By the Court,
Welles, J. —
The judgment of the court below must be reversed, for the following reasons:
I, The indictment is bad for duplicity; it charges the defendant vdth two distinct offences — one, a common law nuisance punishable by fine not exceeding $“250, or imprisonment [489]*489not exceeding one year, or' both such fine and imprisonment. (2 R. S. 4 ed. 88, §§ 55, 56; 1 ed. 2 vol. 697, §§40, 41.) The other, for violating the' order of the board of health, involving punishment by fine not exceeding f 1000,- Or imprisonment not exceeding' two years, or both. (1 R. S. 4 ed. 853, § 15; Sess. L. of 1850, ch. 324, § 4.)
This objection is Hot aided by the verdict, nor the defect cured by the statute of jeofails. (The People v. Wright, 9 Wend. R. 196, and authorities there cited.)
It was contended on the argument by the counsel for the people, that, in truth, the count in question was not double; that all it says about the conduct of the defendant after the order' of the board of health was made, in scattering the filth, &c., does not amount to a nuisance, because not alleged to have been “ to the common nuisance of all the good people f &c., and may be treated as surplusage. The affirmative acts of the defendant are charged to have been done willfully, with intention to make and create a noisome and direful stench, offensive and dangerous to all the good people, and that the defendant did thereby make and create a noisome, offensive and direful stench; by means whereof and of the premises, divers persons became and were grievously sick, &c. The allegations contain the essential elements of a nuisance, and all that is wanting is the name. It is not necessary to decide whether this omission would be a fatal objection to the count, as for a nuisance, for, in the view in which we are considering the question, it does not lie with the people to raise it. If it were not so, it would follow, that if that part of the count charging a violation of the order of the board of health, was also defective in any respect, or, if the public prosecutor should attempt to set out two distinct offences in one count, which could not legally be joined, and neither was sufficiently stated, by the same rule, the objection of duplicity could not be made in either case. But a more substantial answer is, that in a case w'here one of the two offences is well, and the Other, defectively stated, and a general conviction on the Count, where the evidence would well warrant the verdict in respect to the lesser crime, but in regard to [490]*490the other, the court, at the trial, would have been justified in directing an acquittal, the party accused would be liable to be punished for an offence of which, but for the improper joinder, he would have been acquitted.
II. That portion of the count upon which the defendant was convicted, which charges a violation of the order of the board of health, and upon which the court below rendered judgment is clearly bad. The third section of the “ act for the preservation of the public health,” (Sess. L. of 1850, ch. 324,) prescribes the powers and duties of the several boards of health organized at the time of the passage of the act, in any city or village in the state, and of those constituted under the act. By subdivision three of that section, they are “ to make regulations in their discretion concerning the place and mode of quarantine, the examination and purification of vessels, boats and other craft not under quarantine; the treatment of articles or persons thereof, the regulation of intercourse with infected places, the apprehension, separation and treatment of emigrants and other persons, who shall have been exposed to any infectious or contagious disease; the suppression and removal of nuisances, and all such other regulations as they shall, think necessary and proper for the preservation of the public health. The sixth subdivision makes it their duty “ to publish from time to time all such regulations as they shall have made in such manner as to secure early and full publicity thereto.” The fourth section of the act is in the following words: “ Every person who shall willfully violate any regulation, so made and published, by any such board of health, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be subject to fine and imprisonment, or both, in the discretion of the court, such fine not to exceed one thousand dollars, nor such imprisonment two years.”
The order set forth in the first count of the indictment was not such a regulation, within the meaning of the act, as to make the disobedience of it by the defendant a misdemeanor. It was an ex parte adjudication or sentence in regard to a particular locality, and requiring of the defendant the performance [491]*491of a series of acts. The board of health probably had the power to adjudge and declare the premises a nuisance, and to procure it to be abated. The eighth subdivision of the fourth section gives them all needful facilities for so doing, and the fifth section of the act makes the county chargeable for all expenses except that of the compensation to the members of the board, which latter are chargeable upon the city or town. The regulations which the boards of health have power to make, so as to attach to the violation of them the penalties provided in the fourth section, are to be in the nature of bylaws; they are to be prescribed and published, and are to affect, generally, all persons within the scope of their operation. The term is to be understood in contradistinction to a judgment, sentence, decree or order, and contemplates the exercise of a power, in its character legislative rather than judicial. The requirement to publish them in such manner as to secure early and full reciprocity, shows clearly that they are of this character. The violation must not only have been willful, but committed after the regulations have been published in the manner directed. No reason can be assigned for giving early and full publicity to an order such as the one made by the board of health in this case; no one’s conduct or action was to be affected by it, but that of the defendant. A notice was all that could be useful to him, and so the board' regarded it; they directed personal notice to be served upon him after it was made, but did not order it published. It is impossible, we think, that the legislature could have intended to confer upon these boards of health the power to make an adjudication against an individual, pregnant with such serious consequences as are claimed in the present case, without notice and in his absence, consequences involving, it may be, not only a heavy pecuniary penalty, but that of perpetual infamy.
