforesaid shall exist, or by posting the same in some conspicuous place on such premises.”

The power of boards -of health to impose penalties and to maintain actions is declared in subdivision 9, as.follows:

‘ ‘ To impose penalties for the violation of, or non-compliance with, their orders and regulations, and to maintain actions in any court of competent jurisdiction, to collect such penalties not exceeding $100 in any one case, or to restrain, by injunction, such violations, or otherwise to enforce such orders and regulations.”

The power to maintain an action for an injunction, given by subdivision 9 above quoted, is, as will be observed, auxiliary only. It is not a general power to maintain actions for the suppression or removal of nuisances. It is a right of action limited to the special purpose of enforcing orders made by the board, or to restrain their violation. It presupposes, therefore, as a condition of its exercise, the existence of a lawful order, duly made, which has been violated or disregarded.

The courts below, while uniting in denying the right of the plaintiffs to maintain the- action, differ in the grounds of their decision. The learned judge at special term, after asserting the proposition that the jurisdiction of the board of health of the town of Brighton over nuisances was limited to nuisances existing within the territorial limits of the town, put his decision upon the ground that the order or regulation of August 1, 1884, was ineffectual and in excess of the power conferred upon boards of health, because the nuisance in question was created and had its origin in the city of Rochester, and that the town board could make no valid regulation in respect thereto, because, in the language of the court, its powers “are confined to the abatment of nuisances within the town, and the regulations they make have no force outside of the town lines.” It seems to us that this is quite too narrow a view of the situation.

It is undoubtedly true that the authorities of Brighton could not go into the city of Rochester and interfere with its sewers. But the collection of foul substances in the sewers was not the immediate cause of the nuisance. The immediate cause was the discharge by the city of the sewage after it was collected in the sewers, into open drains constructed by the city across lands in the town of Brighton. This discharge was prohibited by the order of August 1, 1884. The city, notwithstanding the order and in violation of it, continued the nuisance and permitted the sewers to continue to discharge their contents as before, and it continued also to use the ditches it had constructed in the town to carry the offensive matter to the creek. In respect to the East avenue sewer, the nuisance had its origin at Culver street, the dividing line between the city and town, where the sewer terminated.

It seems to us that the order of the board of health related to a matter within the town and within the jurisdiction of the board.

We agree with the special term that the board could not execute its order by going within the city to close the sewers, but the fact that it had no power to enforce á summary jurisdiction of this kind does not justify the conclusion that it could not invoke the action of the court to enforce in an orderly way the abatement of the nuisance.

The case of Regina v. Cotton, 1 Ellis & Ell, 203, arose under the nuisance removal act, 18 and 19 Vict., chap. 121, . and it was held that it did not authorize a summary proceeding before justices, at the instance of one parish, for the removal of a nuisance originating in another parish. The court said (Earl, J.): “It would be most dangerous to take away from the regular tribunals the investigation of such a question, often a most complicated and important one, and to transfer it to the jurisdiction of any two justices of the peace. ”

The general term, as we understand its opinion, put its affirmance of the judgment on the ground that under the act of 1882 it is a condition precedent to the right of a board of health to maintain an action to restrain the violation of, or to enforce, an order made by the board, that the order should have been served on the defendant, and that service under the act must be made within the territorial jurisdiction of the board. The order in question was served on the defendant by service on its proper officers within the city. It was, therefore, held that such service was not a compliance with the act and was not a performance of the condition precedent. We are unable to concur in this conclusion. The order of August 1,. 1884, was not a rule or regulation of general obligation of which publication was required within the first clause of section 3, subdivision 6, but was an order made in a special and individual case, under the last clause of the subdivision, which is to be served on the “occupant or occupants” of the premises on which the nuisance exists, “or by posting” the same on the premises. But the statute does not in terms require the order to be served within the town or jurisdiction where the nuisance exists, and we see no reason for so construing it. It is not necessary to determine whether the board of health of Brighton would have jurisdiction if the nuisance complained of was merely consequential, that is, if the nuisance having been created and existing in the city, affected injuriously, by corrupting the air or otherwise, the town of Brighton. But in- this case the city of Rochester constructed and controlled the ditches in the town through which the sewage was carried, and used them for its purposes. We think the city was, within the act, the occupant of premises in the town on which the nuisance existed, and was properly served with notice. The claim that the city did no new act after the order was made, if material is not well" founded in fact. It continued to discharge the sewage on to the town as before. If it had refrained from using the sewers the nuisance would have abated without further action. The case of Reed v. People (1 Park, 481), is not in point. That was an indictment for violating a regulation of a board of health, founded on the fourth section óf the act of 1850, before amendment, which made a willful violation of a regulation, “read and published” by a board of health, a misdemeanor. The regulation claimed in that case to have been violated had not been published, and this was a complete answer to the indictment. The court also expressed its opinion that service of notice upon a nonresident out of the jurisdiction, although he owned the premises on which the nuisance existed, followed by a mere omission to act thereunder, would not render him liable to indictment. We think the judgment in this case should be reversed. The statute should have a liberal construction in aid of the beneficial purpose of its enactment. The objections to the maintenance of the action are quite technical, and ought not, we think, to prevail.

All concur. _  