that the defendant should at least have alleged a holding of twenty years' duration. Here he does not go beyond three. And in Crump v. Lambert, L. R. 3 Eq. Cas. 409: "Whether one," says Lord Romilly, comes to the nuisance or the nuisance comes to him, he still retains his right to have the air that passes over his land pure and unpolluted." And so in Tipping v. St. Helen's Smelting Co., L. R. 1 Ch. App. 66, ViceChancellor Page-Wood held that the fact that the plaintiff had come to the nuisance did not disentitle him to relief in equity.

It does not seem to us, therefore, that the defendant has any reason to complain of the several instructions granted by the court at the request of the plaintiff, or to the refusal of its own prayers. If there was any error on the part of the court, it was, perhaps, in granting the defendant's fifth prayer, to which, however, we take it for granted the defendant company makes no objection.

Now, as to the evidence offered in the first exception, it does not seem to us that the fact that five hundred thousand dollars had been invested in other fertilizer factories in the neighborhood could have any bearing upon the issues before the jury. The defendant had already proved that there was a number of fertilizer factories in the neighborhood, and had offered evidence tending to prove that the nuisance complained of was caused by these factories. Such evidence as this was admissible and proper evidence. But the fact that five hundred thousand dollars had been invested in other works in the neighborhood could not in any manner affect the plaintiff's right to recover. The only effect of such evidence, it seems to us, would be to show what loss or injury the owners of these factories might sustain, if the business carried on by them should be found to be a nuisance.

But that was not a question for the consideration of the jury. The law, in cases of this kind, will not undertake to balance the conveniences, or estimate the difference between the injury sustained by the plaintiff, and the loss that may result to the defendant from having its trade and business, as now carried on, found to be a nuisance. No one has a right to erect works which are a nuisance to a neighboring owner, and then say he has expended large sums of money in the erection of his works, while the neighboring property is comparatively of little value. The neighboring owner is entitled to the reasonable and comfortable enjoyment of his

property, and if his rights in this respect are invaded, he is entitled to the protection of the law, let the consequences be what they may.

Judgment affirmed.

NUISANCE- DEFINITION. — Any unreasonable use by a person of his own property to the injury of others is a nuisance, and renders the owner liable for damages arising therefrom: Laflin etc. Powder Co. v. Tearney, 131 IIL 322; 19 Am. St. Rep. 34; State v. Yopp, 97 N. C. 477; 2 Am. St. Rep. 305, and note; Ashbrook v. Commonwealth, 1 Bush, 139; 89 Am. Dec. 616, and note; Keiser v. Mahanoy etc. Gas Co., 143 Pa. St. 276; Meiners v. Frederick Miller etc. Co., 78 Wis. 364; Shivery v. Streeper, 24 Fla. 104.

NUISANCE - WHETHER A QUESTION OF LAW OR FACT. A party maintaining a nuisance is not entitled to a jury trial in proceeding for its abatement: Hart v. Mayor of Albany, 9 Wend. 571; 24 Am. Dec. 165 See note to Young v. State Bank, 58 Am. Dec. 632. The question whether a thing is a nuisance must be settled as a question of fact: Des Plaines v. Poyer, 123 Ill. 348; 5 Am. St. Rep. 524, and note; Johnson v. Borson, 77 Wis. 593.

NUISANCE PRESCRIPTIVE RIGHT-INADEQUATE DEFENSE. It is no defense to the maintenance of a nuisance that there are similar establishments in the neighborhood, and that they were there before plaintiffs came there: Laflin etc. Powder Co. v. Tearney, 131 Ill. 322; 19 Am. St. Rep. 34; Hurlbut v. McKone, 55 Conn. 31; 3 Am. St. Rep. 17; People v. Detroit etc. Lead Works, 82 Mich. 471.

NUISANCE - Loss of Party MAINTAINING, NO DEFENSE. — It is no defense to a nuisance that it is necessary to the operation of the business of the ons maintaining it: Shively ▼. Cedar Rapids etc. R'y Co., 74 Iowa, 169; 7 Am. St. ́ Rep. 471, and note.

making the common right of the people of the whole state to take oysters from its waters depend upon the result of the popular vote of persons residing in any number of the election districts of a certain county, as to whether or not the taking of oysters by scoop or dredge within the waters of such county by any person shall be prohibited, is unconstitutional. The legislature cannot delegate its power to a county to regulate or deny a right common to the people of the whole state.

MANDAMUS to compel the issuance of a license to take oysters with scoop or dredge in any of the waters of Somerset County. Judgment dismissing the petition, and the petitioner appealed.

Thomas S. Hodson, for the appellant.

William Pinkney Whyte, attorney-general, for the appellee.

ROBINSON, J. By the act of 1890, chapter 629, the question whether or not the taking of oysters by scoop or dredge within the waters of Somerset County shall be prohibited was submitted to the voters of certain election districts of said county; and should a majority of the votes cast be in favor of the prohibition, the act provided it should be unlawful for any person to take oysters by scoop or dredge within the waters of said county.

The question before us is, whether this statute is a valid exercise of legislative power; or in other words, whether the legislature had the power to submit such a question to the voters of the districts named in the act, and make the operation of the act depend upon the contingency of a popular

vote.