But assuming the order in question to have been a regulation, within the meaning of the act, a violation of it is not declared to be a misdemeanor unless committed after it has been published. There is no allegation that it was ever published. This was a condition precedent, and there being no averment [492]*492of its having been complied with by the 'board, is a fatal objection, to the indictment. Serving personal notice on the defendant, was; not giving early and Ml publicity to it,, and until it shall be so published no misdemeanor can be predicated of its disobedience.
HI. There were several errors committed by the court below upon the trial.
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By the Court,
Welles, J. —
The judgment of the court below must be reversed, for the following reasons:
I, The indictment is bad for duplicity; it charges the defendant vdth two distinct offences — one, a common law nuisance punishable by fine not exceeding $“250, or imprisonment [489]*489not exceeding one year, or' both such fine and imprisonment. (2 R. S. 4 ed. 88, §§ 55, 56; 1 ed. 2 vol. 697, §§40, 41.) The other, for violating the' order of the board of health, involving punishment by fine not exceeding f 1000,- Or imprisonment not exceeding' two years, or both. (1 R. S. 4 ed. 853, § 15; Sess. L. of 1850, ch. 324, § 4.)
This objection is Hot aided by the verdict, nor the defect cured by the statute of jeofails. (The People v. Wright, 9 Wend. R. 196, and authorities there cited.)
It was contended on the argument by the counsel for the people, that, in truth, the count in question was not double; that all it says about the conduct of the defendant after the order' of the board of health was made, in scattering the filth, &c., does not amount to a nuisance, because not alleged to have been “ to the common nuisance of all the good people f &c., and may be treated as surplusage. The affirmative acts of the defendant are charged to have been done willfully, with intention to make and create a noisome and direful stench, offensive and dangerous to all the good people, and that the defendant did thereby make and create a noisome, offensive and direful stench; by means whereof and of the premises, divers persons became and were grievously sick, &c. The allegations contain the essential elements of a nuisance, and all that is wanting is the name. It is not necessary to decide whether this omission would be a fatal objection to the count, as for a nuisance, for, in the view in which we are considering the question, it does not lie with the people to raise it. If it were not so, it would follow, that if that part of the count charging a violation of the order of the board of health, was also defective in any respect, or, if the public prosecutor should attempt to set out two distinct offences in one count, which could not legally be joined, and neither was sufficiently stated, by the same rule, the objection of duplicity could not be made in either case. But a more substantial answer is, that in a case w'here one of the two offences is well, and the Other, defectively stated, and a general conviction on the Count, where the evidence would well warrant the verdict in respect to the lesser crime, but in regard to [490]*490the other, the court, at the trial, would have been justified in directing an acquittal, the party accused would be liable to be punished for an offence of which, but for the improper joinder, he would have been acquitted.
II. That portion of the count upon which the defendant was convicted, which charges a violation of the order of the board of health, and upon which the court below rendered judgment is clearly bad. The third section of the “ act for the preservation of the public health,” (Sess. L. of 1850, ch. 324,) prescribes the powers and duties of the several boards of health organized at the time of the passage of the act, in any city or village in the state, and of those constituted under the act. By subdivision three of that section, they are “ to make regulations in their discretion concerning the place and mode of quarantine, the examination and purification of vessels, boats and other craft not under quarantine; the treatment of articles or persons thereof, the regulation of intercourse with infected places, the apprehension, separation and treatment of emigrants and other persons, who shall have been exposed to any infectious or contagious disease; the suppression and removal of nuisances, and all such other regulations as they shall, think necessary and proper for the preservation of the public health. The sixth subdivision makes it their duty “ to publish from time to time all such regulations as they shall have made in such manner as to secure early and full publicity thereto.” The fourth section of the act is in the following words: “ Every person who shall willfully violate any regulation, so made and published, by any such board of health, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be subject to fine and imprisonment, or both, in the discretion of the court, such fine not to exceed one thousand dollars, nor such imprisonment two years.”
The order set forth in the first count of the indictment was not such a regulation, within the meaning of the act, as to make the disobedience of it by the defendant a misdemeanor. It was an ex parte adjudication or sentence in regard to a particular locality, and requiring of the defendant the performance [491]*491of a series of acts. The board of health probably had the power to adjudge and declare the premises a nuisance, and to procure it to be abated. The eighth subdivision of the fourth section gives them all needful facilities for so doing, and the fifth section of the act makes the county chargeable for all expenses except that of the compensation to the members of the board, which latter are chargeable upon the city or town. The regulations which the boards of health have power to make, so as to attach to the violation of them the penalties provided in the fourth section, are to be in the nature of bylaws; they are to be prescribed and published, and are to affect, generally, all persons within the scope of their operation. The term is to be understood in contradistinction to a judgment, sentence, decree or order, and contemplates the exercise of a power, in its character legislative rather than judicial. The requirement to publish them in such manner as to secure early and full reciprocity, shows clearly that they are of this character. The violation must not only have been willful, but committed after the regulations have been published in the manner directed. No reason can be assigned for giving early and full publicity to an order such as the one made by the board of health in this case; no one’s conduct or action was to be affected by it, but that of the defendant. A notice was all that could be useful to him, and so the board' regarded it; they directed personal notice to be served upon him after it was made, but did not order it published. It is impossible, we think, that the legislature could have intended to confer upon these boards of health the power to make an adjudication against an individual, pregnant with such serious consequences as are claimed in the present case, without notice and in his absence, consequences involving, it may be, not only a heavy pecuniary penalty, but that of perpetual infamy.
