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their operation demonstrates the plants to be nuisances, the court is without jurisdiction to intervene.

Examination of Public Health Law, §§ 14, 70, 87; Public Buildings Law, § 8; Insanity Law, § 17; Greater New York Charter, §§ 469, 479-483, 511.

INQUIRY.

Hon. Herman M. Biggs, State Commissioner of Health has submitted a statement and thereon has asked his department to be advised as to "whether the department of water supply, gas and electricity of the city of New York can in any way prevent the construction of these works, provided that this department, acting in accordance with the Public Health Law, is wholly satisfied that the discharge of these effluents will not endanger the sanitary condition of the city's water supply."

For four or five years past the State has been constructing the Mohansic State Hospital for the Insane at Yorktown and the New York State Training School for Boys at Yorktown Heights, both in Westchester county.

Among the structures authorized by the Legislature to be built for those institutions are sewage disposal plants, and sums have been appropriated for their construction. The plans for these sewage disposal plants have been submitted to and are now before the State Department of Health for its approval, pursuant to the provisions of the Public Health Law, which requires that procedure before adoption of the plans or construction of the works.

OPINION.

Jurisdiction of the State Department of Health in matters of this nature is contained in section 14 of the Public Health Law which reads in the portion here material as follows: In all buildings and institutions, owned, maintained or controlled by the state, the plans for all water supply, sewerage, sewage-disposal and garbage-disposal works, shall be subject to the approval of the state commissioner of health before being adopted or constructed."

Without narrating the various difficulties encountered in the preparation of the plans for the sewage plants at these two institutions, or reciting the facts connected with the one time approval and subsequent disapproval of the plans by a former State Commissioner of Health, it remains that present plans submitted by the State Architect seem satisfactory to the State Department of Health. In its opinion the effluent of the disposal plants will not pollute the city water supply.

Besides section 14 of the Public Health Law herein above referred to, there are other general statutes of the State which have some bearing upon the subject presented, and there are many special laws pertaining to the powers of the city of New York over its watershed, to all of which I deem it best to call attention before proceeding to decide whether the city may at this time interfere in the construction of the disposal plants after approval of the plans by the State Department of Health.

Section 8 of the Public Buildings Law provides:

"The state architect shall prepare the drawing and specifications for and supervise the construction of all new buildings erected at the expense of the state, except as provided in this article; shall also prepare the drawings and specifications for all additions to existing buildings, and

for the alteration or improvement thereof, except when such work is done by an institution or inmate labor or both upon special fund estimates, and shall see that the materials furnished and the work performed in constructing, altering or improving any such building are in accordance with such drawings and specifications, and that the interests of the state are fully protected. No municipality of the state shall have power to modify or change plans or specifications for the erection, alteration or improvement of state buildings, or the construction, plumbing, heating, lighting or other mechanical branch of work necessary to complete the work in question,

*

The above section is applicable to the construction of all State buildings. In the Insanity Law we have still a further provision which relates to the construction of buildings for State hospitals for the insane such as the one at Mohansic which we have under consideration. The provision would not of course cover the Yorktown Training School for Boys, the other institution, for it is not a State hospital. That section of the Insanity Law, section 17, contains the following prohibition on the power of municipalities: municipality of the state shall have the power to modify or change plans or specifications for the erection, repair or improvement of state hospital buildings or the plumbing or sewage connected therewith."

"No

On the other hand we have in the Greater New York Charter, in sections 469 and 479 to 483 thereof, provisions charging the department of water supply, gas and electricity with the duty of "maintaining the quality of the water supply" (§ 469) and "with the preservation of the banks of and of any river, or other body of water from which the water supply is drawn, from injury or nuisance, and with the execution of such measures as may be necessary to preserve and increase the quantity of water and keep it pure and wholesome and free from contamination and pollution" (§ 479). By section 481 the deposit of any offensive matter "or anything whatever" in any lake, pond or stream from which the city water supply is drawn is made a misdemeanor. And by section 483 the commissioner of water supply, gas and electricity is authorized to conduct proceedings to appropriate any real estate "for the purpose of maintaining, preserving and increasing the supply of pure and wholesome water for the use of the city, and for the purpose of preventing or removing contamination or pollution of any supply or source or sources of supply of water heretofore acquired by or on behalf of said city, and for the purpose of preventing the contamination or pollution of any river, water course, lake, pond, stream or reservoir hereafter acquired for the purpose of supplying said city with water."