Now, it can hardly be necessary to say that, by the constitution of this state, the power to enact laws belongs to the general assembly, composed of the senate and the house of delegates; and this being so, it is a well-settled principle of constitutional law that the power thus delegated cannot be redelegated to the people themselves. Our government is a representative government, and to the members of the general assembly the people have confided the power to pass such laws as they, in the exercise of their judgment, may deem best for the public interests; and they have no power to substitute the judgment of others in matters of legislation for the judgment of those to whom this sovereign trust has been committed.

But, fundamental as this principle may be, it is subject to certain qualifications, some of which are well recognized, both in this country and in England. No one questions the power of the legislature to charter municipal corporations, and to confer upon such corporations the power to pass laws and ordinances in regard to matters pertaining to local legisla tion. And it seems to be quite well settled, in this country at least, that not only may the municipal authorities themselves. pass such laws and ordinances, but the legislature may refer laws in regard to local affairs to the voters of the municipality for their acceptance or rejection: Cooley's Constitutional Limitations, 144, and cases referred to in notes.

Upon the same principle, counties, although not possessing the general powers of municipal corporations under special charters, are regarded as quasi corporations, and it seems to be well settled that questions of local concern, whether, for

instance, a county seat once located shall be removed elsewhere, or whether the county shall subscribe to a particular improvement, these and other like questions of local legislation may be referred to the voters of the county for decision: Commonwealth v. Judges of Quarter Sessions, 8 Pa. St. 391; Call v. Chadbourne, 46 Me. 206; Commonwealth v. Painter, 10 Pa. St. 214; Slinger v. Henneman, 38 Wis. 504; Goddin v. Crump, 8 Leigh, 129; Bridgeport v. Housatonic R. R. Co., 15 Conn. 475.

Upon the same principle, too, it has been held in this state that laws passed under the police powers of the state regulating or forbidding the sale of intoxicating drinks, commonly known as "local-option laws," may be submitted to the voters of an election district of a county, and the operation of such laws made to depend upon the result of a popular vote in said districts: Hammond v. Haines, 25 Md. 541; 90 Am. Dec. 77; Fell v. State, 42 Md. 71; 20 Am. Rep. 83.

We shall not stop to consider the reasons on which these cases are based; whatever may be the reasons, the decisions were made upon full consideration, and are binding upon us. In all these cases, however, the several statutes considered by the court were local in their operation, and affected the people only to whom they were referred for their approval or rejection. But the act of 1890 now before us can in no sense be considered a local law affecting only the people of the several election districts to whom it was submitted for their decision. On the contrary, if a majority of the voters of these districts should be in favor of the prohibition, the act makes it unlawful for any person in the state to take oysters by scoop or dredge within the waters of Somerset County. It thus deprives the people of the entire state of the common right which they enjoyed to take oysters by scoop or dredge within the waters of said county. Now, the oyster-beds within the waters of Somerset County do not belong to the people of that county, much less to the voters of certain election districts of the county, to whom the operation of the act was submitted. They belong to the state, and although the legislature, representing the sovereign power of the state, may pass laws regulating the taking of oysters within the waters of the state, it would be against every principle of sound legislative policy, and repugnant to the maxim which forbids the delegation of legislative power, to hold that it is competent for the legislature to make the operation of a statute thus affecting the common right of the people of the whole state depend upon

the result of a popular vote of persons residing within three or four or any given number of election districts of a county. We have no disposition to extend the exceptions to the general maxim which wisely forbids the delegation of legislative power, beyond the cases to which we have referred, and the principles on which they are based. We fully concur in what was said in Hammond v. Haines, 25 Md. 562, 90 Am. Dec. 77, that "the general assembly, composed of the senate and house of delegates, is in this state the only law-making power. With them is lodged the power of making laws for the government of the people, and the due responsibility of the representative to his constituents is best maintained, and stable and wholesome legislation secured, by avoiding judicial refinements by which this power is extended to any whom the constitution has not invested with legislative action."

Order reversed, and cause remanded, with order to issue the writ of mandamus.

CONSTITUTIONAL LAW- DELEGATION OF LEGISLATIVE Authority. — An act providing that it shall be unlawful to allow cattle to run at large in any county which, by a majority vote, should agree to restrain them is uncon. stitutional, as a delegation of legislative power: Lammert v. Lidwell, 62 Mo. 188; 21 Am. Rep. 411. For the same reason, a statute authorizing the crea tion of a municipal corporation upon the petition of a majority of its inhab itants is unconstitutional: Territory v. Stewart, 1 Wash. 98.

All laws of a general nature must have a uniform operation throughout the state: State v. Ellet, 47 Ohio St. 90; 21 Am. St Rep. 772, and note; Utxey v. Hiott, 30 S. C. 260; 14 Am. St. Rep. 910, and note.

A police law to take effect upon local adoption is not unconstitutional; Boyd v. Bryant, 35 Ark. 69; 37 Am. Rep. 6, and note. A statute authoriz. ing the establishment of township high schools on a vote of the people is valid: Richards v. Raymond, 92 Ill. 612; 34 Am. Rep. 151. The taking effect of a statute affecting a particular county may be made dependent upon the vote of the county: Commonwealth v. Weller, 14 Bush, 218; 29 Am. Rep. 407, and note. The authorizing of towns to take charge of their public schools by a majority vote is constitutional: Werner v. Galveston, 72 Tex. 22.