The People's Welfare by William J. Novak

Author:William J. Novak [Novak, William J.]
Language: eng
Format: epub
Tags: History, United States, 19th Century, Law, Legal History
ISBN: 9780807863657
Google: 0vJECQAAQBAJ
Publisher: Univ of North Carolina Press
Published: 2000-11-09T02:56:46+00:00

The Road to Slaughterhouse

As late as 1872 then, the common law vision of a well-regulated society still dominated public health police. Trades, businesses, and industrial occupations deemed hazardous to the health and welfare of the community were held subject to the dictates of salus populi159 and sic utere tuo. But public health law in the 1860s and 1870s also augured some important changes—changes in governance and law, changes in public power and private right. In the Manhattan Fertilizing Company’s objections to summary abatement, we see the emergence of new ideas about constitutional rights as substantive limits on health police. Simultaneously, states and municipalities pioneered ever more powerful and centralized public controls in their attempts to guarantee public health. Liberty and authority, once fused in the notion of organic, self-regulating communities in which all were bound by customary rules of their own choosing, were slowly disentangling themselves. Eventually and reluctantly, they would reconverge in the liberal notion of a positivist state limited by absolute constitutional rights.

On the public powers side of the equation, the 1860s and 1870s witnessed a shift in the locus of prosecution of offensive trades from private individuals and diverse local officials to centralized boards of health with plenary power over public nuisances. In 1866, New York created the Metropolitan Sanitary District to consolidate the public health concerns of New York City and Brooklyn and place them under the direction of a single state agency. The Metropolitan Board of Health was given complete authority to control health hazards in the two cities. Almost immediately upon passage, the board began an unprecedented, coordinated attack on public nuisances in New York. Within two years, twelve cases involving the board’s actions reached the New York appellate courts.160

The New York courts overwhelmingly upheld the board’s legislatively granted powers. In Coe v. Schultz (1866), the owners of a poudrette manufactory at Hunter’s Point challenged the board’s order to discontinue their operations until altered so that odors and fumes could not escape into the air.161 The plaintiff claimed that the execution of such an order without a trial and without a jury deprived him of his property “without due process of law.” Justice Sutherland held such a contention “utterly without any colorable support,” basing his decision on the long-held power of citizens to abate public nuisances at common law.162 In Metropolitan Board of Health v. Heister (1868), the court approved the board’s power to pass ordinances outlawing slaughterhouses and to close down violating establishments.163 Chief Justice Hunt argued that such powers had long histories: “[F]rom the earliest organization of the government, the absolute control over persons and property, so far as the public health was concerned, was vested in boards or officers, who exercised a summary jurisdiction over the subject, and who were not bound to wait the slow course of the law.” Almost every year, the legislature chartered some city or village with local powers to summarily remove noxious trades.164

But try as they might, New York judges had to be aware that something was new in these cases besides the due process arguments of plaintiffs.

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