
    Stephen E. McNall et al., App’lts, v. John W. Kales, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    1. Board of health—Penalties.
    Boards of health should fix, applicable to all persons, a definite penalty for violation of its regulations, which will be the measure of damage in an. action for such violation.
    
      3. Same.
    _ The only penalty imposed by a board of health by any order or regulation was as follows: “ The local board of health will enforce compliance and inflict a penalty not exceeding a hundred dollars fur non-compliance with, or violation of its lawful regulations and orders." In an action for a penalty, Held, that this did not constitute the imposition of a penalty, but was a mere repetition of the language of the statute, and that no definite penalty having been imposed for the violation in question, no recovery could be had.
    Appeal from a judgment entered in Cattaraugus county clerk’s office, March 11, 1891, on a non-suit directed at the circuit in March, 1891.
    
      A. & G. E. Spring, for app’lts; Bolles & Waring, for resp’t.
   Macomber, J.

The plaintiffs, as the board of health of the town of Franklinville, bring this action to recover a penalty of the defendant, who was a practising physician in that town, for omitting to report to the board of health a case of diphtheria, as required by the town board of health.

The answer puts in issue all of the allegations of the complaint. After hearing such evidence as was offered and received, the court at the trial, on motion of the defendant’s counsel, granted a non-suit, holding, as we gather from the report of his oral remarks at the hearing, that there was not competent evidence of the fact of an adoption by the plaintiffs, as the board of health, of any regulations affecting the preservation of health and the registration of vital statistics; and secondly, that the board of health had failed to exercise the power conferred upon it by statute to impose a penalty in their regulations for the offense alleged to be committed by the defendant.

There is attached to the case (Exhibit A.) a paper purporting to be an account of the organization of the local board of health of the town of Franklinville, but which, in reality, seems to be nothing further than a statement of the things enacted by chapter 270 of the Laws of 1885. Among the duties imposed upon the board of health of towns by this statute, was the making from time to tfme, and the publication of orders and regulations which the boards should think necessary and proper for the preservation of life and health, and the successful operation of the statute; § 3, sub. 6; and id. sub. 9. “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 only penalty imposed by any supposed-order or regulation made by the board of health appears in Exhibit A, as follows: “ The local board of health will enforce compliance and inflict a penalty not exceeding a hundred dollars ($100) for non-complionce with, or violation of its lawful regulations and orders.”

This action, it must be borne in rnind, was not brought upon the statute, but upon an alleged order or regulation alleged to have been made by the board of health in pursuance of the powers conferred upon it by the statute. It will be seen that the supposed order or regulation, which it is now claimed in behalf of the plaintiffs was an imposition of a penalty for .the violation of the law committed by the defendant, was not the exercise of the power given to the board by the statute, but is a mere repetition of the language of the statute itself. It would be impossible for the board of health, under thjs statute, to bring an action for the penalty imposed by one of their regulations so long as the .amount of the penalty is left undetermined and indefinite through non-action of the board. It is to the board acting as a unit that the power is given to make a regulation imposing a definite and determinate penalty, and then the further power is conferred, to recover by action at law such penalty. The board alone, as a body, outside of the courts, .is clothed with power to fix. the amount within the limitation of the statute as a penalty which any person shall be required to pay for violation of the ordinance or regulation. The case presented to us, therefore, is as though the members of the board of .health had brought an action to re■cover a sum of money which, upon the trial of the action, they .should show ought to be paid to it under the circumstances. But there is no authority given by the statute to permit the plaintiffs, after an action has been brought by them, thus,.to determine the amount of the penalty. The theory, of the statute, is that, the board of health should fix, applicable to all persons, a definite penalty for violation of its regulations; and on, proof of the violation thereof the recovery would be for the exact amount of money thus provided for, and not for a sum to be established by proof upon the trial.

Upon the ground, therefore, that the plaintiffs had not, before this action was brought, passed any resolution or made any regulation imposing a definite penalty for violation of its rules, we think the judgment appeáled from should be affirmed.

Dwight, P. J., and Lewis, J., concur.  