An injunction was -granted in this case restraining the defendants from removing, tearing down, or in any way interfering with the stands or stalls attached to and forming a part of Washington market. The defendants move to dissolve the injunction. Several questions were discussed before me on the argument, which I propose to notice so far as I consider them applicable to the decision of the motion. .
As to the rights of the plaintiffs to maintain this action, although it would, perhaps, have been better if the corporate authorities who own the fee of the market, and who, bylaw, were authorized to establish it, had been joined with the plaintiffs, I am of opinion that they have a sufficient interest, as commissioners of the sinking fund, to maintain this action. They are, by virtue of the statute, authorized to collect and apply to the payment of the city debt the proceeds of rents, &c., from the public markets, and, as such trustees, they have a right, and it is their duty, to protect the property *394from destruction from which such rents accrue, and to see that they are properly applied to the payment of the public ' debt.
The ordinance of the common council places all the revenues from the public markets in them charge, and by a subsequent statute that ordinance was recognized and no alteration therein could be made without the assent of the legislature.
For these reasons, I think the plaintiffs have a sufficient interest in and title to the revenues from this market, to warrant them in bringing this action.
The question then arises, whether the defendants under the statutes giving them existence as" the board of health, and the amendatory act, have any authority to order the market or any part of it to be removed ?
The statute under which this board was organized, was evidently intended solely for the purpose of preserving and promoting the public health—such is plainly shown by its title, and such are all the provisions contained in the act (Chapter 74 of 1866). The 12th section expressly declares their powers to be for the greater protection and security of health and life in the metropolitan district, and the powers taken from the corporate body and conferred upon this board, are those which relate to the preservation and protection of life or health. Tn the amendatory act (chapter 686), there is nothing showing any intent to depart from the great object which led to the formation of the board of health, unless something can be found in the third section of the amended act to which I will refer hereafter. I will here add, however, that the wording of that section, which is intended as amending the 12th section of the original act, also continues the limitation “ to be for the purpose of preserving or protecting life and health or preventing diseaseand the powers conferred are to be exercised for the greater protection and security of health and life in said district, &c.; and by that section the powers so conferred were to be construed to include the removal of any obstruction, matter or thing in the public streets, sidewalks or places which should be in *395their opinion liable to lead to results detrimental to the public, or dangerous to life or health, the prevention of accidents by which life or health may be endangered, and generally the abating of all nuisances. There can be no doubt in adopting the principle, that the powers conferred by these acts were all intended as powers necessary to_ the preservation of the public health and of life; and that this was the object for which the statutes were passed. H so, then in ascertaining what powers were conferred, we must be governed solely by the inquiry, whether they relate to the object which the legislature had in view in passing the laws, and if so, the authority to remove obstructions’or other matters in the public streets, sidewalks or other public places, is only to be considered as granted with a view to carry into effect the general purposes of the acts under consideration. It was not pretended on the argument that this action of the board of health, in removing any portion of the market was necessary to the preservation of the pulic health or the protection of life; but, as I understood the counsel, the objection to the stalls sought to be removed, was upon the suggestion that such stalls were an obstruction upon a public street, and a nuisance in the opinion of the board of health detrimental to life. Such, too, is the allegation in the answer in setting out the entry in its records on this subject; but what that entry was, is not particularly stated in the answer, except as the general conclusion. If it was intended to rely oil the fact of' the stalls being injurious or dangerous to life or health, the records for such a conclusion should be stated, so that it might appear that the board had before them evidence upon which such a decision could be formed. There is a report from the officers of the board stating that in their opinion the stalls impeded ventilation.
I shall, however, consider the powers of the board as exercised in this matter upon the ground stated, that the stalls were either an obstruction upon the public street or a nuisance.
I have already stated that in my judgment the act is to be construed as applicable only to such obstructions as were *396dangerous to life or health, and, if not of that chachacter, that it did not apply.
That it would be a nuisance, if it was an unlawful obstruction of a public street, must be conceded, and when that is the case, it does not need the power of a board of health to remove it. Any citizen has a right to abate a public nuisance in a street, if he does it in a proper manner, but it must be a nuisance which the law holds to be such, and not one merely declared so by any board or individual. It must be a nuisance as adjudged to be such by law. It may well be doubted whether the legislature can delegate to any body of men the power to declare what is or what is not a nuisance. Such power would be equal to a power to declare what should be a criminal act; because it is a crime to maintain a public nuisance, and if the legislature can delegate to individuals the power to define a nuisance, they can delegate to them the power to make acts. criminal which are not so by law. Such a power cannot be delegated to others by the legislature. They may authorize boards of health to pass ordinances necessary for the objects of their creation, but they cannot delegate to them the power to define what shall be a nuisance, or make acts criminal, which the law holds to be Innocent.
The ground which was declared for holding these stalls to be a nuisance, was that they were obstructions in the public streets. Whether they are unlawful obstructions is not by any means free from doubt. The power to keep markets in the city was given by the Dongan charter, and afterwards in the charter of 1730, the power to the common council to establish markets was more fully granted, so as to authorize markets to be held in the public streets, which were named as they then existed, and with authority to have, hold and keep such and so many other markets at such places in the city, as shah from time to time be ordered, established, erected and appointed by the common council. 1
Under this authority the corporation frequently erected markets in the public streets. It is not beyond the memory of many of the inhabitants, to call to mind the markets in *397Maiden Lane, near Broadway, and from Water to South streets, in Old-slip, in Wall street, and in the street near where the present Washington market is erected.
These markets were not, as far as I can ascertain, erected under any other authority than that contained in the charter of the city. I am not prepared, therefore, to say that an extension of one of these markets over the sidewalk, is such an obstruction of the public street that may, on account of its illegality, be declared a public nuisanóe. On the contrary, until otherwise judicially determined, I should be inclined to hold such extension of the market to be within the chartered powers of the corporation, or, at least, that before the board of health could declare it to be a nuisance for that cause, they should obtain a judicial determination that the facts exist which make it such a nuisanc. The power is given by the legislature to regulate and control the public markets, but that power is limited, viz : “ So far as relates to the cleanliness, ventilation and drainage thereof, and to the prevention of the sale, or offering for sale, of improper articles therein.” This limitation of them power over the markets excludes all other right to interfere with them, unless some other authority can be found for it. I do not consider it to be either an unlawful obstruction upon the street or a nuisance as such is defined to be by law, and I can see no authority by which the defendants, under the powers vested in them, can order them to be removed for these causes. I consider the powers of a board of health to be very extensive, and in some respects without control, but these powers are only in connection with the subject matter for which such board is called into existence; but when they go beyond such authority and attempt to control and regulate the public affairs, irrespective of the preservation of the public health,, they attempt the exercise of powers not. vested in them, and do acts which the courts should restrain.
It was urged before me, that even if the board of health were in error, and should do an injury to the city property in which they exceeded them powers, that there, was a remedy *398by action in the recovery of damages, and therefore an injunction was not a proper remedy. Such a rule may be proper as to individuals, but is not, I think, applicable to a case where the parties both represent the public, and where the loss must fall upon the public, whoever succeeds.
It is not well to apply such a rule to a case where the loss in any event must be paid out of the treasury, for the purpose of allowing different public bodies, invested with powers for the government of the city, to engage in a contest between themselves, and to exert' their powers against each other.
Instead of such a course, it would be much more to the interest of the public treasury, and far more consistent with a proper .discharge of public duties, if these different bodies should harmoniously endeavor to promote the public welfare in accordance with the provisions of law, rather than to waste the public property by its unnecessary destruction or by costly litigation.
The motion to dissolve the injunction is denied.