All the foregoing charter provisions were contained in the New York City Consolidation Act of 1882. Soon after the establishment in 1880 of the State Board of Health, due to the failure of the local boards to adequately safeguard the public health in their communities, that body began by legislative sanction and direction to centralize in itself the health control of the State, including the protection of all potable waters. Chapter 543 of the Laws of 1885 empowered the State Board of Health: "to make rules and regulations for protecting from contamination any and all public supplies of potable waters and their sources within this state; provided, however, that any such rule or regulation shall not be operative in any county until the county judge of that county shall have approved the same."

The statute of 1885 has now become section 70 of the present Public Health Law and authorizes the State Department of Health, and the city of New York in so far as its water supply is concerned, to make rules and regulations to prevent the potable waters of the State from contamination: "The state department of health may make rules and regulations for the protection from contamination of any or all public supplies of potable waters and their sources within the state, and the commissioner of water supply, gas and electricity of the city of New York, and the board of water supply of the city of New York may make such rules and regulations subject to the approval of the state department of health for the protection from contamination of any or all public supplies of potable waters and their sources within the state where the same constitute a part of the source of the public water supply of said city."

Acting under the provisions of the law of 1885, the State Department of Health (for at that time the city of New York did not have power under the statute to make rules of its own, and as I am informed has never since presented any rules for approval to the State Department of Health) drafted in 1889 a set of rules and regulations for the sanitary protection of the Croton river and its tributaries and for so much of the Bronx and Bryam rivers as were used for a supply of water for the city of New York. The first rule commanded that: "No privy, or place for the deposit or storage of human excreta, shall be constructed, located or maintained within fifty (50) feet, horizontal measurement, of the high-water mark of any lake, pond or reservoir, or within thirty (30) feet, horizontal measurement, of the high-water mark or precipitous bank of any spring, stream or water-course of any kind, tributary to said lakes, ponds or reservoirs on the entire watershed of the Croton river, or on those portions of the water-sheds of the Bronx and Bryam rivers now used for the water supply of the city of New York."

Subsequently, by an amendment to the rules, in 1893, the distance from the waters at which any of the foregoing structures could be maintained was increased to 300 feet, horizontal measurement, from high water mark of any lake, pond or reservoir, and 250 feet, horizontal measurement, from the high water mark or precipitous bank of any spring, stream or watercourse tributary to the lakes or ponds.

Neither of these sewage plants or their discharge pipes the State Department of Health certifies will be constructed within the prohibited area; and we are thus saved reflecting on the propriety of any attempt by the State Department of Health to override its own rules, without previously having modified them.

After a consideration of all the foregoing statutes, and from the history of public health administration in New York, I deduce the conclusions hereinafter briefly expressed. From its inception the subject of public health protection has been more and more a subject centralized in the State government, which through its Department of Health does not at all times act merely in an advisory capacity to the local boards of health, but may enforce its rules or orders throughout the entire State, and may compel the local boards to act in any particular way deemed most advisable by the State board. Public Health Law, §§ 1-6; 11, 26, 76-a, et seq. Therefore, nothing in the Greater New York Charter or any power elsewhere conferred upon the city can be deemed, without precise language to that effect, to supersede or withstand action by the State

Department of Health. In fact the Public Health Law with reference to rules which may be enacted by the city of New York for the protection of its water supply provides that those rules shall be " subject to the approval of the State Department of Health" (§ 70); and section 511 of the Greater New York Charter, notwithstanding the powers by previous sections just conferred upon the commissioner of water supply, gas and electricity to protect the city watershed, enacts that "any lake or reservoir constructed or maintained under the provisions of this act shall be subject to such sanitary regulations as the state board of health shall prescribe." Where also actions by municipalities in the Supreme Court are authorized by section 87 of the Public Health Law to restrain the discharge of sewage into any river, stream or lake within the county from which any city water supply is taken, before such action shall be brought, the State Department of Health must first determine whether the sewage does in fact pollute or contaminate the water supply.