But assuming the order in question to have been a regulation, within the meaning of the act, a violation of it is not declared to be a misdemeanor unless committed after it has been published. There is no allegation that it was ever published. This was a condition precedent, and there being no averment [492]*492of its having been complied with by the 'board, is a fatal objection, to the indictment. Serving personal notice on the defendant, was; not giving early and Ml publicity to it,, and until it shall be so published no misdemeanor can be predicated of its disobedience.
HI. There were several errors committed by the court below upon the trial.
L The evidence tending to show that the defendant had been guilty of creating a nuisance by scattering the contents of the privy through the streets of the village of Albion, was improperly admitted, for the purpose of proving a violation of the order of the board of health. It did not tend to establish his guilt upon the charge of violating the order, which was manifestly the Only offence of which the public prosecutor was seeking to convict the defendant. It was so stated by the court in his charge to the jury. The disobedience complained of was the omission by the defendant to perform certain affirmative acts enjoined by the order. The evidence in question could have no tendency to establish that charge, and its effect could be only to embarrass the jury, and create a prejudice against the defendant. If it was admissible for the purpose of convicting the defendant of a common law nuisance — which is dis claimed on the part of the people — it only fortifies the objection to the indictment, of duplicity. If the evidence had been received simply to bear on the question whether the order had been willfully violated, and had been confined to that object, perhaps it would have been unobjectionable. But the judge instructed the jury that it was proper to be considered by them upon the question whether the defendant had violated the order of the seventh of July. This we think was clearly erroneous.
2. The defendant offered evidence tending to show that in the months of July and Angust (1852) he gave directions in relation to cleaning up the premises in question. This was objected to on the part of the people and excluded by the court. We think, under the circumstances, it should have been admitted. No ground of objection is stated in the bill of excep[493]*493tions, and no .specific object avowed in the offer. We can see, however, a point of view in which it might have been proper, especially if it had been followed up with other evidence, which the defendant was virtually prevented by the court from doing. It was competent, we think, for the defendant to prove a bona fide attempt on his part to obey the order of the board of health, and although such attempt might have fallen short of a full compliance, yet it would have been competent on the question whether the failure was willful.
3. There was evidence given tending to show that the def< ndant removed from the village of Albion about the 17th of J me, 1852, -with his family, to his farm a mile and a half off fi 3m the corporation of the village of Albion, where he had si ice resided. The court was requested to charge the jury that if they should find that the defendant, at the time of the making ai d serving the order, resided out of the corporation of the village of Albion, and that the notice or order was served on him out of said corporation, they should acquit the defendant. The court refused so to charge, but charged that if they should find that the defendant, at the time the order was made, resided out of said village, and continued to reside out of said village, and had no control of said premises, they should acquit him. We think the defendant was entitled to have the jury instructed as requested, without the condition or qualification imposed by the court.
This point involves the question whether a municipal corporation' has power, through any of its agents or subordinates, to bind by its bylaws or regulations persons -not members of the body, or residents of the locality embraced by the geographical boundaries of the corporation. I entertain no doubt that persons, residing out of such corporate bounds, may render themselves obnoxious to the bylaws and regulations of the corporation by coming within, and while there violating them. But I deny the right of snch a corporation to make bylaws or regulations, binding personally upon an individual not residing within its geographical bounds, and who has done no act within them after the making of the bylaw. It is not important to deter[494]*494mine whether this board of health was a corporation; it clearly could possess no more extensive jurisdiction in regard to per sons or territorial limits, than the corporation of the village of Albion, by whose action it was brought into existence. It should be borne in mind that the charge against the defendant in this case was, not that he had done anything, but that he had omitted to perform certain things which the order required of him. Whatever his liability in reference to this order might have been, in case he had been a resident of the village of Albion, and therefore a member of the corporation, at the time the order was made, if he was not such a resident at that time, he was not amenable to its authority, or liable to obey its injunctions. The court below made his liability to depend upon the questions, whether he continued to reside out of the village and whether he had the control of the premises. According to this holding, a man residing in the city of New York, owning premises in the village of Albion, of which he had the control, might be sent to the state prison for the acts of third persons, done without his permission or knowledge, or for omitting to perform any act in reference to such sanitary regulations as the board of health might see fit to require of him. Such a doctrine would be intolerable; and I am not willing to concede to any municipal corporation, or any body of their creation, a power so fraught with danger to the rights of individuals without the express requirement of the legislative authority. The qualification of the charge in relation to the defendant’s control of the premises, was unwarranted, assuming the order to have been a valid regulation within the meaning of the act, inasmuch as the offence charged and for which the conviction was had, did not consist of any affirmative act done by the defendant within the bounds of the corporation after the makiug and publication of the regulation he was charged with violating.
Judgment reversed