Starting then from the premise that the State Department of Health is clothed with a superior administrative jurisdiction over the public health throughout the State, superseding in its control the regulations or ordinances of all municipalities; and approaching the statutes in that light, we readily analyze the situation presented on the Croton watershed.

The city of New York for the purposes of the discussion may be regarded in either of two aspects, (1) as a municipality to which has been delegated a power to guard beyond the limits of the municipality its water supply from contamination, or (2) as a lower riparian owner, a status which it has acquired through purchase and condemnation of real property along the streams and reservoirs by permission of the State.

Let us attend those different viewpoints respectively. As a municipality the city of New York, it is clear, has no other or greater powers over its water supply in Westchester county than the Legislature has conferred upon it, for in the nature of things no home rule power of a city under the Constitution could extend in its operation so far beyond the city boundaries. Also all such health powers which the Legislature has seen fit to grant are as we have noticed inferior and subordinate to determinations of the State Department of Health. So much in general on the relative position of the city as protector of its potable waters beyond the city limits and the superior position of the State as governmental protector of all potable waters of the State including this very water supply of the city of New York.

What then are the particular provisions of law which in the instances of these disposal plants bear upon that general relation between the city and State? The Legislature has without a doubt positively commanded the construction of these disposal plants on property located on the Croton watershed.

"The state commission in lunacy is hereby authorized to enter into a contract or contracts for the erection and completion of the Mohansic State Hospital for the Insane, authorized by chapter fifty-seven, laws of nineteen hundred and ten, upon terms believed by the commission to be most advantageous to the state, at a total cost of not exceeding the sum of two million dollars for the construction, erection and equipment of administration and all other buildings necessary to provide accommodations for at least two thousand

insane patients; and for the necessary heating, water supply and sewage disposal systems." (Chap. 529, Laws of 1910.)

The Commission to select a site for the New York State Training School for Boys is hereby continued,

"§ 2. Such commission is hereby authorized and directed, with all convenient speed, to

§ 6. Enter into contracts for the installation of a system of water supply, power plant and sewage disposal plant for the said New York State Training School for Boys; Laws of 1910, chapter 526.

Subsequent acts down to date continue the appropriations for the construction of the sewage plants. The Legislature has subjected the plans to the approval of the State Department of Health. It has prohibited any municipality from interfering with the plans because of the precaution taken that the State Health Department look after the sanitary conditions.

Ordinarily such detailed provisions of law evidencing the full legislative intent would be quite sufficient authority upon which to rest a denial of an injunction order - -the statutes cannot be attacked as unconstitutional, and the State officers are proceeding in strict compliance therewith, and so entirely within the power entrusted to them by the Legislature.

However I cannot conclude that the Legislature ever intended State officers should maintain a nuisance on any municipal watershed and thus seriously endanger the health of a community, notwithstanding the letter of the statutes and the vesting of supreme health control in the State Department. Such administrative discretion as has been conferred upon the State Health Department under the laws in adoption of plans for sewage disposal plants is in my opinion always subject to the limitation that it shall not be exercised so as to produce a situation inimical to the public health.

Now the Legislature by its statutes, which imperatively direct the erection of these two sewage plants, must have proceeded under the assumption that the science of engineering and sanitation can produce and has produced a sewage plant whose effluent is entirely harmless to neighboring potable waters. It has assumed that the Department of Health would refuse approval to any plans which would produce other than that result. Of common knowledge it is reported that the discharge of sewage plants if properly constructed and operated can be used with impunity. The Bedford Reformatory for Women and the village of Mt. Kisco already throw the effluent of sewage disposal plants into the waters of the Croton. Sewage disposal plants are not accordingly a nuisance per se.

No court should therefore at the present stage of affairs substitute its judg ment for that of the Legislature and the State Department of Health, by attempting to decide a particular structure will be a nuisance, when the Legislature and the State Department of Health have asserted and made what they deem effective provision to the end that such a structure will not be so. Any judicial determination ought properly to await the operation of the plants and an analysis of the actual effluent. In that event, if evidences of pollution appear the discharge may be further filtered or pumped to outlying districts or off the watershed, but until pollution has been proved to exist, not merely expected, the judicial department of government under the circumstances is, I believe, without jurisdiction to interpose its judgment. Nor

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